G.R. No. L-42670. November 29, 1976.

VIRGINIA GARCIA FULE, petitioner, vs. HONORABLE ERNANI C. PAÑO, Presiding

Judge of Court of First Instance of Rizal, Quezon City, Branch XVIII, and
PRECIOSA B. GARCIA, respondents.

Settlement of estate; Venue; Jurisdiction; Section 1, Rule 73 of the Rules of Court

prescribing the court where a decedent’s estate shall be nettled, which in at the place
of his residence or where the estate is located, relates to venue and not jurisdiction.—
The aforequoted Section 1, Rule 73 specifically the clause “so far as it depends on the
place of residence of the decedent, or of the location of the estate,” is in reality a
matter of venue, as the caption of the Rule indicates: “Settlement of Estate of
Deceased Persons. Venue and Processes.” It could not have been intended to define
the jurisdiction over the subject matter, because such legal provision is contained in a
law of procedure dealing merely with procedural matters. Procedure is one thing,
jurisdiction over the subject matter is another, x x x A fortiori, the place of residence of
the deceased in settlement of estates, probate of will, and issuance of letters of
administration does not constitute an element of jurisdiction over the subject matter.
It is merely constitutive of venue.

Same; Same: Same; The term “resides” in Section 1, Rule 73 on settlement of a

decedent’s estate refers to his actual residence as distinguished from his legal
residence or domicile.—We lay down the doctrinal rule that the term “resides”
connotes ex vi termini “actual residence” as distinguished from “legal residence or
domicile.” This term “resides,” like the terms “residing” and “residence” is elastic and
should be interpreted in the light of the object or purpose of the statute or rule in
which it is employed. In the application of venue statutes and rules—Section 1, Rule
73 of the Revised Rules of Court is of such nature—residence rather than domicile is
the significant factor, x x x In other words, “resides,” should be viewed or understood
in its popular sense, meaning, the personal, actual or physical habitation of a person,
actual residence or place of abode. It signifies physical presence in a place and actual
stay thereat.

Same; Same; Evidence; Death certificate is admissible to prove the residence of the
deceased at the time of his death.—A death certificate is admissible to prove the
residence of the decedent at the time of his death.

Same; Same; Court’s discretion to choose the special administration should be bused
on reason, equity, and justice.—Nevertheless, the discretion to appoint a special
administrator does not tie in the probate court. That, however, is no authority for the
judge to become partial, or Lo make his personal likes arid dislikes prevail over, or his
passions, to rule, his judgment. Exercise of that discretion must be based on reason,
equity, justice and legal principle.
Same; Same; Special administrator; The rules applicable in the choice of a regular
administrator should be applied in the appointment of special administrator for a
decedent’s estate.—There is no reason why the same fundamental and legal principles
governing the choice of a regular administrator should not be taken into account in
the appointment of a special administrator. Nothing is wrong for the judge to consider
the order of preference in the appointment of a regular administrator in appointing a
special administrator. After all, the consideration that overrides all others in this
respect is the beneficial interest of the appointee in the estate of the decedent. Under
the law, the widow would have the right of succession over a portion CM the exclusive
property of the decedent, besides her share in the conjugal partnership. For such
reason, she would have as much, if not more, interest in administering the entire
estate correctly than any other next of kin. The good or bad administration of a
property may affect rather the fruits than the naked ownership of a property.

Same; Same; Venue; Supreme Court may decree, under its supervisory authority over
courts, that venue was transferred from one trial court to another.—Under these
circumstances and the doctrine laid down in Cuenco vs. Court of Appeals, this Court
under its supervisory authority over all inferior courts may properly decree that venue
in the instant case was properly assumed by and transferred to Quezon City and that
it is in the interest of justice and PETITIONS for review the decision of the Court of
Appeals.

The facts are stated in the opinion of the court.

Francisco Carreon for petitioners.

Augusto G. Gatmaytan for private respondents.

MARTIN, J.:

These two interrelated cases bring to Us the question of what the word “resides” in
Section 1, Rule 73 of the Revised Rules of Court, referring to the situs of the
settlement of the estate of deceased persons, means. Additionally, the rule in the
appointment of a special administrator is sought to be reviewed.

On May 2, 1973, Virginia G. Fule filed with the Court of First Instance of Laguna, at
Calamba, presided over by Judge Severe A. Malvar, a petition for letters of
administration, docketed as Sp. Proc. No. 27-C, alleging, inter alia, “that on April 26,
1973, Amado G. Garcia, a property owner of Calamba, Laguna, died intestate in the
City of Manila, leaving real estate and personal properties in Calamba, Laguna, and in
other places, within the jurisdiction of the Honorable Court.” At the same time, she
moved ex parte for her appointment as special administratrix over the estate. On even
date, May 2, 1973, Judge Malvar granted the motion.

A motion for reconsideration was filed by Preciosa B. Garcia on May 8, 1973,

contending that the order appointing Virginia G. Fule as special administratrix was
issued without jurisdiction, since no notice of the petition for letters of administration
has been served upon all persons interested in the estate; there has been no delay or
cause for delay in the proceedings for the appointment of a regular administrator as
the surviving spouse of Amado G. Garcia, she should be preferred in the appointment
of a special administratrix; and, Virginia G. Fule is a debtor of the estate of Amado G.
Garcia. Preciosa B. Garcia, therefore, prayed that she be appointed special
administratrix of the estate, in lieu of Virginia G. Fule, and as regular administratrix
after due hearing.

While this reconsideration motion was pending resolution before the Court, Preciosa
B. Garcia filed on May 29, 1973 a motion to remove Virginia G. Fule as special
administratrix alleging, besides the jurisdictional ground raised in the motion for
reconsideration of May 8, 1973 that her appointment was obtained through erroneous,
misleading and/or incomplete misrepresentations; that Virginia G. Fule has adverse
interest against the estate; and that she has shown herself unsuitable as
administratrix and as officer of the court.

In the meantime, the notice of hearing of the petition for letters of administration filed
by Virginia G. Fule with the Court of First Instance of Calamba, Laguna, was
published on May 17, 24, and 31, 1973, in the Bayanihan, a weekly publication of
general circulation in Southern Luzon.

On June 6, 1973, Preciosa B. Garcia received a “Supplemental Petition for the

Appointment of Regular Administrator ‘ filed by Virginia G. Fule. This supplemental
petition modified the original petition in four aspects: (1) the allegation that during the
lifetime of the deceased Amado G. Garcia, he was elected as Constitutional Delegate
for the First District of Laguna and his last place of residence was at Calamba,
Laguna; (2) the deletion of the names of Preciosa B. Garcia and Agustina Garcia as
legal heirs of Amado G. Garcia; (3) the allegation that Carolina Carpio, who was simply
listed as heir in the original petition, is the surviving spouse of Amado G. Garcia and
that she has expressly renounced her preferential right to the administration of the
estate in favor of Virginia G. Fule; and (4) that Virginia G, Fule be appointed as the
regular administratrix. The admission of this supplemental petition was opposed by
Preciosa B. Garcia for the reason, among others, that it attempts to confer jurisdiction
on the Court of First Instance of Laguna, of which the court was not possessed at the
beginning because the original petition was deficient.

On July 19, 1973, Preciosa B. Garcia filed an opporsition to the original and
supplemental petitions for letters of administration, raising the issues of jurisdiction,
venue, lack of interest of Virginia G. Fule in the estate of Amado G. Garcia, and
disqualification of Virginia G Fule as special administratrix.

An omnibus motion was filed by Virginia G. Fule on August 20, 1973, praying for
authority to take possession of properties of the decedent allegedly in the hands of
third persons as well as to secure cash advances from the Calamba Sugar Planters
Cooperative Marketing Association, Inc. Preciosa B. Garcia opposed the motion, calling
attention to the limitation made by Judge Malvar on the power of the special
administratrix, viz., “to making an inventory of the personal and real properties
making up the estate of the deceased “

However, by July 2, 1973, Judge Malvar and already issued an order, received by
Preciosa B. Garcia only on July 31, 1973, denying the motion of Preciosa B. Garcia to
reconsider the order of May 2, 1973, appointing Virginia G. Fule as special
administratrix, and admitting the supplementation petition of May 18, 1973.

On August 31, 1973, Preciosa B. Garcia moved to dismiss the petition, because (1)
jurisdiction over the petition or over the parties in interest has not been acquired by
the court; (2) venue was improperly laid; and (3) Virginia G. Fule is not a party in
interest as she is not entitled to inherit from the deceased Amado G. Garcia.

On September 28, 1973, Preciosa B. Garcia filed a supplemental motion to substitute

Virginia G. Fule as special administratrix, reasoning that the said Virginia G. Fule
admitted before before the court that she is a full-blooded sister of Pablo G. Alcaide,
an illegitimate son of Andrea Alcaide, with whom the deceased Amado G. Garcia has
no relation.

Three motions were filed by Preciosa B. Garcia on November 14, 1973, one, to enjoin
the special administratrix from taking possession of properties in the hands of third
persons which have not been determined as belonging to Amado G. Garcia; another, to
remove the special administratrix for acting outside her authority and against the
interest of the estate; and still another, filed in behalf of the minor Agustina B. Garcia,
to dismiss the petition for want of cause of action, jurisdiction, and improper venue.

On November 28, 1973, Judge Malvar resolved the pending omnibus motion of Virgina
G. Fule and the motion to dismiss filed by Preciosa B. Garcia. Resolving the motion to
dismiss, Judge Malvar ruled that the powers of the special administratrix are those
provided for in Section 2, Rule 80 of the Rules of Court,1 subject only to the previous
qualification made by the court that the administration of the properties subject of the
marketing agreement with the Canlubang Sugar Planters Cooperative Marketing
Association should remain with the latter; and that the special administratrix had
already been authorized in a previous order of August 20, 1973 to take custody and
possession of all papers and certificates of title and personal effects of the decedent
with the Canlubang Sugar Planters Cooperative Marketing Association, Inc. Ramon
Mercado, of the Canlubang Sugar Planters Cooperative Marketing Association, Inc.,
was ordered to deliver to Preciosa B. Garcia all certificates of title in her name without
any qualifying words like “married to Amado Garcia” does not appear. Regarding the
motion to dismiss, Judge Malvar ruled that the issue of jurisdiction had already been
resolved in the order of July 2, 1973, denying Preciosa B. Garcia’s motion to
reconsider the appointment of Virginia G. Fule and admitting the supplemental
petition, the failure of Virginia G. Fule to allege in her original petition for letters of
administration in the place of residence of the decedent at the time of his death was
cured. Judge Malvar further held that Preciosa B. Garcia had submitted to the
jurisdiction of the court and had waived her objections thereto by praying to be
appointed as special and regular administratrix of the estate.

An omnibus motion was filed by Preciosa B. Garcia on December 27, 1973 to clarify or
reconsider the foregoing order of Judge Malvar, in view of previous court order limiting
the authority of the special administratrix to the making of an inventory. Preciosa B.
Garcia also asked for the resolution of her motion to dismiss the petitions for lack of
cause of action, and also that filed in behalf of Agustina B. Garcia. Resolution of her
motions to substitute and remove the special administratrix was likewise prayed for.

On December 19, 1973, Judge Malvar issued two separate orders, the first, denying
Preciosa B. Garcia’s motions to substitute and remove the special administratrix, and
the second, holding that the power allowed the special administratrix enables her to
conduct and submit an inventory of the assets of the estate.

On January 7, 1974, Preciosa B. Garcia moved for reconsideration of the foregoing

orders of November 28, 1973 and December 19, 1973, insofar as they sustained or
failed to rule on the issues raised by her: (a) legal standing (cause of action) of Virginia
G. Fule; (b) venue; (c) jurisdiction; (d) appointment, qualification and removal of
special administratrix; and (e) delivery to the special administratrix of checks and
papers and effects in the office of the Calamba Sugar Planters Cooperative Marketing
Association, Inc.

On March 27, 1973, Judge Malvar issued the first questioned order denying Preciosa
B. Garcia’s motion for reconsideration of January 7, 1974. On July 19, 1974, Judge
Malvar issued the other three questioned orders: one, directing Ramon Mercado, of the
Calamba Sugar Planters Cooperative Marketing Association, Inc., to furnish Virginia
G. Fule, as special administratrix, copy of the statement of accounts and final
liquidation of sugar pool, as well as to deliver to her the corresponding amount due
the estate; another, directing Preciosa B, Garcia to deliver to Virginia G. Fule two
motor vehicles presumably belonging to the estate; and another, directing Ramon
Mercado to deliver to the court all certificates of title in his possession in the name of
Preciosa B. Garcia, whether qualified with the word “single” or “married to Amado
Garcia.”

During the hearing of the various incidents of this case (Sp. Proc. 27-C) before Judge
Malvar.2 Virginia G. Fule presented the death certificate of Amado G. Garcia showing
that his residence at the time of his death was Quezon City. On her part, Preciosa B,
Garcia presented the residence certificate of the decedent for 1973 showing that three
months before his death his residence was in Quezon City. Virginia G. Fule also
testified that Amado G. Garcia was residing in Calamba, Laguna at the time of his
death, and that he was a delegate to the 1971 Constitutional Convention for the first
district of Laguna.
On July 26, 1974, Preciosa B. Garcia and Agustina B. Garcia commenced a special
action for certiorari and/or prohibition and preliminary injunction before the Court of
Appeals, docketed as CA-G.R. No. 03221-SP. primarily to annul the proceedings before
Judge Malvar in Sp. Proc. No. 27-C of the Court of First Instance of Laguna, or, in the
alternative, to vacate the questioned four orders of that court, viz., one dated March
27, 1974, denying their motion for reconsideration of the order denying their motion to
dismiss the criminal and supplemental petitions on the issue, among others, of
jurisdiction, and the three others, ail dated July 19, 1974, directing the delivery of
certain properties to the special administratrix, Virginia G. Fule, and to the court.

On January 30, 1975, the Court of Appeals rendered judgment annulling the
proceedings before Judge Severo A. Malvar in Sp. Proc. 27-C of the Court of First
Instance of Calamba, Laguna, for lack of jurisdiction.

Denied of their motion for reconsideration on March 31, 1975, Virginia G. Fule
forthwith elevated the matter to Us on appeal by certiorari. The case was docketed as
G.R. No. L-40502.

However, even before Virginia G, Fule could receive the decision of the Court of
Appeals, Preciosa B. Garcia had already filed on February 1, 1975 a petition for letters
of administration before the Court of First Instance of Rizal, Quezon City Branch,
docketed as Sp. Proc. No. Q-19738, over the same intestate estate of Amado G. Garcia.
On February 10, 1975, Preciosa B. Garcia urgently moved for her appointment as
special administratrix of the estate. Judge Vicente G. Ericta granted the motion and
appointed Preciosa B. Garcia as special administratrix upon a bond of P30,000.00.
Preciosa B. Garcia qualified and assumed the office.

For the first time, on February 14, 1975, Preciosa B, Garcia informed Judge Ericta of
the pendency of Sp. Proc. No. 27-C before Judge Malvar of the Court of First Instance
of Laguna, and the annulment of the proceedings therein by the Court of Appeals on
January 80, 1975. She manifested, however, her willingness to withdraw Sp. Proc. Q-
19738 should the decision of the Court of Appeals annulling the proceedings before
the Court of First Instance of Laguna in Sp. Proc. No. 27-C have not yet become final,
it being the subject of a motion for reconsideration.

On March 10, 1973, Judge Ericta ordered the suspension of the proceedings before
his court until Preciosa B. Garcia inform the court of the final outcome of the case
pending before the Court of Appeals. This notwithstanding, Preciosa B. Garcia filed on
December 11, 1975, an “Urgent Petition for Authority to Pay Estate Obligations.”

On December 13, 1975, Virginia G. Fule filed a “Special Appearance to Question

Venue and Jurisdiction” reiterating the grounds stated in the previous special
appearance of March 3, 1975, and calling attention that the decision of the Court of
Appeals and its resolution denying the motion for reconsideration had been appealed
to this Court; that the parties had already filed their respective briefs, and that the
case is still pending before the Court.

On December 17, 1975, Judge Ernani Cruz Paño, who succeeded Judge Ericta, issued
an order granting Preciosa B. Garcia’s “Urgent Petition for Authority to Pay Estate
Obligations” in that the payments were for the benefit of the estate and that there
hangs a cloud of doubt on the validity of the proceedings in Sp, Proc. No. 27-C of the
Court of First Instance of Laguna.

A compliance of this Order was filed by Preciosa B. Garcia on January 12, 1976.

On February 4, 1974, VIRGINIA G. FULE instituted G.R. No. L-42670, a petition for
certiorari with temporary restraining order, to annul the proceedings in Sp. Proc. No.
Q-19738 and to restrain Judge Ernani Cruz Patio from further acting in the case. A
restraining order was issued on February 9, 1976. We dismiss the appeal in G.R. No.
L-40502 and the petition for certiorari in G.R. No. L-42670 for the reasons and
considerations hereinafter stated.

1. Section 1, Rule 73 of the Revised Rules of Court provides: “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 nettled; in the
Court, of First Instance in the province in which he resides 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.” With particular regard to letters of
administration, Section 2,’ Rule 79 of the Revised Rules of Court demands that the
petition therefor should affirmatively show the existence of jurisdiction to make the
appointment sought, and should allege all the necessary facts, such as death, the
name and last residence of the decedent, the existence, and situs if need be, of assets,
intestacy, where this is relied upon, and the right of the person who seeks
administration, as next of kin, creditor, or otherwise, to be appointed. The fact of
death of the intestate and his last residence within the country are foundation facts
upon which all subsequent proceedings in the administration of the estate rest, and
that if the intestate was not an inhabitant of the state at the time of his death, and left
no assets in the state, no jurisdiction is conferred on the court to grant letters of
administration.

The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the
clause “so far as it depends on the place of residence of the decedent, or of the location
of the estate,” is in reality a matter of venue, as the caption of the Rule indicates:
“Settlement of Estate of Deceased Persons, Venue and Processes.”4 It could not have
been intended to define the jurisdiction over the subject matter, because such legal
provision is contained in a law of procedure dealing merely with procedural matters.
Procedure is one thing; jurisdiction over the subject matter is another. The power or
authority of the court over the subject matter “existed and was fixed before procedure
in a given cause began.” That power or authority is not altered or changed by
procedure, which simply directs the manner in which the power or authority shall be
fully and justly exercised. There are cases though that if the power is not exercised
conformably with the provisions of the procedural law, purely, the court attempting to
exercise it loses the power to exercise it legally. However, this does not amount to a
loss of jurisdiction over the subject matter. Rather, it means that the court may
thereby lose jurisdiction over the person or that the judgment may thereby be
rendered defective for lack of something essential to sustain it. The appearance of this
provision in the procedural law at once raises a strong presumption that it has
nothing to do with the jurisdiction of the court over the subject matter. In plain words,
it is just a matter of method, of convenience to the parties.

The Judiciary Act of 1948, as amended, confers upon Courts of First Instance
jurisdiction over all probate cases independently of the place of residence of the
deceased. Because of the existence of numerous Courts of First Instance in the
country, the Rules of Court, however, purposedly fixes the venue or the place where
each case shall be brought. A fortiori, the place of residence of the deceased in
settlement of estates, probate of will, and issuance of letters of administration does not
constitute an element of jurisdiction over the subject matter. It is merely constitutive
of venue. And it is upon this reason that the Revised Rules of Court properly considers
the province where the estate of a deceased person shall be settled as “venue.”

2, But, the far-ranging question is this: What does the term “resides” mean? Does it
refer to the actual residence or domicile of the decedent at the time of his death? We
lay down the doctrinal rule that the term “resides” connotes ex vi termini “actual
residence” as distinguished from “legal residence or domicile.” This term “resides,” like
the terms “residing” and “residence,” is elastic and should be interpreted in the light of
the object or purpose of the statute or rule in which it is employed.7 In the application
of venue statutes and rules—Section 1, Rule 73 of the Revised Rules of Court is of
such nature—residence rather than domicile is the significant factor. Even where the
statute uses the word “domicile” still it is construed as meaning residence and not
domicile in the technical sense. Some cases make a distinction between the terms
“residence” and “domicile” but as generally used in statutes fixing venue, the terms are
synonymous, and convey the same meaning as the term “inhabitant.”8 In other words,
“resides” should be viewed or understood in its popular sense, meaning, the personal,
actual or physical habitation of a person, actual residence or place of abode. It
signifies physical presence in a place and actual stay thereat. In this popular sense,
the term means merely residence, that is, personal residence, not legal residence or
domicile.9 Residence simply requires bodily presence as an inhabitant in a given
place, while domicile requires bodily presence in that place and also an intention to
make it one’s domicile.10 No particular length of time of residence is required though;
however, the residence must be more than temporary.

