G.R. No.

L-62952 October 9, 1985

SOFIA J. NEPOMUCENO, petitioner,

vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG, CARMELITA JUGO,respondents.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside that portion of the decision of the respondent Court of Appeals (now intermediate Appellate Court) dated
June 3, 1982, as amended by the resolution dated August 10, 1982, declaring as null and void the devise in favor of the petitioner and the resolution
dated December 28, 1982 denying petitioner's motion for reconsideration.

Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly signed by him at the end of the Will on page three and on
the left margin of pages 1, 2 and 4 thereof in the presence of Celestina Alejandro, Myrna C. Cortez, and Leandro Leano, who in turn, affixed their
signatures below the attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the presence of the testator and of each other and the
Notary Public. The Will was acknowledged before the Notary Public Romeo Escareal by the testator and his three attesting witnesses.

In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his sole and only executor of his estate. It is clearly stated
in the Will that the testator was legally married to a certain Rufina Gomez by whom he had two legitimate children, Oscar and Carmelita, but since
1952, he had been estranged from his lawfully wedded wife and had been living with petitioner as husband and wife. In fact, on December 5, 1952,
the testator Martin Jugo and the petitioner herein, Sofia J. Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The testator
devised to his forced heirs, namely, his legal wife Rufina Gomez and his children Oscar and Carmelita his entire estate and the free portion thereof to
herein petitioner. The Will reads in part:

Art. III. That I have the following legal heirs, namely: my aforementioned legal wife, Rufina Gomez, and our son, Oscar, and
daughter Carmelita, both surnamed Jugo, whom I declare and admit to be legally and properly entitled to inherit from me; that
while I have been estranged from my above-named wife for so many years, I cannot deny that I was legally married to her or that
we have been separated up to the present for reasons and justifications known fully well by them:

Art. IV. That since 1952, 1 have been living, as man and wife with one Sofia J. Nepomuceno, whom I declare and avow to be
entitled to my love and affection, for all the things which she has done for me, now and in the past; that while Sofia J. Nepomuceno
has with my full knowledge and consent, did comport and represent myself as her own husband, in truth and in fact, as well as in
the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned previous marriage;

On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament of the deceased Martin Jugo in the Court of First
Instance of Rizal, Branch XXXIV, Caloocan City and asked for the issuance to her of letters testamentary.

On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an opposition alleging inter alia that the execution of the Will was
procured by undue and improper influence on the part of the petitioner; that at the time of the execution of the Will, the testator was already very sick
and that petitioner having admitted her living in concubinage with the testator, she is wanting in integrity and thus, letters testamentary should not be
issued to her.

On January 6, 1976, the lower court denied the probate of the Will on the ground that as the testator admitted in his Will to cohabiting with the petitioner
from December 1952 until his death on July 16, 1974, the Will's admission to probate will be an Idle exercise because on the face of the Will, the
invalidity of its intrinsic provisions is evident.

The petitioner appealed to the respondent-appellate court.

On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of Rizal denying the probate of the will. The respondent
court declared the Will to be valid except that the devise in favor of the petitioner is null and void pursuant to Article 739 in relation with Article 1028 of
the Civil Code of the Philippines. The dispositive portion of the decision reads:

WHEREFORE, the decision a quo is hereby set aside, the will in question declared valid except the devise in favor of the appellant
which is declared null and void. The properties so devised are instead passed on in intestacy to the appellant in equal shares,
without pronouncement as to cost.

On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction of Clerical Error" praying that the word "appellant" in the
last sentence of the dispositive portion of the decision be changed to "appellees" so as to read: "The properties so devised are instead passed on
intestacy to the appellees in equal shares, without pronouncement as to costs." The motion was granted by the respondent court on August 10, 1982.
On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by the respondent court in a resolution dated December 28,
1982.

The main issue raised by the petitioner is whether or not the respondent court acted in excess of its jurisdiction when after declaring the last Will and
Testament of the deceased Martin Jugo validly drawn, it went on to pass upon the intrinsic validity of the testamentary provision in favor of herein
petitioner.

The petitioner submits that the validity of the testamentary provision in her favor cannot be passed upon and decided in the probate proceedings but
in some other proceedings because the only purpose of the probate of a Will is to establish conclusively as against everyone that a Will was executed
with the formalities required by law and that the testator has the mental capacity to execute the same. The petitioner further contends that even if the
provisions of paragraph 1 of Article 739 of the Civil Code of the Philippines were applicable, the declaration of its nullity could only be made by the
proper court in a separate action brought by the legal wife for the specific purpose of obtaining a declaration of the nullity of the testamentary provision
in the Will in favor of the person with whom the testator was allegedly guilty of adultery or concubinage.

The respondents on the other hand contend that the fact that the last Will and Testament itself expressly admits indubitably on its face the meretricious
relationship between the testator and the petitioner and the fact that petitioner herself initiated the presentation of evidence on her alleged ignorance
of the true civil status of the testator, which led private respondents to present contrary evidence, merits the application of the doctrine enunciated
in Nuguid v. Felix Nuguid, et al. (17 SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et al.(G.R. No. L- 39247, June 27, 1975). Respondents
also submit that the admission of the testator of the illicit relationship between him and the petitioner put in issue the legality of the devise. We agree
with the respondents.

The respondent court acted within its jurisdiction when after declaring the Will to be validly drawn, it went on to pass upon the intrinsic validity of the
Will and declared the devise in favor of the petitioner null and void.

The general rule is that in probate proceedings, the court's area of inquiry is limited to an examination and resolution of the extrinsic validity of the Will.
The rule is expressed thus:

xxx xxx xxx

... It is elementary that a probate decree finally and definitively settles all questions concerning capacity of the testator and the
proper execution and witnessing of his last Will and testament, irrespective of whether its provisions are valid and enforceable or
otherwise. (Fernandez v. Dimagiba, 21 SCRA 428)

The petition below being for the probate of a Will, the court's area of inquiry is limited to the extrinsic validity thereof. The testators
testamentary capacity and the compliance with the formal requisites or solemnities prescribed by law are the only questions
presented for the resolution of the court. Any inquiry into the intrinsic validity or efficacy of the provisions of the will or the legality
of any devise or legacy is premature.

xxx xxx xxx

True or not, the alleged sale is no ground for the dismissal of the petition for probate. Probate is one thing; the validity of the
testamentary provisions is another. The first decides the execution of the document and the testamentary capacity of the testator;
the second relates to descent and distribution (Sumilang v. Ramagosa, 21 SCRA 1369)

xxx xxx xxx

To establish conclusively as against everyone, and once for all, the facts that a will was executed with the formalities required by
law and that the testator was in a condition to make a will, is the only purpose of the proceedings under the new code for the
probate of a will. (Sec. 625). The judgment in such proceedings determines and can determine nothing more. In them the court
has no power to pass upon the validity of any provisions made in the will. It can not decide, for example, that a certain legacy is
void and another one valid. ... (Castaneda v. Alemany, 3 Phil. 426)

The rule, however, is not inflexible and absolute. Given exceptional circumstances, the probate court is not powerless to do what the situation constrains
it to do and pass upon certain provisions of the Will.

In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as universal heir and completely preterited her surviving
forced heirs. A will of this nature, no matter how valid it may appear extrinsically, would be null and void. Separate or latter proceedings to determine
the intrinsic validity of the testamentary provisions would be superfluous.
Even before establishing the formal validity of the will, the Court in Balanay .Jr. v. Martinez (64 SCRA 452) passed upon the validity of its intrinsic
provisions.

Invoking "practical considerations", we stated:

The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will, before ruling on its allowance or
formal validity, and in declaring it void.

We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality, and because of the motion
to withdraw the petition for probate (which the lower court assumed to have been filed with the petitioner's authorization) the trial
court acted correctly in passing upon the will's intrinsic validity even before its formal validity had been established. The probate of
a will might become an Idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that
the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue (Nuguid v. Nuguid, 64
O.G. 1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa L-23135, December 26, 1967, 21 SCRA 1369; Cacho v. Udan
L-19996, April 30, 1965, 13 SCRA 693).

There appears to be no more dispute at this time over the extrinsic validity of the Will. Both parties are agreed that the Will of Martin Jugo was executed
with all the formalities required by law and that the testator had the mental capacity to execute his Will. The petitioner states that she completely agrees
with the respondent court when in resolving the question of whether or not the probate court correctly denied the probate of Martin Jugo's last Will and
Testament, it ruled:

This being so, the will is declared validly drawn. (Page 4, Decision, Annex A of Petition.)

On the other hand the respondents pray for the affirmance of the Court of Appeals' decision in toto.

The only issue, therefore, is the jurisdiction of the respondent court to declare the testamentary provision in favor of the petitioner as null and void.

We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra):

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation
will be protracted. And for aught that appears in the record, in the record, in the event of probate or if the court rejects the will,
probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will.
Result, waste of time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief that we
might as well meet head-on the issue of the validity of the provisions of the will in question. (Section 2, Rule 1, Rules of Court.
Case, et al. v. Jugo, et al., 77 Phil. 517, 522). After all, there exists a justiciable controversy crying for solution.

We see no useful purpose that would be served if we remand the nullified provision to the proper court in a separate action for that purpose simply
because, in the probate of a will, the court does not ordinarily look into the intrinsic validity of its provisions.

Article 739 of the Civil Code provides:

The following donations shall be void:

(1) Those made between persons who were guilty of adultery or concubinage at the time of the donation;

(2) Those made between persons found guilty of the same criminal offense, in consideration thereof;

(3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office.

In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the
guilt of the donor and donee may be proved by preponderance of evidence in the same action.

Article 1028 of the Civil Code provides:

The prohibitions mentioned in Article 739, concerning donations inter vivos shall apply to testamentary provisions.

In Article III of the disputed Will, executed on August 15, 1968, or almost six years before the testator's death on July 16, 1974, Martin Jugo stated that
respondent Rufina Gomez was his legal wife from whom he had been estranged "for so many years." He also declared that respondents Carmelita
Jugo and Oscar Jugo were his legitimate children. In Article IV, he stated that he had been living as man and wife with the petitioner since 1952.
Testator Jugo declared that the petitioner was entitled to his love and affection. He stated that Nepomuceno represented Jugo as her own husband
but "in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned
previous marriage.

There is no question from the records about the fact of a prior existing marriage when Martin Jugo executed his Will. There is also no dispute that the
petitioner and Mr. Jugo lived together in an ostensible marital relationship for 22 years until his death.

It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted a marriage before the Justice of the Peace of Victoria,
Tarlac. The man was then 51 years old while the woman was 48. Nepomuceno now contends that she acted in good faith for 22 years in the belief
that she was legally married to the testator.

The records do not sustain a finding of innocence or good faith. As argued by the private respondents:

First. The last will and testament itself expressly admits indubitably on its face the meretricious relationship between the testator
and petitioner, the devisee.

Second. Petitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil status of the testator,
which led private respondents to present contrary evidence.

In short, the parties themselves dueled on the intrinsic validity of the legacy given in the will to petitioner by the deceased testator
at the start of the proceedings.

Whether or not petitioner knew that testator Martin Jugo, the man he had lived with as man and wife, as already married, was an
important and specific issue brought by the parties before the trial court, and passed upon by the Court of Appeals.

Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner who opted to present evidence on her alleged
good faith in marrying the testator. (Testimony of Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 62-64).

Private respondents, naturally, presented evidence that would refute the testimony of petitioner on the point.

Sebastian Jugo, younger brother of the deceased testator, testified at length on the meretricious relationship of his brother and
petitioner. (TSN of August 18,1975).

Clearly, the good faith of petitioner was by option of the parties made a decisive issue right at the inception of the case.

Confronted by the situation, the trial court had to make a ruling on the question.

When the court a quo held that the testator Martin Jugo and petitioner 'were deemed guilty of adultery or concubinage', it was a
finding that petitioner was not the innocent woman she pretended to be.

3. If a review of the evidence must be made nonetheless, then private respondents respectfully offer the following analysis:

FIRST: The secrecy of the marriage of petitioner with the deceased testator in a town in Tarlac where neither she nor the testator
ever resided. If there was nothing to hide from, why the concealment' ? Of course, it maybe argued that the marriage of the
deceased with private respondent Rufina Gomez was likewise done in secrecy. But it should be remembered that Rufina Gomez
was already in the family way at that time and it would seem that the parents of Martin Jugo were not in favor of the marriage so
much so that an action in court was brought concerning the marriage. (Testimony of Sebastian Jugo, TSN of August 18, 1975, pp.
29-30)

SECOND: Petitioner was a sweetheart of the deceased testator when they were still both single. That would be in 1922 as Martin
Jugo married respondent Rufina Gomez on November 29, 1923 (Exh. 3). Petitioner married the testator only on December 5,
1952. There was a space of about 30 years in between. During those 30 years, could it be believed that she did not even wonder
why Martin Jugo did not marry her nor contact her anymore after November, 1923 - facts that should impel her to ask her groom
before she married him in secrecy, especially so when she was already about 50 years old at the time of marriage.

THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by itself conclusive demonstration that she new that the man
she had openly lived for 22 years as man and wife was a married man with already two children.
 FOURTH: Having admitted that she knew the children of respondent Rufina Gomez, is it possible that she would not have asked
Martin Jugo whether or not they were his illegitimate or legitimate children and by whom? That is un-Filipino.

FIFTH: Having often gone to Pasig to the residence of the parents of the deceased testator, is it possible that she would not have
known that the mother of private respondent Oscar Jugo and Carmelita Jugo was respondent Rufina Gomez, considering that the
houses of the parents of Martin Jugo (where he had lived for many years) and that of respondent Rufina Gomez were just a few
meters away?

Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say the least, inherently improbable, for they are
against the experience in common life and the ordinary instincts and promptings of human nature that a woman would not bother
at all to ask the man she was going to marry whether or not he was already married to another, knowing that her groom had
children. It would be a story that would strain human credulity to the limit if petitioner did not know that Martin Jugo was already a
married man in view of the irrefutable fact that it was precisely his marriage to respondent Rufina Gomez that led petitioner to
break off with the deceased during their younger years.

Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between persons who are living in adultery or concubinage.
It is the donation which becomes void. The giver cannot give even assuming that the recipient may receive. The very wordings of the Will invalidate
the legacy because the testator admitted he was disposing the properties to a person with whom he had been living in concubinage.

WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals, now Intermediate Appellate Court, is AFFIRMED.
No costs.

SO ORDERED.

G.R. No. L-54919 May 30, 1984

POLLY CAYETANO, petitioner,

vs.
HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of Branch XXXVIII, Court of First Instance of Manila and NENITA CAMPOS
PAGUIA, respondents.

GUTIERREZ, JR., J.:

This is a petition for review on certiorari, seeking to annul the order of the respondent judge of the Court of First Instance of Manila, Branch XXXVIII,
which admitted to and allowed the probate of the last will and testament of Adoracion C. Campos, after an ex-parte presentation of evidence by herein
private respondent.

On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes Campos and her sisters, private respondent Nenita C.
Paguia, Remedios C. Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes Campos was the only compulsory heir, he executed an
Affidavit of Adjudication under Rule 74, Section I of the Rules of Court whereby he adjudicated unto himself the ownership of the entire estate of the
deceased Adoracion Campos.

Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate of a will of the deceased, Adoracion Campos, which
was allegedly executed in the United States and for her appointment as administratrix of the estate of the deceased testatrix.

In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death and was a permanent resident of 4633 Ditman Street,
Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in Manila on January 31, 1977 while temporarily residing with her sister at 2167 Leveriza,
Malate, Manila; that during her lifetime, the testatrix made her last wig and testament on July 10, 1975, according to the laws of Pennsylvania, U.S.A.,
nominating Wilfredo Barzaga of New Jersey as executor; that after the testatrix death, her last will and testament was presented, probated, allowed,
and registered with the Registry of Wins at the County of Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who was appointed after
Dr. Barzaga had declined and waived his appointment as executor in favor of the former, is also a resident of Philadelphia, U.S.A., and that therefore,
there is an urgent need for the appointment of an administratrix to administer and eventually distribute the properties of the estate located in the
Philippines.

On January 11, 1978, an opposition to the reprobate of the will was filed by herein petitioner alleging among other things, that he has every reason to
believe that the will in question is a forgery; that the intrinsic provisions of the will are null and void; and that even if pertinent American laws on intrinsic
provisions are invoked, the same could not apply inasmuch as they would work injustice and injury to him.
On December 1, 1978, however, the petitioner through his counsel, Atty. Franco Loyola, filed a Motion to Dismiss Opposition (With Waiver of Rights
or Interests) stating that he "has been able to verify the veracity thereof (of the will) and now confirms the same to be truly the probated will of his
daughter Adoracion." Hence, an ex-partepresentation of evidence for the reprobate of the questioned will was made.

On January 10, 1979, the respondent judge issued an order, to wit:

At the hearing, it has been satisfactorily established that Adoracion C. Campos, in her lifetime, was a citizen of the United States
of America with a permanent residence at 4633 Ditman Street, Philadelphia, PA 19124, (Exhibit D) that when alive, Adoracion C.
Campos executed a Last Will and Testament in the county of Philadelphia, Pennsylvania, U.S.A., according to the laws thereat
(Exhibits E-3 to E-3-b) that while in temporary sojourn in the Philippines, Adoracion C. Campos died in the City of Manila (Exhibit
C) leaving property both in the Philippines and in the United States of America; that the Last Will and Testament of the late
Adoracion C. Campos was admitted and granted probate by the Orphan's Court Division of the Court of Common Pleas, the
probate court of the Commonwealth of Pennsylvania, County of Philadelphia, U.S.A., and letters of administration were issued in
favor of Clement J. McLaughlin all in accordance with the laws of the said foreign country on procedure and allowance of wills
(Exhibits E to E-10); and that the petitioner is not suffering from any disqualification which would render her unfit as administratrix
of the estate in the Philippines of the late Adoracion C. Campos.

WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is hereby admitted to and allowed probate in the
Philippines, and Nenita Campos Paguia is hereby appointed Administratrix of the estate of said decedent; let Letters of
Administration with the Will annexed issue in favor of said Administratrix upon her filing of a bond in the amount of P5,000.00
conditioned under the provisions of Section I, Rule 81 of the Rules of Court.

Another manifestation was filed by the petitioner on April 14, 1979, confirming the withdrawal of his opposition, acknowledging the same to be his
voluntary act and deed.

On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the order allowing the will be set aside on the ground that the withdrawal
of his opposition to the same was secured through fraudulent means. According to him, the "Motion to Dismiss Opposition" was inserted among the
papers which he signed in connection with two Deeds of Conditional Sales which he executed with the Construction and Development Corporation of
the Philippines (CDCP). He also alleged that the lawyer who filed the withdrawal of the opposition was not his counsel-of-record in the special
proceedings case.

The petition for relief was set for hearing but the petitioner failed to appear. He made several motions for postponement until the hearing was set on
May 29, 1980.

On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate and/or Set Aside the Order of January 10, 1979, and/or dismiss the case
for lack of jurisdiction. In this motion, the notice of hearing provided:

Please include this motion in your calendar for hearing on May 29, 1980 at 8:30 in the morning for submission for reconsideration
and resolution of the Honorable Court. Until this Motion is resolved, may I also request for the future setting of the case for hearing
on the Oppositor's motion to set aside previously filed.

The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the case was called for hearing on this date, the counsel for petitioner
tried to argue his motion to vacate instead of adducing evidence in support of the petition for relief. Thus, the respondent judge issued an order
dismissing the petition for relief for failure to present evidence in support thereof. Petitioner filed a motion for reconsideration but the same was denied.
In the same order, respondent judge also denied the motion to vacate for lack of merit. Hence, this petition.

Meanwhile, on June 6,1982, petitioner Hermogenes Campos died and left a will, which, incidentally has been questioned by the respondent, his
children and forced heirs as, on its face, patently null and void, and a fabrication, appointing Polly Cayetano as the executrix of his last will and
testament. Cayetano, therefore, filed a motion to substitute herself as petitioner in the instant case which was granted by the court on September 13,
1982.

A motion to dismiss the petition on the ground that the rights of the petitioner Hermogenes Campos merged upon his death with the rights of the
respondent and her sisters, only remaining children and forced heirs was denied on September 12, 1983.

Petitioner Cayetano persists with the allegations that the respondent judge acted without or in excess of his jurisdiction when:

1) He ruled the petitioner lost his standing in court deprived the Right to Notice (sic) upon the filing of the Motion to Dismiss
opposition with waiver of rights or interests against the estate of deceased Adoracion C. Campos, thus, paving the way for the
hearing ex-parte of the petition for the probate of decedent will.
 2) He ruled that petitioner can waive, renounce or repudiate (not made in a public or authenticated instrument), or by way of a
petition presented to the court but by way of a motion presented prior to an order for the distribution of the estate-the law especially
providing that repudiation of an inheritance must be presented, within 30 days after it has issued an order for the distribution of the
estate in accordance with the rules of Court.

3) He ruled that the right of a forced heir to his legitime can be divested by a decree admitting a will to probate in which no provision
is made for the forced heir in complete disregard of Law of Succession

4) He denied petitioner's petition for Relief on the ground that no evidence was adduced to support the Petition for Relief when no
Notice nor hearing was set to afford petitioner to prove the merit of his petition — a denial of the due process and a grave abuse
of discretion amounting to lack of jurisdiction.

5) He acquired no jurisdiction over the testate case, the fact that the Testator at the time of death was a usual resident of
Dasmariñas, Cavite, consequently Cavite Court of First Instance has exclusive jurisdiction over the case (De Borja vs. Tan, G.R.
No. L-7792, July 1955).

The first two issues raised by the petitioner are anchored on the allegation that the respondent judge acted with grave abuse of discretion when he
allowed the withdrawal of the petitioner's opposition to the reprobate of the will.

We find no grave abuse of discretion on the part of the respondent judge. No proof was adduced to support petitioner's contention that the motion to
withdraw was secured through fraudulent means and that Atty. Franco Loyola was not his counsel of record. The records show that after the firing of
the contested motion, the petitioner at a later date, filed a manifestation wherein he confirmed that the Motion to Dismiss Opposition was his voluntary
act and deed. Moreover, at the time the motion was filed, the petitioner's former counsel, Atty. Jose P. Lagrosa had long withdrawn from the case and
had been substituted by Atty. Franco Loyola who in turn filed the motion. The present petitioner cannot, therefore, maintain that the old man's attorney
of record was Atty. Lagrosa at the time of filing the motion. Since the withdrawal was in order, the respondent judge acted correctly in hearing the
probate of the will ex-parte, there being no other opposition to the same.

The third issue raised deals with the validity of the provisions of the will. As a general rule, the probate court's authority is limited only to the extrinsic
validity of the will, the due execution thereof, the testatrix's testamentary capacity and the compliance with the requisites or solemnities prescribed by
law. The intrinsic validity of the will normally comes only after the court has declared that the will has been duly authenticated. However, where practical
considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue. (Maninang vs.
Court of Appeals, 114 SCRA 478).

In the case at bar, the petitioner maintains that since the respondent judge allowed the reprobate of Adoracion's will, Hermogenes C. Campos was
divested of his legitime which was reserved by the law for him.

This contention is without merit.

Although on its face, the will appeared to have preterited the petitioner and thus, the respondent judge should have denied its reprobate outright, the
private respondents have sufficiently established that Adoracion was, at the time of her death, an American citizen and a permanent resident of
Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the Civil Code which respectively provide:

Art. 16 par. (2).

xxx xxx xxx

However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional
rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession
is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be
found.

Art. 1039.

Capacity to succeed is governed by the law of the nation of the decedent.

the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the national law of the decedent. Although the parties admit
that the Pennsylvania law does not provide for legitimes and that all the estate may be given away by the testatrix to a complete stranger, the petitioner
argues that such law should not apply because it would be contrary to the sound and established public policy and would run counter to the specific
provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Article 16(2) and 1039 of the Civil Code, the
national law of the decedent must apply. This was squarely applied in the case ofBellis v. Bellis (20 SCRA 358) wherein we ruled:

It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes, Congress has not
intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount
of successional rights, to the decedent's national law. Specific provisions must prevail over general ones.

xxx xxx xxx

The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and under the law of Texas, there
are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional
rights are to be determined under Texas law, the Philippine Law on legitimes cannot be applied to the testacy of Amos G. Bellis.

As regards the alleged absence of notice of hearing for the petition for relief, the records wig bear the fact that what was repeatedly scheduled for
hearing on separate dates until June 19, 1980 was the petitioner's petition for relief and not his motion to vacate the order of January 10, 1979. There
is no reason why the petitioner should have been led to believe otherwise. The court even admonished the petitioner's failing to adduce evidence when
his petition for relief was repeatedly set for hearing. There was no denial of due process. The fact that he requested "for the future setting of the case
for hearing . . ." did not mean that at the next hearing, the motion to vacate would be heard and given preference in lieu of the petition for relief.
Furthermore, such request should be embodied in a motion and not in a mere notice of hearing.

Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid of merit. Under Rule 73, Section 1, of the Rules of Court, it is
provided that:

SECTION 1. Where estate of deceased persons settled. — If the decedent is an inhabitant of the Philippines at the time of his
death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court
of First Instance in the province in which he resided at the time of his death, and if he is an inhabitant of a foreign country, the
Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of
a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends
on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in
an appeal from that court, in the original case, or when the want of jurisdiction appears on the record.

Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the Court of First Instance of Manila where she had an estate
since it was alleged and proven that Adoracion at the time of her death was a citizen and permanent resident of Pennsylvania, United States of America
and not a "usual resident of Cavite" as alleged by the petitioner. Moreover, petitioner is now estopped from questioning the jurisdiction of the probate
court in the petition for relief. It is a settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief, against his opponent
and after failing to obtain such relief, repudiate or question that same jurisdiction. (See Saulog Transit, Inc. vs. Hon. Manuel Lazaro, et al., G. R. No.
63 284, April 4, 1984).

WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of merit.

SO ORDERED.

G.R. No. L-2538 September 21, 1951

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE MOLO, petitioner-appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.

BAUTISTA ANGELO, J.:

This is an appeal from an order of the Court of First Instance of Rizal admitting to probate the last will and testament of the deceased Mariano Molo y
Legaspi executed on August 17, 1918. The oppositors-appellants brought the case on appeal to this Court for the reason that the value of the properties
involved exceeds P50,000.

Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal, without leaving any forced heir either in the
descending or ascending line. He was survived, however, by his wife, the herein petitioner Juana Juan Vda. de Molo, and by his nieces and nephew,
the oppositors-appellants, Luz Gliceria and Cornelio, all surnamed Molo, who were the legitimate children of Candido Molo y Legaspi, deceased brother
of the testator. Mariano Molo y Legaspi left two wills, one executed on August 17, 1918, (Exhibit A) and another executed on June 20, 1939. (Exhibit
I). The later will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal a petition, which was docketed as special proceeding No.
8022 seeking the probate of the will executed by the deceased on June 20, 1939. There being no opposition, the will was probated. However, upon
petition filed by the herein oppositors, the order of the court admitting the will to probate was set aside and the case was reopened. After hearing, at
which both parties presented their evidence, the court rendered decision denying the probate of said will on the ground that the petitioner failed to
prove that the same was executed in accordance with law.

In view of the disallowance of the will executed on June 20, 1939, the widow on February 24, 1944, filed another petition for the probate of the will
executed by the deceased on August 17, 1918, which was docketed as special proceeding No. 56, in the same court. Again, the same oppositors filed
an opposition to the petition based on three grounds: (1) that petitioner is now estopped from seeking the probate of the will of 1918; (2) that said will
has not been executed in the manner required by law and (3) that the will has been subsequently revoked. But before the second petition could be
heard, the battle for liberation came and the records of the case were destroyed. Consequently, a petition for reconstitution was filed, but the same
was found to be impossible because neither petitioner nor oppositors could produce the copies required for its reconstitution. As a result, petitioner
filed a new petition on September 14, 1946, similar to the one destroyed, to which the oppositors filed an opposition based on the same grounds as
those contained in their former opposition. Then, the case was set for trial, and on May 28, 1948, the court issued an order admitting the will to probate
already stated in the early part of this decision. From this order the oppositors appealed assigning six errors, to wit.

I. The probate court erred in not holding that the present petitioner voluntarily and deliberately frustrated the probate of the will dated June
20, 1939, in special proceeding No. 8022, in order to enable her to obtain the probate of another alleged will of Molo dated 191.

II. The court a quo erred in not holding that the petitioner is now estopped from seeking the probate of Molo's alleged will of 1918.

III. The lower court erred in not holding that petitioner herein has come to court with "unclean hands" and as such is not entitled to relief.

IV. The probate court erred in not holding that Molo's alleged will of August 17, 1918 was not executed in the manner required by law.

V. The probate court erred in not holding that the alleged will of 1918 was deliberately revoked by Molo himself.

VI. The lower court erred in not holding that Molo's will of 1918 was subsequently revoked by the decedent's will of 1939.

In their first assignment of error, counsel for oppositors contend that the probate court erred in not holding that the petitioner voluntarily and deliberately
frustrated the probate of the will dated June 20, 1939, in order to enable her to obtain the probate of the will executed by the deceased on August 17,
1918, pointing out certain facts and circumstances with their opinion indicate that petitioner connived with the witness Canuto Perez in an effort to
defeat and frustrate the probate of the 1939 will because of her knowledge that said will intrinsically defective in that "the one and only testamentory
disposition thereof was a "disposicion captatoria". These circumstances, counsel for the appellants contend, constitute a series of steps deliberately
taken by petitioner with a view to insuring the realization of her plan of securing the probate of the 1918 will which she believed would better safeguard
her right to inherit from the decease.

These imputations of fraud and bad faith allegedly committed in connection with special proceedings No. 8022, now closed and terminated, are
vigorously met by counsel for petitioner who contends that to raise them in these proceedings which are entirely new and distinct and completely
independent from the other is improper and unfair as they find no support whatsoever in any evidence submitted by the parties in this case. They are
merely based on the presumptions and conjectures not supported by any proof. For this reason, counsel, contends, the lower court was justified in
disregarding them and in passing them sub silentio in its decision.

A careful examination of the evidence available in this case seems to justify this contention. There is indeed no evidence which may justify the
insinuation that petitioner had deliberately intended to frustrate the probate of the 1939 will of the deceased to enable her to seek the probate of another
will other than a mere conjecture drawn from the apparently unexpected testimony of Canuto Perez that he went out of the room to answer an urgent
call of nature when Artemio Reyes was signing the will and the failure of petitioner later to impeach the character of said witness in spite of the
opportunity given her by the court to do so. Apart from this insufficiency of evidence, the record discloses that this failure has been explained by
petitioner when she informed the court that she was unable to impeach the character of her witness Canuto Perez because of her inability to find
witnesses who may impeach him, and this explanation stands uncontradicted. Whether this explanation is satisfactory or not, it is not now, for us to
determine. It is an incident that comes within the province of the former case. The failure of petitioner to present the testimony of Artemio Reyes at the
hearing has also been explained, and it appears that petitioner has filed because his whereabouts could not be found. Whether this is true or not is
also for this Court to determine. It is likewise within the province and function of the court in the former case. And the unfairness of this imputation
becomes more glaring when we stock of the developments that had taken place in these proceedings which show in bold relief the true nature of the
conduct, behavior and character of the petitioner so bitterly assailed and held in disrepute by the oppositors.

It should be recalled that the first petition for the probate of the will executed on June 20, 1939, was filed on February 7, 1941, by the petitioner. There
being no opposition, the will was probated. Subsequently, however, upon petition of the herein oppositors, the order of the court admitting said will to
probate was set aside, over the vigorous opposition of the herein petitioner, and the case was reopened. The reopening was ordered because of the
strong opposition of the oppositors who contended that he will had not been executed as required by law. After the evidence of both parties had been
presented, the oppositors filed an extensive memorandum wherein they reiterated their view that the will should be denied probate. And on the strenght
of this opposition, the court disallowed the will.

If petitioner then knew that the 1939 will was inherently defective and would make the testamentary disposition in her favor invalid and ineffective,
because it is a "disposicion captatoria", which knowledge she may easily acquire through consultation with a lawyer, there was no need her to go
through the order of filing the petition for the probate of the will. She could accomplish her desire by merely suppressing the will or tearing or destroying
it, and then take steps leading to the probate of the will executed in 1918. But for her conscience was clear and bade her to take the only proper step
possible under the circumstances, which is to institute the necessary proceedings for the probate of the 1939 will. This she did and the will was admitted
to probate. But then the unexpected happened. Over her vigorous opposition, the herein appellants filed a petition for reopening, and over her vigorous
objection, the same was granted and the case was reopened. Her motion for reconsideration was denied. Is it her fault that the case was reopened?
Is it her fault that the order admitting the will to probate was set aside? That was a contingency which petitioner never expected. Had appellants not
filed their opposition to the probate of the will and had they limited their objection to the intrinsic validity of said will, their plan to defeat the will and
secure the intestacy of the deceased would have perhaps been accomplished. But they failed in their strategy. If said will was denied probate it is due
to their own effort. It is now unfair to impute bad faith petitioner simply because she exerted every effort to protect her own interest and prevent the
intestacy of the deceased to happen.

Having reached the foregoing conclusions, it is obvious that the court did not commit the second and third errors imputed to it by the counsel for
appellants. Indeed, petitioner cannot be considered guilty or estoppel which would prevent her from seeking the probate of the 1918 will simply because
of her effort to obtain the allowance of the 1939 will has failed considering that in both the 1918 and 1939 wills she was in by her husband as his
universal heir. Nor can she be charged with bad faith far having done so because of her desire to prevent the intestacy of her husband. She cannot
be blamed being zealous in protecting her interest.

The next contention of appellants refers to the revocatory clause contained in 1939 will of the deceased which was denied probate. They contend that,
notwithstanding the disallowance of said will, the revocatory clause is valid and still has the effect of nullifying the prior of 1918.

Counsel for petitioner meets this argument by invoking the doctrine laid down in the case of Samson vs. Naval, (41 Phil., 838). He contends that the
facts involved in that case are on all fours with the facts of this case. Hence, the doctrine is that case is here controlling.

There is merit in this contention. We have carefully read the facts involved in the Samson case we are indeed impressed by their striking similarity with
the facts of this case. We do not need to recite here what those facts are; it is enough to point out that they contain many points and circumstances in
common. No reason, therefore, is seen by the doctrine laid down in that case (which we quote hereunder) should not apply and control the present
case.