3. Divergent claims are maintained by Virginia G. Fule and Preciosa B. Garcia on the
residence of the deceased Amado G. Garcia at the time of his death. In her original
petition for letters of administration before the Court of First Instance of Calamba,
Laguna, Virginia G. Fule measely stated “(t)hat on April 26, 1973, Amado G. Garcia, a
property owner of Calamba, Laguna, died intestate in the City of Manila, leaving real
estate and personal properties in Calamba, Laguna, and in other places within the
jurisdiction of this Honorable Court.” Preciosa B. Garcia assailed the petition for
failure to satisfy the jurisdictional requirement and improper laying of venue. For her,
the quoted statement avers no domicile or residence of the deceased Amado G. Garcia.
To say that as “property owner of Calamba, Laguna,” he also resides in Calamba,
Laguna, is, according to her, non sequitur. On the contrary, Preciosa B. Garcia claims
that, as appearing in his death certificate presented by Virginia G. Fule herself before
the Calamba court and in other papers, the last residence of Amado G. Garcia was at
11 Carmel Avenue, Carmel Subdivision, Quezon City. Parenthetically, in her amended
petition, Virginia G. Fule categorically alleged that Amado G. Garcia’s “last place of
residence was at Calamba, Laguna.”

On this issue, We rule that the last place of residence of the deceased Amado G.
Garcia was at 11 Carmel Avenue, Carmel Subdivision, Quezon City, and not at
Calamba, Laguna. A death certificate is admissible to prove the residence of the
decedent at the time of his death.12 As it is, the death certificate of Amado G. Garcia,
which was presented in evidence by Virginia G. Fule herself and also by Preciosa B.
Garcia, shows that his last place of residence was at 11 Carmel Avenue, Carmel
Subdivision, Quezon City. Aside from this, the deceased’s residence certificate for
1973 obtained three months before his death; the Marketing Agreement and Power of
Attorney dated November 12, 1971 turning over the administration of his two parcels
of sugar land to the Calamba Sugar Planters Cooperative Marketing Association, Inc.;
the Deed of Donation dated January 8, 1973, transferring part of his interest in
certain parcels of land in Calamba, Laguna to Agustina B. Garcia; and certificates of
titles covering parcels of land in Calamba, Laguna, show in bold documents that
Amado G. Garcia’s last place of residence was at Quezon City. Withal, the conclusion
becomes imperative that the venue for Virginia C. Fule’s petition for letters of
administration was improperly laid in the Court of First Instance of Calamba, Laguna.
Nevertheless, the long-settled rule is that objection to improper venue is subject to
waiver. Section 4, Rule 4 of the Revised Rules of Court states: “When improper venue
is not objected to in a motion to dismiss, it is deemed waived.” In the case before Us
the Court of Appeals had reason to hold that in asking to substitute Virginia G. Fule
as special administratrix, Preciosa B. Garcia did not necessarily waive her objection to
the jurisdiction or venue assumed by the Court of First Instance of Calamba, Laguna,
but availed of a mere practical resort to alternative remedy to assert her rights as
surviving spouse, while insisting on the enforcement of the Rule fixing the proper
venue of the proceedings at the last residence of the decedent.

4. Preciosa B. Garcia’s challenge to Virginia G. Fule’s appointment as special

administratrix is another issue of perplexity. Preciosa B. Garcia claims preference to
the appointment as surviving spouse. Section 1 of Rule 80 provides that “(w)hen there
is delay in granting letters testamentary or of administration by any cause including
an appeal from the allowance or disallowance of a will, the court may appoint a special
administrator to take possession and charge of the estate of the deceased until the
questions causing the delay are decided and executors or administrators appointed.13
Formerly, the appointment of a special administrator was only proper when the
allowance or disallowance of a will is under appeal. The new Rules, however,
broadened the basis for appointment and such appointment is now allowed when
there is delay in granting letters testamentary or administration by any cause, e.g.,
parties cannot agree among themselves. Nevertheless, the discretion to appoint a
special administrator or not lies in the probate court.15 That, however, is no authority
for the judge to become partial, or to make his personal likes and dislikes prevail over,
or his passions to rule, his judgment. Exercise of that discretion must be based on
reason, equity, justice and legal principle. There is no reason why the same
fundamental and legal principles governing the choice of a regular administrator
should not ‘be taken into account in the appointment of a special administrator.16
Nothing is wrong for the judge to consider the order of preference in the appointment
of a regular administrator in appointing a special administrator. After all, the
consideration that overrides all others in this respect is the beneficial interest of the
appointee in the estate of the decedent.17 Under the law, the widow would have the
right of succession over a portion of the exclusive property of the decedent, besides her
share in the conjugal partnership. For such reason, she would have as such, if not
more, interest in administering the entire estate correctly than any other next of kin.
The good or bad administration of a property may affect rather the fruits than the
naked ownership of a property.18

Virginia G. Fule, however, disputes the status of Preciosa B. Garcia as the widow of
the late Amado G. Garcia. With equal force, Preciosa B. Garcia maintains that Virginia
G. Fule has no relation whatsoever with Amado G. Garcia, or that, she is a mere
illegitimate sister of the latter, incapable of any successional rights.19 On this point,
We rule that Preciosa B. Garcia is prima facie entitled to the appointment of special
administratrix. It needs be emphasized that in the issuance of such appointment,
which is but temporary and subsists only until a regular administrator is
appointed,20 the appointing court does not determine who are entitled to share in the
estate of the decedent but who is entitled to the administration. The issue of heirship
is one to be determined in the decree of distribution, and the findings of the court on
the relationship of the parties in the administration as to be the basis of
distribution,21 The preference of Preciosa B. Garcia is with sufficient reason. In a
Donation Inter Vivos executed by the deceased Amado G. Garcia on January 8, 1973
in favor of Agustina B. Garcia, he indicated therein that he is married to Preciosa B.
Garcia.22 In his certificate of candidacy for the office of Delegate to the Constitutional
Convention for the First District of Laguna filed on September 1, 1970, he wrote
therein the name of Preciosa B. Banaticla as his spouse.23 Faced with these
documents and the presumption that a man and a woman deporting themselves as
husband and wife have entered into a lawful contract of marriage, Preciosa B. Garcia
can be reasonably believed to be the surviving spouse of the late Amado G. Garcia.
Semper praesumitur pro matrivionio.24

5. Under these circumstances and the doctrine laid down in Cuenco vs. Court of
Appeals,25 this Court under its supervisory authority over all inferior courts may
properly decree that venue in the instant case was properly assumed by and
transferred to Quezon City and that it is in the interest of justice and avoidance of
needless delay that the Quezon City court’s exercise of jurisdiction over the settlement
of the estate of the deceased Amado G. Garcia and the appointment of special
administratrix over the latter’s estate be approved and authorized and the Court of
First Instance of Laguna be disauthorized from continuing with the case and instead
be required to transfer all the records thereof to the Court of First Instance of Quezon
City for the continuation of the proceedings.

6. Accordingly, the Order of Judge Ernani Cruz Paño of December 17, 1975, granting
the “Urgent Petition for Authority to Pay Estate Obligations” filed by Preciosa B. Garcia
in Sp. Proc. No. Q-19738, subject matter of G.R. No. L-42670, and ordering the
Canlubang Sugar Estate to deliver to her as special administratrix the sum of
P48,874.70 for payment of the sum of estate obligations is hereby upheld.

IN VIEW OF THE FOREGOING, the petitions of petitioner Virginia Garcia Fule in G.R.
No. L-40502 and in G.R. No. L-42670 are hereby denied, with costs against petitioner.

SO ORDERED.

No. L-24742. October 26, 1973.

ROSA CAYETANO CUENCO, petitioners, vs. THE HONORABLE COURT OF

APPEALS, THIRD DIVISION, MANUEL CUENCO, LOURDES CUENCO,
CONCEPCION CUENCO MANGUERRA, CARMEN CUENCO, CONSUELO CUENCO
REYES. and TERESITA CUENCO GONZALEZ, respondents.

Settlement of estates; Jurisdiction; Venue; Residence of deceased not element of

jurisdiction, but of venue.—For purposes of determining what court has jurisdiction in
the settlement of a deceased’s estate, the residence of the deceased or the location of
his estate is not an element of jurisdiction over the subject matter but merely of
venue.
Same; Same; Court first taking cognizance of settlement of the estate of a decedent.—
Section 1, Rule 73 on venue does not state that the court with whom the testate or
intestate petition is first filed acquires exclusive jurisdiction. The Rule precisely and
deliberately provides that “the court first taking cognizance of the settlement of the
estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts.” A
fair reading of the Rule—since it deals with venue and comity between courts of equal
and co-ordinate jurisdiction—indicates that the court with whom the petition is first
filed, must also first take cognizance of the settlement of the estate in order to exercise
jurisdiction over it to the exclusion of all other courts. Conversely such court, may
upon learning that a petition for probate of the decedent’s last will has been presented
in another court where the decedent obviously had his conjugal domicile and resided
with his surviving widow and their minor children, and that the allegation of the
intestate petition before it stating that the decedent died intestate may actually be
false, may decline to take cognizance of the petition and hold the petition before it in
abeyance, and instead defer to the second court which has before it the petition for
probate of the decedent’s alleged last will. This is exactly what the Cebu court did.
Upon petitioner-widow’s filing with it a motion to dismiss Lourdes’ intestate petition, it
issued its order holding in abeyance its action on the dismissal motion and deferred to
the Quezon City court, awaiting its action on the petition for probate before that court.
Implicit in the Cebu court’s order was that ‘if the will was duly admitted to probate by
the Quezon City court, then it would definitely decline to take cognizance of Lourdes’
intestate petition which would thereby be shown to be false and improper, and leave
the exercise of jurisdiction to the Quezon City court, to the exclusion of all other
courts.

Same; Where Quezon City court did not act without jurisdiction in admitting to
probate will of decedent.—Under the facts of the case and where respondents
submitted to the Quezon City court their opposition to probate of the will, but failed to
appear at the scheduled hearing despite due notice, the said court cannot be declared,
as the appellate court did, to have acted without jurisdiction in admitting to probate
the decedent’s will and appointing petitioner-widow as executrix thereof in accordance
with the testator’s testamentary disposition.

Same; Testate proceedings take precedence over intestate proceedings. —ln

accordance with settled jurisprudence in this jurisdiction, testate proceedings for the
settlement of the estate of a deceased person take precedence over intestate
proceedings for the same purpose. Thus it has been held repeatedly that, if in the
course of intestate proceedings pending before a court of first instance it is found that
the decedent had left a last will, proceedings for the probate of the latter should
replace the intestate proceedings even it at that stage an administrator had already
been appointed x x x. This, however, is understood to be without prejudice that should
the alleged last will be rejected or is disapproved, the proceeding shall continue as an
intestacy.
Same; Jurisdiction; Opposition to jurisdiction of trial court in settlement proceedings
should be by appeal.—Under section 1, Rule 73, the Quezon City court’s assumption
of jurisdiction over the decedent’s estate on the basis of the will duly presented for
probate by petitioner-widow and finding that Quezon City was the first choice of
residence of the decedent, who had his conjugal home and domicile therein—with the
deference in comity duly given by the Cebu court—could not be contested except by
appeal from said court in the original case, except when want of jurisdiction appears
on the record.

Same; Jurisdictional facts in probate proceedings.—The “jurisdictional facts” in

probate proceedings under section 2, Rule 76 of the Rules of Court are the death of
the decedent, his residence at the time of his death in the province where the probate
court is sitting, or if he is an inhabitant of a foreign country, his having left his estate
in such province.

Same; When proceedings for settlement of estate will not be annulled even if court had
improper venue.—The mischievous effect in the administration of justice of
considering the question of residence as affecting the jurisdiction of the trial court and
annulling the whole proceedings only to start all over again the same proceedings
before another court of the same rank in another province is too obvious to require
comment.

Same; Same.—lt would be unfair imposition upon petitioner as the one named and
entitled to be executrix of the decedent’s last will and settle his estate in accordance
therewith, and a disregard of her rights under the rule on venue and the law on
jurisdiction to require her to spend much more time, money and effort to have to go
from Quezon City to the Cebu court everytime she has an important matter of the
estate to take up with the probate court.

Venue; Supreme Court may order change of venue under its supervisory authority
over inferior courts.—In the Supreme Court’s exercise of its supervisory authority over
all inferior courts, it may properly determine that venue was properly assumed by and
transferred to the Quezon City court and that it is the interest of justice and in
avoidance of needless delay that the Quezon City court’s exercise of jurisdiction over
the testate estate of the decedent (with the deference and consent of the Cebu court)
xxx and actions taken in the testate proceedings before it be approved and authorized
x x x.

PETITION for certiorari to review a decision and a resolution of the Court of Appeals.

The facts are stated in the opinion of the Court.

Ambrosio Padilla Law Office for petitioner.

Jalandoni & Jamir for respondents.

TEEHANKEE, J.:

Petition for certiorari to review the decision of respondent Court of Appeals in CA-G.R.
No. 34104-R, promulgated 21 November 1964, and its subsequent Resolution
promulgated 8 July 1964 denying petitioner’s Motion for Reconsideration.

The pertinent facts which gave rise to the herein petition follow:

On 25 February 1964 Senator Mariano Jesus Cuenco died at the Manila Doctors’
Hospital, Manila. He was survived by his widow, the herein petitioner, and their two
(2) minor sons, Mariano Jesus, Jr. and Jesus Salvador, both surnamed Cuenco, all
residing at 69 Pi y Margal St, Sta. Mesa Heights, Quezon City, and by his children of
the first marriage, respondents herein, namely, Manuel Cuenco, Lourdes Cuenco,
Concepcion Cuenco Manguera, Carmen Cuenco, Consuelo Cuenco Reyes and Teresita
Cuenco Gonzales, all of legal age and residing in Cebu.

On 5 March 1964, (the 9th day after the death of the late Senator)1 respondent
Lourdes Cuenco filed a Petition for Letters of Administration with the court of first
instance of Cebu (Sp. Proc. No. 2433-R), alleging among other things, that the late
senator died intestate in Manila on 25 February 1964; that he was a resident of Cebu
at the time of his death; and that he left real and personal properties in Cebu and
Quezon City. On the same date, the Cebu court issued an order setting the petition for
hearing on 10 April 1964, directing that due notice be given to all the heirs and
interested persons, and ordering the requisite publication thereof at LA PRENSA, a
newspaper of general circulation in the City and Province of Cebu.

The aforesaid order, however, was later suspended and cancelled and a new and
modified one released on 13 March 1964, in view of the fact that the petition was to be
heard at Branch II instead of Branch I of the said Cebu court. On the same date, a
third order was further issued stating that respondent Lourdes Cuenco’s petition for
the appointment of a special administrator dated 4 March 1964 was not yet ready for
the consideration of the said court, giving as reasons the following:

“It will be premature for this Court to act thereon, it not having yet regularly acquired
jurisdiction to try this proceeding, the requisite publication of the notice of hearing not
yet having been complied with. Moreover, copies of the petition have not been served
on all of the heirs specified in the basic petition for the issuance of letters of
administration.”2

In the meantime, or specifically on 12 March 1964, (a week after the filing of the Cebu
petition) herein petitioner Rosa Cayetano Cuenco filed a petition with the court of first
instance of Rizal (Quezon City) for the probate of the deceased’s last will and testament
and for the issuance of letters testamentary in her favor, as the surviving widow and
executrix in the said last will and testament. The said proceeding was docketed as
Special Proceeding No. Q-7898.
Having learned of the intestate proceeding in the Cebu court, petitioner Rosa Cayetano
Cuenco filed in said Cebu court an Opposition and Motion to Dismiss, dated 30 March
1964, as well as an Opposition to Petition for Appointment of Special Administrator,
dated 8 April 1964. On 10 April 1964, the Cebu court issued an order holding in
abeyance its resolution on petitioner’s motion to dismiss “until after the Court of First
Instance of Quezon City shall have acted on the petition for probate of that document
purporting to be the last will and testament of the deceased Don Mariano Jesus
Cuenco.”3 Such order of the Cebu court deferring to the probate proceedings in the
Quezon City court was neither excepted to nor sought by respondents to be
reconsidered or set aside by the Cebu court nor did they challenge the same by
certiorari or prohibition proceedings in the appellate courts.

Instead, respondents filed in the Quezon City court an Opposition and Motion to
Dismiss, dated 10 April 1964, opposing probate of the will and assailing the
jurisdiction of the said Quezon City court to entertain petitioner’s petition for probate
and for appointment as executrix in Sp. Proc. No. Q7898 in view of the alleged
exclusive jurisdiction vested by her petition in the Cebu court in Sp. Proc. No. 2433-R.
Said respondent prayed that Sp. Proc. No. Q-7898 be dismissed for lack of jurisdiction
and/or improper venue.

In its order of 11 April 1964, the Quezon City court denied the motion to dismiss,
giving as a principal reason the “precedence of probate proceeding over an intestate
proceeding.”4 The said court further found in said order that the residence of the late
senator at the time of his death was at No. 69 Pi y Margal, Sta. Mesa Heights, Quezon
City. The pertinent portion of said order follows:

“On the question of residence of the decedent, paragraph 5 of the opposition and
motion to dismiss reads as follows: ‘that since the decedent Don Mariano Jesus
Cuenco was a resident of the City of Cebu at the time of his death, the aforesaid
petition filed by Rosa Cayetano Cuenco on 12 March 1964 was not filed with the
proper Court (wrong venue) in view of the provisions of Section 1 of Rule 73 of the New
Rules of Court . . . ' . From the aforequoted allegation, the Court is made to
understand that the oppositors do not mean to say that the decedent being a resident
of Cebu City when he died, the intestate proceedings in Cebu City should prevail over
the probate proceedings in Quezon City, because as stated above the probate of the
will should take precedence, but that the probate proceedings should be filed in the
Cebu City Court of First Instance. If the last proposition is the desire of the oppositors
as understood by this Court, that could not also be entertained as proper because
paragraph 1 of the petition for the probate of the will indicates that Don Mariano
Jesus Cuenco at the time of his death was a resident of Quezon City at 69 Pi y Margal.
Annex A (Last Will and Testament of Mariano Jesus Cuenco) of the petition for probate
of the will shows that the decedent at the time when he executed his Last Will clearly
stated that he is a resident of 69 Pi y Margal, Sta. Mesa Heights, Quezon City, and
also of the City of Cebu. He made the former as his first choice and the latter as his
second choice of residence.’ If a party has two residences, the one will be deemed or
presumed to be his domicile which he himself selects or considers to be his home or
which appears to be the center of his affairs. The petitioner, in thus filing the instant
petition before this Court, follows the first choice of residence of the decedent and once
this court acquires jurisdiction of the probate proceeding it is to the exclusion of all
others.”

Respondent Lourdes Cuenco’s motion for reconsideration of the Quezon City court’s
said order of 11 April 1964 asserting its exclusive jurisdiction over the probate
proceeding as deferred to by the Cebu court was denied on 27 April 1964 and a
second motion for reconsideration dated 20 May 1964 was likewise denied.

On 11 May 1964, pursuant to its earlier order of 11 April 1964, the hearing for
probate of the last will of the decedent was called three times at half-hour intervals,
but notwithstanding due notification none of the oppositors appeared and the Quezon
City court proceeded at 9:00 a.m. with the hearing in their absence.

As per the order issued by it subsequently on 15 May 1964, the Quezon City court
noted that respondents-oppositors had opposed probate under their opposition and
motion to dismiss on the following grounds:

“(a) That the will was not executed and attested as required by law;

“(b) That the will was procured by undue and improper pressure and inf luence on the
part of the beneficiary or some other persons for his benef it;

“(c) That the testator’s signature was procured by fraud and/or that the testator acted
by mistake and did not intend that the instrument he signed should be his will at the
time he affixed his signature thereto.”6

The Quezon City court further noted that the requisite publication of the notice of the
hearing had been duly complied with and that all the heirs had been duly notified of
the hearing, and after receiving the testimony of the three instrumental witnesses to
the decedent’s last will, namely Atty. Florencio Albino, Dr. Guillermo A. Picache and
Dr. Jose P. Ojeda, and of the notary public, Atty. Braulio A. Arriola, Jr., who ratified
the said last will, and the documentary evidence (such as the decedent’s residence
certificates, income tax return, diplomatic passport, deed of donation) all indicating
that the decedent was a resident of 69 Pi y Margal St., Quezon City, as also affirmed
by him in his last will, the Quezon City court in its said order of 15 May 1964
admitted to probate the late senator’s last will and testament as having been “freely
and voluntarily executed by the testator” and “with all formalities of the law” and
appointed petitioner-widow as executrix of his estate without bond “following the
desire of the testator” in his will as probated.

Instead of appealing from the Quezon City court’s said order admitting the will to
probate and naming petitioner-widow as executrix thereof, respondents filed a special
civil action of certiorari and prohibition with preliminary injunction with respondent
Court of Appeals (docketed as case CA-G.R. No. 34104-R) to bar the Rizal court from
proceeding with case No. Q-7898.

On 21 November 1964, the Court of Appeals rendered a decision in favor of

respondents (petitioners therein) and against the herein petitioner, holding that:

“Section 1, Rule 73, which fixes the venue in proceedings for the settlement of the
estate of a deceased person, covers both testate and intestate proceedings. Sp. Proc.
2433-R of the Cebu CFI having been filed ahead, it is that court whose jurisdiction
was first invoked and which first attached. It is that court which can properly and
exclusively pass upon the factual issues of (1) whether the decedent left or did not
leave a valid will, and (2) whether or not the decedent was a resident of Cebu at the
time of his death.

“Considering therefore that the first proceeding was instituted in the Cebu CFI (Special
Proceeding 2433-R), it follows that the said court must exercise jurisdiction to the
exclusion of the Rizal CFI, in which the petition for probate was filed by the
respondent Rosa Cayetano Cuenco (Special Proceeding Q-7898). The said respondent
should assert her rights within the framework of the proceeding in the Cebu CFI,
instead of invoking the jurisdiction of another court.

“The respondents try to make capital of the fact that on March 13, 1964, Judge
Amador Gomez of the Cebu CFI, acting in Sp. Proc. 2433-R, stated that the petition for
appointment of special administrator was ‘not yet ready for the consideration of the
Court today. It would be premature for this Court to act thereon, it not having yet
regularly acquired jurisdiction to try this proceeding x x x.’ It is sufficient to state in
this connection that the said judge was certainly not referring to the court’s
jurisdiction over the res, not to jurisdiction itself which is acquired from the moment a
petition is filed, but only to the exercise of jurisdiction in relation to the stage of the
proceedings. At all events, jurisdiction is conferred and determined by law and does
not depend on the pronouncements of a trial judge.”

The dispositive part of respondent appellate court’s judgment provided as follows:

“ACCORDINGLY, the writ of prohibition will issue, commanding and directing the
respondent Court of First Instance of Rizal, Branch IX, Quezon City, and the
respondent Judge Damaso B. Tengco to refrain perpetually from proceeding and
taking any action in Special Proceeding Q-7898 pending before the said respondent
court. All orders heretofore issued and actions heretofore taken by said respondent
court and respondent Judge, therein and connected therewith, are hereby annulled.
The writ of injunction heretofore issued is hereby made permanent. No
pronouncement as to costs.”

Petitioner’s motion for reconsideration was denied in a resolution of respondent Court

of Appeals, dated 8 July 1965; hence the herein petition for review on certiorari.
The principal and decisive issue at bar is, theretofore, whether the appellate court
erred in law in issuing the writ of prohibition against the Quezon City court ordering it
to refrain perpetually from proceeding with the testate proceedings and annulling and
setting aside all its orders and actions, particularly its admission to probate of the
decedent’s last will and testament and appointing petitioner-widow as executrix
thereof without bond in compliance with the testator’s express wish in his testament.
This issue is tied up with the issue submitted to the appellate court, to wit, whether
the Quezon City court acted without jurisdiction or with grave abuse of discretion in
taking cognizance and assuming exclusive jurisdiction over the probate proceedings
filed with it, in pursuance of the Cebu court’s order of 10 April 1964 expressly
consenting in deference to the precedence of probate over intestate proceedings that it
(the Quezon City court) should first act “on the petition for probate of the document
purporting to be the last will and testament of the deceased Don Mariano Jesus
Cuenco”—which order of the Cebu court respondents never questioned nor challenged
by prohibition or certiorari proceedings and thus enabled the Quezon City court to
proceed without any impediment or obstruction, once it denied respondent Lourdes
Cuenco’s motion to dismiss the probate proceeding for alleged lack of jurisdiction or
improper venue, to proceed with the hearing of the petition and to admit the will to
probate upon having been satisfied as to its due execution and authenticity.

The Court finds under the above-cited facts that the appellate court erred in law in
issuing the writ of prohibition against the Quezon City court from proceeding with the
testate proceedings and annulling and setting aside all its orders and actions,
particularly its admission to probate of the deceased’s last will and testament and
appointing petitioner-widow as executrix thereof without bond pursuant to the
deceased testator’s express wish, for the following considerations:—

1. The Judiciary Act7 concededly confers original jurisdiction upon all Courts of First
Instance over “all matters of probate, both of testate and intestate estates.” On the
other hand, Rule 73, section of the Rules of Court lays down the rule of venue, as the
very caption of the Rule indicates, and in order to prevent conflict among the different
courts which otherwise may properly assume; jurisdiction from doing so, the Rule
specifies that “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 cited
Rule provides:

“Section 1 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 resides at the time of his death, and if he is
an inhabitant of a foreign country, the Court of First Instance of the 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.” (Rule 73)8

It is equally conceded that the residence of the deceased or the location of his estate is
not an element of jurisdiction over the subject matter but merely of venue. This was
lucidly stated by the late Chief Justice Moran in Sy Oa vs. Co Ho9 as follows:

“We are not unaware of existing decisions to the effect that in probate cases the place
of residence of the deceased is regarded as a question of jurisdiction over the subject-
matter. But we decline to f this view because of its mischievous consequences. For
instance, a probate case has been submitted in good faith to the Court of First
Instance of a province where the deceased had not resided. All the parties, however,
including all the creditors, have submitted themselves to the jurisdiction of the court
and the case is therein completely finished except for a claim of a creditor who also
voluntarily filed it with said court but on appeal from an adverse decision raises for
the first time in this Court the question of jurisdiction of the trial court for lack of
residence of the deceased in the province. If we consider such question of residence as
one affecting the jurisdiction of the trial court over the subject-matter, the effect shall
be that the whole proceedings including all decisions on the different incidents which
have arisen in court will have to be annulled and the name case will have to be
commenced a new before another court of the same rank in another province. That
this is of mischievous effect in the prompt administration of justice is too obvious to
require comment. (Cf. Tanunchuan vs. Dy Buncio & Co., G.R. No. 48206, December
31, 1942) Furthermore, section 600 of Act No. 190,10 providing that the estate of a
deceased person shall be settled in the province where he had last resided, could not
have been intended as defining the jurisdiction of the probate court over the subject-
matter, because such legal provision is contained in a law of procedure dealing merely
with procedural matters, and, as we have said time and again, procedure is one thing
and jurisdiction over the subject matter is another. (Attorney-General vs. Manila
Railroad Company, 20 Phil. 523.) The law of jurisdiction—Act No. 136,11 Section 56,
No. 5—confers upon Courts of First Instance jurisdiction over all probate cases
independently of the place of residence of the deceased. Since, however, there are
many courts of First Instance in the Philippines, the Law of Procedure, Act No. 190,
section 600, fixes the venue or the place where each case shall be brought. Thus, the
place of residence of the deceased is not an element of jurisdiction over the
subjectmatter but merely of venue. And it is upon this ground that in the new Rules of
Court the province where the estate of a deceased person shall be settled is properly
called ‘venue’ ”

It should be noted that the Rule on venue does not state that the court with whom the
estate or intestate petition is first filed acquires exclusive jurisdiction.
The Rule precisely and deliberately provides that “the court first taking cognizance of
the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of
all other courts.”

A fair reading of the Rule—since it deals with venue and comity between courts of
equal and co-ordinate jurisdiction—indicates that the court with whom the petition is
first filed, must also first take cognizance of the settlement of the estate in order to
exercise jurisdiction over it to the exclusion of all other courts.

Conversely, such court, may upon learning that a petition for probate of the decedent’s
last will has been presented in another court where the decedent obviously had his
conjugal domicile and resided with his surviving widow and their minor children, and
that the allegation of the intestate petition before it stating that the decedent died
intestate may be actually false, may decline to take cognizance of the petition and hold
the petition before it in abeyance, and instead defer to the second court which has
before it the petition for probate of the decedent’s alleged last will.

2. This exactly what the Cebu court did. Upon petitionerwidow’s filing with it a motion
to dismiss Lourdes’ intestate petition, it issued its order holding in abeyance its action
on the dismissal motion and deferred to the Quezon City court, awaiting its action on
the petition for probate before that court. Implicit in the Cebu court’s order was that if
the will was duly admitted to probate by the Quezon City court, then it would
definitely decline to take cognizance of Lourdes’ intestate petition which would thereby
be shown to be false and improper, and leave the exercise of jurisdiction to the Quezon
City court, to the exclusion of all other courts. Likewise by its act of deference, the
Cebu court left it to the Quezon City court to resolve the question between the parties
whether the decedent’s residence at the time of his death was in Quezon City where he
had his conjugal domicile rather than in Cebu City as claimed by respondents. The
Cebu court thus indicated that it would decline to take cognizance of the intestate
petition before it and instead defer to the Quezon City court, unless the latter would
make a negative finding as to the probate petition and the residence of the decedent
within its territory and venue.

3. Under these facts, the Cebu court could not be held to have acted without
jurisdiction or with grave abuse of jurisdiction in declining to take cognizance of the
intestate petition and deferring to the Quezon City court.

Necessarily, neither could the Quezon City court be deemed to have acted without
jurisdiction in taking cognizance of and acting on the probate petition since under
Rule 73, section 1, the Cebu court must first take cognizance over the estate of the
decedent and must exercise jurisdiction to exclude all other courts, which the Cebu
court declined to do. Furthermore, as is undisputed, said rule only lays down a rule of
venue and the Quezon City court indisputably had at least equal and coordinate
jurisdiction over the estate.
Since the Quezon City court took cognizance over the probate petition before it and
assumed jurisdiction over the estate, with the consent and deference of the Cebu
court, the Quezon City court should be left now, by the same rule of venue of said
Rule 73, to exercise jurisdiction to the exclusion of all other courts.

Under the facts of the case and where respondents submitted to the Quezon City court
their opposition to probate of the will, but failed to appear at the scheduled hearing
despite due notice, the Quezon City court cannot be declared, as the appellate court
did, to have acted without jurisdiction in admitting to probate the decedent’s will and
appointing petitioner-widow as executrix thereof in accordance with the testator’s
testamentary disposition.

4. The relatively recent case of Uriarte vs. Court of First Instance of Negros
Occidental12 with facts analogous to the present case13 is authority against
respondent appellate court’s questioned decision.

In said case, the Court upheld the doctrine of precedence of probate proceedings over
intestate proceedings in this wise:

“It cannot be denied that a special proceeding intended to effect the distribution of the
estate of a deceased person, whether in accordance with the law on intestate
succession or in accordance with his will, is a ‘probate matter’ or a proceeding for the
settlement of his estate. It is equally true. however, that in accordance with settled
jurisprudence in this jurisdiction, testate proceedings for the settlement of the estate
of a deceased person take precedence over instestate proceedings for the same
purpose. Thus it has been held repeatedly that, if in the course of intestate
proceedings pending before a court of first instance it is found that the decedent had
left a last will, proceedings for the the probate of the latter should replace the intestate
proceedings even if.at that state an administrator had already been appointed, the
latter being required to render final account and turn over the estate in his possession
to the executor subsequently appointed. This, however, is understood to be without
prejudice that should ‘the alleged last will be rejected or is disapproved the proceeding
shall continue na an intestacy. As already adverted to, this is a clear indication that
proceedings for the probate of a will enjoy priority over intestate proceedings.”14

The Court likewise therein upheld the jurisdiction of the second court, (in this case,
the Quezon City court) although opining that certain considerations therein “would
seem to support the view that [therein respondent] should have submitted said will for
probate to the Negros Court, [in this case, the Cebu court] either in a separate special
proceeding or in an appropriate motion for said purpose filed in the already pending
Special Proceeding No. 6344,"15 thus:

“But the fact is that instead of the aforesaid will being presented for probate to the
Negros Court, Juan Uriarte Zamacona filed the petition for the purpose with the
Manila Court. We can not accept petitioner’s contention in this regard that the latter
court had no jurisdiction to consider said petition, albeit we say that it was not the
proper venue therefor.

“It is well settled in this jurisdiction that wrong venue is merely a waivable procedural
defect, and, in the light of the circumstances obtaining in the instant case, we are of
the opinion, and so hold, that petitioner has waived the right to raise such objection or
is precluded from doing so by laches. It is enough to consider in this connection that
petitioner knew of the existence of a will executed by Juan Uriarte y Goite since
December 19, 1961 when Higinio Uriarte filed his opposition to the initial petition filed
in Special Proceeding No. 6344; that petitioner likewise was served with notice of the
existence (presence) of the alleged last will in the Philippines and of the filing of the
petition for its probate with the Manila Court since August 28, 1962 when Juan
Uriarte Zamacona filed a motion for the dismissal of Special Proceeding No. 6344. All
these notwithstanding, it was only on April 15, 1963 that he filed with the Manila
Court in Special Proceeding No. 51396 an Omnibus motion asking for leave to
intervene and for the dismissal and annulment of all the proceedings had therein up
to that date; thus enabling the Manila Court not only to appoint an administrator-with
the will annexed but also to admit said ‘will to probate more than five months earlier,
or more specifically, on October 31, 1962. To allow him now to assail the exercise of
jurisdiction over the probate of the will by the Manila Court and the validity of all the
proceedings had in Special Proceeding No. 51396 would put a premium on his
negligence. Moreover, it must be remembered that this Court is not inclined to annul
proceedings regularly had in a lower court even if the latter was not the proper venue
therefor, if the net result would be to have the same proceedings repeated in some
other court of similar jurisdiction; more so in a case like the present where the
objection against said proceedings is raised too late.”16

5. Under Rule 73, section 1 itself, the Quezon City court’s assumption of jurisdiction
over the decedent’s estate on the basis of the will duly presented for probate by
petitionerwidow and finding that Quezon City was the first choice of residence of the
decedent, who had his conjugal home and domicile therein—with the deference in
comity duly given by the Cebu court—could not be contested except by appeal from
said court in the original case. The last paragraph of said Rule expressly provides:

“x x x 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 front that court, in the original case, or when
the want of jurisdiction appears on the record.” (Rule 73)

The exception therein given, viz, “when the want of jurisdiction appears on the record”
could probably be properly invoked, had such deference in comity of the Cebu court to
the Quezon City court not appeared in the record, or had the record otherwise shown
that the Cebu court had taken cognizance of the petition before it and assumed
jurisdiction.
6. On the question that Quezon City established to be the residence of the late
senator, the appellate court while recognizing that “the issue is a legitimate one” held
in reliance on Borja vs. Tan17 that

“x x x The issue of residence comes within the competence of whichever court is

considered to prevail in the exercise of jurisdiction—in this case, the Court of First
Instance of Cebu as held by this Court. Parenthetically, we note that the question of
the residence of the deceased is a serious one, requiring both factual and legal
resolution on the basis of ample evidence to be submitted in the ordinary course of
procedure in the first instance, particularly in view of the fact that the deceased was
better known as the Senator from Cebu and the will purporting to be his also gives
Cebu, besides Quezon City, as his residence. We reiterate that this matter requires
airing in the proper court, as so indicated in the leading and controlling case of Borja
vs. Hon. Bienvenido Tan, et al., G.R. L-7792, July 27, 1955.”

In the case at bar, however, the Cebu court declined to take cognizance of the
intestate petition first filed with it and deferred to the testate proceedings filed with the
Quezon City court and in effect asked the Quezon City court to determine the
residence of the decedent and whether he did leave a last will and testament upon
which would depend the proper venue of the estate proceedings, Cebu or Quezon City.
The Quezon City court having thus determined in effect for both courts—at the behest
and with the deference and consent of the Cebu court—that Quezon City was the
actual residence of the decedent who died testate and therefore the proper venue, the
Borja ruling would seem to have no applicability. It would not serve the practical ends
of justice to still require the Cebu court, if the Borja ruling is to be held applicable and
as indicated in the decision under review, to determine for itself the actual residence of
the decedent (when the Quezon City court had already so determined Quezon City as
the actual residence at the Cebu court’s behest and respondents have not seriously
questioned this factual finding based on documentary evidence) and if the Cebu court
should likewise determine Quezon City as the actual residence, or its contrary finding
reversed on appeal, only then to allow petitioner-widow after years of waiting and
inaction to institute the corresponding proceedings in Quezon City.

7. With more reason should the Quezon City proceedings be upheld when it is taken
into consideration that Rule 76, section 2 requires that the petition for allowance of a
will must show: “"(a) the jurisdictional facts.” Such “jurisdictional facts” in probate
proceedings, as held by the Court in Fernando vs. Crisostomo18 “are the death of the
decedent, his residence at the time of his death in the province where the probate
court is sitting, or if he is an inhabitant of a foreign country, his having left his estate
in such province.”

This tallies with the established legal concept as restated by Moran that “(T)he probate
of a will is a proceeding in rem. The notice by publication as a pre-requisite to the
allowance of a will, is a constructive notice to the whole world, and when probate is
granted, the judgment of the court is binding upon basis of the will duly presented for
probate by petitioner widow and finding that Quezon City was the first choice of
residence of the decedent, who had his conjugal home and domicile therein—with the
deference in comity duly given by the Cebu court—could not be contested except by
appeal from said court in the original case. The last paragraph of said Rule expressly
provides:

“x x x 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 front that court, in the original case, or when
the want of jurisdiction appears on the record.” (Rule 73)

The exception therein given, viz, “when the want of jurisdiction appears on the record”
could probably be properly invoked, had such deference in comity of the Cebu court to
the Quezon City court not appeared in the record, or had the record otherwise shown
that the Cebu court had taken cognizance of the petition before it and assumed
jurisdiction.

8. If the question of jurisdiction were to be made to depend only on who of the

decedent’s relatives gets first to file a petition for settlement of the decedent’s estate,
then the established jurisprudence of the Court that Rule 73, section 1 provides only a
rule of venue in order to preclude different courts which may properly assume
jurisdiction from doing so and creating conflicts between them to the detriment of the
administration of justice, and that venue is waivable, would be set at naught. As
between relatives who unfortunately do not see eye to eye, it would be converted into a
race as to who can file the petition faster in the court of his/her choice, regardless of
whether the decedent is still in cuerpo presente and in disregard of the decedent’s
actual last domicile, the fact that he left a last will and testament and the right of his
surviving widow named as executrix thereof. Such dire consequences were certainly
not intended by the Rule nor would they be in consonance with public policy and the
orderly administration of justice.