A subsequent will, containing a clause revoking a previous will, having been disallowed, for the reason that it was not executed in conformity
with the provisions of section 618 of the Code of Civil Procedure as to the making of wills, cannot produce the effect of annulling the previous
will, inasmuch as said revocatory clause is void. (41 Phil., 838.)

Apropos of this question, counsel for oppositors make the remark that, while they do not disagree with the soundness of the ruling laid down in the
Samson case, there is reason to abandon said ruling because it is archaic or antiquated and runs counter to the modern trend prevailing in American
jurisprudence. They maintain that said ruling is no longer controlling but merely represents the point of view of the minority and should, therefore, be
abandoned, more so if we consider the fact that section 623 of our Code of Civil Procedure, which governs the revocation of wills, is of American origin
and as such should follow the prevailing trend of the majority view in the United States. A long line of authorities is cited in support of this contention.
And these authorities hold the view, that "an express revocation is immediately effective upon the execution of the subsequent will, and does not
require that it first undergo the formality of a probate proceeding". (p. 63, appellants' brief .

While they are many cases which uphold the view entertained by counsel for oppositors, and that view appears to be in controlling the states where
the decisions had been promulgated, however, we are reluctant to fall in line with the assertion that is now the prevailing view in the United States. In
the search we have made of American authorities on the subject, we found ourselves in a pool of conflicting opinions perhaps because of the peculiar
provisions contained in the statutes adopted by each State in the subject of revocation of wills. But the impression we gathered from a review and the
study of the pertinent authorities is that the doctrine laid down in the Samson case is still a good law. On page 328 of the American Jurisprudence Vol.
57, which is a revision Published in 1948, we found the following passages which in our opinion truly reflect the present trend of American jurisprudence
on this matter affecting the revocation of wills:

SEC. 471. Observance of Formalities in Execution of Instrument. — Ordinarily, statutes which permit the revocation of a will by another
writing provide that to be effective as a revocation, the writing must be executed with the same formalities which are required to be observed
in the execution of a will. Accordingly, where, under the statutes, attestation is necessary to the making of a valid will, an unattested non
testamentary writing is not effective to revoke a prior will. It has been held that a writing fails as a revoking instrument where it is not executed
with the formalities requisite for the execution of a will, even though it is inscribed on the will itself, although it may effect a revocation by
cancellation or obliteration of the words of the will. A testator cannot reserve to himself the power to modify a will by a written instrument
subsequently prepared but not executed in the manner required for a will.
 SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. — A will which is invalid because of the incapacity of the testator,
or of undue influence can have no effect whatever as a revoking will. Moreover, a will is not revoked by the unexecuted draft of a later one.
Nor is a will revoked by a defectively executed will or codicil, even though the latter contains a clause expressly revoking the former will, in
a jurisdiction where it is provided by a controlling statute that no writing other than a testamentary instrument is sufficient to revoke a will, for
the simple reason that there is no revoking will. Similarly where the statute provides that a will may be revoked by a subsequent will or other
writing executed with the same formalities as are required in the execution of wills, a defectively executed will does not revoke a prior will,
since it cannot be said that there is a writing which complies with the statute. Moreover, a will or codicil which, on account of the manner in
which it is executed, is sufficient to pass only personally does not affect dispositions of real estate made by a former will, even though it may
expressly purport to do so. The intent of the testator to revoke is immaterial, if he has not complied with the statute. (57 Am. Jur., 328, 329.)

We find the same opinion in the American Law Reports, Annotated, edited in 1939. On page 1400, Volume 123, there appear many authorities on the
"application of rules where second will is invalid", among which a typical one is the following:

It is universally agreed that where the second will is invalid on account of not being executed in accordance with the provisions of the statute,
or where the testator who has not sufficient mental capacity to make a will or the will is procured through undue influence, or the such, in
other words, where the second will is really no will, it does not revoke the first will or affect it in any manner. Mort vs. Baker University (193-
5) 229 Mo. App., 632, 78 S.W. (2d), 498.

These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson case is predicated. They reflect the opinion that this ruling
is sound and good and for this reason, we see no justification for abondoning it as now suggested by counsel for the oppositors.

It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will may be some will, codicil, or other writing executed as proved
in case of wills" but it cannot be said that the 1939 will should be regarded, not as a will within the meaning of said word, but as "other writing executed
as provided in the case of wills", simply because it was denied probate. And even if it be regarded as any other writing within the meaning of said
clause, there is authority for holding that unless said writing is admitted to probate, it cannot have the effect of revocation. (See 57 Am. Jur. pp. 329-
330).

But counsel for oppositors contemned that, regardless of said revocatory clause, said will of 1918 cannot still be given effect because of the presumption
that it was deliberately revoked by the testator himself. The oppositors contend that the testator, after executing the 1939 will, and with full knowledge
of the recovatory clause contained said will, himself deliberately destroyed the original of the 1918 will, and for that reason the will submitted by
petitioner for probate in these proceedings is only a duplicate of said original.

There is no evidence which may directly indicate that the testator deliberately destroyed the original of the 1918 will because of his knowledge of the
revocatory clause contained in the will he executed in 1939. The only evidence we have is that when the first will was executed in 1918, Juan Salcedo,
who prepared it, gave the original and copies to the testator himself and apparently they remained in his possession until he executed his second will
in 1939. And when the 1939 will was denied probate on November 29, 1943, and petitioner was asked by her attorney to look for another will, she
found the duplicate copy (Exhibit A) among the papers or files of the testator. She did not find the original.

If it can be inferred that the testator deliberately destroyed the 1918 will because of his knowledge of the revocatory clause of the 1939 will, and it is
true that he gave a duplicate copy thereof to his wife, the herein petitioner, the most logical step for the testator to take is to recall said duplicate copy
in order that it may likewise be destroyed. But this was not done as shown by the fact that said duplicate copy remained in the possession of petitioner.
It is possible that because of the long lapse of twenty-one (21) years since the first will was executed, the original of the will had been misplaced or
lost, and forgetting that there was a copy, the testator deemed it wise to execute another will containing exactly the same testamentary dispositions.
Whatever may be the conclusion we may draw from this chain of circumstances, the stubborn fact is that there is no direct evidence of voluntary or
deliberate destruction of the first will by the testator. This matter cannot be inference or conjectur.

Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator after the execution of the second will, which revoked
the first, could there be any doubt, under this theory, that said earlier will was destroyed by the testator in the honest belief that it was no longer
necessary because he had expressly revoked it in his will of 1939? In other words, can we not say that the destruction of the earlier will was but the
necessary consequence of the testator's belief that the revocatory clause contained in the subsequent will was valid and the latter would be given
effect? If such is the case, then it is our opinion that the earlier will can still be admitted to probate under the principle of "dependent relative revocation".

This doctrine is known as that of dependent relative revocation, and is usually applied where the testator cancels or destroys a will or executes
an instrument intended to revoke a will with a present intention to make a new testamentary disposition as a substitute for the old, and the
new disposition is not made or, if made, fails of effect for same reason. The doctrine is n limited to the existence of some other document,
however, and has been applied where a will was destroyed as a consequence of a mistake of law. . . . (68 C.J.P. 799).

The rule is established that where the act of destruction is connected with the making of another will so as fairly to raise the inference that
the testator meant the revocation of the old to depend upon the efficacy of a new disposition intended to be substituted, the revocation will
 be conditional and dependent upon the efficacy of the new disposition; and if, for any reason, the new will intended to be made as a substitute
is inoperative, the revocation fails and the original will remains in full force. (Gardner, pp. 232, 233.)

This is the doctrine of dependent relative revocation. The failure of a new testamentary disposition upon whose validity the revocation
depends, is equivalent to the non-fulfillment of a suspensive conditions, and hence prevents the revocation of the original will. But a mere
intent to make at some time a will in the place of that destroyed will not render the destruction conditional. It must appear that the revocation
is dependent upon the valid execution of a new will. (1 Alexander, p. 751; Gardner, p. 253.)

We hold therefore, that even in the supposition that the destruction of the original will by the testator could be presumed from the failure of the petitioner
to produce it in court, such destruction cannot have the effect of defeating the prior will of 1918 because of the fact that it is founded on the mistaken
belief that the will of 1939 has been validly executed and would be given due effect. The theory on which this principle is predicated is that the testator
did not intend to die intestate. And this intention is clearly manifest when he executed two wills on two different occasion and instituted his wife as his
universal heir. There can therefore be no mistake as to his intention of dying testate.

The remaining question to be determined refers to the sufficiency of the evidence to prove the due execution of the will.

The will in question was attested, as required by law, by three witnesses, Lorenzo Morales, Rufino Enriquez, and Angel Cuenca. The first two witnesses
died before the commencement of the present proceedings. So the only instrumental witness available was Angel Cuenca and under our law and
precedents, his testimony is sufficient to prove the due execution of the will. However, petitioner presented not only the testimony of Cuenca but placed
on the witness stand Juan Salcedo, the notary public who prepared and notarized the will upon the express desire and instruction of the testator, The
testimony of these witnesses shows that the will had been executed in the manner required by law. We have read their testimony and we were
impressed by their readiness and sincerity. We are convinced that they told the truth.

Wherefore, the order appealed from is hereby affirmed, with costs against the appellants.1âwphïl.nêt

G.R. No. L-53546 June 25, 1992

THE HEIRS OF THE LATE JESUS FRAN and CARMEN MEJIA RODRIGUEZ, petitioners,
vs.
HON. BERNARDO LL. SALAS, CONCEPCION MEJIA ESPINA and MARIA MEJIA GANDIONGCO, respondents.

DAVIDE, JR., J.:

This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court, with prayer for a writ of preliminary injunction, to annul and
set aside, for having been issued without jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction, the following Orders of the
respondent Judge in Special Proceedings No. 3309-R of Branch VIII of the then Court of First Instance (now Regional Trial Court) of Cebu entitled "In
The Matter of the Petition for Probate of the Last Will and Testament of Remedios Mejia Vda. de Tiosejo:"

1. The Order of 26 February 1980 setting for hearing private respondents' Omnibus Motion for Reconsideration 1 which was filed
six (6) years, ten (10) months and eighteen (18) days after the probate judgment was rendered and six (6) years and twenty-one
(21) days after the testate proceedings was declared closed and terminated; and

2. The Order of 2 June 1980 finding the signature of the testatrix in the last will and testament to be a forgery and (a) declaring the
testatrix as having died intestate; (b) declaring the testamentary dispositions in said last will and testament as null and void; (c)
setting aside the order dated 10 September 1973 declaring the testate proceedings closed and terminated; (d) revoking the
appointment of Jesus Fran as executor while appointing respondent Concepcion M. Espina as administratrix; and (e) ordering the
conversion of the proceedings to one of intestacy. 2 This Order effectively annulled and set aside the probate judgment of 13
November 1972.

Petitioners would also have this Court nullify all other actions of respondent Judge in said Sp. Proc. No. 3309-R; restore the status quo therein
prior to the issuance of the foregoing orders; and permanently enjoin respondent Judge from reopening said proceedings.

The following facts are not controverted:

Remedios M. Vda. de Tiosejo, a widow, died on 10 July 1972 in Cebu City with neither descendants nor ascendants; she left real and personal
properties located in Cebu City, Ormoc City and Puerto Bello, Merida, Leyte. Earlier, on 23 April 1972, she executed a last will and testament 3 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 to serve without bond. Instrumental witnesses to the will were Nazario Pacquiao, Alcio Demerre and Primo Miro.
On 15 July 1972, Jesus Fran filed a petition with the Court of First instance of Cebu for the probate of Remedios' last will and testament. 4 The case
was raffled to the original Branch VIII thereof which was then presided over by Judge Antonio D. Cinco. The petition alleged that Rosario Tan is not
physically well and, therefore, will not be assuming the position of administratrix. Tan signed a waiver in favor of Jesus Fran on the third page of the
said petition. The probate court issued an order setting the petition for hearing on 18 September 1972. Meanwhile, on 31 July 1972, the court appointed
petitioner Jesus Fran as special administrator.

On 10 August 1972, the private respondents, who are sisters of the deceased, filed a manifestation 5 alleging that they needed time to study the petition
because some heirs who are entitled to receive their respective shares have been intentionally omitted therein, and praying that they be given ample
time to file their opposition, after which the hearing be reset to another date.

Private respondents did not file any opposition. Instead, they filed on 18 September 1972 a "Withdrawal of Opposition to the Allowance of Probate (sic)
of the Will" wherein they expressly manifested, with their "full knowledge and consent that . . . they have no objection of (sic) the allowance of the . . .
will of the late Remedios Mejia Vda. de Tiosejo," and that they have "no objection to the issuance of letters testamentary in favor of petitioner, Dr.
Jesus Fran." 6

No other party filed an opposition. The petition thus became uncontested.

During the initial hearing, petitioner Fran introduced the requisite evidence to establish the jurisdictional facts.

Upon a determination that the court had duly acquired jurisdiction over the uncontested petition for probate, Judge Cinco issued in open court an order
directing counsel for petitioner to present evidence proving the authenticity and due execution of the will before the Clerk of Court who was, accordingly,
so authorized to receive the same.

The reception of evidence by the Clerk of Court immediately followed. Petitioner Fran's first witness was Atty. Nazario R. Pacquiao, one at the
subscribing witnesses to the will. The original of the will, marked as Exhibit "F", and its English translation, marked as Exhibit "F-Translation", were
submitted to the Clerk of Court. 7 Petitioner Fran was the second and also the last witness. He enumerated the names of the surviving heirs of the
deceased.

On 13 November 1972, the probate court rendered a decision admitting to probate the will of the testatrix, Remedios Mejia Vda. de Tiosejo, and
appointing petitioner Fran as executor thereof. 8 The dispositive portion of the decision reads:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered declaring the last will and testament of the deceased
Remedios Mejia Vda. de Tiosejo marked as Exhibit F as admitted to probate. Dr. Jesus Fran is hereby appointed as executor of
the will. Let letters testamentary be issued in favor of Dr. Jesus Fran. The special administrator's bond put up by Dr. Jesus Fran
as special administrator duly approved by this Court shall serve and be considered as the executor's bond considering that the
special administrator and executor are one and the same person.

The requisite notice to creditors was issued, but despite the expiration of the period therein fixed, no claim was presented against the estate.

On 4 January 1973, petitioner Fran filed an Inventory of the Estate; 9 copies thereof were furnished each of the private respondents.

Subsequently, a Project of Partition based on the dispositions made in the will and signed by all the devisees and legatees, with the exception of Luis
Fran, Remedios C. Mejia and respondent Concepcion M. Espina, was submitted by the executor for the court's approval. 10 Said legatees and devisees
submitted certifications wherein they admit receipt of a copy of the Project of Partition together with the notice of hearing, and state that they had no
objection to its approval. 11

The notice of hearing referred to in these certifications is the 6 August 1973 notice issued by the Clerk of Court setting the hearing on the Project of
Partition for 29 August 1973. 12

After the hearing on the Project of Partition, the court issued its Order of 10 September 1973 13 approving the same, declaring the parties therein as
the only heirs entitled to the estate of Remedios Mejia Vda. de Tiosejo, directing the administrator to deliver to the said parties their respective shares
and decreeing the proceedings closed. The dispositive portion thereof reads:

WHEREFORE, the signers (sic) to the project of partition are declared the only, heirs entitled to the estate; the project of partition
submitted is ordered approved and the administrator is ordered to deliver to each one of them their respective aliquot parts as
distributed in the said project of partition. It is understood that if there are expenses incurred or to be incurred as expenses of
partition, Section 3 of Rule 90 shall be followed.

Let this proceedings be now declared closed.

 SO ORDERED.

Thereafter, the aforesaid Branch VIII of the Court of First Instance of Cebu was converted to a Juvenile and Domestic Relations Court. On November
1978, by virtue of Presidential Decree No. 1439, Branch XVII (Davao City) of the Court of First Instance of Cebu, presided over by herein respondent
Judge, was officially transferred to Cebu City and renumbered as Branch VIII.

On 1 October 1979, private respondents filed with the new Branch VIII an Omnibus Motion for Reconsideration of the probate judgment of 13 November
1972 and the Order of partition of 10 September 1973, in said motion, they ask the court to declare the proceedings still open and admit their opposition
to the allowance of the will, 14 which they filed on 1 October 1979. They allege that: (a) they were not furnished with a copy of the will; (b) the will is a
forgery; (c) they were not notified of any resolution or order on their manifestation requesting time within which to file their opposition, or of the order
authorizing the clerk of court to receive the evidence for the petitioner, or of the order closing the proceedings; (d) the reception of evidence by the
clerk of court was void per the ruling in Lim Tanhu vs. Ramolete; 15 (e) the project of partition contains no notice of hearing and they were not notified
thereof; (f) the petitioner signed the project of partition as administrator and not as executor, thereby proving that the decedent died intestate; (g) the
petitioner did not submit any accounting as required by law; and (h) the petitioner never distributed the estate to the devisees and legatees.