9. It would finally be unjust and inequitable that petitionerwidow, who under all the
applicable rules of venue, and despite the fact that the Cebu court (where respondent
Lourdes Cuenco had filed an intestate petition in the Cebu court earlier by a week’s
time on 5 March 1964) deferred to the Quezon City court where petitioner had within
fifteen days (on March 12, 1964) after the decedent’s death (on February 25, 1964)
timely filed the decedent’s last will and petitioned for letters testamentary and is
admittedly entitled to preference in the administration of her husband’s estate,20
would be compelled under the appealed decision to have to go all the way to Cebu and
submit anew the decedent’s will there for probate either in a new proceeding or by
asking that the intestate proceedings be converted into a testate proceeding—when
under the Rules, the proper venue for the testate proceedings, as per the facts of
record and as already affirmed by the Quezon City court is Quezon City, where the
decedent and petitioner-widow had their conjugal domicile.

It would be an unfair imposition upon petitioner as the one named and entitled to be
executrix of the decedent’s last will and settle his estate in accordance therewith, and
a disregard of her rights under the rule on venue and the law on jurisdiction to require
her to spend much more time, money and effort to have to go from Quezon City to the
Cebu court everytime she has an important matter of the estate to take up with the
probate court.

It would doubly be an unfair imposition when it is considered that under Rule 73,
section 2,21 since petitioner’s marriage has been dissolved with the death of her
husband, their community property and conjugal estate have to be administered and
liquidated in the estate proceedings of the deceased spouse. Under the appealed
decision, notwithstanding that petitioner resides in Quezon City, and the proper venue
of the testate proceeding was in Quezon City and the Quezon City court properly took
cognizance and exercised exclusive jurisdiction with the deference in comity and
consent of the Cebu court, such proper exercise of jurisdiction would be nullified and
petitioner would have to continually leave her residence in Quezon City and go to
Cebu to settle and liquidate even her own community property and conjugal estate
with the decedent.

10. The Court therefore holds under the facts of record that the Cebu court did not act
without jurisdiction nor with grave abuse of discretion in declining to take cognizance
of the intestate petition and instead deferring to the testate proceedings filed just a
week later by petitioner as surviving widow and designated executrix of the decedent’s
last will, since the record before it (the petitioner’s opposition and motion to dismiss)
showed the falsity of the allegation in the intestate petition that the decedent had died
without a will. It is noteworthy that respondents never challenged by certiorari or
prohibition proceedings the Cebu court’s order of 10 April 1964 deferring to the
probate proceedings before the Quezon City court/thus leaving the latter free
(pursuant to the Cebu court’s order of deference) to exercise jurisdiction and admit the
decedent’s will to probate.

For the same reasons, neither could the Quezon City court be held to have acted
without jurisdiction nor with grave abuse of discretion in admitting the decedent’s will
to probate and appointing petitioner as executrix in accordance with its testamentary
disposition, in the light of the settled doctrine that the provisions of Rule 73, section 1
lay down only a rule of venue, not of jurisdiction.

Since respondents undisputedly failed to appeal from the Quezon City court’s order of
May 15, 1964 admitting the will to probate and appointing petitioner as executrix
thereof, and said court concededly has jurisdiction to issue said order, the said order
of probate has long since become final and can not be overturned in a special civil
action of prohibition.
11. Finally, it should be noted that in the Supreme Court’s exercise of its supervisory
authority over all inferior courts,22 it may properly determine, as it has done in the
case at bar, that venue was properly assumed by and transferred to the Quezon City
court and that it is the interest of justice and in avoidance of needless delay that the
Quezon City court’s exercise of jurisdiction over the testate estate of the decedent (with
the due deference and consent of the Cebu court) and its admission to probate of his
last will and testament and appointment of petitioner-widow as administratrix without
bond in pursuance of the decedent’s express will and all its orders and actions taken
in the testate proceedings before it be approved and authorized rather than to annul
all such proceedings regularly had and to repeat and duplicate the same proceedings
before the Cebu court only to revert once more to the Quezon City court should the
Cebu court find that indeed and in fact, as already determined by the Quezon City
court on the strength of incontrovertible documentary evidence of record, Quezon City
was the conjugal residence of the decedent.

ACCORDINGLY, judgment is hereby rendered reversing the appealed decision and

resolution of the Court of Appeals and the petition for certiorari and prohibition with
preliminary injunction originally filed by respondents with the Court of Appeals (CA-
G.R. No. 34104-R) is ordered dismissed. No costs.

G.R. No. 161220. July 30, 2008.*

SPOUSES GORGONIO BENATIRO and COLUMBA CUYOS-BENATIRO substituted

by their heirs, namely: Isabelita, Renato, Rosadelia and Gorgonio, Jr., surnamed
Benatiro, and SPOUSES RENATO C. BENATIRO and ROSIE M. BENA-TIRO,
respondents, vs. HEIRS OF EVARISTO CUYOS, namely: Gloria Cuyos-Talian,
Patrocenia Cuyos-Mijares, Numeriano Cuyos, and Enrique Cuyos, represented by
their attorney-in-fact, Salud Cuyos, respondents.

Actions; Annulment of Judgment; Due Process; The remedy of annulment of judgment

is extraordinary in character and will not so easily and readily lend itself to abuse by
parties aggrieved by final judgments; Although Section 2 of Rule 47 of the Rules of
Court provides that annulment of a final judgment or order of an RTC may be based
“only on the grounds of extrinsic fraud and lack of jurisdiction,” jurisprudence
recognizes denial of due process as additional ground therefor.—The remedy of
annulment of judgment is extraordinary in character and will not so easily and readily
lend itself to abuse by parties aggrieved by final judgments. Sections 1 and 2 of Rule
47 impose strict conditions for recourse to it, viz.: Section 1. Coverage.—This Rule
shall govern the annulment by the Court of Appeals of judgments or final orders and
resolutions in civil actions of Regional Trial Courts for which the ordinary remedies of
new trial, appeal, petition for relief or other appropriate remedies are no longer
available through no fault of the petitioner. Section 2. Grounds for annulment.—The
annulment may be based only on the grounds of extrinsic fraud and lack of
jurisdiction. Extrinsic fraud shall not be a valid ground if it was availed of, or could
have been availed of, in a motion for new trial or petition for relief. Although Section 2
of Rule 47 of the Rules of Court provides that annulment of a final judgment or order
of an RTC may be based “only on the grounds of extrinsic fraud and lack of
jurisdiction,” jurisprudence recognizes denial of due process as additional ground
therefor.

Same; Same; Same; Words and Phrases; “Extrinsic Fraud,” Explained; While the Court
finds that the Court of Appeals correctly annulled the trial court Order approving the
compromise agreement embodied in the Commissioner’s Report, the Court finds that it
should be annulled not on the ground of extrinsic fraud, as there is no sufficient
evidence to hold the Commissioner or any of the heirs guilty of fraud, but on the
ground that the assailed order is void for lack of due process.—An action to annul a
final judgment on the ground of fraud will lie only if the fraud is extrinsic or collateral
in character. Extrinsic fraud exists when there is a fraudulent act committed by the
prevailing party outside of the trial of the case, whereby the defeated party was
prevented from presenting fully his side of the case by fraud or deception practiced on
him by the prevailing party. Fraud is regarded as extrinsic where it prevents a party
from having a trial or from presenting his entire case to the court, or where it operates
upon matters pertaining not to the judgment itself but to the manner in which it is
procured. The overriding consideration when extrinsic fraud is alleged is that the
fraudulent scheme of the prevailing litigant prevented a party from having his day in
court. While we find that the CA correctly annulled the CFI Order dated December 16,
1976, we find that it should be annulled not on the ground of extrinsic fraud, as there
is no sufficient evidence to hold Atty. Taneo or any of the heirs guilty of fraud, but on
the ground that the assailed order is void for lack of due process.

Same; Same; Presumption of Regularity; While, under the general rule, it is to be

presumed that everything done by an officer in connection with the performance of an
official act in the line of his duty was legally done, such presumption may be overcome
by evidence to the contrary.—Petitioners point out that the Commissioner was an
officer of the court and a disinterested party and that, under Rule 133, Section 3(m) of
the Rules on Evidence, there is a presumption that official duty has been regularly
performed. While, under the general rule, it is to be presumed that everything done by
an officer in connection with the performance of an official act in the line of his duty
was legally done, such presumption may be overcome by evidence to the contrary. We
find the instances mentioned by the CA, such as absence of the names of the persons
present in the conference, absence of the signatures of the heirs in the
Commissioner’s Report, as well as absence of evidence showing that respondents were
notified of the conference, to be competent proofs of irregularity that rebut the
presumption.

Succession; Settlement of Estates; Extrajudicial Settlement of Estates; Due Process;

Section 1 of Rule 74 is an ex parte proceeding, and the rule plainly states that persons
who do not participate or had no notice of an extrajudicial settlement will not be
bound thereby, and contemplates a notice that has been sent out or issued before any
deed of settlement and/or partition is agreed upon, and not after such an agreement
has already been executed; 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 Cua v. Vargas, 506
SCRA 374 (2006), in which the issue was whether heirs were deemed constructively
notified of and bound by an extrajudicial settlement and partition of the estate,
regardless of their failure to participate therein, when the extrajudicial settlement and
partition has been duly published, we held: 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. 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 executed 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. Applying the
above-mentioned case by analogy, what matters is whether the heirs were indeed
notified before the compromise agreement was arrived at, which was not established,
and not whether they were notified of the Commissioner’s Report embodying the
alleged agreement afterwards.

Same; Same; Same; Same; The act of a trial court in approving a Commissioner’s
Report despite the statement therein that only six out of the nine heirs attended the
conference, thus, effectively depriving the other heirs of their chance to be heard, was
tantamount to a violation of the constitutional guarantee that no person shall be
deprived of property without due process of law—such Order which approved a void
Commissioner’s Report, is a void judgment for lack of due process.—We also find
nothing in the records that would show that the heirs were called to a hearing to
validate the Report. The CFI adopted and approved the Report despite the absence of
the signatures of all the heirs showing conformity thereto. The CFI adopted the Report
despite the statement therein that only six out of the nine heirs attended the
conference, thus, effectively depriving the other heirs of their chance to be heard. The
CFI’s action was tantamount to a violation of the constitutional guarantee that no
person shall be deprived of property without due process of law. We find that the
assailed Order dated December 16, 1976, which approved a void Commissioner’s
Report, is a void judgment for lack of due process.

Judgments; Due Process; Where the assailed Order is a void judgment for lack of due
process of law, it is no judgment at all—it cannot be the source of any right or of any
obligation, and it never acquires finality.—Considering that the assailed Order is a
void judgment for lack of due process of law, it is no judgment at all. It cannot be the
source of any right or of any obligation. In Nazareno v. Court of Appeals, 378 SCRA 28
(2002), we stated the consequences of a void judgment, thus: A void judgment never
acquires finality. Hence, while admittedly, the petitioner in the case at bar failed to
appeal timely the aforementioned decision of the Municipal Trial Court of Naic, Cavite,
it cannot be deemed to have become final and executory. In contemplation of law, that
void decision is deemed non-existent. Thus, there was no effective or operative
judgment to appeal from. In Metropolitan Waterworks & Sewerage System vs. Sison,
this Court held that: x x x [A] void judgment is not entitled to the respect accorded to a
valid judgment, but may be entirely disregarded or declared inoperative by any
tribunal in which effect is sought to be given to it. It is attended by none of the
consequences of a valid adjudication. It has no legal or binding effect or efficacy for
any purpose or at any place. It cannot affect, impair or create rights. It is not entitled
to enforcement and is, ordinarily, no protection to those who seek to enforce. All
proceedings founded on the void judgment are themselves regarded as invalid. In other
words, a void judgment is regarded as a nullity, and the situation is the same as it
would be if there were no judgment. It, accordingly, leaves the parties litigants in the
same position they were in before the trial.

Same; Same; Laches; Words and Phrases; The Court of First Instance’s (CFI’s) order
being null and void, it may be assailed anytime, collaterally or in a direct action or by
resisting such judgment or final order in any action or proceeding whenever it is
invoked, unless barred by laches; The principle of laches or “stale demands” ordains
that the failure or neglect, for an unreasonable and unexplained length of time, to do
that which by exercising due diligence could or should have been done earlier, or the
negligence or omission to assert a right within a reasonable time, warrants a
presumption that the party entitled to assert it either has abandoned it or declined to
assert it.—The CFI’s order being null and void, it may be assailed anytime, collaterally
or in a direct action or by resisting such judgment or final order in any action or
proceeding whenever it is invoked, unless barred by laches. Consequently, the
compromise agreement and the Order approving it must be declared null and void and
set aside. We find no merit in petitioners’ claim that respondents are barred from
assailing the judgment after the lapse of 24 years from its finality on ground of laches
and estoppel. Section 3, Rule 47 of the Rules of Court provides that an action for
annulment of judgment based on extrinsic fraud must be filed within four years from
its discovery and, if based on lack of jurisdiction, before it is barred by laches or
estoppel. The principle of laches or “stale demands” ordains that the failure or neglect,
for an unreasonable and unexplained length of time, to do that which by exercising
due diligence could or should have been done earlier, or the negligence or omission to
assert a right within a reasonable time, warrants a presumption that the party entitled
to assert it either has abandoned it or declined to assert it.

Same; Same; Same; Prescription; There is no absolute rule as to what constitutes

laches or staleness of demand—each case is to be determined according to its
particular circumstances; It is the better rule that courts, under the principle of
equity, will not be guided or bound strictly by the statute of limitations or the doctrine
of laches when to be so, a manifest wrong or injustice would result; An action to
declare the nullity of a void judgment does not prescribe.—There is no absolute rule as
to what constitutes laches or staleness of demand; each case is to be determined
according to its particular circumstances. The question of laches is addressed to the
sound discretion of the court and, being an equitable doctrine, its application is
controlled by equitable considerations. It cannot be used to defeat justice or perpetrate
fraud and injustice. It is the better rule that courts, under the principle of equity, will
not be guided or bound strictly by the statute of limitations or the doctrine of laches
when to be so, a manifest wrong or injustice would result. In this case, respondents
learned of the assailed order only sometime in February 1998 and filed the petition for
annulment of judgment in 2001. Moreover, we find that respondents’ right to due
process is the paramount consideration in annulling the assailed order. It bears
stressing that an action to declare the nullity of a void judgment does not prescribe.

PETITION for review on certiorari of the decision and resolution of the Court of
Appeals.

The facts are stated in the opinion of the Court.

Froilan V. Quijano for petitioners.

Public Attorney’s Office for respondents.

AUSTRIA-MARTINEZ, J.:

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court
filed by petitioners seeking to annul the Decision1 dated July 18, 2003 of the Court of
Appeals (CA) and its Resolution2 dated November 13, 2003 denying petitioners’ motion
for reconsideration issued in CA-G.R. SP No. 65630.

Spouses Evaristo Cuyos and Agatona Arrogante Cuyos were blessed with nine
children, namely: Francisco, Victoria, Columba, Lope, Salud, Gloria, Patrocenia,
Numeriano, and Enrique. On August 28, 1966, Evaristo died leaving six parcels of
land located in Tapilon, Daanbantayan, Cebu covered by Tax Declaration (TD) Nos.
000725, 000728, 000729, 000730, 000731, 000732, all under the name of Agatona
Arrogante.
On July 13, 1971, one of the heirs, Gloria Cuyos-Talian (respondent Gloria)
represented by Atty. Victor Elliot Lepiten (Atty. Lepiten), filed before the Court of First
Instance (CFI) now Regional Trial Court (RTC), Cebu, Branch XI, a petition for Letters
of Administration, docketed as Special Proceeding (SP) No. 24-BN entitled “In the
Matter of the Intestate Estate of Evaristo Cuyos, Gloria Cuyos-Talian, petitioner.” The
petition was opposed by Gloria’s brother, Francisco, who was represented by Atty.
Jesus Yray (Atty. Yray).

In the hearing held on January 30, 1973, both parties together with their respective
counsels appeared. Both counsels manifested that the parties had come to an
agreement to settle their case. The trial court on even date issued an Order5
appointing Gloria as administratrix of the estate. The dispositive portion reads:

“WHEREFORE, letters of administration of the estate of the late Evaristo Cuyos and
including the undivided half accruing to his spouse Agatona Arrogante who recently
died is hereby issued in favor of Mrs. Gloria Cuyos Talian who may qualify as such
administratrix after posting a nominal bond of P1,000.00.”6

Subsequently, in the Order7 dated December 12, 1975, the CFI stated that when the
Intestate Estate hearing was called on that date, respondent Gloria and her brother,
oppositor Francisco, together with their respective counsels, appeared; that Atty. Yray,
Francisco’s counsel, manifested that the parties had come to an agreement to settle
the case amicably; that both counsels suggested that the Clerk of Court, Atty. Andres
C. Taneo (Atty. Taneo), be appointed to act as Commissioner to effect the agreement of
the parties and to prepare the project of partition for the approval of the court. In the
same Order, the Court of First Instance (CFI) appointed Atty. Taneo and ordered him
to make a project of partition within 30 days from December 12, 1975 for submission
and approval of the court.

In his Commissioner’s Report8 dated July 29, 1976, Atty. Taneo stated that he issued
subpoenae supplemented by telegrams to all the heirs to cause their appearance on
February 28 and 29, 1976 in Tapilon, Daanbantayan, Cebu, where the properties are
located, for a conference or meeting to arrive at an agreement; that out of the nine
heirs, only respondents Gloria, Salud and Enrique Cuyos failed to attend; that per
return of the service, these three heirs could not be located in their respective given
addresses; that since some of the heirs present resided outside the province of Cebu,
they decided to go ahead with the scheduled meeting.

Atty. Taneo declared in his Report that the heirs who were present:

“1. Agreed to consider all income of the properties of the estate during the time that
Francisco Cuyos, one of the heirs, was administering the properties of the estate
(without appointment from the Court) as having been properly and duly accounted for.
2. Agreed to consider all income of the properties of the estate during the
administration of Gloria Cuyos Talian, (duly appointed by the Court) also one of the
heirs as having been properly and duly accounted for.

3. Agreed to consider all motions filed in this proceedings demanding an accounting

from Francisco Cuyos and Gloria Cuyos Talian, as having been withdrawn.

4. Agreed not to partition the properties of the estate but instead agreed to first sell it
for the sum of P40,000.00 subject to the condition that should any of the heirs would
be in a position to buy the properties of the estate, the rest of the eight (8) heirs will
just receive only Four Thousand Pesos (P4,000.00) each.

5. Agreed to equally divide the administration expenses to be deducted from their

respective share of P4,000.00.”

The Report further stated that Columba Cuyos-Benatiro (Columba), one of the heirs,
informed all those present in the conference of her desire to buy the properties of the
estate, to which everybody present agreed, and considered her the buyer. Atty. Taneo
explained that the delay in the submission of the Report was due to the request of
respondent Gloria that she be given enough time to make some consultations on what
was already agreed upon by the majority of the heirs; that it was only on July 11,
1976 that the letter of respondent Gloria was handed to Atty. Taneo, with the
information that respondent Gloria was amenable to what had been agreed upon,
provided she be given the sum of P5,570.00 as her share of the estate, since one of
properties of the estate was mortgaged to her in order to defray their father’s
hospitalization.

Quoting the Commissioner’s Report, the CFI issued the assailed Order10 dated
December 16, 1976, the dispositive portion of which reads as follows:

“WHEREFORE, finding the terms and conditions agreed upon by the heirs to be in
order, the same being not contrary to law, said compromise agreement as embodied in
the report of the commissioner is hereby approved. The Court hereby orders the
Administratrix to execute the deed of sale covering all the properties of the estate in
favor of Columba Cuyos Benatiro after the payment to her of the sum of P36,000.00.
The said sum of money shall remain in custodia legis, but after all the claims and
administration expenses and the estate taxes shall have been paid for, the remainder
shall, upon order of the Court, be divided equally among the heirs.”11

The CFI disapproved the claim of respondent Gloria for the sum of P5,570.00, as the
same had been allegedly disregarded by the heirs present during the conference.

In an Order12 dated January 11, 1978, the CFI appointed Lope Cuyos (Cuyos) as the
new administrator of the estate, purportedly on the basis of the motion to relieve
respondent Gloria, as it appeared that she was already residing in Central Luzon and
her absence was detrimental to the early termination of the proceedings.
On May 25, 1979, administrator Cuyos executed a Deed of Absolute Sale13 over the
six parcels of land constituting the intestate estate of the late Evaristo Cuyos in favor
of Columba for a consideration of the sum of P36,000.00.

Sometime in February 1998, the heirs of Evaristo Cuyos, namely: Gloria Cuyos-Talian,
Patrocenia Cuyos-Mijares, Numeriano Cuyos and Enrique Cuyos, represented by their
attorney-in-fact, Salud Cuyos (respondents), allegedly learned that Tax Declaration
Nos. 000725, 000728, 000729, 000730, 000731 and 000732, which were all in the
name of their late mother Agatona Arrogante, were canceled and new Tax Declaration
Nos., namely, 20-14129, 20-14130, 20-14131, 20-14132, 20-14133 and 20-14134,
were issued in Columba’s name; and that later on, Original Certificates of Titles
covering the estate of Evaristo Cuyos were issued in favor of Columba; that some of
these parcels of land were subsequently transferred to the names of spouses Renato C.
Benatiro and Rosie M. Benatiro, son and daughter-in-law, respectively, of petitioners
Gorgonio and Columba, for which transfer certificates of title were subsequently
issued; that they subsequently discovered the existence of the assailed CFI Order
dated December 16, 1976 and the Deed of Absolute Sale dated May 25, 1979.

Respondents filed a complaint against petitioner Gorgonio Benatiro before the

Commission on the Settlement of Land Problems (COSLAP) of the Department of
Justice, which on June 13, 2000 dismissed the case for lack of jurisdiction.

Salud Cuyos brought the matter for conciliation and mediation at the barangay level,
but was unsuccessful.

On July 16, 2001, Salud Cuyos, for herself and in representation16 of the other heirs
of Evaristo Cuyos, namely: Gloria, Patrocenia, Numeriano,17 and Enrique, filed with
the CA a petition for annulment of the Order dated December 16, 1976 of the CFI of
Cebu, Branch XI, in SP No. 24-BN under Rule 47 of the Rules of Court. They alleged
that the CFI Order dated December 16, 1976 was null and void and of no effect, the
same being based on a Commissioner’s Report, which was patently false and irregular;
that such report practically deprived them of due process in claiming their share of
their father’s estate; that Patrocenia Cuyos-Mijares executed an affidavit, as well as
the unnotarized statement of Gloria stating that no meeting ever took place for the
purpose of discussing how to dispose of the estate of their parents and that they never
received any payment from the supposed sale of their share in the inheritance; that
the report was done in close confederacy with their co-heir Columba, who stood to be
benefited by the Commissioner’s recommendation, should the same be approved by
the probate court; that since the report was a falsity, any order proceeding therefrom
was invalid; that the issuance of the certificates of titles in favor of respondents were
tainted with fraud and irregularity, since the CFI which issued the assailed order did
not appear to have been furnished a copy of the Deed of Absolute Sale; that the CFI
was not in custodia legis of the consideration of the sale, as directed in its Order so
that it could divide the remainder of the consideration equally among the heirs after
paying all the administration expenses and estate taxes; that the intestate case had
not yet been terminated as the last order found relative to the case was the
appointment of Lope as administrator vice Gloria; that they never received their
corresponding share in the inheritance; and that the act of petitioners in manifest
connivance with administrator Lope amounted to a denial of their right to the property
without due process of law, thus, clearly showing that extrinsic fraud caused them to
be deprived of their property.

Herein petitioners contend that respondents’ allegation that they discovered the
assailed order dated December 16, 1976 only in February 1998 was preposterous, as
respondents were represented by counsel in the intestate proceedings; thus, notice of
Order to counsel was notice to client; that this was only a ploy so that they could
claim that they filed the petition for annulment within the statutory period of four (4)
years; that they have been in possession of the six parcels of land since May 25, 1979
when the same was sold to them pursuant to the assailed Order in the intestate
proceedings; that no extrinsic fraud attended the issuance of the assailed order; that
Numeriano executed an affidavit in which he attested to having received his share of
the sale proceeds on May 18, 1988; that respondents were estopped from assailing the
Order dated December 16, 1976, as it had already attained the status of finality.

On July 18, 2003, the CA granted the petition and annulled the CFI order, the
dispositive portion of which reads:

“FOR ALL THE FOREGOING REASONS, the instant petition is hereby GRANTED.
Accordingly, the Order issued by the Court of First Instance of Cebu Branch XI dated
December 16, 1976 as well as the Certificates of Title issued in the name of Columba
Cuyos-Benatiro and the subsequent transfer of these Titles in the name of spouses
Renato and Rosie Benatiro are hereby ANNULLED and SET ASIDE. Further, SP Proc.
Case No. 24-BN is hereby ordered reopened and proceedings thereon be continued.”18

The CA declared that the ultimate fact that was needed to be established was the
veracity and truthfulness of the Commissioner’s Report, which was used by the trial
court as its basis for issuing the assailed Order. The CA held that to arrive at an
agreement, there was a need for all the concerned parties to be present in the
conference; however, such was not the scenario since in their separate sworn
statements, the compulsory heirs of the decedent attested to the fact that no meeting
or conference ever happened among them; that although under Section 3(m), Rule 133
on the Rules of Evidence, there is a presumption of regularity in the performance of an
official duty, the same may be contradicted and overcome by other evidence to prove
the contrary.

The CA noted some particulars that led it to conclude that the conference was not held
accordingly, to wit: (1) the Commissioner’s Report never mentioned the names of the
heirs who were present in the alleged conference but only the names of those who
were absent, when the names of those who were present were equally essential, if not
even more important, than the names of those who were absent; (2) the Report also
failed to include any proof of conformity to the agreement from the attendees, such as
letting them sign the report to signify their consent as regards the agreed mechanisms
for the estate’s settlement; (3) there was lack or absence of physical evidence attached
to the report indicating that the respondents were indeed properly notified about the
scheduled conference. The CA then concluded that due to the absence of the
respondents’ consent, the legal existence of the compromise agreement did not stand
on a firm ground.

The CA further observed that although it appeared that notice of the report was given
to Atty. Lepiten and Atty. Yray, lawyers of Gloria and Francisco Cuyos, respectively,
the same cannot be taken as notice to the other heirs of Evaristo Cuyos; that a
lawyer’s authority to compromise cannot be simply presumed, since what was
required was the special authority to compromise on behalf of his client; that a
compromise agreement entered into by a person not duly authorized to do so by the
principal is void and has no legal effect, citing Quiban v. Butalid;19 that being a void
compromise agreement, the assailed Order had no legal effect.

Thus, the CA ruled that the Certificates of Titles obtained by herein petitioners were
procured fraudulently; that the initial transfer of the properties to Columba Cuyos-
Benatiro by virtue of a Deed of Absolute Sale executed by Lope Cuyos was clearly
defective, since the compromise agreement which served as the basis of the Deed of
Absolute Sale was void and had no legal effect.

The CA elaborated that there was no showing that Columba paid the sum of
P36,000.00 to the administrator as consideration for the sale, except for the testimony
of Numeriano Cuyos admitting that he received his share of the proceeds but without
indicating the exact amount that he received; that even so, such alleged payment was
incomplete and was not in compliance with the trial court’s order for the administratix
to execute the deed of sale covering all properties of the estate in favor of Columba
Cuyos-Benatiro after the payment to the administratrix of the sum of P36,000.00; that
said sum of money shall remain in custodia legis, but after all the claims and
administration expenses and the estate taxes shall have been paid for, the remainder
shall, upon order of the Court, be divided equally among the heirs.

Moreover, the CA found that the copy of the Deed of Sale was not even furnished the
trial court nor was said money placed under custodia legis as agreed upon; that the
Certification dated December 9, 1998 issued by the Clerk of Court of Cebu indicated
that the case had not yet been terminated and that the last Order in the special
proceeding was the appointment of Lope Cuyos as the new administrator of the estate;
thus, the transfer of the parcels of land, which included the execution of the Deed of
Absolute Sale, cancellation of Tax Declarations and the issuance of new Tax
Declarations and Transfer Certificates of Title, all in favor of petitioners, were tainted
with fraud. Consequently, the CA concluded that the compromise agreement, the
certificates of title and the transfers made by petitioners through fraud cannot be
made a legal basis of their ownership over the properties, since to do so would result
in enriching them at the expense of the respondents; and that it was also evident that
the fraud attendant in this case was one of extrinsic fraud, since respondents were
denied the opportunity to fully litigate their case because of the scheme utilized by
petitioners to assert their claim.

Hence, herein petition raising the following issues:

“Whether or not annulment of order under Rule 47 of the Rules of Court was a proper
remedy where the aggrieved party had other appropriate remedies, such as new trial,
appeal, or petition for relief, which they failed to take through their own fault.

Whether or not the Court of Appeals misapprehended the facts when it annulled the
24-year old Commissioner’s Report of the Clerk of Court—an official act which enjoys
a strong presumption of regularity—based merely on belated allegations of
irregularities in the performance of said official act.

Whether or not upon the facts as found by the Court of Appeals in this case, extrinsic
fraud existed which is a sufficient ground to annul the lower court’s order under Rule
47 of the Rules of Court.”20

Subsequent to the filing of their petition, petitioners filed a Manifestation that they
were in possession of affidavits of waiver and desistance executed by the heirs of Lope
Cuyos21 and respondent Patrocenia Cuyos-Mijares22 on February 17, 2004 and
December 17, 2004, respectively. In both affidavits, the affiants stated that they had
no more interest in prosecuting/defending the case involving the settlement of the
estate, since the subject estate properties had been bought by their late sister
Columba, and they had already received their share of the purchase price. Another
heir, respondent Numeriano Cuyos, had also earlier executed an Affidavit23 dated
December 13, 2001, stating that the subject estate was sold to Columba and that she
had already received her share of the purchase price on May 18, 1988. In addition,
Numeriano had issued a certification24 dated May 18, 1988, which was not refuted by
any of the parties, that he had already received P4,000.00 in payment of his share,
which could be the reason why he refused to sign the Special Power of Attorney
supposedly in favor of Salud Cuyos for the filing of the petition with the CA.

The issue for resolution is whether the CA committed a reversible error in annulling
the CFI Order dated December 16, 1976, which approved the Commissioner’s Report
embodying the alleged compromise agreement entered into by the heirs of Evaristo
and Agatona Arrogante Cuyos.

We rule in the negative.

The remedy of annulment of judgment is extraordinary in character25 and will not so
easily and readily lend itself to abuse by parties aggrieved by final judgments. Sections
1 and 2 of Rule 47 impose strict conditions for recourse to it, viz.:

“Section 1. Coverage.—This Rule shall govern the annulment by the Court of Appeals
of judgments or final orders and resolutions in civil actions of Regional Trial Courts for
which the ordinary remedies of new trial, appeal, petition for relief or other appropriate
remedies are no longer available through no fault of the petitioner.

Section 2. Grounds for annulment.—The annulment may be based only on the

grounds of extrinsic fraud and lack of jurisdiction.

Extrinsic fraud shall not be a valid ground if it was availed of, or could have been
availed of, in a motion for new trial or petition for relief.”

Although Section 2 of Rule 47 of the Rules of Court provides that annulment of a final
judgment or order of an RTC may be based “only on the grounds of extrinsic fraud and
lack of jurisdiction,” jurisprudence recognizes denial of due process as additional
ground therefor.26

An action to annul a final judgment on the ground of fraud will lie only if the fraud is
extrinsic or collateral in character.27 Extrinsic fraud exists when there is a fraudulent
act committed by the prevailing party outside of the trial of the case, whereby the
defeated party was prevented from presenting fully his side of the case by fraud or
deception practiced on him by the prevailing party.28 Fraud is regarded as extrinsic
where it prevents a party from having a trial or from presenting his entire case to the
court, or where it operates upon matters pertaining not to the judgment itself but to
the manner in which it is procured. The overriding consideration when extrinsic fraud
is alleged is that the fraudulent scheme of the prevailing litigant prevented a party
from having his day in court.29

While we find that the CA correctly annulled the CFI Order dated December 16, 1976,
we find that it should be annulled not on the ground of extrinsic fraud, as there is no
sufficient evidence to hold Atty. Taneo or any of the heirs guilty of fraud, but on the
ground that the assailed order is void for lack of due process.

Clerk of Court Taneo was appointed to act as Commissioner to effect the agreement of
the heirs and to prepare the project of partition for submission and approval of the
court. Thus, it was incumbent upon Atty. Taneo to set a time and place for the first
meeting of the heirs. In his Commissioner’s Report, Atty. Taneo stated that he caused
the appearance of all the heirs of Evaristo Cuyos and Agatona Arrogante Cuyos in the
place, where the subject properties were located for settlement, by sending them
subpoenae supplemented by telegrams for them to attend the conference scheduled on
February 28 to 29, 1976. It was also alleged that out of the nine heirs, only six
attended the conference; however, as the CA aptly found, the Commissioner did not
state the names of those present, but only those heirs who failed to attend the
conference, namely: respondents Gloria, Salud and Enrique who, as stated in the
Report, based on the return of service, could not be located in their respective given
addresses.

However, there is nothing in the records that would establish that the alleged
subpoenae, supplemented by telegrams, for the heirs to appear in the scheduled
conference were indeed sent to the heirs. In fact, respondent Patrocenia Cuyos-
Mijares, one of the heirs, who was presumably present in the conference, as she was
not mentioned as among those absent, had executed an affidavit30 dated December 8,
1998 attesting, to the fact that she was not called to a meeting nor was there any
telegram or notice of any meeting received by her. While Patrocenia had executed on
December 17, 2004 an Affidavit of Waiver and Desistance31 regarding this case, it was
only for the reason that the subject estate properties had been bought by their late
sister Columba, and that she had already received her corresponding share of the
purchase price, but there was nothing in the affidavit that retracted her previous
statement that she was not called to a meeting. Respondent Gloria also made an
unnotarized statement that there was no meeting held. Thus, the veracity of Atty.
Taneo’s holding of a conference with the heirs was doubtful.

Moreover, there was no evidence showing that the heirs indeed convened for the
purpose of arriving at an agreement regarding the estate properties, since they were
not even required to sign anything to show their attendance of the alleged meeting. In
fact, the Commissioner’s Report, which embodied the alleged agreement of the heirs,
did not bear the signatures of the alleged attendees to show their consent and
conformity thereto.

It bears stressing that the purpose of the conference was for the heirs to arrive at a
compromise agreement over the estate of Evaristo Cuyos. Thus, it was imperative that
all the heirs must be present in the conference and be heard to afford them the
opportunity to protect their interests. Considering that no separate instrument of
conveyance was executed among the heirs embodying their alleged agreement, it was
necessary that the Report be signed by the heirs to prove that a conference among the
heirs was indeed held, and that they conformed to the agreement stated in the Report.

Petitioners point out that the Commissioner was an officer of the court and a
disinterested party and that, under Rule 133, Section 3(m) of the Rules on Evidence,
there is a presumption that official duty has been regularly performed.

While, under the general rule, it is to be presumed that everything done by an officer
in connection with the performance of an official act in the line of his duty was legally
done, such presumption may be overcome by evidence to the contrary. We find the
instances mentioned by the CA, such as absence of the names of the persons present
in the conference, absence of the signatures of the heirs in the Commissioner’s Report,
as well as absence of evidence showing that respondents were notified of the
conference, to be competent proofs of irregularity that rebut the presumption.
Thus, we find no reversible error committed by the CA in ruling that the conference
was not held accordingly and in annulling the assailed order of the CFI.

Petitioners attached a Certification33 dated August 7, 2003 issued by the Officer In

Charge (OIC), Branch Clerk of Court of the RTC, Branch 11, to show that copies of the
Commissioner’s Report were sent to all the heirs, except Salud and Enrique, as well as
to Attys. Lepiten and Yray as enumerated in the Notice found at the lower portion of
the Report with the accompanying registry receipts.34

In Cua v. Vargas,35 in which the issue was whether heirs were deemed constructively
notified of and bound by an extra-judicial settlement and partition of the estate,
regardless of their failure to participate therein, when the extrajudicial settlement and
partition has been duly published, we held:

“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. 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 executed 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.”36
(Emphasis supplied)

Applying the above-mentioned case by analogy, what matters is whether the heirs
were indeed notified before the compromise agreement was arrived at, which was not
established, and not whether they were notified of the Commissioner’s Report
embodying the alleged agreement afterwards.

We also find nothing in the records that would show that the heirs were called to a
hearing to validate the Report. The CFI adopted and approved the Report despite the
absence of the signatures of all the heirs showing conformity thereto. The CFI adopted
the Report despite the statement therein that only six out of the nine heirs attended
the conference, thus, effectively depriving the other heirs of their chance to be heard.
The CFI’s action was tantamount to a violation of the constitutional guarantee that no
person shall be deprived of property without due process of law. We find that the
assailed Order dated December 16, 1976, which approved a void Commissioner’s
Report, is a void judgment for lack of due process.

We are not persuaded by petitioners’ contentions that all the parties in the intestate
estate proceedings in the trial court were duly represented by respective counsels,
namely, Atty. Lepiten for petitioners-heirs and Atty. Yray for the oppositors-heirs; that
when the heirs agreed to settle the case amicably, they manifested such intention
through their lawyers, as stated in the Order dated January 30, 1973; that an heir in
the settlement of the estate of a deceased person need not hire his own lawyer,
because his interest in the estate is represented by the judicial administrator who
retains the services of a counsel; that a judicial administrator is the legal
representative not only of the estate but also of the heirs, legatees, and creditors
whose interest he represents; that when the trial court issued the assailed Order dated
December 16, 1976 approving the Commissioner’s Report, the parties’ lawyers were
duly served said copies of the Order on December 21, 1976 as shown by the
Certification37 dated August 7, 2003 of the RTC OIC, Clerk of Court; that notices to
lawyers should be considered notices to the clients, since, if a party is represented by
counsel, service of notices of orders and pleadings shall be made upon the lawyer; that
upon receipt of such order by counsels, any one of the respondents could have taken
the appropriate remedy such as a motion for reconsideration, a motion for new trial or
a petition for relief under Rule 38 at the proper time, but they failed to do so without
giving any cogent reason for such failure.

While the trial court’s order approving the Commissioner’s Report was received by
Attys. Yray and Lepiten, they were the lawyers of Gloria and Francisco, respectively,
but not the lawyers of the other heirs. As can be seen from the pleadings filed before
the probate court, Atty. Lepiten was Gloria’s counsel when she filed her Petition for
letters of administration, while Atty. Yray was Francisco’s lawyer when he filed his
opposition to the petition for letters of administration and his Motion to Order
administrarix Gloria to render an accounting and for the partition of the estate. Thus,
the other heirs who were not represented by counsel were not given any notice of the
judgment approving the compromise. It was only sometime in February 1998 that
respondents learned that the tax declarations covering the parcels of land, which were
all in the name of their late mother Agatona Arrogante, were canceled; and new Tax
Declarations were issued in Columba’s name, and Original Certificates of Titles were
subsequently issued in favor of Columba. Thus, they could not have taken an appeal
or other remedies.

Considering that the assailed Order is a void judgment for lack of due process of law,
it is no judgment at all. It cannot be the source of any right or of any obligation.38

In Nazareno v. Court of Appeals,39 we stated the consequences of a void judgment,

thus:
“A void judgment never acquires finality. Hence, while admittedly, the petitioner in the
case at bar failed to appeal timely the aforementioned decision of the Municipal Trial
Court of Naic, Cavite, it cannot be deemed to have become final and executory. In
contemplation of law, that void decision is deemed non-existent. Thus, there was no
effective or operative judgment to appeal from. In Metropolitan Waterworks &
Sewerage System vs. Sison, this Court held that:

x x x [A] void judgment is not entitled to the respect accorded to a valid judgment, but
may be entirely disregarded or declared inoperative by any tribunal in which effect is
sought to be given to it. It is attended by none of the consequences of a valid
adjudication. It has no legal or binding effect or efficacy for any purpose or at any
place. It cannot affect, impair or create rights. It is not entitled to enforcement and is,
ordinarily, no protection to those who seek to enforce. All proceedings founded on the
void judgment are themselves regarded as invalid. In other words, a void judgment is
regarded as a nullity, and the situation is the same as it would be if there were no
judgment. It, accordingly, leaves the parties litigants in the same position they were in
before the trial.