In a detailed opposition 16 to the above Omnibus Motion for Reconsideration, petitioner Fran refuted all the protestations of private respondents. Among
other reasons, he stresses therein that: (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 after thoroughly studying the petition, to which was attached a copy of the English translation of the will,
they have no objection to its allowance; the order directing the clerk of court to receive the evidence was dictated in open court in the presence of
private respondents; 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; (b) except for some properties, either
covered by a usufruct under the will or agreed upon by the parties to be held in common by reason of its special circumstance, there was an actual
distribution of the estate in accordance with the Project of Partition; insofar as private respondents are concerned, they not only received their respective
shares, they even purchased the shares of the other devisees. To top it all, private respondents' children, namely Rodrigo M. Gandiongco, Jr. and
Victor Espina, mortgaged their respective shares in favor of a bank

Notwithstanding petitioners' objections, respondent Judge issued on 26 February 1980 an Order setting for hearing the said Omnibus Motion for
Reconsideration on 8 April 1980 so that "the witnesses and the exhibits (may be) properly ventilated." 17

On 25 March 1980, petitioners filed a Motion to Dismiss the Omnibus and to Reconsider the 26 February 1980 Order setting it for hearing on 17 April
1980, 18 but the respondent Judge prematurely denied it for lack of merit in his Order of 31 March 1980. 19

Consequently, on 8 April 1980, the instant petition was filed challenging the jurisdiction of the lower court in taking cognizance of the Omnibus Motion
for Reconsideration considering that the probate judgment and the order approving the Project of Partition and terminating the proceedings had long
become final and had in fact been executed. Private respondents had long lost their right to appeal therefrom. The Omnibus Motion for Reconsideration
cannot likewise be treated as a petition for relief from judgment for under Rule 38 of the Revised Rules of Court, the same must be filed within sixty
(60) days from receipt of notice of the judgment/order and within six (6) months from the date of said judgment. Therefore, this remedy can no longer
be availed of.

On 8 April 1980, the date the instant petition was filed, respondent Judge proceeded with the hearing of the Omnibus Motion for Reconsideration. He
received the testimonies of private respondents and one Romeo O. Varena, an alleged handwriting expert from the Philippine Constabulary, who
averred that the signature of the testatrix on the will is a forgery. The respondent Judge likewise issued an Order on the same date stating that unless
he received a restraining order from this Court within twenty (20) days therefrom, he will reopen Sp. Proc. No. 3309-R.

On 14 April 1980, petitioners filed a Supplemental Petition asking this Court to restrain respondent Judge from reopening the case. 20

In their voluminous Comments and Opposition to the petition and Supplemental Petition, 21 private respondents not only amplify in great detail the
grounds raised in their Omnibus Motion for Reconsideration, they also squarely raise for the first time the following issues.

(a) The probate court never acquired jurisdiction over the case since petitioner Jesus Fran failed to submit to the court the original
of the will.

(b) 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.

(c) Even assuming that the probate judge could validly delegate the reception of evidence to the Clerk of Court, the proceeding
before the latter would still be void as he failed to take an oath of office before entering upon his duties as commissioner and failed
to render a report on the matters submitted to him.
 (d) Respondent Maria M. Vda. de Gandiongco was defrauded into (sic) signing the Project of Partition and respondent Concepcion
M. Espina, her certification, when they were misled by petitioner Fran into believing that the Agreement of Petition to be submitted
to the court is the Extra Judicial Partition they signed on 7 May 1973.

(e) Petitioner Fran is guilty of fraud in urdervaluing the estate of the late Remedios M. Vda. de Tiosejo by reporting properties worth
only P400,000.00 when in truth and in fact the estate has an aggregate value of P2,094,333.00.

In the Resolution dated 2 June 1980, We issued a restraining order enjoining respondent Judge from reopening Sp. Proc. No. 3309-R. 22

However, on the same date, before the restraining order was served on him; respondent Judge issued the impugned order declaring the testamentary
dispositions of the will void, finding the signature of the late Remedios M. Vda. de Tiosejo to be a forgery, decreeing the reopening of Sp. Proc. No.
3309-R and converting the same into an intestate proceeding. 23

Hence, on 6 June 1980, petitioners filed their Second Supplemental Petition 24 asking this Court to declare as null and void the Order of 2 June 1980
and, pending such declaration, to restrain respondent Judge from enforcing the same. Private respondents filed their Comment and Opposition to the
Second Supplemental Petition on 9 July 1980.

Thereafter, as mandated in the resolution of 30 June 1980, 25 this Court gave due course to this case and required the parties to file their respective
Memoranda, which private respondents complied with on 16 August 1980; 26petitioners filed theirs on 27 August 1980. 27 Consequently, the parties
continued to file several pleadings reiterating substantially the same allegations and arguments earlier submitted to this Court.

On 22 March 1984, counsel for petitioners filed a manifestation informing this Court of the death of petitioner Fran on 29 February 1984 and enumerating
therein his surviving heirs. On 2 April 1984, this Court resolved to have said heirs substitute him in this case.

Over a year later, respondent Maria M. Vda. de Gandiongco filed an affidavit, 28 sworn to before the acting Clerk of Court of the Regional Trial Court
in Cebu City, disclosing the following material facts: (a) she signed the Omnibus Motion for Reconsideration dated 1 October 1979 without knowing or
reading the contents thereof; (b) she saw the will of the late Remedios M. Vda. de Tiosejo written in the Cebuano dialect after the same was executed
by the latter; the said will bearing the authentic signature of Remedios was the very one presented to the probate court by petitioner's counsel; (c) she
received the notice of hearing of the petition for probate and because she was convinced that the signature of the testatrix was genuine, she, together
with Concepcion M. Espina, withdrew her opposition; (d) she received her share of the estate of the late Remedios M. Vda. de Tiosejo which was
distributed in accordance with the provisions of the latter's will; and (e) she did not authorize Atty. Numeriano Estenzo or other lawyers to present a
motion to this Court after 25 February 1981 when Estenzo withdrew as counsel for private respondents. She then asks this Court to consider as
withdrawn her Opposition to the Allowance of the Will, her participation in the Omnibus Motion for Reconsideration and her Opposition to this petition.

Due to this development, We required private respondent Concepcion M. Espina to comment on the affidavit of private respondent Maria M. Vda. de
Gandiongco.

On 17 August 1985, private respondents filed a joint manifestation 29 wherein they claim that Maria M. Vda. de Gandiongco does not remember,
executing the affidavit. A few weeks before the affidavit was filed, particularly on 17 June 1985, Maria M. Vda. de Gandiongco was confined in the
hospital; she could not recall having signed, during this period, any affidavit or recognized her sisters and other relatives.

On 19 September 1985, respondent Maria M. Vda. de Gandiongco, through special counsel, filed a Manifestation/Motion with a second Affidavit
attached thereto 30 confessing that she signed the Joint Manifestation dated 16 August 1985 "without knowing or being informed of its contents, and
only upon Mrs. Concepcion Espina's request." She reiterated her desire to withdraw from the Omnibus Motion for Reconsideration filed in Sp. Proc.
No, 3309-R as well as from the instant petition.

Despite the valiant attempt of private respondent Concepcion M. Espina to influence and control the action of Maria Gandiongco, there is nothing in
the records that would cast any doubt on the irrevocability of the latter's decision to withdraw her participation in the Omnibus Motion for Reconsideration
and Opposition to this case. That decision, however, is not a ground for dropping her as a private respondent as the respondent Judge had already
issued the abovementioned Order of 2 June 1980.

The petition and the supplemental petitions are impressed with merit.

We do not hesitate to rule that the respondent Judge committed grave abuse of discretion amounting to lack of jurisdiction when he granted the
Omnibus Motion for Reconsideration and thereafter set aside the probate judgment of 13 November 1972 in Sp. Proc. No. 3309-R, declared the subject
will of the testatrix a forgery, nullified the testamentary dispositions therein and ordered the conversion of the testate proceedings into one of intestacy.
It is not disputed that private respondents filed on the 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. For all legal intents and purposes, they became
proponents of the same.

After the probate court rendered its decision on 13 November 1972, and there having been no claim presented despite publication of notice to creditors,
petitioner Fran submitted a Project of Partition which private respondent Maria M. Vda. de Gandiongco voluntarily signed and to which private
respondent Espina expressed her conformity through a certification filed with the probate court. Assuming for the sake of argument that private
respondents did not receive a formal notice of the decision as they claim in their Omnibus Motion for Reconsideration, these acts nevertheless constitute
indubitable proof of their prior actual knowledge of the same. A formal notice would have been an idle ceremony. 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. If private respondents did not have actual knowledge of the decision, they should have desisted from performing the above acts and
instead demanded from petitioner Fran the fulfillment of his alleged promise to show them the will. The same conclusion refutes and defeats the plea
that they were not notified of the order authorizing the Clerk of Court to receive the evidence and that the Clerk of Court did not notify them of the date
of the reception of evidence. Besides, such plea must fail because private respondents were present when the court dictated the said order.

Neither do We give any weight to the contention that the reception of evidence by the Clerk of Court is null and void per the doctrine laid, down
in Lim Tanhu vs. Ramolete. 31 In the first place, Lim Tanhu was decided on 29 August 1975, nearly four (4) years after the probate court authorized
the Clerk of Court to receive the evidence for the petitioner in this case. A month prior to Lim Tanhu, or on 30 July 1975, this Court, in Laluan vs.
Malpaya, 32 recognized and upheld the practice of delegating the reception of evidence to Clerks of Court. Thus:

No provision of law or principle of public policy prohibits a court from authorizing its clerk of court to receive the evidence of a party
litigant. After all, the reception of evidence by the clerk of court constitutes but a ministerial task — the taking down of the testimony
of the witnesses and the marking of the pieces of documentary evidence, if any, adduced by the party present. This task of receiving
evidence precludes, on the part of the clerk of court the exercise of judicial discretion usually called for when the other party who
is present objects to questions propounded and to the admission of the documentary evidence proffered. 33 More importantly, the
duty to render judgment on the merits of the case still rests with the judge who is obliged to personally and directly prepare the
decision based upon the evidence reported. 34

But where the proceedings before the clerk of court and the concomitant result thereof, i.e., the judgment rendered by the court
based on the evidence presented in such limited proceedings, prejudice the substantial rights of the aggrieved party, then there
exists, sufficient justification to grant the latter complete opportunity to thresh out his case in court. 35

Monserrate vs. Court of Appeals, 36 decided on 29 September 1989, reiterated this rule. Lim Tanhu then cannot be used as authority to nullify the order
of the probate court authorizing the Clerk of Court to receive the evidence for the rule is settled that "when a doctrine of this Court is overruled and a
different view is adopted, the new doctrine should be applied prospectively, and should not apply to parties who had relied on the old doctrine and
acted on the faith thereof." 37 It may also be emphasized in this connection that Lim Tanhu did not live long; it was subsequently overruled in Gochangco
vs. Court of First Instance of Negros Occidental, 38 wherein this Court, en banc, through Justice, now Chief Justice, Andres R. Narvasa, in reference
to what the trial court termed as "the doctrinal rule laid down in the recent case of Lim Tan Hu (sic) vs. Ramolete," ruled:

Now, that declaration does not reflect long observed and established judicial practice with respect to default cases. It is not quite
consistent, too, with the several explicitly authorized instances under the Rules where the function of receiving evidence and even
of making recommendatory findings of facts on the basis thereof may be delegated to commissioners, inclusive of the Clerk of
Court. These instances are set out in Rule 33, . . . ; Rule 67 and 69, . . . ; Rule 86, . . . ; Rule 136, . . . . In all these instances, the
competence of the clerk of court is assumed. Indeed, there would seem, to be sure, nothing intrinsically wrong in allowing
presentation of evidence ex parte before a Clerk of Court. Such a procedure certainly does not foreclose relief to the party adversely
affected who, for valid cause and upon appropriate and seasonable application, may bring about the undoing thereof or the
elimination of prejudice thereby caused to him; and it is, after all, the Court itself which is duty bound and has the ultimate
responsibility to pass upon the evidence received in this manner, discarding in the process such proofs as are incompetent and
then declare what facts have thereby been established. In considering and analyzing the evidence preparatory to rendition of
judgment on the merits, it may not unreasonably be assumed that any serious error in the ex-parte presentation of evidence,
prejudicial to any absent party, will be detected and duly remedied by the Court, and/or may always, in any event, be drawn to its
attention by any interested party.

xxx xxx xxx

It was therefore error for the Court a quo to have declared the judgment by default to be fatally flawed by the fact that the plaintiff's
evidence had been received not by the Judge himself but by the clerk of court.

The alternative claim that the proceedings before the Clerk of Court were likewise void because said official did not take an oath is likewise untenable.
The Clerk of Court acted as such when he performed the delegated task of receiving evidence. It was not necessary for him to take an oath for that
purpose; he was bound by his oath of office as a Clerk of Court. Private respondents are obviously of the impression that by the delegation of the
reception of evidence to the Clerk of Court, the latter became a commissioner as defined under Rule 33 of the Rules of Court entitled Trial by
Commissioner. This is not correct; as this Court said in Laluan:

The provisions of Rule 33 of the Rules of Court invoked by both parties properly relate to the reference by a court of any or all of
the issues in a case to a person so commissioned to act or report thereon. These provisions explicitly spell out the rules governing
the conduct of the court, the commissioner, and the parties before, during, and after the reference proceedings. Compliance with
these rules of conduct becomes imperative only when the court formally orders a reference of the case to a commissioner. Strictly
speaking then, the provisions of Rule 33 find no application to the case at bar where the court a quo merely directed the clerk of
court to take down the testimony of the witnesses presented and to mark the documentary evidence proferred on a date previously
set for hearing.

Belatedly realizing the absence of substance of the above grounds, private respondents now claim in their Comments to the Petition and the
Supplemental Petition 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 will was not even submitted to the court for their examination within twenty (20) days after the death
of the testatrix; and that there was fraud in the procurement of the probate judgment principally because they were not given any chance to examine
the signature of the testatrix and were misled into signing the withdrawal of their opposition on the assurance of petitioner Fran and their sister, Rosario
M. Tan, that the will would be shown to them during the trial. These two grounds easily serve as the bases for the postulation that the decision is null
and void and so, therefore, their omnibus motion became all the more timely and proper.

The contentions do not impress this Court.

In Santos vs. Castillo 39 and Salazar vs. Court of First Instance of Laguna, 40 decided six (6) months apart in 1937, this Court already ruled that it is not
necessary that the original of the will be attached to the petition. In the first, it ruled: "The original of said document [the will] must be presented or
sufficient reasons given to justify the nonpresentation of said original and the acceptance of the copy or duplicate thereof." 41 In the second case, this
Court was more emphatic in holding that:

The law is silent as to the specific manner of bringing the jurisdictional allegations before the court, but practice and jurisprudence
have established that they should be made in the form of an application and filed with the original of the will attached thereto. It
has been the practice in some courts to permit attachment of a mere copy of the will to the application, without prejudice to
producing the original thereof at the hearing or when the court so requires. This precaution has been adopted by some attorneys
to forestall its disappearance, which has taken place in certain cases. 42

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

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.

In the instant case, a copy of the original will and its English translation were attached to the petition as Annex "A" and Annex "A-1", respectively, and
made integral parts of the same. It is to be presumed that upon the filing of the petition the Clerk of Court, or his duly authorized subordinate, examined
the petition and found that the annexes mentioned were in fact attached thereto. If they were not, the petition cannot be said to have been properly
presented and the Clerk of Court would not have accepted it for docketing. Under Section 6, Rule 136 of the Rules of Court, the Clerk of Court shall
receive and file all pleadings and other papers properly presented, endorsing on each such paper the time when it was filed. The presumption of
regularity in the performance of official duty militates against private respondents' claim that Annex "A" of the petition was not in fact attached thereto.

The certification of the Assistant Clerk of Court issued on 8 April

1980, 43 or SIX (6) months after the filing of the motion for reconsideration, to the effect that as per examination of the records of Sp. Proc. No. 3309-
R, "the copy of the Will mentioned in the petition as Annex "A" is not found to be attached as of this date in the said petition; only the English Translation
of said Will is attached thereof (sic) as Annex "A-1" does not even save the day for private respondents. It is not conclusive because it fails to state the
fact that as hereafter shown, the pages of the records which correspond to the four (4) pages of Annex "A" were missing or were detached therefrom.
As emphatically asserted by the petitioners in their Reply to the Comments of private respondents, 44 duly supported by a certification of the former
Clerk of Court of the original Branch VIII of the court below, 45 and which private respondents merely generally denied in their motion for reconsideration
with comments and opposition to consolidated reply, 46 the four-page xerox copy of will, marked as Annex "A" of the petition, became, as properly
marked by the personnel of the original Branch VIII of the court below upon the filing of the petition, pages 5, 6, 7 and 8 while the translation thereof,
marked as Annex "A-1", became pages 9, 10, 11 and 12 of the records. The markings were done in long hand. The records of the case were thereafter
sent to the Clerk of Court, 14th Judicial District, Cebu City on 9 February 1978. These records, now in the possession of the respondent Judge, show
that said pages 5, 6, 7 and 8 in long are missing. As a consequence thereof, petitioners filed with the Executive Judge of the court below an
administrative complaint.

It is not likewise disputed that the original of the will was submitted in evidence and marked as Exhibit "F". It forms part of the records of the special
proceedings — a fact which private respondents admit in their Omnibus Motion for Reconsideration, thus:

9. That an examination of the alleged will of our deceased sister has revealed that the signatures at the left hand margin of Exhibit
"F", are written by (sic) different person than the signature appearing at the bottom of said alleged will . . . 47

The availability of the will since 18 September 1972 for their examination renders completely baseless the private respondents' claim of fraud on
petitioner Fran's part in securing the withdrawal of their opposition to the probate of the will. If indeed such withdrawal was conditioned upon Fran's
promise that the private respondents would be shown the will during the trial, why weren't the appropriate steps taken by the latter to confront Fran
about this promise before certifications of conformity to the project of partition were filed?