Thus, a void judgment is no judgment at all. It cannot be the source of any right nor of
any obligation. All acts performed pursuant to it and all claims emanating from it have
no legal effect. Hence, it can never become final and any writ of execution based on it
is void: “x x x it may be said to be a lawless thing which can be treated as an outlaw
and slain at sight, or ignored wherever and whenever it exhibits its head.”40
(Emphasis supplied)

The CFI’s order being null and void, it may be assailed anytime, collaterally or in a
direct action or by resisting such judgment or final order in any action or proceeding
whenever it is invoked, unless barred by laches.41 Consequently, the compromise
agreement and the Order approving it must be declared null and void and set aside.

We find no merit in petitioners’ claim that respondents are barred from assailing the
judgment after the lapse of 24 years from its finality on ground of laches and estoppel.

Section 3, Rule 47 of the Rules of Court provides that an action for annulment of
judgment based on extrinsic fraud must be filed within four years from its discovery
and, if based on lack of jurisdiction, before it is barred by laches or estoppel.

The principle of laches or “stale demands” ordains that the failure or neglect, for an
unreasonable and unexplained length of time, to do that which by exercising due
diligence could or should have been done earlier, or the negligence or omission to
assert a right within a reasonable time, warrants a presumption that the party entitled
to assert it either has abandoned it or declined to assert it.

There is no absolute rule as to what constitutes laches or staleness of demand; each

case is to be determined according to its particular circumstances.43 The question of
laches is addressed to the sound discretion of the court and, being an equitable
doctrine, its application is controlled by equitable considerations. It cannot be used to
defeat justice or perpetrate fraud and injustice. It is the better rule that courts, under
the principle of equity, will not be guided or bound strictly by the statute of limitations
or the doctrine of laches when to be so, a manifest wrong or injustice would result.44

In this case, respondents learned of the assailed order only sometime in February
1998 and filed the petition for annulment of judgment in 2001. Moreover, we find that
respondents’ right to due process is the paramount consideration in annulling the
assailed order. It bears stressing that an action to declare the nullity of a void
judgment does not prescribe.45

Finally, considering that the assailed CFI judgment is void, it has no legal and binding
effect, force or efficacy for any purpose. In contemplation of law, it is non-existent.
Hence, the execution of the Deed of Sale by Lope in favor of Columba pursuant to said
void judgment, the issuance of titles pursuant to said Deed of Sale, and the
subsequent transfers are void ab initio. No reversible error was thus committed by the
CA in annulling the judgment.

WHEREFORE, the petition is DENIED and the Decision dated July 18, 2003 and
Resolution dated November 13, 2003 of the Court of Appeals are AFFIRMED.

G.R. No. 166393. June 18, 2009.*

CRISTINA F. REILLO, LEONOR F. PUSO, ADELIA F. ROCAMORA, SOFRONIO S.J.

FERNANDO, EFREN S.J. FERNANDO, ZOSIMO S.J. FERNANDO, JR., and MA.
TERESA F. PIÑON, petitioners, vs. GALICANO E.S. SAN JOSE, represented by his
Attorneys-in-Fact, ANNALISA S.J. RUIZ and RODELIO S. SAN JOSE, VICTORIA
S.J. REDONGO, CATALINA S.J. DEL ROSARIO and MARIBETH S.J. CORTEZ,
collectively known as the HEIRS OF QUITERIO SAN JOSE and ANTONINA
ESPIRITU SANTO, respondents.

Judgments; Pleadings and Practice; In a proper case for judgment on the pleadings,
there is no ostensible issue at all because of the failure of the defending party’s answer
to raise an issue.—Where a motion for judgment on the pleadings is filed, the essential
question is whether there are issues generated by the pleadings. In a proper case for
judgment on the pleadings, there is no ostensible issue at all because of the failure of
the defending party’s answer to raise an issue. The answer would fail to tender an
issue, of course, if it does not deny the material allegations in the complaint or admits
said material allegations of the adverse party’s pleadings by confessing the
truthfulness thereof and/or omitting to deal with them at all.

Property; Partition; A deed of extrajudicial partition executed without including some

of the heirs, who has no knowledge and consent to the same, is fraudulent and
vicious.—A deed of extrajudicial partition executed without including some of the
heirs, who had no knowledge of and consent to the same, is fraudulent and vicious.
The deed of settlement made by petitioners was invalid because it excluded
respondents who were entitled to equal shares in the subject property. Under the rule,
no extrajudicial settlement shall be binding upon any person who has not participated
therein or had no notice thereof. Thus, the RTC correctly annulled the Deed of
Extrajudicial Settlement of Estate Among Heirs with Waiver of Rights dated January
23, 1998 and TCT No. M-94400 in the name of Ma. Teresa S.J. Fernando issued
pursuant to such deed.

Civil Procedure; Counterclaims; A counterclaim is compulsory when its object arises

out of or is necessarily connected with the transaction or occurrence constituting the
subject matter of the opposing party’s claim and does not require for its adjudication
the presence of third parties of whom the court cannot acquire jurisdiction.—A
counterclaim is any claim which a defending party may have against an opposing
party. It may either be permissive or compulsory. It is permissive if it does not arise
out of or is not necessarily connected with the subject matter of the opposing party’s
claim. A permissive counterclaim is essentially an independent claim that may be filed
separately in another case. A counterclaim is compulsory when its object arises out of
or is necessarily connected with the transaction or occurrence constituting the subject
matter of the opposing party’s claim and does not require for its adjudication the
presence of third parties of whom the court cannot acquire jurisdiction. Unlike
permissive counterclaims, compulsory counterclaims should be set up in the same
action; otherwise, they would be barred forever.

Same; Partition; Payment of docket fees is necessary before the RTC could acquire
jurisdiction over petitioners’ petition for partition.—Respondents’ action was for the
annulment of the Deed of Extrajudicial Settlement, title and partition of the property
subject of the Deed. On the other hand, in the Counter-Petition filed by petitioners in
their Answer to respondents’ complaint, they were asking for the partition and
accounting of the other 12 parcels of land of the deceased spouses Quiterio and
Antonina, which are entirely different from the subject matter of the respondents’
action. Petitioners’ claim does not arise out of or is necessarily connected with the
action for the Annulment of the Deed of Extrajudicial Settlement of the property
covered by TCT No. 458396. Thus, payment of docket fees is necessary before the RTC
could acquire jurisdiction over petitioners’ petition for partition.

Same; Same; The RTC cannot order the collation and partition of the other properties
which were not included in the partition that was the subject matter of the
respondent’s action for annulment.—In petitioners’ Answer with Counter-Petition for
Partition, they enumerated 12 other parcels of land owned by the deceased spouses
Quiterio and Antonina. They alleged that some of these properties had already been
disposed of by respondents and some are still generating income under the control
and administration of respondents, and these properties should be collated back by
respondents to be partitioned by all the heirs of the deceased spouses. It bears
stressing that the action filed by respondents in the RTC was an ordinary civil action
for annulment of title, annulment of the deed of extrajudicial settlement and partition
of a parcel of land now covered by TCT No. M-94400; hence, the authority of the court
is limited to the property described in the pleading. The RTC cannot order the collation
and partition of the other properties which were not included in the partition that was
the subject matter of the respondents’ action for annulment. Thus, a separate
proceeding is indeed proper for the partition of the estate of the deceased spouses
Quiterio and Antonina.

Partition; It is a basic rule that any act which is intended to put an end to indivision
among co-heirs or co-owners is deemed to be a partition.—Considering that the
subject document and the corresponding title were canceled, the logical consequence
is that the property in dispute, which was the subject of the extrajudicial settlement,
reverted back to the estate of its original owners, the deceased spouses Quiterio and
Antonina San Jose. Since, it was admitted that all the parties to the instant suit are
legal heirs of the deceased spouses, they owned the subject property in common. It is
a basic rule that any act which is intended to put an end to indivision among co-heirs
or co-owners is deemed to be a partition. Therefore, there was no reversible error
committed by the trial court in ordering the partition of the subject property. We find
nothing wrong with such ruling considering that the trial court ordered the partition of
the subject property in accordance with the rules on intestate succession. The trial
court found the property to be originally owned by the deceased spouses Quiterio and
Antonina San Jose and, in the absence of a will left by the deceased spouses, it must
be partitioned in accordance with the rules on intestate succession.

PETITION for review on certiorari of the decision and resolution of the Court of
Appeals.

The facts are stated in the opinion of the Court.

Felix T. De Ramos for petitioners.

Lyn G. Bautista for respondents.

PERALTA, J.:

Assailed in this petition for review on certiorari is the Decision1 dated August 31,
2004 of the Court of Appeals (CA) in CA-G.R. CV No. 69261 which affirmed the Order
dated May 9, 2000 of the Regional Trial Court (RTC) of Morong, Rizal, Branch 78,
granting the motion for judgment on the pleadings and the motion to dismiss counter
petition for partition filed by respondents in Civil Case No. 99-1148-M. Also
questioned is the CA Resolution2 dated December 14, 2004 denying petitioners’
motion for reconsideration.
Spouses Quiterio San Jose (Quiterio) and Antonina Espiritu Santo (Antonina) were the
original registered owners of a parcel of land located in E. Rodriguez Sr. Avenue,
Teresa, Rizal covered by Transfer Certificate of Title (TCT) No. 458396 of the Register of
Deeds of Rizal. The said parcel of land is now registered in the name of Ma. Teresa F.
Piñon (Teresa) under TCT No. M-94400.

Quiterio and Antonina had five children, namely, Virginia, Virgilio, Galicano, Victoria
and Catalina. Antonina died on July 1, 1970, while Quiterio died on October 19, 1976.
Virginia and Virgilio are also now deceased. Virginia was survived by her husband
Zosimo Fernando, Sr. (Zosimo Sr.) and their seven children, while Virgilio was
survived by his wife Julita Gonzales and children, among whom is Maribeth S.J.
Cortez (Maribeth).

On October 26, 1999, Galicano, represented by his children and attorneys-in-fact,

Annalisa S.J. Ruiz and Rodegelio San Jose, Victoria, Catalina, and Maribeth
(respondents) filed with the RTC a Complaint3 for annulment of title, annulment of
deed of extrajudicial settlement, partition and damages against Zosimo Sr. and his
children Cristina F. Reillo, Leonor F. Puso, Adelia F. Rocamora, Sofronio S.J.
Fernando, Efren S.J. Fernando, Zosimo S.J. Fernando, Jr. and Ma. Teresa (petitioners)
and the Register of Deeds of Morong, Rizal. The complaint alleged among other things:

“6. Under date of January 23, 1998, defendants FERNANDO et al, without the
knowledge and consent of all the other surviving heirs of the deceased spouses
QUITERIO SAN JOSE and ANTONINA ESPIRITU SANTO, including herein plaintiffs,
executed a Deed of Extrajudicial Settlement of Estate Among Heirs with Waiver of
Rights making it appear therein that they are the “legitimate descendants and sole
heirs of QUITERIO SAN JOSE and ANTONINA ESPIRITU SANTO”; and adjudicating
among themselves, the subject parcel of land.

6.1 In the same document, defendants ZOSIMO SR., CRISTINA, LEONOR, ADELIA,
SOFRONIO, EFREN and ZOSIMO JR., waived all their rights, participation and
interests over the subject parcel of land in favor of their co-defendant MA. TERESA F.
PIÑON (a.k.a MA. TERESA S.J. FERNANDO).

xxxx

7. On the strength of the said falsified Deed of Extrajudicial Settlement of Estate,

defendant MA. TERESA PIÑON (a.k.a MA. TERESA S.J. FERNANDO) succeeded in
causing the cancellation of TCT No. 458396 in the name of SPS. QUITERIO SAN JOSE
and ANTONINA ESPIRITU SANTO and the issuance of a new Transfer Certificate of
Title in her name only, to the extreme prejudice of all the other heirs of the deceased
SPS. QUITERIO SAN JOSE and ANTONINA ESPIRITU SANTO, specifically, the herein
plaintiffs who were deprived of their lawful participation over the subject parcel of
land.
7.1 Thus, on July 6, 1999, Transfer Certificate of Title No. M-94400 was issued in
the name of defendant MA. TERESA S.J. FERNANDO.

xxxx

8. As a result, the herein plaintiffs and the other surviving heirs of the deceased
spouses QUITERIO SAN JOSE and ANTONINA ESPIRITU SANTO, who are legally
entitled to inherit from the latter’s respective estates, in accordance with the laws of
intestate

succession, have been duly deprived of their respective rights, interests and
participation over the subject parcel of land.

8.1 Thus, there is sufficient ground to annul the subject Deed of Extrajudicial
Settlement of Estate Among Heirs with Waiver of Rights dated January 23, 1998, and
all other documents issued on the strength thereof, particularly Transfer Certificate of
Title No. M-94400.”4

It was also alleged that respondents filed a complaint before the Lupong
Tagapamayapa of their Barangay which issued the required certification to file action
for failure of the parties to settle the matter amicably.

Petitioners filed their Answer with Counter-Petition and with Compulsory

Counterclaim5 denying that the Deed of Extrajudicial Settlement of Estate Among
Heirs with Waiver of Rights which was the basis of the issuance of TCT No. M-94400,
was falsified and that the settlement was made and implemented in accordance with
law. They admitted that the deceased spouses Quiterio and Antonina had five
children; that the subject property was not the only property of spouses Quiterio and
Antonina and submitted in their counter-petition for partition the list of the other 12
parcels of land of the deceased spouses Quiterio and Antonina that petitioners alleged
are in respondents’ possession and control.

On January 18, 2000, respondents filed a Motion for Judgment on the Pleadings6
alleging that: (1) the denials made by petitioners in their answer were in the form of
negative pregnant; (2) petitioners failed to state the basis that the questioned
document was not falsified; (3) they failed to specifically deny the allegations in the
complaint that petitioners committed misrepresentations by stating that they are the
sole heirs and legitimate descendants of Quiterio and Antonina; and (4) by making
reference to their allegations in their counter-petition for partition to support their
denials, petitioners impliedly admitted that they are not the sole heirs of Quiterio and
Antonina.

Respondents filed a Reply to Answer with Compulsory Counterclaim7 with a motion to

dismiss the counter-petition for partition on the ground that petitioners failed to pay
the required docket fees for their counter-petition for partition. Petitioners filed their
Rejoinder8 without tackling the issue of non-payment of docket fees.
On February 4, 2000, petitioners filed their Comment9 to respondents’ motion for
judgment on the pleading and prayed that the instant action be decided on the basis
of the pleadings with the exception of respondents’ unverified Reply. Petitioners also
filed an Opposition to the motion to dismiss the counter-petition for partition.

On May 9, 2000, the RTC rendered its Order,10 the dispositive portion of which reads:

“1. The Extrajudicial Settlement of Estate Among Heirs with Waiver of Rights, dated
January 23, 1998 and Transfer Certificate of Title No. M-94400 in the name of Ma.
Teresa S.J. Fernando are declared null and void;

2. The Register of Deeds of Rizal, Morong Branch, is directed to cancel TCT No.
94400; and

3. The Heirs of Quiterio San Jose and Antonina Espiritu Santo is (sic) directed to
partition the subject parcel of land covered by TCT No. M-458396 in accordance with
the law of intestate succession.11

SO ORDERED.”

The RTC found that, based on the allegations contained in the pleadings filed by the
parties, petitioners misrepresented themselves when they alleged in the Deed of
Extrajudicial Settlement of Estate Among Heirs with Waiver of Rights that they are the
sole heirs of the deceased spouses Quiterio and Antonina; that petitioners prayed for a
counter-petition for partition involving several parcels of land left by the deceased
spouses Quiterio and Antonina which bolstered respondents’ claim that petitioners
falsified the Extrajudicial Settlement which became the basis for the issuance of TCT
No. M-94400 in Ma. Teresa’s name; thus, a ground to annul the Deed of Extrajudicial
Settlement and the title. The RTC did not consider as filed petitioners’ Counter-
Petition for Partition since they did not pay the corresponding docket fees.

Petitioners filed their Motion for Reconsideration, which the RTC denied in an Order12
dated August 29, 2000.

Dissatisfied, petitioners filed an appeal with the CA. After the parties filed their
respective briefs, the case was submitted for decision.

On August 31, 2004, the CA rendered its assailed Decision affirming the May 9, 2000
Order of the RTC.

The CA found that, while the subject matter of respondents’ complaint was the nullity
of the Deed of Extrajudicial Settlement of Estate among Heirs with Waiver of Rights
that resulted in the issuance of TCT No. M-94400 in Ma. Teresa’s name, petitioners
included in their Answer a Counter-Petition for Partition involving 12 other parcels of
land of spouses Quiterio and Antonina which was in the nature of a permissive
counterclaim; that petitioners, being the plaintiffs in the counter-petition for partition,
must pay the docket fees otherwise the court will not acquire jurisdiction over the
case. The CA ruled that petitioners cannot pass the blame to the RTC for their
omission to pay the docket fees.

The CA affirmed the RTC’s judgment on the pleadings since petitioners admitted that
the deceased spouses Quiterio and Antonina had five children which included herein
plaintiffs; thus, petitioners misrepresented themselves when they stated in the Deed of
Extrajudicial Settlement that they are the legitimate descendants and sole heirs of the
deceased spouses Quiterio and Antonina; that the deed is null and void on such
ground since respondents were deprived of their rightful share in the subject property
and petitioners cannot transfer the property in favor of Ma. Teresa without
respondents’ consent; that TCT No. M-94400 must be cancelled for lack of basis. The
CA affirmed the RTC’s Order of partition of the subject property in accordance with the
rules on intestate succession in the absence of a will.

Petitioners filed the instant petition for review on certiorari raising the following
assignment of errors, to wit:

THE COURT OF APPEALS ERRED IN NOT GIVING DUE COURSE TO THE APPEAL OF
THE DEFENDANTS (HEREIN PETITIONERS) AND IN EVENTUALLY UPHOLDING THE
DECISION OF THE COURT OF ORIGIN, CONSIDERING THAT SUCH RULING WILL
RESULT TO MULTIPLICITY OF SUITS BETWEEN THE SAME PARTIES AND IN
VIOLATION OF THE CONSTITUTIONAL GUARANTY OF DUE PROCESS OF LAW &
PROPERTY AND PROPERTY RIGHTS.

THE COURT OF APPEALS ERRED IN NOT VACATING THE ORDER OF THE TRIAL
COURT IN PARTITIONING THE ESTATE WITHOUT PUBLICATION AS REQUIRED BY
RULE 74 AND 76 OF THE 1997 RULES OF CIVIL PROCEDURE.13

Petitioners contend that in their Comment to respondents’ motion for judgment on the
pleadings, they stated that they will not oppose the same provided that their Answer
with Counter-Petition for Partition and Rejoinder will be taken into consideration in
deciding the case; however, the RTC decided the case on the basis alone of
respondents’ complaint; that the Answer stated that the deed was not a falsified
document and was made and implemented in accordance with law, thus, it was
sufficient enough to tender an issue and was very far from admitting the material
allegations of respondents’ complaint.

Petitioners also fault the RTC for disregarding their claim for partition of the other
parcels of land owned by the deceased spouses Quiterio and Antonina for their failure
to pay the court docket fees when the RTC could have simply directed petitioners to
pay the same; and that this error if not corrected will result to multiplicity of suits.
Petitioners argue that the RTC erred in ordering the partition of the subject property
as it violates the basic law on intestate succession that the heirs should be named and
qualified through a formal petition for intestate succession whereby blood relationship
should be established first by the claiming heirs before they shall be entitled to receive
from the estate of the deceased; that the order of partition was rendered without
jurisdiction for lack of publication as required under Rules 74 and 76 of the Rules of
Civil Procedure for testate or intestate succession.

We find no merit in the petition.

The CA committed no reversible error in affirming the judgment on the pleadings

rendered by the RTC.

Section 1, Rule 34 of the Rules of Court, states:

“SECTION 1. Judgment on the pleadings.—Where an answer fails to tender an issue,

or otherwise admits the material allegations of the adverse party’s pleading, the court
may, on motion of that party, direct judgment on such pleading. x x x.”