Granting for the sake of argument that the non-fulfillment of said promise constitutes fraud, such fraud is not of the kind which provides sufficient
justification for a motion for reconsideration or a petition for relief from judgment under Rule 37 and Rule 38, respectively, of the Rules of Court, or
even a separate action for annulment of judgment. It is settled that for fraud to be invested with, sufficiency, it must be extrinsic or collateral to the
matters involved in the issues raised during the trial which resulted in such judgment. 48

In Our jurisdiction, the following courses of action are open to an aggrieved party to set aside or attack the validity of a final judgment:

(1) Petition for relief under Rule 38 of the Rules of Court which must be filed within sixty (60) days after learning of the decision,
but not more than six (6) months after such decision is entered;

(2) By direct action, via a special civil action for certiorari, or by collateral attack, assuming that the decision is void for want of
jurisdiction;

(3) By an independent civil action under Article 1114 of the Civil Code, assuming that the decision was obtained through fraud and
Rule 38 can not be applied. 49

It is not difficult to see that private respondents had lost their right to file a petition for relief from judgment, it appearing that their omnibus motion for
reconsideration was filed exactly six (6) years, ten (10) months and twenty-two (22) days after the rendition of the decision, and six (6) years, one (1)
month and thirteen (13) days after the court issued the order approving the Project of Partition, to which they voluntarily expressed their conformity
through their respective certifications, and closing the testate proceedings.

Private respondents did not avail of the other two (2) modes of attack.

The probate judgment of 13 November 1972, long final and undisturbed by any attempt to unsettle it, had inevitably passed beyond the reach of the
court below to annul or set the same aside, by mere motion, on the ground that the will is a forgery. Settled is the rule that the decree of probate is
conclusive with respect to the due execution of the will and it cannot be impugned on any of the grounds authorized by law, except that of fraud, in any
separate or independent action or proceeding. 50We wish also to advert to the related doctrine which holds that final judgments are entitled to respect
and should not be disturbed; otherwise, there would be a wavering of trust in the courts. 51 In Lee Bun Ting vs. Aligaen, 52 this Court had the occasion
to state the rationale of this doctrine, thus:

Reasons of public policy, judicial orderliness, economy and judicial time and the interests of litigants, as well as the peace and
order of society, all require that stability be accorded the solemn and final judgments of the courts or tribunals of competent
jurisdiction.

This is so even if the decision is incorrect 53 or, in criminal cases, the penalty imposed is erroneous. 54

Equally baseless and unmeritorious is 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 notice
of hearing she referred to is the Notice of Hearing For Approval of Project of Partition issued on 6 August 1973 by the Clerk of Court. 56 Private
respondent Espina was lying through her teeth when she claimed otherwise.

The non-distribution of the estate, which is vigorously denied by the petitioners, is not a ground for the re-opening of the testate proceedings. A
seasonable motion for execution should have been filed. In De Jesus vs.
Daza, 57 this Court ruled that if the executor or administrator has possession of the share to be delivered, the probate court would have jurisdiction
within the same estate proceeding to order him to transfer that possession to the person entitled thereto. This is authorized under Section 1, Rule 90
of the Rules of Court. However, if no motion for execution is filed within the reglementary period, a separate action for the recovery of the shares would
be in order. As We see it, the attack of 10 September 1973 on the Order was just a clever ploy to give asemblance of strength and substance to the
Omnibus Motion for Reconsideration by depicting therein a probate court committing a series of fatal, substantive and procedural blunders, which We
find to be imaginary, if not deliberately fabricated.

WHEREFORE, the instant petition and supplemental petitions are GRANTED. The Order of respondent Judge of 2 June 1980 and all other orders
issued by him in Sp. Proc. No. 3309-R, as well as all other proceedings had therein in connection with or in relation to the Omnibus Motion for
Reconsideration, are hereby ANNULLED and SET ASIDE.

The restraining order issued on 2 June 1980 is hereby made PERMANENT.

Costs against private respondent Concepcion M. Espina.

SO ORDERED.

G.R. No. 116668 July 28, 1997

ERLINDA A. AGAPAY, petitioner,

vs.
CARLINA (CORNELIA) V. PALANG and HERMINIA P. DELA CRUZ, respondents.

ROMERO, J.:

Before us is a petition for review of the decision of the Court of Appeals in CA-G.R. CV No. 24199 entitled "Erlinda Agapay v. Carlina (Cornelia) Palang
and Herminia P. Dela Cruz" dated June 22, 1994 involving the ownership of two parcels of land acquired during the cohabitation of petitioner and
private respondent's legitimate spouse.

Miguel Palang contracted his first marriage on July 16, 1949 when he took private respondent Carlina (or Cornelia) Vallesterol as a wife at the
Pozorrubio Roman Catholic Church in Pangasinan. A few months after the wedding, in October 1949, he left to work in Hawaii. Miguel and Carlina's
only child, Herminia Palang, was born on May 12, 1950.

Miguel returned in 1954 for a year. His next visit to the Philippines was in 1964 and during the entire duration of his year-long sojourn he stayed in
Zambales with his brother, not in Pangasinan with his wife and child. The trial court found evidence that as early as 1957, Miguel had attempted to
divorce Carlina in Hawaii. 1 When he returned for good in 1972, he refused to live with private respondents, but stayed alone in a house in Pozorrubio,
Pangasinan.

On July 15, 1973, the then sixty-three-year-old Miguel contracted his second marriage with nineteen-year-old Erlinda Agapay, herein petitioner. 2 Two
months earlier, on May 17, 1973, Miguel and Erlinda, as evidenced by the Deed of Sale, jointly purchased a parcel of agricultural land located at San
Felipe, Binalonan, Pangasinan with an area of 10,080 square meters. Consequently, Transfer Certificate of Title No. 101736 covering said rice land
was issued in their names.

A house and lot in Binalonan, Pangasinan was likewise purchased on September 23, 1975, allegedly by Erlinda as the sole vendee. TCT No. 143120
covering said property was later issued in her name.

On October 30, 1975, Miguel and Cornelia Palang executed a Deed of Donation as a form of compromise agreement to settle and end a case filed by
the latter. 3 The parties therein agreed to donate their conjugal property consisting of six parcels of land to their only child, Herminia Palang. 4

Miguel and Erlinda's cohabitation produced a son, Kristopher A. Palang, born on December 6, 1977. In 1979, Miguel and Erlinda were convicted of
Concubinage upon Carlina's complaint. 5 Two years later, on February 15, 1981, Miguel died.

On July 11, 1981, Carlina Palang and her daughter Herminia Palang de la Cruz, herein private respondents, instituted the case at bar, an action for
recovery of ownership and possession with damages against petitioner before the Regional Trial Court in Urdaneta, Pangasinan (Civil Case No. U-
4265). Private respondents sought to get back the riceland and the house and lot both located at Binalonan, Pangasinan allegedly purchased by Miguel
during his cohabitation with petitioner.

Petitioner, as defendant below, contended that while the riceland covered by TCT No. 101736 is registered in their names (Miguel and Erlinda), she
had already given her half of the property to their son Kristopher Palang. She added that the house and lot covered by TCT No. 143120 is her sole
property, having bought the same with her own money. Erlinda added that Carlina is precluded from claiming aforesaid properties since the latter had
already donated their conjugal estate to Herminia.

After trial on the merits, the lower court rendered its decision on June 30, 1989 dismissing the complaint after declaring that there was little evidence
to prove that the subject properties pertained to the conjugal property of Carlina and Miguel Palang. The lower court went on to provide for the intestate
shares of the parties, particularly of Kristopher Palang, Miguel's illegitimate son. The dispositive portion of the decision reads.

WHEREFORE, premises considered, judgment is hereby

rendered —

1) Dismissing the complaint, with costs against plaintiffs;

2) Confirming the ownership of defendant Erlinda Agapay of the residential lot located at Poblacion, Binalonan, Pangasinan, as evidenced
by TCT No. 143120, Lot 290-B including the old house standing therein;

3) Confirming the ownership of one-half (1/2) portion of that piece of agricultural land situated at Balisa, San Felipe, Binalonan, Pangasinan,
consisting of 10,080 square meters and as evidenced by TCT No. 101736, Lot 1123-A to Erlinda Agapay;

4. Adjudicating to Kristopher Palang as his inheritance from his deceased father, Miguel Palang, the one-half (1/2) of the agricultural land
situated at Balisa, San Felipe, Binalonan, Pangasinan, under TCT No. 101736 in the name of Miguel Palang, provided that the former
(Kristopher) executes, within 15 days after this decision becomes final and executory, a quit-claim forever renouncing any claims to
annul/reduce the donation to Herminia Palang de la Cruz of all conjugal properties of her parents, Miguel Palang and Carlina Vallesterol
Palang, dated October 30, 1975, otherwise, the estate of deceased Miguel Palang will have to be settled in another separate action;

5) No pronouncement as to damages and attorney's fees.

SO ORDERED. 6

On appeal, respondent court reversed the trial court's decision. The Court of Appeals rendered its decision on July 22, 1994 with the following
dispositive portion;

WHEREFORE, PREMISES CONSIDERED, the appealed decision in hereby REVERSED and another one entered:

1. Declaring plaintiffs-appellants the owners of the properties in question;

2. Ordering defendant-appellee to vacate and deliver the properties in question to herein plaintiffs-appellants;

3. Ordering the Register of Deeds of Pangasinan to cancel Transfer Certificate of Title Nos. 143120 and 101736 and to issue in lieu thereof
another certificate of title in the name of plaintiffs-appellants.

No pronouncement as to costs. 7

Hence, this petition.

Petitioner claims that the Court of Appeals erred in not sustaining the validity of two deeds of absolute sale covering the riceland and the house and
lot, the first in favor of Miguel Palang and Erlinda Agapay and the second, in favor of Erlinda Agapay alone. Second, petitioner contends that respondent
appellate court erred in not declaring Kristopher A. Palang as Miguel Palang's illegitimate son and thus entitled to inherit from Miguel's estate. Third,
respondent court erred, according to petitioner, "in not finding that there is sufficient pleading and evidence that Kristopher A. Palang or Christopher
A. Palang should be considered as party-defendant in Civil Case No. U-4625 before the trial court and in CA-G.R. No. 24199. 8

After studying the merits of the instant case, as well as the pertinent provisions of law and jurisprudence, the Court denies the petition and affirms the
questioned decision of the Court of Appeals.

The first and principal issue is the ownership of the two pieces of property subject of this action. Petitioner assails the validity of the deeds of conveyance
over the same parcels of land. There is no dispute that the transfer of ownership from the original owners of the riceland and the house and lot, Corazon
Ilomin and the spouses Cespedes, respectively, were valid.
The sale of the riceland on May 17, 1973, was made in favor of Miguel and Erlinda. The provision of law applicable here is Article 148 of the Family
Code providing for cases of cohabitation when a man and a woman who are not capacitated to marry each other live exclusively with each other as
husband and wife without the benefit of marriage or under a void marriage. While Miguel and Erlinda contracted marriage on July 15, 1973, said union
was patently void because the earlier marriage of Miguel and Carlina was still subsisting and unaffected by the latter's de facto separation.

Under Article 148, only the properties acquired by both of the parties through their actual joint contribution of money, property or industry shall be
owned by them in common in proportion to their respective contributions. It must be stressed that actual contribution is required by this provision, in
contrast to Article 147 which states that efforts in the care and maintenance of the family and household, are regarded as contributions to the acquisition
of common property by one who has no salary or income or work or industry. If the actual contribution of the party is not proved, there will be no co-
ownership and no presumption of equal shares. 9

In the case at bar, Erlinda tried to establish by her testimony that she is engaged in the business of buy and sell and had a sari-sari store 10 but failed
to persuade us that she actually contributed money to buy the subject riceland. Worth noting is the fact that on the date of conveyance, May 17, 1973,
petitioner was only around twenty years of age and Miguel Palang was already sixty-four and a pensioner of the U.S. Government. Considering her
youthfulness, it is unrealistic to conclude that in 1973 she contributed P3,750.00 as her share in the purchase price of subject property, 11 there being
no proof of the same.

Petitioner now claims that the riceland was bought two months before Miguel and Erlinda actually cohabited. In the nature of an afterthought, said
added assertion was intended to exclude their case from the operation of Article 148 of the Family Code. Proof of the precise date when they
commenced their adulterous cohabitation not having been adduced, we cannot state definitively that the riceland was purchased even before they
started living together. In any case, even assuming that the subject property was bought before cohabitation, the rules of co-ownership would still apply
and proof of actual contribution would still be essential.

Since petitioner failed to prove that she contributed money to the purchase price of the riceland in Binalonan, Pangasinan, we find no basis to justify
her co-ownership with Miguel over the same. Consequently, the riceland should, as correctly held by the Court of Appeals, revert to the conjugal
partnership property of the deceased Miguel and private respondent Carlina Palang.

Furthermore, it is immaterial that Miguel and Carlina previously agreed to donate their conjugal property in favor of their daughter Herminia in 1975.
The trial court erred in holding that the decision adopting their compromise agreement "in effect partakes the nature of judicial confirmation of the
separation of property between spouses and the termination of the conjugal partnership." 12 Separation of property between spouses during the
marriage shall not take place except by judicial order or without judicial conferment when there is an express stipulation in the marriage
settlements. 13 The judgment which resulted from the parties' compromise was not specifically and expressly for separation of property and should not
be so inferred.

With respect to the house and lot, Erlinda allegedly bought the same for P20,000.00 on September 23, 1975 when she was only 22 years old. The
testimony of the notary public who prepared the deed of conveyance for the property reveals the falsehood of this claim. Atty. Constantino Sagun
testified that Miguel Palang provided the money for the purchase price and directed that Erlinda's name alone be placed as the vendee. 14

The transaction was properly a donation made by Miguel to Erlinda, but one which was clearly void and inexistent by express provision of law because
it was made between persons guilty of adultery or concubinage at the time of the donation, under Article 739 of the Civil Code. Moreover, Article 87 of
the Family Code expressly provides that the prohibition against donations between spouses now applies to donations between persons living together
as husband and wife without a valid marriage, 15 for otherwise, the condition of those who incurred guilt would turn out to be better than those in legal
union. 16

The second issue concerning Kristopher Palang's status and claim as an illegitimate son and heir to Miguel's estate is here resolved in favor of
respondent court's correct assessment that the trial court erred in making pronouncements regarding Kristopher's heirship and filiation "inasmuch as
questions as to who are the heirs of the decedent, proof of filiation of illegitimate children and the determination of the estate of the latter and claims
thereto should be ventilated in the proper probate court or in a special proceeding instituted for the purpose and cannot be adjudicated in the instant
ordinary civil action which is for recovery of ownership and possession." 17

As regards the third issue, petitioner contends that Kristopher Palang should be considered as party-defendant in the case at bar following the trial
court's decision which expressly found that Kristopher had not been impleaded as party defendant but theorized that he had submitted to the court's
jurisdiction through his mother/guardian ad litem. 18 The trial court erred gravely. Kristopher, not having been impleaded, was, therefore, not a party to
the case at bar. His mother, Erlinda cannot be called his guardian ad litem for he was not involved in the case at bar. Petitioner adds that there is no
need for Kristopher to file another action to prove that he is illegitimate son of Miguel, in order to avoid multiplicity of suits. 19 Petitioner's grave error
has been discussed in the preceding paragraph where the need for probate proceedings to resolve the settlement of Miguel's estate and Kristopher's
successional rights has been pointed out.

WHEREFORE, the instant petition is hereby DENIED. The questioned decision of the Court of Appeals is AFFIRMED. Costs against petitioner.
SO ORDERED.

G.R. No. 12099 October 30, 1997

MANUEL G. REYES, MILA G. REYES, DANILO G. REYES, LYN AGAPE, ESTEBANA GALOLO, and CELSA AGAPE, petitioners,
vs.
COURT OF APPEALS AND JULIO VIVARES, respondent.

TORRES, JR., J.:

Unless legally flawed, a testator's intention in his last will and testament is its "life and soul" which deserves reverential observance.

The controversy before us deals with such a case.

Petitioners Manuel G. Reyes, Mila G. Reyes, Danilo G. Reyes, Lyn Agape, Marites Agape, Estebana Galolo and Celsa Agape, the oppositors in
Special Proceedings No. 112 for the probate of the will of Torcuato J. Reyes, assail in this petition for review the decision of the Court of Appeals 1 dated
November 29, 1995, the dispositive portion of which reads:

Wherefore, premises considered, the judgment appealed from allowing or admitting the will of Torcuato J. Reyes to probate and
directing the issuance of Letters Testamentary in favor of petition Julio A. Vivares as executor without bond is AFFIRMED but
modified in that the declaration that paragraph II of the Torcuato Reyes' last will and testament, including subparagraphs (a) and
(b) are null and void for being contrary to law is hereby SET ASIDE, said paragraph II and subparagraphs (a) and (b) are declared
VALID. Except as above modified, the judgment appealed from is AFFIRMED.