Where a motion for judgment on the pleadings is filed, the essential question is
whether there are issues generated by the pleadings. In a proper case for judgment on
the pleadings, there is no ostensible issue at all because of the failure of the defending
party’s answer to raise an issue.14 The answer would fail to tender an issue, of
course, if it does not deny the material allegations in the complaint or admits said
material allegations of the adverse party’s pleadings by confessing the truthfulness
thereof and/or omitting to deal with them at all.15

In this case, respondents’ principal action was for the annulment of the Deed of
Extrajudicial Settlement of Estate Among Heirs with Waiver of Rights executed by
petitioners and annulment of title on the ground that petitioners stated in the said
Deed that they are the legitimate descendants and sole heirs of the spouses Quiterio
and Antonina. Although petitioners denied in their Answer that the Deed was falsified,
they, however, admitted respondents’ allegation that spouses Quiterio and Antonina
had 5 children, thus, supporting respondents’ claim that petitioners are not the sole
heirs of the deceased spouses. Petitioners’ denial/admission in his Answer to the
complaint should be considered in its entirety and not truncated parts. Considering
that petitioners already admitted that respondents Galicano, Victoria, Catalina and
Maribeth are the children and grandchild, respectively, of the spouses Quiterio and
Antonina, who were the original registered owners of the subject property, and thus
excluding respondents from the deed of settlement of the subject property, there is no
more genuine issue between the parties generated by the pleadings, thus, the RTC
committed no reversible error in rendering the judgment on the pleadings.

A deed of extrajudicial partition executed without including some of the heirs, who had
no knowledge of and consent to the same, is fraudulent and vicious.16 The deed of
settlement made by petitioners was invalid because it excluded respondents who were
entitled to equal shares in the subject property. Under the rule, no extrajudicial
settlement shall be binding upon any person who has not participated therein or had
no notice thereof.17 Thus, the RTC correctly annulled the Deed of Extrajudicial
Settlement of Estate Among Heirs with Waiver of Rights dated January 23, 1998 and
TCT No. M-94400 in the name of Ma. Teresa S.J. Fernando issued pursuant to such
deed.

Petitioners’ claim that had there been a trial, they could have presented testamentary
and documentary evidence that the subject land is the inheritance of their deceased
mother from her deceased parents, deserves scant consideration. A perusal of
petitioners’ Answer, as well as their Rejoinder, never raised such a defense. In fact,
nowhere in the Deed of Extrajudicial Settlement Among Heirs with Waiver of Rights
executed by petitioners was there a statement that the subject property was inherited
by petitioners’ mother Virginia from her deceased parents Quiterio and Antonina.
Notably, petitioners never opposed respondents’ motion for judgment on the pleadings.

We also find no merit in petitioners’ contention that the Counter-Petition for Partition
in their Answer was in the nature of a compulsory counterclaim which does not
require the payment of docket fees.

A counterclaim is any claim which a defending party may have against an opposing
party.18 It may either be permissive or compulsory. It is permissive if it does not arise
out of or is not necessarily connected with the subject matter of the opposing party’s
claim.19 A permissive counterclaim is essentially an independent claim that may be
filed separately in another case.

A counterclaim is compulsory when its object arises out of or is necessarily connected

with the transaction or occurrence constituting the subject matter of the opposing
party’s claim and does not require for its adjudication the presence of third parties of
whom the court cannot acquire jurisdiction.20 Unlike permissive counterclaims,
compulsory counterclaims should be set up in the same action; otherwise, they would
be barred forever.

Respondents’ action was for the annulment of the Deed of Extrajudicial Settlement,
title and partition of the property subject of the Deed. On the other hand, in the
Counter-Petition filed by petitioners in their Answer to respondents’ complaint, they
were asking for the partition and accounting of the other 12 parcels of land of the
deceased spouses Quiterio and Antonina, which are entirely different from the subject
matter of the respondents’ action. Petitioners’ claim does not arise out of or is
necessarily connected with the action for the Annulment of the Deed of Extrajudicial
Settlement of the property covered by TCT No. 458396. Thus, payment of docket fees
is necessary before the RTC could acquire jurisdiction over petitioners’ petition for
partition.
Petitioners, however, argue that the RTC could have simply issued a directive ordering
them to pay the docket fees, for its non-payment should not result in the automatic
dismissal of the case.

We find apropos the disquisition of the CA on this matter, thus:

“The rule regarding the payment of docket fees upon the filing of the initiatory
pleading is not without exception. It has been held that if the filing of the initiatory
pleading is not accompanied by payment of docket fees, the court may allow payment
of the fee within reasonable time but in no case beyond the applicable prescriptive or
reglementary period.

It is apparent from the arguments of the defendants-appellants that they are blaming
the trial court for their omission to pay the docket fees. It is, however, our opinion that
the defendants-appellants cannot pass on to the trial court the performance of a
positive duty imposed upon them by the law. It should be noted that their omission to
file the docket fees was raised as one of the grounds to dismiss the counter petition for
partition. The defendants-appellants opposed the said motion without, however,
offering an answer to the said ground raised by the plaintiffs-appellees. In fact, during
the period the motion was being heard by the trial court, the defendants-appellants
never paid the docket fees for their petition so that it could have at least brought to
the attention of the trial court their payment of the docket fees although belatedly
done. They did not even ask the trial court for time within which to pay the docket fees
for their petition. When the trial court ruled to dismiss the petition of the defendants-
appellants, the latter did not, in their motion for reconsideration, ask the trial court to
reconsider the dismissal of their petition by paying the required docket fees, neither
did they ask for time within which to pay their docket fees. In other words, the trial
court could have issued an order allowing the defendants-appellants a period to pay
the docket fees for their petition if the defendants-appellants made such
manifestation. What is apparent from the factual circumstances of the case is that the
defendants-appellants have been neglectful in complying with this positive duty
imposed upon them by law as plaintiffs of the counter petition for partition. Because of
their omission to comply with their duty, no grave error was committed by the trial
court in dismissing the defendants-appellants’ counter petition for partition.”21

Petitioners argue that with the dismissal of their Counter-Petition for Partition, the
partition of the other parcels of land owned by the deceased spouses Quiterio and
Antonina will result to multiplicity of suits.

We are not persuaded.

Significantly, in petitioners’ Answer with Counter-Petition for Partition, they

enumerated 12 other parcels of land owned by the deceased spouses Quiterio and
Antonina. They alleged that some of these properties had already been disposed of by
respondents and some are still generating income under the control and
administration of respondents, and these properties should be collated back by
respondents to be partitioned by all the heirs of the deceased spouses. It bears
stressing that the action filed by respondents in the RTC was an ordinary civil action
for annulment of title, annulment of the deed of extrajudicial settlement and partition
of a parcel of land now covered by TCT No. M-94400; hence, the authority of the court
is limited to the property described in the pleading. The RTC cannot order the collation
and partition of the other properties which were not included in the partition that was
the subject matter of the respondents’ action for annulment. Thus, a separate
proceeding is indeed proper for the partition of the estate of the deceased spouses
Quiterio and Antonina.

Finally, petitioners contend that the RTC erred when it ordered the heirs of Quiterio
and Antonina to partition the subject parcel of land covered by TCT No. 458396 in
accordance with the laws of intestate succession; that the RTC violated the
requirement of publication under Sections 1 and 2 of Rule 74 and Section 3 of Rule 76
of the Rules of Court.

We do not agree.

We find the ruling of the CA on the matter of the RTC’s order of partition of land
subject of the annulled deed of extrajudicial settlement worth quoting, thus:

“Considering that the subject document and the corresponding title were canceled, the
logical consequence is that the property in dispute, which was the subject of the
extrajudicial settlement, reverted back to the estate of its original owners, the
deceased spouses Quiterio and Antonina San Jose. Since, it was admitted that all the
parties to the instant suit are legal heirs of the deceased spouses, they owned the
subject property in common. It is a basic rule that any act which is intended to put an
end to indivision among co-heirs or co-owners is deemed to be a partition. Therefore,
there was no reversible error committed by the trial court in ordering the partition of
the subject property. We find nothing wrong with such ruling considering that the trial
court ordered the partition of the subject property in accordance with the rules on
intestate succession. The trial court found the property to be originally owned by the
deceased spouses Quiterio and Antonina San Jose and, in the absence of a will left by
the deceased spouses, it must be partitioned in accordance with the rules on intestate
succession.”22

As the RTC nullified the Deed of Extrajudicial Settlement of Estate Among Heirs with
Waiver of Rights executed by petitioners and the title issued in accordance therewith,
the order of partition of the land subject of the settlement in accordance with the laws
on intestate succession is proper as respondents’ action filed in the RTC and
respondents’ prayer in their complaint asked for the partition of the subject property
in accordance with intestate succession. The applicable law is Section 1, Rule 69 of
the Rules of Court, which deals with action for partition, to wit:

“SECTION 1. Complaint in action for partition of real estate.—A person having the
right to compel the partition of real estate may do so as provided in this Rule, setting
forth in his complaint the nature and extent of his title and an adequate description of
the real estate of which partition is demanded and joining as defendants all other
persons interested in the property.”

And, under this law, there is no requirement for publication.

WHEREFORE, the instant petition is DENIED. The Decision dated August 31, 2004
and the Resolution dated December 14, 2004, of the Court of Appeals in CA-G.R. CV
No. 69261, are AFFIRMED.

G.R. No. 42108. December 29, 1989.*

OSCAR D. RAMOS and LUZ AGUDO, petitioners, vs. HON. COURT OF APPEALS,
ADELAIDA RAMOS and LAZARO E. MENESES, respondents.

Civil Law; Mortgages; Sales; Equitable mortgage; The purported deeds of sale con
pacto de retro are equitable mortgages; The two deeds were executed by reason of the
loan and. that the purchase price stated therein was the amount of the loan itself.—
Even if we indulge the petitioners in their contention that they are justified in not
taking possession of the lots considering that what were allegedly sold to them were
only the rights, shares, interests and participation of private respondent Adelaida
Ramos in the said lots which were under administration, however, such fact will not
justify a reversal of the conclusion reached by the respondent court that the purported
deeds of sale con pacto de retro are equitable mortgages. Such a conclusion is
buttressed by the other circumstances catalogued by respondent court especially the
undisputed fact that the two deeds were executed by reason of the loan extended by
petitioner Oscar Ramos to private respondent Adelaida Ramos and that the purchase
price stated therein was the amount of the loan itself.

Same; Same; Same; Same; The true intention of the parties being that the transaction
shall secure the payment of the debt, it shall be presumed to be an equitable
mortgage; Existence of one circumstance is enough to create the presumption.—The
above-stated circumstances are more than sufficient to show that the true intention of
the parties is that the transaction shall secure the payment of said debt and,
therefore, shall be presumed to be an equitable mortgage under Paragraph 6 of Article
1602 hereinbefore quoted. Settled is the rule that to create the presumption
enunciated by Article 1602, the existence of one circumstance is enough. The said
article expressly provides therefor “in any of the following cases,” hence the existence
of any of the circumstances enumerated therein, not a concurrence nor an
overwhelming number of such circumstances, suffices to give rise to the presumption
that the contract with the right of repurchase is an equitable mortgage.
Same; Same; Same; Same; Interpretation; Parol evidence rule; The case at bar falls
squarely under one of the exceptions to the rule that there was failure to express the
true intent and agreement of the parties.—Equally puerile is the other contention of
petitioners that respondent court erred in not applying the exclusionary parol evidence
rule in ascertaining the true intendment of the contracting parties. The present case
falls squarely under one of the exceptions to said rule as provided in then Section 7 of
Rule 130, thus: x x x (a) Where a mistake or imperfection of the writing or its failure to
express the true intent and agreement of the parties, or the validity of the agreement is
put in issue by the pleadings.

Same; Same; Same; Same; Same; If the terms of the contract are clear and leave no
doubt as to the intention of the contracting parties, the literal meaning of the
stipulation shall control; Exception.—Moreover, it is a well entrenched principle in the
interpretation of contracts that if the terms thereof are clear and leave no doubt as to
the intention of the contracting parties the literal meaning of the stipulation shall
control but when the words appear to be contrary to the evident intention of the
parties, the latter shall prevail over the former.

Same; Same; Same; Same; Same; Admission of parol testimony to prove that a’deed,
absolute in form, was in fact given and accepted as a mortgage does not violate the
rule against admission of oral evidence to vary or contradict the terms of a written
instrument; Sales with a right to repurchase are not favored.—The admission of parol
testimony to prove that a deed, absolute in form, was in fact given and accepted as a
mortgage does not violate the rule against the admission of oral evidence to vary or
contradict the terms of a written instrument. Sales with a right to repurchase, as
defined by the Civil Code, are not favored. We will not construe instruments to be
sales with a right to repurchase, with the stringent and onerous effects which follow,
unless the terms of the document and the surrounding circumstances require it.
Whenever, under the terms of the writing, any other construction can fairly and
reasonably be made, such construction will be adopted and the contract will be
construed as a mere loan unless the court can see that, if enforced according to its
terms, it is not an unconscionable one.

Same; Same; Same; Same; Whenever it is clearly shown that a deed of sale with pacto
de retro, regular on its face, is given as security for a loan, it must be regarded as an
equitable mortgage.—On the faces thereof, the contracts purport to be sales with pacto
de retro; however, since the same were actually executed in consideration of the
aforesaid loans said contracts are indubitably equitable mortgages. The rule is firmly
settled that whenever it is clearly shown that a deed of sale with pacto de retro,
regular on its face, is given as security for a loan, it must be regarded as an equitable
mortgage.

Same; Same; Special proceedings; Partition; Probate court; Jurisdiction; Approval of

the probate court of the conditional sale is not a conclusive determination of the
intrinsic or extrinsic validity of the contract but a mere recognition of the rights of
private respondent as an heir to dispose of her rights and interests over her
inheritance even before partition.—A reading of the order of the probate court will
show that it is merely an approval of the deed of conditional sale dated May 27, 1959
executed by petitioner Adelaida Ramos in favor of petitioners. There is nothing in said
order providing for the consolidation of ownership over the lots allegedly sold to
petitioners nor was the issue of the validity of said contract discussed or resolved
therein. “To give approval” means in its essential and most obvious meaning, to
confirm, ratify, sanction or consent to some act or thing done by another. The
approval of the probate court of the conditional sale is not a conclusive determination
of the intrinsic or extrinsic validity of the contract but a mere recognition of the right
of private respondent Adelaida Ramos as an heir, to dispose of her rights and interests
over her inheritance even before partition. As held in Duran, et al, vs. Duran, the
approval by the settlement court of the assignment pendente lite, made by one heir in
favor of the other during the course of the settlement proceedings, is not deemed final
until the estate is closed and said order can still be vacated, hence the assigning heir
remains an interested person in the proceeding even after said approval.

Same; Same; Same; Same; Same; Same; Same; Probate jurisdiction of the former court
of first instance or the present regional trial court relates only to matters having to do
with the settlement of the estate and probate of wills of deceased persons, but does
not extend to the determination of questions of ownership that arise during the
proceeding; A separate action may be the appropriate remedy; Approval of the
conditional sale by the probate court was without prejudice to the filing of the proper
action for consolidation of ownership and / or reformation of instrument in the proper
court within the prescriptive period.—Moreover, the probate jurisdiction of the former
court of first instance or the present regional trial court relates only to matters having
to do with the settlement of the estate and probate of wills of deceased persons, and
the appointment and removal of administrators, executors, guardians and trustees.
Subject to settled exceptions not present in this case, the law does not extend the
jurisdiction of a probate court to the determination of questions of ownership that
arise during the proceeding. The parties concerned may choose to bring a separate
action as a matter of convenience in the preparation or presentation of evidence.
Obviously, the approval by the probate court of the conditional sale was without
prejudice to the filing of the proper action for consolidation of ownership and/or
reformation of instrument in the proper court within the statutory period of
prescription.

Same; Same; Same; Same; Same; Same; A probate court acting as a cadastral court
acts with limited competence and has no jurisdiction over actions for consolidation of
ownership, and such action must have been filed in the former CFI, now in the
regional trial court in the exercise of its general jurisdiction.—The same jurisdictional
flaw obtains in the order of consolidation issued by the cadastral court. The court of
first instance or the regional trial court, acting as cadastral court, acts with limited
competence. It has no jurisdiction to take cognizance of an action for consolidation of
ownership, much less to issue an order to that effect, such action must have been filed
in the former court of first instance, now in the regional trial court, in the exercise of
its general jurisdiction. That remedy, and the procedure therefor, is now governed by
Rule 64 of the Rules of Court as a special civil action cognizable by the regional trial
court in the exercise of original general jurisdiction.

Same; Same; Same; Same; Same; Art. 1607 of the Civil Code contemplates a
contentious proceeding wherein the vendor a retro must be named respondent in the
caption and title of the petition for consolidation of ownership and duly summoned
and heard.—Hence in Crisologo, et al. vs. Centeno, et al., we ruled that said Article
1607 contemplates a contentious proceeding wherein the vendor a retro must be
named respondent in the caption and title of the petition for consolidation of
ownership and duly summoned and heard. An order granting the vendee’s petition for
consolidation of ownership, without the vendor a retro being named as respondent,
summoned and heard, is a patent nullity for want of jurisdiction of the court over the
person of the latter.

Same; Same; Same; Same; Same; Null and void judgment; The order of consolidation
issued by the cadastral court being void for lack of jurisdiction, is non-existent and
may be wholly disregarded.—The questioned order of consolidation issued by the
cadastral court, being void for lack of jurisdiction, is in contemplation of law non-
existent and may be wholly disregarded. Such judgment may be assailed any time,
either directly or collaterally, by means of a separate action or by resisting such
judgment in any action or proceeding whenever it is invoked. It is not necessary to
take any step to vacate or avoid a void judgment; it may simply be ignored.

Same; Same; Prescription; The present case having been filed approximately seven
years from the execution of the deeds, was seasonably instituted; Prescriptive period
for action based upon a written contract and for reformation is ten years.—On the
issue of prescription, in addition to what has been said, the present case, having been
filed on February 28, 1960, approximately seven (7) years from the execution of the
questioned deeds, was seasonably instituted. The prescriptive period for actions based
upon a written contract and for reformation is ten (10) years under Article 1144 of the
Civil Code. Such right to reformation is expressly recognized in Article 1365 of the
same code. Same; Same; Purpose of Art. 1602 of the Civil Code.—Article 1602 of the
Civil Code is designed primarily to curtail the evils brought about by contracts of sale
with right of repurchase, such as the circumvention of the law against usury and
pactum commissorium. In the present case before us, to rule otherwise would
contravene the legislative intent to accord the vendor a retro maximum safeguards for
the protection of his legal rights under the true agreement of the parties.

PETITION for certiorari to review the decision of the Court of Appeals. Gancayco, J.
The facts are stated in the opinion of the Court.

Godofredo V. Magbiray for petitioners.

Joselito Lim for private respondents.

REGALADO, J.:

The instant petition for review on cetiorari impugns the decision of the Court of
Appeals dated October 7, 1975,1 which affirmed in toto the decision of the Court of
First Instance of Tarlac in Civil Case No. 4168, entitled “Adelaida Ramos, et al. vs.
Oscar D. Ramos, et al.,” holding that the contracts between the parties are not ventas
con pacto de retro but are equitable mortgages.

Sometime in January, 1959, private respondent Adelaida Ramos borrowed from her
brother, petitioner Oscar D. Ramos, the amounts of P5,000.00 and P9,000.00 in
connection with her business transaction with one Flor Ramiro, Fred Naboa and Atty.
Ruperto Sarandi involving the recovery of a parcel of land in Tenejeros, Malabon. The
said amount was used to finance the trip to Hawaii of Ramiro, Naboa and Atty.
Sarandi. As security for said loan, private respondent Adelaida Ramos executed in
favor of petitioners two (2) deeds of conditional sale dated May 27, 1959 and August
30, 1959, of her rights, shares, interests and participation respectively over Lot No.
4033 covered by Original Certificate of Title No. 5125 registered in the name of their
parents, Valente Ramos and Margarita Denoga, now deceased,2 and Lot No. 4221
covered by Transfer Certificate of Title No. 10788 then registered in the names of
Socorro Ramos, Josefina Ramos and Adelaida Ramos,3 said properties being of the
Cadastral Survey of Paniqui, Tarlac.