SO ORDERED. 2

The antecedent facts:

On January 3, 1992, Torcuato J. Reyes executed his last will and testament declaring therein in part, to wit:

xxx xxx xxx

II. I give and bequeath to my wife Asuncion "Oning" R. Reyes the following properties to wit:

a. All my shares of our personal properties consisting among others of jewelries, coins, antiques, statues, tablewares, furnitures,
fixtures and the building;

b. All my shares consisting of one half (1/2) or 50% of all the real estates I own in common with my brother Jose, situated in
Municipalities of Mambajao, Mahinog, Guinsiliban, Sagay all in Camigiun; real estates in Lunao, Gingoog, Caamulan,
Sugbongcogon, Boloc-Boloc, Kinoguitan, Balingoan, Sta. Ines, Talisay, all in the province of Misamis Oriental. 3

The will consisted of two pages and was signed by Torcuato Reyes in the presence of three witnesses: Antonio Veloso, Gloria Borromeo, and Soledad
Gaputan. Private respondent Julio A. Vivares was designated the executor and in his default or incapacity, his son Roch Alan S. Vivares.

Reyes died on May 12, 1992 and on May 21, 1992, private respondent filed a petition for probate of the will before the Regional Trial Court of Mambajao,
Camiguin. The petition was set for hearing and the order was published in the Mindanao Daily Post, a newspaper of general circulation, once a week
for three consecutive weeks. Notices were likewise sent to all the persons named in the petition.

On July 21, 1992, the recognized natural children of Torcuato Reyes with Estebana Galolo, namely Manuel, Mila, and Danilo all surnamed Reyes, and
the deceased's natural children with Celsa Agape, namely Lyn and Marites Agape, filed an opposition with the following allegations: a) that the last will
and testament of Reyes was not executed and attested in accordance with the formalities of law; and b) that Asuncion Reyes Ebarle exerted undue
and improper influence upon the testator at the time of the execution of the will. The opposition further averred that Reyes was never married to and
could never marry Asuncion Reyes, the woman he claimed to be his wife in the will, because the latter was already married to Lupo Ebarle who was
still then alive and their marriage was never annulled. Thus, Asuncion can not be a compulsory heir for her open cohabitation with Reyes was violative
of public morals.

On July 22, 1992, the trial court issued an order declaring that it had Acquired jurisdiction over the petition and, therefore, allowed the presentation of
evidence. After the presentation of evidence and submission of the respective memoranda, the trial court issued its decision on April 23, 1993.
The trial court declared that the will was executed in accordance with the formalities prescribed by law. It, however, ruled that Asuncion Reyes, based
on the testimonies of the witnesses, was never married to the deceased Reyes and, therefore, their relationship was an adulterous one.

Thus:

The admission in the will by the testator to the illicit relationship between him and ASUNCION REYES EBARLE who is somebody
else's wife, is further bolstered, strengthened, and confirmed by the direct testimonies of the petitioner himself and his two
"attesting" witnesses during the trial.

In both cases, the common denominator is the immoral, meretrecious, adulterous and illicit relationship existing between the
testator and the devisee prior to the death of the testator, which constituted the sole and primary consideration for the devise or
legacy, thus making the will intrinsically invalid. 4

The will of Reyes was admitted to probate except for paragraph II (a) and (b) of the will which was declared null and void for being contrary
to law and morals. Hence, Julio Vivares filed an appeal before the Court of Appeals with the allegation that the oppositors failed to present
any competent evidence that Asuncion Reyes was legally married to another person during the period of her cohabitation with Torcuato
Reyes.

On November 29, 1995, the Court of Appeals promulgated the assailed decision which affirmed the trial court's decision admitting the will
for probate but with the modification that paragraph II including subparagraphs (a) and (b) were declared valid. The appellate court stated:

Considering that the oppositors never showed any competent, documentary or otherwise during the trial to show that Asuncion
"Oning" Reyes' marriage to the testator was inexistent or void, either because of a pre-existing marriage or adulterous relationship,
the trial court gravely erred in striking down paragraph II (a) and (b) of the subject Last Will and Testament, as void for being
contrary to law and morals. Said declarations are not sufficient to destroy the presumption of marriage. Nor is it enough to overcome
the very declaration of the testator that Asuncion Reyes is his wife. 5

Dissatisfied with the decision of the Court of Appeals, the oppositors filed this petition for review.

Petitioners contend that the findings and conclusion of the Court of Appeals was contrary to law, public policy and evidence on record.
Torcuato Reyes and Asuncion "Oning" Reyes were collateral relatives up to the fourth civil degree. Witness Gloria Borromeo testified that
Oning Reyes was her cousin as her mother and the latter's father were sister and brother. They were also nieces of the late Torcuato Reyes.
Thus, the purported marriage of the deceased Reyes and Oning Reyes was void ab initio as it was against public policy pursuant to Article
38 (1) of the Family Code. Petitioners further alleged that Oning Reyes was already married to Lupo Ebarle at the time she was cohabiting
with the testator hence, she could never contract any valid marriage with the latter. Petitioners argued that the testimonies of the witnesses
as well as the personal declaration of the testator, himself, were sufficient to destroy the presumption of marriage. To further support their
contention, petitioners attached a copy of the marriage certificate of Asuncion Reyes and Lupo Ebarle. 6

The petition is devoid of merit.

As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. 7 Thus,
the court merely inquires on its due execution, whether or not it complies with the formalities prescribed by law, and the testamentary capacity
of the testator. It does not determine nor even by implication prejudge the validity or efficacy of the will's provisions. 8 The intrinsic validity is
not considered since the consideration thereof usually comes only after the will has been proved and allowed. There are, however, notable
circumstances wherein the intrinsic validity was first determined as when the defect of the will is apparent on its face and the probate of the
will may become a useless ceremony if it is intrinsically invalid. 9 The intrinsic validity of a will may be passed upon because "practical
considerations" demanded it as when there is preterition of heirs or the testamentary provisions are of doubtful legality. 10 Where the parties
agree that the intrinsic validity be first determined, the probate court may also do so. 11 Parenthetically, the rule on probate is not inflexible
and absolute. Under exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon
certain provisions of the will. 12

The case at bar arose from the institution of the petition for the probate of the will of the late Torcuato Reyes. Perforce, the only issues to be
settled in the said proceeding were: (1) whether or not the testator had animus testandi; (2) whether or not vices of consent attended the
execution of the will; and (3) whether or not the formalities of the will had been complied with. Thus, the lower court was not asked to rule
upon the intrinsic validity or efficacy of the provisions of the will. As a result, the declaration of the testator that Asuncion "Oning" Reyes was
his wife did not have to be scrutinized during the probate proceedings. The propriety of the institution of Oning Reyes as one of the
devisees/legatees already involved inquiry on the will's intrinsic validity and which need not be inquired upon by the probate court.

The lower court erroneously invoked the ruling in Nepomuceno vs. Court of Appeals (139 SCRA 206) in the instant case. In the case
aforesaid, the testator himself, acknowledged his illicit relationship with the devisee, to wit:
 Art. IV. That since 1952, I have been living, as man and wife, with one Sofia J. Nepomuceno, whom I declared and avow to be
entitled to my love an [sic] affection, for all the things which she has done for me, now and in the past; that while Sofia J.
Nepomuceno has with my full knowledge and consent, did comfort and represent myself as her own husband, in truth and in fact,
as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned previous
marriage.

Thus, the very tenor of the will invalidates the legacy because the testator admitted he was disposing of the properties to a person with whom
he had been living in concubinage. 13 To remand the case would only be a waste of time and money since the illegality or defect was already
patent. This case is different from the Nepomuceno case. Testator Torcuato Reyes merely stated in his will that he was bequeathing some
of his personal and real properties to his wife, Asuncion "Oning" Reyes. There was never an open admission of any illicit relationship. In the
case of Nepomuceno, the testator admitted that he was already previously married and that he had an adulterous relationship with the
devisee.

We agree with the Court of Appeals that the trial court relied on uncorroborated testimonial evidence that Asuncion Reyes was still married
to another during the time she cohabited with the testator. The testimonies of the witnesses were merely hearsay and even uncertain as to
the whereabouts or existence of Lupo Ebarle, the supposed husband of Asuncion. Thus:

The foregoing testimony cannot go against the declaration of the testator that Asuncion "Oning" Reyes is his wife. In Alvarado
v. City Government of Tacloban (supra) the Supreme Court stated that the declaration of the of the husband is competent evidence
to show the fact of marriage.

Considering that the oppositors never showed any competent evidence, documentary or otherwise during the trial to show that
Asuncion "Oning" Reyes' marriage to the testator was inexistent or void, either because of a pre-existing marriage or adulterous
relationship, the trial court gravely erred in striking down paragraph II (a) and (b) of the subject Last Will and Testament, as void
for being contrary to law and morals. Said declarations are not sufficient to destroy the presumption of marriage. Nor is it enough
to overcome the very declaration of the testator that Asuncion Reyes is his wife. 14

In the elegant language of Justice Moreland written decades ago, he

said —

A will is the testator speaking after death. Its provisions have substantially the same force and effect in the probate court as if the
testator stood before the court in full life making the declarations by word of mouth as they appear in the will. That was the special
purpose of the law in the creation of the instrument known as the last will and testament. Men wished to speak after they were
dead and the law, by the creation of that instrument, permitted them to do so. . . . All doubts must be resolved in favor of the
testator's having meant just what he said. (Santos vs. Manarang, 27 Phil. 209).

Petitioners tried to refute this conclusion of the Court of Appeals by presenting belatedly a copy of the marriage certificate of Asuncion Reyes
and Lupo Ebarle. Their failure to present the said certificate before the probate court to support their position that Asuncion Reyes had an
existing marriage with Ebarle constituted a waiver and the same evidence can no longer be entertained on appeal, much less in this petition
for review. This Court would not try the case anew or settle factual issues since its jurisdiction is confined to resolving questions of law which
have been passed upon by the lower courts. The settled rule is that the factual findings of the appellate court will not be disturbed unless
shown to be contrary to the evidence on the record, which petitioners have not shown in this case. 15

Considering the foregoing premises, we sustain the findings of the appellate court it appearing that it did not commit a reversible error in
issuing the challenged decision.

ACCORDINGLY, decision appealed from dated November 29, 1995, is hereby AFFIRMED and the instant petition for review is DENIED for
lack of merit.

SO ORDERED.

G.R. No. 123968 April 24, 2003

URSULINA GANUELAS, METODIO GANUELAS and ANTONIO GANUELAS, petitioners,

vs.
HON. ROBERT T. CAWED, Judge of the Regional Trial Court of San Fernando, La Union (Branch 29), LEOCADIA G. FLORES, FELICITACION
G. AGTARAP, CORAZON G. SIPALAY and ESTATE OF ROMANA GANUELAS DE LA ROSA, represented by GREGORIO DELA ROSA,
Administrator, respondents.
CARPIO MORALES, J.:

The present petition for review under Rule 45 of the Rules of Court assails, on a question of law, the February 22, 1996 decision 1 of the Regional
Trial Court of San Fernando, La Union, Branch 29, in Civil Case No. 3947, an action for declaration of nullity of a deed of donation.

The facts, as culled from the records of the case, are as follows:

On April 11, 1958, Celestina Ganuelas Vda. de Valin (Celestina) executed a Deed of Donation of Real Property 2 covering seven parcels of land in
favor of her niece Ursulina Ganuelas (Ursulina), one of herein petitioners.

The pertinent provision of the deed of donation reads, quoted verbatim:

xxx xxx xxx

That, for and in consideration of the love and affection which the DONOR has for the DONEE, and of the faithful services the latter has
rendered in the past to the former, the said DONOR does by these presents transfer and convey, by way of DONATION, unto the DONEE
the property above, described, to become effective upon the death of the DONOR; but in the event that the DONEE should die before the
DONOR, the present donation shall be deemed rescinded and of no further force and effect.

xxx xxx xxx.3

On June 10, 1967, Celestina executed a document denominated as Revocation of Donation 4 purporting to set aside the deed of donation. More than
a month later or on August 18, 1967, Celestina died without issue and any surviving ascendants and siblings.

After Celestina's death, Ursulina had been sharing the produce of the donated properties with private respondents Leocadia G. Flores, et al., nieces
of Celestina.

In 1982, or twenty-four years after the execution of the Deed of Donation, Ursulina secured the corresponding tax declarations, in her name, over the
donated properties, to wit: Tax Declarations Nos. 18108, 18109, 18110, 18111, 18112, 18113 and 18114, and since then, she refused to give private
respondents any share in the produce of the properties despite repeated demands.

Private respondents were thus prompted to file on May 26, 1986 with the RTC of San Fernando, La Union a complaint 5 against Ursulina, along with
Metodio Ganuelas and Antonio Ganuelas who were alleged to be unwilling plaintiffs. The complaint alleged that the Deed of Donation executed by
Celestina in favor of Ursulina was void for lack of acknowledgment by the attesting witnesses thereto before notary public Atty. Henry Valmonte, and
the donation was a disposition mortis causa which failed to comply with the provisions of the Civil Code regarding formalities of wills and testaments,
hence, it was void. The plaintiffs-herein private respondents thus prayed that judgment be rendered ordering Ursulina to return to them as intestate
heirs the possession and ownership of the properties. They likewise prayed for the cancellation of the tax declarations secured in the name of Ursulina,
the partition of the properties among the intestate heirs of Celestina, and the rendering by Ursulina of an accounting of all the fruits of the properties
since 1982 and for her to return or pay the value of their shares.

The defendants-herein petitioners alleged in their Answer6 that the donation in favor of Ursulina was inter vivos as contemplated under Article 729 of
the Civil Code,7 hence, the deed did not have to comply with the requirements for the execution of a valid will; the Revocation of Donation is null and
void as the ground mentioned therein is not among those provided by law to be the basis thereof; and at any rate, the revocation could only be legally
enforced upon filing of the appropriate complaint in court within the prescriptive period provided by law, which period had, at the time the complaint
was filed, already lapsed.

By Decision of February 22, 1996, the trial court, holding that the provision in the Deed of Donation that in the event that the DONEE should predecease
the DONOR, the "donation shall be deemed rescinded and of no further force and effect" is an explicit indication that the deed is a donation mortis
causa,8 found for the plaintiffs-herein private respondents, thus:

WHEREFORE the Court renders judgment declaring null and void the Deed of Donation of Real Property executed by Celestina Ganuelas,
and orders the partition of the estate of Celestina among the intestate heirs.

SO ORDERED.9

The trial court also held that the absence of a reservation clause in the deed implied that Celestina retained complete dominion over her properties,
thus supporting the conclusion that the donation is mortis causa,10 and that while the deed contained an attestation clause and an acknowledgment
showing the intent of the donor to effect a postmortem disposition, the acknowledgment was defective as only the donor and donee appear to have
acknowledged the deed before the notary public, thereby rendering the entire document void. 11
Lastly, the trial court held that the subsequent execution by Celestina of the Revocation of Donation showed that the donor intended the revocability
of the donation ad nutum, thus sustaining its finding that the conveyance wasmortis causa.12

On herein petitioners' argument that the Revocation of Donation was void as the ground mentioned therein is not one of those allowed by law to be a
basis for revocation, the trial court held that the legal grounds for such revocation as provided under the Civil Code arise only in cases of donations inter
vivos, but not in donationsmortis causa which are revocable at will during the lifetime of the donor. The trial court held, in any event, that given the
nullity of the disposition mortis causa in view of a failure to comply with the formalities required therefor, the Deed of Revocation was a superfluity. 13

Hence, the instant petition for review, petitioners contending that the trial court erred:

I. . . . WHEN IT DECLARED NULL AND VOID THE DONATION EXECUTED BY CELESTINA GANUELAS;

II. . . . WHEN IT UPHELD THE REVOCATION OF DONATION;

III. . . . IN RENDERING ITS DECISION ADVERSE TO PETITIONER URSULINA GANUELAS. 14

Petitioners argue that the donation contained in the deed is inter vivos as the main consideration for its execution was the donor's affection for the
donee rather than the donor's death;15 that the provision on the effectivity of the donation — after the donor's death — simply meant that absolute
ownership would pertain to the donee on the donor's death;16 and that since the donation is inter vivos, it may be revoked only for the reasons provided
in Articles 760,17 76418 and 76519 of the Civil Code.

In a letter of March 16, 1998,20 private respondent Corazon Sipalay, reacting to this Court's January 28, 1998 Resolution requiring private respondents
"to SHOW CAUSE why they should not be disciplinarily dealt with or held in contempt" for failure to submit the name and address of their new counsel,
explains that they are no longer interested in pursuing the case and are "willing and ready to waive whatever rights" they have over the properties
subject of the donation. Petitioners, who were required to comment on the letter, by Comment of October 28, 1998,21 welcome private respondents'
gesture but pray that "for the sake of enriching jurisprudence, their [p]etition be given due course and resolved."

The issue is thus whether the donation is inter vivos or mortis causa.

Crucial in the resolution of the issue is the determination of whether the donor intended to transfer the ownership over the properties upon the execution
of the deed.22

Donation inter vivos differs from donation mortis causa in that in the former, the act is immediately operative even if the actual execution may be
deferred until the death of the donor, while in the latter, nothing is conveyed to or acquired by the donee until the death of the donor-testator.23 The
following ruling of this Court in Alejandro v. Geraldez is illuminating:24

If the donation is made in contemplation of the donor's death, meaning that the full or naked ownership of the donated properties will pass
to the donee only because of the donor's death, then it is at that time that the donation takes effect, and it is a donation mortis causa which
should be embodied in a last will and testament.

But if the donation takes effect during the donor's lifetime or independently of the donor's death, meaning that the full or naked ownership
(nuda proprietas) of the donated properties passes to the donee during the donor's lifetime, not by reason of his death but because of the
deed of donation, then the donation is inter vivos.

The distinction between a transfer inter vivos and mortis causa is important as the validity or revocation of the donation depends upon its nature. If the
donation is inter vivos, it must be executed and accepted with the formalities prescribed by Articles 748 25 and 74926 of the Civil Code, except when it
is onerous in which case the rules on contracts will apply. If it is mortis causa, the donation must be in the form of a will, with all the formalities for the
validity of wills, otherwise it is void and cannot transfer ownership.27

The distinguishing characteristics of a donation mortis causa are the following:

1. It conveys no title or ownership to the transferee before the death of the transferor; or, what amounts to the same thing, that the transferor
should retain the ownership (full or naked) and control of the property while alive;

2. That before his death, the transfer should be revocable by the transferor at will, ad nutum; but revocability may be provided for indirectly
by means of a reserved power in the donor to dispose of the properties conveyed;

3. That the transfer should be void if the transferor should survive the transferee.28
In the donation subject of the present case, there is nothing therein which indicates that any right, title or interest in the donated properties was to be
transferred to Ursulina prior to the death of Celestina.

The phrase "to become effective upon the death of the DONOR" admits of no other interpretation but that Celestina intended to transfer the ownership
of the properties to Ursulina on her death, not during her lifetime.29

More importantly, the provision in the deed stating that if the donee should die before the donor, the donation shall be deemed rescinded and of no
further force and effect shows that the donation is a postmortem disposition.

As stated in a long line of cases, one of the decisive characteristics of a donation mortis causa is that the transfer should be considered void if the
donor should survive the donee.30

More. The deed contains an attestation clause expressly confirming the donation as mortis causa:

SIGNED by the above-named donor, Celestina Ganuelas, at the foot of this deed of donation mortis causa, consisting of two (2) pages and
on the left margin of each and every page thereof in the joint presence of all of us who at her request and in her presence and that of each
other have in like manner subscribed our names as witnesses.31 (Emphasis supplied)

To classify the donation as inter vivos simply because it is founded on considerations of love and affection is erroneous. That the donation was
prompted by the affection of the donor for the donee and the services rendered by the latter is of no particular significance in determining whether the
deed constitutes a transfer inter vivos or not, because a legacy may have an identical motivation.32 In other words, love and affection may also underline
transfers mortis causa.33

In Maglasang v. Heirs of Cabatingan,34 the deeds of donation contained provisions almost identical to those found in the deed subject of the present
case:

That for and in consideration of the love and affection of the DONOR for the DONEE, x x x. the DONOR does hereby, by these presents,
transfer, convey, by way of donation, unto the DONEE the above-described property, together with the buildings and all improvements
existing thereon, to become effective upon the death of the DONOR; PROVIDED, HOWEVER, that in the event that the DONEE should die
before the DONOR, the present donation shall be deemed automatically rescinded and of no further force and effect. (Emphasis supplied)

In that case, this Court held that the donations were mortis causa, for the above-quoted provision conclusively establishes the donor's intention to
transfer the ownership and possession of the donated property to the donee only after the former's death. Like in the present case, the deeds therein
did not contain any clear provision that purports to pass proprietary rights to the donee prior to the donor's death.

As the subject deed then is in the nature of a mortis causa disposition, the formalities of a will under Article 728 of the Civil Code should have been
complied with, failing which the donation is void and produces no effect.35

As noted by the trial court, the attesting witnesses failed to acknowledge the deed before the notary public, thus violating Article 806 of the Civil Code
which provides:

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required
to retain a copy of the will, or file another with the office of the Clerk of Court. (Emphasis supplied)

The trial court did not thus commit any reversible error in declaring the Deed of Donation to be mortis causa.

WHEREFORE, the petition is hereby DENIED for lack of merit.

SO ORDERED.

G.R. No. 110427 February 24, 1997

The Incompetent, CARMEN CAÑIZA, represented by her legal guardian, AMPARO EVANGELISTA,petitioner,
vs.
COURT OF APPEALS (SPECIAL FIRST DIVISION), PEDRO ESTRADA and his wife, LEONORA ESTRADA,respondents.
NARVASA, C.J.:

On November 20, 1989, being then ninety-four (94) years of age, Carmen Cañiza, a spinster, a retired pharmacist, and former professor of the College
of Chemistry and Pharmacy of the University of the Philippines, was declared incompetent by judgment 1 of the Regional Trial Court of Quezon City,
Branch 107, 2 in a guardianship proceeding instituted by her niece, Amparo A. Evangelista. 3 She was so adjudged because of her advanced age and
physical infirmities which included cataracts in both eyes and senile dementia. Amparo A. Evangelista was appointed legal guardian of her person and
estate.

Cañiza 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 Quezon City (Branch 35) to eject the spouses Pedro and Leonora Estrada from said premises. 4 The
complaint was later amended to identify the incompetent Cañiza as plaintiff, suing through her legal guardian, Amparo Evangelista.

The amended Complaint 5 pertinently alleged that plaintiff Cañiza was the absolute owner of the property in question, covered by TCT No. 27147; that
out of kindness, she had allowed the Estrada Spouses, their children, grandchildren and sons-in-law to temporarily reside in her house, rent-free; that
Cañiza 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, Cañiza 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 Cañiza's house since the 1960's; that in consideration of their
faithful service they had been considered by Cañiza 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 Cañiza's favor, 6 the Estradas being ordered to vacate the premises and pay Cañiza
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 isaccion 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."

Cañiza 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 Cañiza 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 Cañiza," 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 Cañiza that defendants are to remain and are to continue in their occupancy and possession, so
much so that Cañiza'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, Cañiza 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 Cañiza, which "occupancy can even ripen into full ownership once the
holographic will of petitioner Carmen Cañiza is admitted to probate." They conclude, on those postulates, that it is beyond the power of Cañiza's legal
guardian to oust them from the disputed premises.

Carmen Cañiza 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 Cañiza'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 Cañiza after the latter's death.
 I

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 Cañiza, 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 Cañiza, 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 Evangelista;

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 Cañiza, 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 Cañiza; 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 Cañiza's house by tolerance — having been "allowed to live temporarily . . (therein) for free,
out of . . (Cañiza's) kindness;"
 2) that Cañiza 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, Cañiza 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 Cañiza, 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 . . (Cañiza'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 (Cañiza) of the possession of . . (her property)
by force, intimidation, threat, strategy, or stealth.

The argument is arrant sophistry. Cañiza'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 Cañiza 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 Cañiza'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 Cañiza 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 Cañiza 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 Cañiza 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 Cañiza. 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, Cañiza'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 Cañiza passed away during the pendency of this appeal. The Estradas thereupon moved to dismiss the petition, arguing
that Cañiza'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 Cañiza, is one of the latter's only two (2) surviving
heirs, the other being Cañiza'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. Cañiza's demise did not extinguish the desahuciosuit 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.

G.R. No. 156536 October 31, 2006

JOSEPH CUA, petitioner,

vs.
GLORIA A. VARGAS, AURORA VARGAS, RAMON VARGAS, MARITES VARGAS, EDELINA VARGAS AND GEMMA VARGAS, respondents.

AZCUNA, J.:

This is a petition for review under Rule 45 of the Rules of Court seeking the reversal of the decision1 dated March 26, 2002, and the resolution2 dated
December 17, 2002, of the Court of Appeals in CA-G.R. SP No. 59869 entitled "Gloria A. Vargas, Aurora Vargas, Ramon Vargas, Marites Vargas,
Edelina Vargas and Gemma Vargas v. Joseph Cua."

The facts are as follows:

A parcel of residential land with an area of 99 square meters located in San Juan, Virac, Catanduanes was left behind by the late Paulina Vargas. On
February 4, 1994, a notarized Extra Judicial Settlement Among Heirs was executed by and among Paulina Vargas' heirs, namely Ester Vargas,
Visitacion Vargas, Juan Vargas, Zenaida V. Matienzo, Rosario V. Forteza, Andres Vargas, Gloria Vargas, Antonina Vargas and Florentino Vargas,
partitioning and adjudicating unto themselves the lot in question, each one of them getting a share of 11 square meters. Florentino, Andres, Antonina
and Gloria, however, did not sign the document. Only Ester, Visitacion, Juan, Zenaida and Rosario signed it. The Extra Judicial Settlement Among
Heirs was published in the Catanduanes Tribune for three consecutive weeks.3

On November 15, 1994, an Extra Judicial Settlement Among Heirs with Sale 4 was again executed by and among the same heirs over the same
property and also with the same sharings. Once more, only Ester, Visitacion, Juan, Zenaida and Rosario signed the document and their respective
shares totaling 55 square meters were sold to Joseph Cua, petitioner herein.

According to Gloria Vargas, the widow of Santiago Vargas and one of respondents herein, she came to know of the Extra Judicial Settlement Among
Heirs with Sale dated November 16, 1994 only when the original house built on the lot was being demolished sometime in May 1995.5 She likewise
claimed she was unaware that an earlier Extra Judicial Settlement Among Heirs dated February 4, 1994 involving the same property had been
published in the Catanduanes Tribune.6

After knowing of the sale of the 55 square meters to petitioner, Gloria Vargas tried to redeem the property, with the following letter 7 sent to petitioner
on her behalf:

29th June 1995

Mr. Joseph Cua

Capilihan, Virac, Catanduanes

Sir:

This is in behalf of my client, Ms. Aurora Vargas,8 (c/o Atty. Prospero V. Tablizo) one of the lawful heirs of the late Paulina Vargas, original
owner of Lot No. 214 of Virac, Poblacion covered by ARP No. 031-0031 in her name.

I understand that a document "Extra Judicial Settlement Among Heirs with Sale" was executed by some of my client's co-heirs and alleged
representatives of other co-heirs, by virtue of which document you acquired by purchase from the signatories to the said document, five (5)
shares with a total area of fifty-five square meters of the above-described land.

This is to serve you notice that my client shall exercise her right of legal redemption of said five (5) shares as well as other shares which you
may likewise have acquired by purchase. And you are hereby given an option to agree to legal redemption within a period of fifteen (15)
days from your receipt hereof.

Should you fail to convey to me your agreement within said 15-day-period, proper legal action shall be taken by my client to redeem said
shares.
 Thank you.

Very truly yours,

(Sgd.)
JUAN G. ATENCIA

When the offer to redeem was refused and after having failed to reach an amicable settlement at the barangay level,9 Gloria Vargas filed a case for
annulment of Extra Judicial Settlement and Legal Redemption of the lot with the Municipal Trial Court (MTC) of Virac, Catanduanes against petitioner
and consigned the amount of P100,000 which is the amount of the purchase with the Clerk of Court on May 20, 1996.10 Joining her in the action were
her children with Santiago, namely, Aurora, Ramon, Marites, Edelina and Gemma, all surnamed Vargas.

Subsequently, Carlos Gianan, Jr. and Gloria Arcilla, heirs of the alleged primitive owner of the lot in question, Pedro Lakandula, intervened in the
case.11

Respondents claimed that as co-owners of the property, they may be subrogated to the rights of the purchaser by reimbursing him the price of the
sale. They likewise alleged that the 30-day period following a written notice by the vendors to their co-owners for them to exercise the right of redemption
of the property had not yet set in as no written notice was sent to them. In effect, they claimed that the Extra Judicial Settlement Among Heirs and the
Extra Judicial Settlement Among Heirs with Sale were null and void and had no legal and binding effect on them. 12

After trial on the merits, the MTC rendered a decision13 in favor of petitioner, dismissing the complaint as well as the complaint-in-intervention for lack
of merit, and declaring the Deed of Extra Judicial Settlement Among Heirs with Sale valid and binding. The MTC upheld the sale to petitioner because
the transaction purportedly occurred after the partition of the property among the co-owner heirs. The MTC opined that the other heirs could validly
dispose of their respective shares. Moreover, the MTC found that although there was a failure to strictly comply with the requirements under Article
1088 of the Civil Code14 for a written notice of sale to be served upon respondents by the vendors prior to the exercise of the former's right of
redemption, this deficiency was cured by respondents' actual knowledge of the sale, which was more than 30 days before the filing of their complaint,
and their consignation of the purchase price with the Clerk of Court, so that the latter action came too late. Finally, the MTC ruled that respondents
failed to establish by competent proof petitioner's bad faith in purchasing the portion of the property owned by respondents' co-heirs.15

On appeal, the Regional Trial Court (RTC), Branch 42, of Virac, Catanduanes affirmed the MTC decision in a judgment dated November 25, 1999.
The matter was thereafter raised to the Court of Appeals (CA).

The CA reversed the ruling of both lower courts in the assailed decision dated March 26, 2002, declaring that the Extra Judicial Settlement Among
Heirs and the Extra Judicial Settlement Among Heirs with Sale, dated February 4, 1994 and November 15, 1994, respectively, were void and without
any legal effect. The CA held that, pursuant to Section 1, Rule 74 of the Rules of Court, 16 the extrajudicial settlement made by the other co-heirs is
not binding upon respondents considering the latter never participated in it nor did they ever signify their consent to the same.

His motion for reconsideration having been denied, petitioner filed the present petition for review.

The issues are:

Whether heirs are deemed constructively notified and bound, regardless of their failure to participate therein, by an extrajudicial settlement
and partition of estate when the extrajudicial settlement and partition has been duly published; and,

Assuming a published extrajudicial settlement and partition does not bind persons who did not participate therein, whether the written notice
required to be served by an heir to his co-heirs in connection with the sale of hereditary rights to a stranger before partition under Article
1088 of the Civil Code17 can be dispensed with when such co-heirs have actual knowledge of the sale such that the 30-day period within
which a co-heir can exercise the right to be subrogated to the rights of a purchaser shall commence from the date of actual knowledge of
the sale.

Petitioner argues, as follows:

Firstly, the acquisition by petitioner of the subject property subsequent to the extrajudicial partition was valid because the partition was duly published.
The publication of the same constitutes due notice to respondents and signifies their implied acquiescence thereon. Respondents are therefore
estopped from denying the validity of the partition and sale at this late stage. Considering that the partition was valid, respondents no longer have the
right to redeem the property.

Secondly, petitioner is a possessor and builder in good faith.

Thirdly, the MTC had no jurisdiction over the complaint because its subject matter was incapable of pecuniary estimation. The complaint should have
been filed with the RTC.

Fourthly, there was a non-joinder of indispensable parties, the co-heirs who sold their interest in the subject property not having been impleaded by
respondents.

Fifthly, the appeal to the CA should have been dismissed as it was not properly verified by respondents. Gloria Vargas failed to indicate that she was
authorized to represent the other respondents (petitioners therein) to initiate the petition. Moreover, the verification was inadequate because it did not
state the basis of the alleged truth and/or correctness of the material allegations in the petition.

The petition lacks merit.

The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding. The rule plainly states, however, that persons who do not participate or had
no notice of an extrajudicial settlement will not be bound thereby. 18 It contemplates a notice that has been sent out or issued before any deed of
settlement and/or partition is agreed upon (i.e., a notice calling all interested parties to participate in the said deed of extrajudicial settlement and
partition), and not after such an agreement has already been executed19 as what happened in the instant case with the publication of the first deed of
extrajudicial settlement among heirs.

The publication of the settlement does not constitute constructive notice to the heirs who had no knowledge or did not take part in it because the same
was notice after the fact of execution. The requirement of publication is geared for the protection of creditors and was never intended to deprive heirs
of their lawful participation in the decedent's estate. In this connection, the records of the present case confirm that respondents never signed either
of the settlement documents, having discovered their existence only shortly before the filing of the present complaint. Following Rule 74, these
extrajudicial settlements do not bind respondents, and the partition made without their knowledge and consent is invalid insofar as they are concerned.

This is not to say, though, that respondents' co-heirs cannot validly sell their hereditary rights to third persons even before the partition of the estate.
The heirs who actually participated in the execution of the extrajudicial settlements, which included the sale to petitioner of their pro indiviso shares in
the subject property, are bound by the same. Nevertheless, respondents are given the right to redeem these shares pursuant to Article 1088 of the
Civil Code. The right to redeem was never lost because respondents were never notified in writing of the actual sale by their co-heirs. Based on the
provision, there is a need for written notice to start the period of redemption, thus:

Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights
of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they
were notified in writing of the sale by the vendor. (Emphasis supplied.)

It bears emphasis that the period of one month shall be reckoned from the time that a co-heir is notified in writing by the vendor of the actual sale.
Written notice is indispensable and mandatory,20 actual knowledge of the sale acquired in some other manner by the redemptioner notwithstanding. It
cannot be counted from the time advance notice is given of an impending or contemplated sale. The law gives the co-heir thirty days from the time
written notice of the actual sale within which to make up his or her mind and decide to repurchase or effect the redemption. 21

Though the Code does not prescribe any particular form of written notice nor any distinctive method for written notification of redemption, the method
of notification remains exclusive, there being no alternative provided by law. 22 This proceeds from the very purpose of Article 1088, which is to keep
strangers to the family out of a joint ownership, if, as is often the case, the presence of outsiders be undesirable and the other heir or heirs be willing
and in a position to repurchase the share sold.23

It should be kept in mind that the obligation to serve written notice devolves upon the vendor co-heirs because the latter are in the best position to
know the other co-owners who, under the law, must be notified of the sale.24 This will remove all uncertainty as to the fact of the sale, its terms and its
perfection and validity, and quiet any doubt that the alienation is not definitive. 25 As a result, the party notified need not entertain doubt that the seller
may still contest the alienation. 26

Considering, therefore, that respondents' co-heirs failed to comply with this requirement, there is no legal impediment to allowing respondents to
redeem the shares sold to petitioner given the former's obvious willingness and capacity to do so.

Likewise untenable is petitioner's contention that he is a builder in good faith. Good faith consists in the belief of the builder that the land the latter is
building on is one's own without knowledge of any defect or flaw in one's title. 27 Petitioner derived his title from the Extra Judicial Settlement Among
Heirs With Sale dated November 15, 1994. He was very much aware that not all of the heirs participated therein as it was evident on the face of the
document itself. Because the property had not yet been partitioned in accordance with the Rules of Court, no particular portion of the property could
have been identified as yet and delineated as the object of the sale. This is because the alienation made by respondents' co-heirs was limited to the
portion which may be allotted to them in the division upon the termination of the co-ownership. Despite this glaring fact, and over the protests of
respondents, petitioner still constructed improvements on the property. For this reason, his claim of good faith lacks credence.
As to the issue of lack of jurisdiction, petitioner is estopped from raising the same for the first time on appeal. Petitioner actively participated in the
proceedings below and sought affirmative ruling from the lower courts to uphold the validity of the sale to him of a portion of the subject property
embodied in the extrajudicial settlement among heirs. Having failed to seasonably raise this defense, he cannot, under the peculiar circumstances of
this case, be permitted to challenge the jurisdiction of the lower court at this late stage. While it is a rule that a jurisdictional question may be raised at
any time, an exception arises where estoppel has already supervened.

Estoppel sets in when a party participates in all stages of a case before challenging the jurisdiction of the lower court. One cannot belatedly reject or
repudiate its decision after voluntarily submitting to its jurisdiction, just to secure affirmative relief against one's opponent or after failing to obtain such
relief. The Court has, time and again, frowned upon the undesirable practice of a party submitting a case for decision and then accepting the judgment,
only if favorable, and attacking it for lack of jurisdiction when adverse.28

Petitioner's fourth argument, that there is a non-joinder of indispensable parties, similarly lacks merit. An indispensable party is a party-in-interest
without whom there can be no final determination of an action and who is required to be joined as either plaintiff or defendant. 29 The party's interest in
the subject matter of the suit and in the relief sought is so inextricably intertwined with the other parties that the former's legal presence as a party to
the proceeding is an absolute necessity. Hence, an indispensable party is one whose interest will be directly affected by the court's action in the
litigation. In the absence of such indispensable party, there cannot be a resolution of the controversy before the court which is effective, complete, or
equitable.30

In relation to this, it must be kept in mind that the complaint filed by respondents ultimately prayed that they be allowed to redeem the shares in the
property sold by their co-heirs. Significantly, the right of the other heirs to sell their undivided share in the property to petitioner is not in dispute.
Respondents concede that the other heirs acted within their hereditary rights in doing so to the effect that the latter completely and effectively
relinquished their interests in the property in favor of petitioner. Petitioner thus stepped into the shoes of the other heirs to become a co-owner of the
property with respondents. As a result, only petitioner's presence is absolutely required for a complete and final determination of the controversy
because what respondents seek is to be subrogated to his rights as a purchaser.

Finally, petitioner contends that the petition filed by respondents with the CA should have been dismissed because the verification and certificate of
non-forum shopping appended to it were defective, citing specifically the failure of respondent Gloria Vargas to: (1) indicate that she was authorized
to represent her co-respondents in the petition, and (2) state the basis of the alleged truth of the allegations.

The general rule is that the certificate of non-forum shopping must be signed by all the plaintiffs or petitioners in a case and the signature of only one
of them is insufficient.31 Nevertheless, the rules on forum shopping, which were designed to promote and facilitate the orderly administration of justice,
should not be interpreted with such absolute literalness as to subvert their own ultimate and legitimate objective. Strict compliance with the provisions
regarding the certificate of non-forum shopping merely underscores its mandatory nature in that the certification cannot be altogether dispensed with
or its requirements completely disregarded.32 Under justifiable circumstances, the Court has relaxed the rule requiring the submission of such
certification considering that although it is obligatory, it is not jurisdictional.33

Thus, when all the petitioners share a common interest and invoke a common cause of action or defense, the signature of only one of them in the
certification against forum shopping substantially complies with the rules. 34The co-respondents of respondent Gloria Vargas in this case were her
children. In order not to defeat the ends of justice, the Court deems it sufficient that she signed the petition on their behalf and as their representative.

WHEREFORE, the petition is DENIED for lack of merit. Costs against petitioner.

SO ORDERED.

G.R. No. 175720 September 11, 2007

CRESENCIANA TUBO RODRIGUEZ (now deceased), substituted by SUSANA A. LLAGAS, Petitioner,

vs.
EVANGELINE RODRIGUEZ, BELEN RODRIGUEZ and BUENAVENTURA RODRIGUEZ, Respondents.

DECISION

YNARES-SANTIAGO, J.:

This petition for review on certiorari assails the Decision1 of the Court of Appeals in CA-G.R. SP No. 91442 dated June 27, 2006, which set aside the
Decision of the Regional Trial Court (RTC) of Makati City, Branch 134, in Civil Case No. 03-517, and reinstated the Decision of the Metropolitan Trial
Court (MTC) of Makati City, Branch 63, in Civil Case No. 75717, dismissing the complaint for ejectment; as well as the Resolution denying the motion
for reconsideration.
Juanito Rodriguez owned a five-door apartment located at San Jose Street, Guadalupe Nuevo, Makati City, and covered by TCT No. 144865. 2 On
October 27, 1983, Juanito executed a "Huling Habilin at Testamento" giving petitioner Cresenciana Tubo Rodriguez, his live-in partner, apartments D
and E, and his children Benjamin Rodriguez (the deceased husband of respondent Evangeline Rodriguez), apartment A, respondent Buenaventura
Rodriguez, apartment B, and respondent Belen Rodriguez, apartment C.3

However, on June 14, 1984, Juanito executed a Deed of Absolute Sale over the property in favor of petitioner.4Thus, TCT No. 144865 was cancelled
and a new TCT No. 150431 was issued in the name of the petitioner.5

The case arose when petitioner filed on September 20, 2001 a complaint for unlawful detainer against the respondents, alleging that she is the lawful
and registered owner of the property; and that in 1984, she allowed respondents Evangeline, Buenaventura and Belen, out of kindness and tolerance,
to personally occupy units A, B and D, respectively. However, without her knowledge and consent, respondents separately leased the units to Montano
Magpantay, Mel Navarro and Socorro Escota, who despite repeated demands, failed and refused to vacate the premises and to pay the rentals
thereof.6

In their Answer, respondents claimed ownership over the subject property by succession. They alleged that while petitioner is the registered owner of
the property, however, she is not the lawful owner thereof because the June 14, 1984 Deed of Absolute Sale was simulated and void. As in Civil Case
No. 01-1641 now pending before the RTC of Makati City, Branch 141, which they filed to assail the validity of the said sale, respondents maintain that
petitioner exerted undue influence over their father, who at that time was seriously ill, to agree to the sale of the property for only P20,000.00 after
knowing that only two apartments were given to her in the Huling Habilin at Testamento. Further, she had no cause of action against them for being a
party to the August 23, 1990 Partition Agreement wherein they recognized each other as co-owners and partitioned the property in accordance with
the provision of the last will and testament.7

On February 26, 2002, the MTC rendered a judgment in favor of the respondents and held that the deed of sale was simulated otherwise petitioner
would not have entered into the Partition Agreement, which legally conferred upon each heir exclusive ownership over their respective shares, thus:

WHEREFORE, the Complaint is DISMISSED. Plaintiff is ordered to pay attorney’s fees of P10,000.00 and the costs of suit in favor of defendants.

SO ORDERED.8

On appeal, the RTC reversed the decision of the MTC. It held that petitioner’s certificate of title is a conclusive evidence of ownership of the land
described therein; and that unless and until said title has been annulled by a court of competent jurisdiction, such title is existing and valid. This is true
also with respect to the deed of sale. The present action, which involves only the issue of physical or material possession, is not the proper action to
challenge it. Further, the MTC erred when it relied heavily on the "Huling Habilin at Testamento," which was not probated hence has no effect and no
right can be claimed therein. The Partition Agreement which was allegedly entered into pursuant to the Huling Habilin at Testamento should not also
be considered. Thus:

WHEREFORE, premises considered, the decision rendered by the Metropolitan Trial Court, Branch 63, Makati City, is hereby ordered REVERSED
AND SET ASIDE. Consequently, judgment is hereby rendered ordering the defendants and all persons claiming rights under them to vacate the
premises and surrender the possession thereof to the plaintiff. Defendants are likewise ordered to pay jointly and severally the plaintiff an amount
ofP5,000.00 a month per unit beginning 13 August 2001 until they finally vacate the premises and the costs of this suit.

SO ORDERED.9

Aggrieved, respondents filed a petition for review before the Court of Appeals which reversed and set aside the decision of the RTC and reinstated the
decision of the MTC. It held that the MTC correctly received evidence on ownership since the question of possession could not be resolved without
deciding the issue of ownership. Further, the Huling Habilin at Testamento transmitted ownership of the specific apartments not only to the respondents
but also to the petitioner; and pursuant thereto, the parties executed the Partition Agreement in accordance with the wishes of the testator, thus:

WHEREFORE, this Court resolves to REVERSE and SET ASIDE the Decision of the Regional Trial Court. The decision dated February 26, 2002 of
the Metropolitan Trial Court, Branch 63, Makati City in Civil Case No. 75717 dismissing the complaint for ejectment is hereby REINSTATED.

SO ORDERED.10

The motion for reconsideration was denied hence, petitioner filed the present petition for review raising the following errors:

I.
 THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR OF LAW AND GRAVE ABUSE OF DISCRETION IN REVERSING AND
SETTING ASIDE THE DECISION OF THE REGIONAL TRIAL COURT AND REINSTATING THE DECISION OF THE METROPOLITAN
TRIAL COURT DISMISSING PETITIONER’S COMPLAINT FOR UNLAWFUL DETAINER.

II.

THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR OF LAW AND GRAVE ABUSE OF DISCRETION IN DECLARING THAT
THE PROPERTY, A PARCEL OF LAND UPON WHICH A FIVE-UNIT APARTMENT STANDS, BECAME THE SUBJECT OF JUANITO
RODRIGUEZ’S HULING HABILIN AT TESTAMENTO WHEREIN THE PROPERTY WAS DISTRIBUTED TO HIS HEIRS (HEREIN
RESPONDENTS) INCLUDING THE RESPONDENT (PETITIONER HEREIN).11

Petitioner alleges that as the registered owner of the subject property, she enjoys the right of possession thereof and that question of ownership cannot
be raised in an ejectment case unless it is intertwined with the issue of possession. While the court may look into the evidence of title or ownership
and possession de jure to determine the nature of possession, it cannot resolve the issue of ownership because the resolution of said issue would
effect an adjudication on ownership which is not proper in the summary action for unlawful detainer. Petitioner insists that the Court of Appeals erred
in ruling that the Huling Habilin at Testamento transmitted ownership of the specific apartments disregarding the fact that the same is not probated yet
and that the testator changed or revoked his will by selling the property to petitioner prior to his death.

Contrarily, respondents pray that the instant petition for review be dismissed since the resolution of the question of ownership by the MTC and the
Court of Appeals was provisional only to resolve the issue of possession. Petitioner can always avail of legal remedies to have the issue of ownership
passed upon by the proper court. Aware of the provisional nature of the resolution on ownership in ejectment cases, respondents filed Civil Case No.
01-1641 to assail the validity of the deed of sale of the property and the registration thereof in petitioner’s name.

The petition has merit.

An action for unlawful detainer exists when a person unlawfully withholds possession of any land or building against or from a lessor, vendor, vendee
or other persons, after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied.12 The sole issue to be
resolved is the question as to who is entitled to the physical or material possession of the premises or possession de facto. 13 Being a summary
proceeding intended to provide an expeditious means of protecting actual possession or right to possession of property, the question of title is not
involved14 and should be raised by the affected party in an appropriate action in the proper court. 15

However, when the issue of ownership is raised the court is not ousted of its jurisdiction. Section 16 of Rule 70 of the Rules of Court provides:

SEC 16. Resolving defense of ownership. – When the defendant raises the defense of ownership in his pleadings and the question of possession
cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession.

Thus, all that the trial court can do is to make an initial determination of who is the owner of the property so that it can resolve who is entitled to its
possession absent other evidence to resolve ownership.16 But this adjudication is only provisional and does not bar or prejudice an action between the
same parties involving title to the property.17

In the case at bar, petitioner’s cause of action for unlawful detainer was based on her alleged ownership of land covered by TCT No. 150431 and that
she merely tolerated respondents’ stay thereat. However, when respondents leased the apartments to other persons without her consent, their
possession as well as those persons claiming right under them became unlawful upon their refusal to vacate the premises and to pay the rent. On the
other hand, respondents assailed petitioner’s title by claiming that the deed of sale upon which it was based was simulated and void. They insisted
that they were co-owners thus, they have the right to possess the said property. To prove their claim, they presented the Huling Habilin at Testamento
of Juanito Rodriguez and the Partition Agreement.

The lower courts considered the following documentary evidence in arriving at their respective decisions, albeit the RTC decision contradicts that of
the MTC and Court of Appeals: 1) Huling Habilin at Testamento executed by Juanito Rodriguez on October 27, 1983; 2) Deed of Sale of the property
executed by Juanito Rodriguez and the petitioner on June 14, 1984; 3) TCT No. 150431 in the name of the petitioner; and 4) the August 23, 1990
Partition Agreement executed by both the respondents and the petitioner.

Based on the foregoing documentary evidence, we find that there is preponderance of evidence in favor of the petitioner’s claim. Respondents failed
to prove their right of possession, as the Huling Habilin at Testamento and the Partition Agreement have no legal effect since the will has not been
probated. Before any will can have force or validity it must be probated. This cannot be dispensed with and is a matter of public policy.18 Article 838 of
the Civil Code mandates that "[n]o will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court."
As the will was not probated, the Partition Agreement which was executed pursuant thereto can not be given effect. Thus, the fact that petitioner was
a party to said agreement becomes immaterial in the determination of the issue of possession.
Moreover, at the time the deed of sale was executed in favor of the petitioner, Juanito Rodriguez remained the owner thereof since ownership would
only pass to his heirs at the time of his death. Thus, as owner of the property, he had the absolute right to dispose of it during his lifetime. Now, whether
or not the disposition was valid is an issue that can be resolved only in Civil Case No. 01-1641, an action instituted by the respondents for that purpose.

We are, thus, left with the deed of sale and the certificate of title over the property to consider.

We agree with the RTC that a certificate of title is a conclusive evidence of ownership of the land described therein; the validity of which shall not be
subject to a collateral attack, especially in an ejectment case which is summary in nature.

In Ross Rica Sales Center, Inc. v. Ong,19 the Court held that: The long settled rule is that the issue of ownership cannot be subject of a collateral
attack.

In Apostol v. Court of Appeals, this Court had the occasion to clarify this:

. . . Under Section 48 of Presidential Decree No. 1529, a certificate of title shall not be subject to collateral attack. It cannot be altered, modified or
cancelled, except in a direct proceeding for that purpose in accordance with law. The issue of the validity of the title of the respondents can only be
assailed in an action expressly instituted for that purpose. Whether or not the petitioners have the right to claim ownership over the property is beyond
the power of the court a quo to determine in an action for unlawful detainer.

Further, in Co v. Militar,20 it was held that:

[T]he Torrens System was adopted in this country because it was believed to be the most effective measure to guarantee the integrity of land titles
and to protect their indefeasibility once the claim of ownership is established and recognized.

It is settled that a Torrens Certificate of title is indefeasible and binding upon the whole world unless and until it has been nullified by a court of
competent jurisdiction. Under existing statutory and decisional law, the power to pass upon the validity of such certificate of title at the first instance
properly belongs to the Regional Trial Courts in a direct proceeding for cancellation of title.1âwphi1

As the registered owner, petitioner had a right to the possession of the property, which is one of the attributes of ownership. x x x

We emphasize, however, that our ruling on the issue of ownership is only provisional to determine who between the parties has the better right of
possession. It is, therefore, not conclusive as to the issue of ownership, which is the subject matter of Civil Case No. 01-1641. Our ruling that petitioner
has a better right of possession was arrived at on the basis of evidence without prejudice to the eventual outcome of the annulment case, where the
issue as to who has title to the property in question is fully threshed out. As the law now stands, in an ejectment suit, the question of ownership may
be provisionally ruled upon for the sole purpose of determining who is entitled to possession de facto.

WHEREFORE, in view of the foregoing, the Decision of the Court of Appeals in CA-G.R. SP No. 91442 dated June 27, 2006 is REVERSED and SET
ASIDE. The Decision of the Regional Trial Court of Makati City, Branch 134, in Civil Case No. 03-517, reversing the Decision of the Metropolitan Trial
Court (MTC) of Makati City, Branch 63, in Civil Case No. 75717, is REINSTATED. SO ORDERED.