Upon the failure of said private respondent as vendor a retro to exercise her right of
repurchase within the redemption period, aforenamed petitioner filed a petition for
consolidation and approval of the conditional sale of Lot No. 4033 in Special
Proceedings No. 5174, entitled “Intestate Estate of the late Margarita Denoga,”4 and a
petition for approval of the pacto de retro sale of Lot No. 4221 in the former Court of
First Instance of Tarlac acting as a cadastral court.5 On January 22, 1960, the said
probate court issued an order with the following disposition:

“WHEREFORE, the deed of CONDITIONAL SALE executed on May 27, 1959, by

Adelaida Ramos in favor of spouses Oscar D. Ramos and Luz Agudo, conveying to the
latter by way of pacto de retro sale whatever rights and interests the former may have
in Lot No. 4033 of the Cadastral Survey of Paniqui, which, deed of conditional sale is
known as Document No. 14, Page 26, Book VI, Series of 1959, of the notarial register
of Notary Public Jose P. Sibal, is hereby approved.”6

The cadastral Court also issued a similar order dated April 18, 1960, the dispositive
portion of which reads:
“WHEREFORE, by way of granting the petition, the Court orders the consolidation of
ownership and dominion in petitioners-spouses Oscar D. Ramos and Luz Agudo over
the rights, shares and interests of Adelaida Ramos in Lot No. 4221 of the Cadastral
Survey of Paniqui, Tarlac, which the latter sold to the former under a pacto de retro
sale executed in a public instrument known as Document No. 22, Page 28, Book No.
VI. Series of 1959, of the Notarial Registry of Notary Public Jose P. Sibal but which she
failed to repurchase within the period specified in said Document.”

Private respondents had been and remained in possession of these properties until
sometime in 1964 when petitioner took possession thereof.

On February 28, 1968, private respondent filed Civil Case No. 4168 with the then
Court of First Instance of Tarlac for declaration of nullity of orders, reformation of
instrument, recovery of possession with preliminary injunction and damages. The
complaint therein alleged that the deeds of conditional sale, dated May 27, 1959 and
August 30, 1959, are mere mortgages and were vitiated by misrepresentation, fraud
and undue influence and that the orders dated January 22, 1960 and April 18, 1960,
respectively issued by the probate and cadastral courts, were null and void for lack of
jurisdiction. Petitioners, in their answer to the complaint, specifically deny the
allegations of fraud and misrepresentation and interposed as defense the fact that the
questioned conditional sales of May 27, 1959 and August 30, 1959 were voluntarily
executed by private respondent Adelaida Ramos and truly expressed the intention of
the parties; that the action, if any, has long prescribed; that the questioned orders of
January 22, 1960 and April 18, 1960, approving the consolidation of ownership of the
lands in question in favor of petitioner were within the jurisdiction of the lower court,
in its capacity as a probate court insofar as Lot No. 4033 is concerned, and acting as a
cadastral court with respect to Lot No. 4221; and that said lands subject of the
conditional sales were in custodia legis in connection with the settlement of the
properties of the late Margarita Denoga, the predecessor in interest of both petitioners
and private respondents.

On January 7, 1970, the court below issued a pre-trial order to the effect that
petitioners admit the genuineness and due execution of the promissory notes marked
as Exhibits “F” and “F-1” and that the principal triable issue is whether or not the
documents purporting to be deeds of conditional sale, marked as Exhibits “B”, “B-1”
and “G” were in fact intended to be equitable mortgages.8 In its order dated February
17, 1971, the trial court also declared: “Both parties agreed and manifested in open
court the principal obligation in the transaction reflected in Exhibits ‘B’ and ‘B-1’ and
‘G’ is one of loan. The parties differ, however, on the nature of the security described
therein.”9

On May 17, 1971, the court a quo rendered a decision the decretal part of which
reads:
“WHEREFORE, jugment is hereby rendered:

1) Denying defendants’ motion to dismiss of February 23, 1970;

2) Declaring Exhibits ‘B’, ‘B-1’ and ‘G’ as loan transaction secured by real estate
mortgages;

3) Annulling and setting aside Exhibits ‘D’, ‘D-1’, ‘I’, ‘I-1’ and ‘I-2’;

4) Ordering plaintiff’s, jointly and severally to pay (within ninety [90] days from receipt
of a copy of this judgment) defendants the sum of P5,000.00 specified in Exhibit ‘B’,
with interest thereon at the legal rate from November 28, 1959 until full payment
together with the sum of P9,308.00 specified in Exhibit ‘G’ with interest thereon at the
legal rate from December 1, 1959 until full payment, and in default of such payment,
let the properties mortgaged under Exhibits ‘B’, ‘B-1’ and ‘G’ be sold to realize the
mortgage debt and costs; and

5) Dismissing defendants’ counter-claim.

With costs against defendants.”10

On June 14, 1971, petitioners appealed said decision to the Court of Appeals which,
on October 7, 1975; affirmed in all respects the judgment of the trial court. Petitioners’
motion for reconsideration of said decision was denied on November 27, 1975.11

On January 8, 1976, petitioners filed the petition at bar anchored on the following
assignments of errors:

“1. The Hon. Court of Appeals erred in not applying the correct provisions of law
interpreting the conditional sales dated May 27, 1959 and August 30, 1959, Exhibits
‘B’ and ‘G’ as equitable mortgages.

“2. That as a consequence of its ruling that the conditional sales, Exhibits ‘B’ and ‘G’,
are equitable mortgages, the Hon. Court of Appeals erred in ordering the reformation
of the same.

“3. The Honorable Court of Appeals erred in holding that the order dated January 22,
1960, Exhibit C or 2, and the order dated April 18, 1960, Exhibit H or 6, issued by the
probate court in Sp. Proc. No. 5174 and by the cadastral court in G.L.R.O. Rec. No.
395, respectively, are null and void for lack of jurisdiction. ,
“4. The Hon. Court of Appeals erred in not applying the applicable provisions of law on
the prescription of action and in not dismissing the complaint filed in the lower
court.12

We find the petition devoid of merit.

Article 1602 of the Civil Code provides:

“The contract shall be presumed to be an equitable mortgage, in any of the following

cases:

(1) When the price of a sale with right to repurchase is unusually inadequate;

(2) When the vendor remains in possession as lessee or otherwise;

(3) When upon or after the expiration of the right to repurchase another instrument
extending the period of redemption or granting a new period is executed;

(4) When the purchaser retains for himself a part of the purchase price;

(5) When the vendor binds himself to pay the taxes on the thing sold;

(6) In any other case where it may be fairly inferred that the real intention of the
parties is that the transaction shall secure the payment of a debt or the performance
of any other obligation.

In any of the foregoing cases, any money, fruits or other benefit to be received by the
vendee as rent or otherwise shall be considered as interest which shall be subject to
the usury laws.”

The Court of Appeals, in holding that the two (2) deeds purporting to be pacto de retro
sale contracts are equitable mortgages, relied on the following factual findings of the
trial court, to wit:

“Several undisputed circumstances persuade this Court (that) the questioned deeds
should be construed as equitable mortgages as contemplated in Article 1602 of the
Civil Code, namely: (1) plaintiff vendor remained in possession until 1964 of the
properties she allegedly sold in 1959 to defendants; (2) the sums representing the
alleged purchase price were actually advanced to plaintiff by way of loans, as expressly
admitted by the parties at the hearing of February 17, 1971, reflected in an Order of
the same date: and (3) the properties allegedly purchased by defendant Oscar Ramos
and his wife have never been declared for taxation purposes in their names. Exhibits
K, K-1, L and L-l.”13

Even if we indulge the petitioners in their contention that they are justified in not
taking possession of the lots considering that what were allegedly sold to them were
only the rights, shares, interests and participation of private respondent Adelaida
Ramos in the said lots which were under administration,14 however, such fact will not
justify a reversal of the conclusion reached by respondent court that the purported
deeds of sale conpacto de retro are equitable mortgages. Such a conclusion is chase
price;

(5) When the vendor binds himself to pay the taxes on the thing sold;

(6) In any other case where it may be fairly inferred that the real intention of the
parties is that the transaction shall secure the payment of a debt or the performance
of any other obligation.

In any of the foregoing cases, any money, fruits or other benefit to be received by the
vendee as rent or otherwise shall be considered as interest which shall be subject to
the usury laws.”

The Court of Appeals, in holding that the two (2) deeds purporting to be pacto de retro
sale contracts are equitable mortgages, relied on the following factual findings of the
trial court, to wit:

“Several undisputed circumstances persuade this Court (that) the questioned deeds
should be construed as equitable mortgages as contemplated in Article 1602 of the
Civil Code, namely: (1) plaintiff vendor remained in possession until 1964 of the
properties she allegedly sold in 1959 to defendants; (2) the sums representing the
alleged purchase price were actually advanced to plaintiff by way of loans, as expressly
admitted by the parties at the hearing of February 17, 1971, reflected in an Order of
the same date: and (3) the properties allegedly purchased by defendant Oscar Ramos
and his wife have never been declared for taxation purposes in their names. Exhibits
K, K-1, L and L-l.”13

Even if we indulge the petitioners in their contention that they are justified in not
taking possession of the lots considering that what were allegedly sold to them were
only the rights, shares, interests and participation of private respondent Adelaida
Ramos in the said lots which were under administration,14 however, such fact will not
justify a reversal of the conclusion reached by respondent court that the purported
deeds of sale conpacto de retro are equitable mortgages. Such a conclusion is chase
price;

(5) When the vendor binds himself to pay the taxes on the thing sold;

(6) In any other case where it may be fairly inferred that the real intention of the
parties is that the transaction shall secure the payment of a debt or the performance
of any other obligation.

In any of the foregoing cases, any money, fruits or other benefit to be received by the
vendee as rent or otherwise shall be considered as interest which shall be subject to
the usury laws.”
The Court of Appeals, in holding that the two (2) deeds purporting to be pacto de retro
sale contracts are equitable mortgages, relied on the following factual findings of the
trial court, to wit:

“Several undisputed circumstances persuade this Court (that) the questioned deeds
should be construed as equitable mortgages as contemplated in Article 1602 of the
Civil Code, namely: (1) plaintiff vendor remained in possession until 1964 of the
properties she allegedly sold in 1959 to defendants; (2) the sums representing the
alleged purchase price were actually advanced to plaintiff by way of loans, as expressly
admitted by the parties at the hearing of February 17, 1971, reflected in an Order of
the same date: and (3) the properties allegedly purchased by defendant Oscar Ramos
and his wife have never been declared for taxation purposes in their names. Exhibits
K, K-1, L and L-l.”13

Even if we indulge the petitioners in their contention that they are justified in not
taking possession of the lots considering that what were allegedly sold to them were
only the rights, shares, interests and participation of private respondent Adelaida
Ramos in the said lots which were under administration,14 however, such fact will not
justify a reversal of the conclusion reached by respondent court that the purported
deeds of sale conpacto de retro are equitable mortgages. Such a conclusion is in
consideration of the aforesaid loans said contracts are indubitably equitable
mortgages. The rule is firmly settled that whenever it is clearly shown that a deed of
sale with pacto de retro, regular on its face, is given as security for a loan, it must be
regarded as an equitable mortgage.21

With respect to the orders dated January 22, 1960 and April 18, 1960, issued by the
Court below acting as a probate court and cadastral court, respectively, the same
could not preclude the institution of the case now under review.

A reading of the order of the probate court will show that it is merely an approval of
the deed of conditional sale dated May 27, 1959 executed by petitioner Adelaida
Ramos in favor of petitioners. There is nothing in said order providing for the
consolidation of ownership over the lots allegedly sold to petitioners nor was the issue
of the validity of said contract discussed or resolved therein. “To give approval” means
in its essential and most obvious meaning, to confirm, ratify, sanction or consent to
some act or thing done by another.22 The approval of the probate court of the
conditional sale is not a conclusive determination of the intrinsic or extrinsic validity
of the contract but a mere recognition of the right of private respondent Adelaida
Ramos as an heir, to dispose of her rights and interests over her inheritance even
before partition.23 As held in Duran, et al, vs. Duran,24 the approval by the
settlement court of the assignment pendente lite, made by one heir in favor of the
other during the course of the settlement proceedings, is not deemed final until the
estate is closed and said order can still be vacated, hence the assigning heir remains
an interested person in the proceeding even after said approval.
Moreover, the probate jurisdiction of the former court of first instance or the present
regional trial court relates only to matters having to do with the settlement of the
estate and probate of wills of deceased persons, and the appointment and removal of
administrators, executors, guardians and trustees. Subject to settled exceptions not
present in this case, the law does not extend the jurisdiction of a probate court to the
determination of questions of ownership that arise during the proceeding. The parties
concerned may choose to bring a separate action as a matter of convenience in the
preparation or presentation of evidence.25 Obviously, the approval by the probate
court of the conditional sale was without prejudice to the filing of the proper action for
consolidation of ownership and/or reformation of instrument in the proper court
within the statutory period of prescription.

The same jurisdictional flaw obtains in the order of consolidation issued by the
cadastral court. The court of first instance or the regional trial court, acting as
cadastral court, acts with limited competence. It has no jurisdiction to take cognizance
of an action for consolidation of ownership, much less to issue an order to that effect,
such action must have been filed in the former court of first instance, now in the
regional trial court, in the exercise of its general jurisdiction. That remedy, and the
procedure therefor, is now governed by Rule 64 of the Rules of Court as a special civil
action cognizable by the regional trial court in the exercise of original general
jurisdiction.

Antecedent thereto, Article 1607 of the Civil Code provided for consolidation as follows:

“In case of real property, the consolidation of ownership in the vendee by virtue of the
failure of the vendor to comply with the provisions of article 1616 shall not be recorded
in the Registry of Property without a judicial order, after the vendor has been duly
heard.”

Hence in Crisologo, et al. vs. Centeno, et al.,26 we ruled that said Article 1607
contemplates a contentious proceeding wherein the vendor a retro must be named
respondent in the caption and title of the petition for consolidation of ownership and
duly summoned and heard. An order granting the vendee’s petition for consolidation of
ownership, without the vendor a retro being named as respondent, summoned and
heard, is a patent nullity for want of jurisdiction of the court over the person of the
latter.

The questioned order of consolidation issued by the cadastral court, being void for
lack of jurisdiction, is in contemplation of law non-existent and may be wholly
disregarded. Such judgment may be assailed any time, either directly or collaterally,
by means of a separate action or by resisting such judgment in any action or
proceeding whenever it is invoked.27 It is not necessary to take any step to vacate or
avoid a void judgment; it may simply be ignored.28
On the issue of prescription, in addition to what has been said, the present case,
having been filed on February 28, 1960, approximately seven (7) years from the
execution of the questioned deeds, was seasonably instituted. The prescriptive period
for actions based upon a written contract and for reformation is ten (10) years under
Article 1144 of the Civil Code. Such right to reformation is expressly recognized in
Article 1365 of the same code.29

Article 1602 of the Civil Code is designed primarily to curtail the evils brought about
by contracts of sale with right of repurchase, such as the circumvention of the laws
against usury and pactum commissorium.30 In the present case before us, to rule
otherwise would contravene the legislative intent to accord the vendor a retro
maximum safeguards for the protection of his legal rights under the true agreement of
the parties. The judicial experience in cases of this nature and the rationale for the
remedial legislation are worth reiterating, considering that such nefarious practices
still persist:

“It must be admitted that there are some cases where the parties really intend a sale
with right to repurchase. Although such cases are summoned and heard. An order
granting the vendee’s petition for consolidation of ownership, without the vendor a
retro being named as respondent, summoned and heard, is a patent nullity for want of
jurisdiction of the court over the person of the latter.

The questioned order of consolidation issued by the cadastral court, being void for
lack of jurisdiction, is in contemplation of law non-existent and may be wholly
disregarded. Such judgment may be assailed any time, either directly or collaterally,
by means of a separate action or by resisting such judgment in any action or
proceeding whenever it is invoked.27 It is not necessary to take any step to vacate or
avoid a void judgment; it may simply be ignored.28

On the issue of prescription, in addition to what has been said, the present case,
having been filed on February 28, 1960, approximately seven (7) years from the
execution of the questioned deeds, was seasonably instituted. The prescriptive period
for actions based upon a written contract and for reformation is ten (10) years under
Article 1144 of the Civil Code. Such right to reformation is expressly recognized in
Article 1365 of the same code.29

Article 1602 of the Civil Code is designed primarily to curtail the evils brought about
by contracts of sale with right of repurchase, such as the circumvention of the laws
against usury and pactum commissorium.30 In the present case before us, to rule
otherwise would contravene the legislative intent to accord the vendor a retro
maximum safeguards for the protection of his legal rights under the true agreement of
the parties. The judicial experience in cases of this nature and the rationale for the
remedial legislation are worth reiterating, considering that such nefarious practices
still persist:
“It must be admitted that there are some cases where the parties really intend a sale
with right to repurchase. Although such cases are WHEREFORE, the instant petition
is hereby DENIED and the assailed decision of the Court of Appeals is hereby
AFFIRMED.

SO ORDERED.

G.R. No. 188921. April 18, 2012.*

LEO C. ROMERO and DAVID AMANDO C. ROMERO, petitioners, vs. HON. COURT
OF APPEALS, AURORA C. ROMERO and VITTORIO C. ROMERO, respondents.

Civil Law; Ownership; Probate Proceedings; While it is true that a probate court’s
determination of ownership over properties which may form part of the estate is not
final or ultimate in nature, this rule is applicable only as between the representatives
of the estate and strangers thereto.—While it is true that a probate court’s
determination of ownership over properties which may form part of the estate is not
final or ultimate in nature, this rule is applicable only as between the representatives
of the estate and strangers thereto. Indeed, as early as Bacquial v. Amihan, 92 Phil.
501 (1953), the court stated thus: xxx The rulings of this court have always been to
the effect that in the special proceeding for the settlement of the estate of a deceased
person, persons not heirs, intervening therein to protect their interests are allowed to
do so protect the same, but not for a decision on their action. In the case of In re
Estate of the deceased Paulina Vasquez Vda. de Garcia, Teresa Garcia vs. Luisa
Garcia, et al., 67 Phil. 353, this court held: A court which takes cognizance of testate
or intestate proceedings has power and jurisdiction to determine whether or not the
properties included therein or excluded therefrom belong prima facie to the deceased,
although such a determination is not final or ultimate in nature, and without
prejudice to the right of interested parties, in a proper action, to raise the question on
the ownership or existence of the right or credit. To this same effect are rulings in
various states of the United States. * * * That the probate court is without jurisdiction
to try the title to property as between the representatives of an estate and strangers
thereto is too well established by the authorities to require argument. There is also
authority abroad that where the court is without jurisdiction to determine questions of
title, as for example, as between the estate and persons claiming adversely, its orders
and judgments relating to the sale do not render the issue of title res judicata.

Same; Same; Same; The determination of whether a property is conjugal or

paraphernal for purposes of inclusion in the inventory of the estate rests with the
probate court.—In Bernardo v. Court of Appeals, 7 SCRA 367 (1963), the Supreme
Court declared that the determination of whether a property is conjugal or
paraphernal for purposes of inclusion in the inventory of the estate rests with the
probate court: xxx (T)he jurisdiction to try controversies between heirs of a deceased
person regarding the ownership of properties alleged to belong to his estate, has been
recognized to be vested in probate courts. This is so because the purpose of an
administration proceeding is the liquidation of the estate and distribution of the
residue among the heirs and legatees. Liquidation means determination of all the
assets of the estate and payment of all the debts and expenses. Thereafter,
distribution is made of the decedent’s liquidated estate among the persons entitled to
succeed him. The proceeding is in the nature of an action of partition, in which each
party is required to bring into the mass whatever community property he has in his
possession. To this end, and as a necessary corollary, the interested parties may
introduce proofs relative to the ownership of the properties in dispute. All the heirs
who take part in the distribution of the decedent’s estate are before the court, and
subject to the jurisdiction thereof, in all matters and incidents necessary to the
complete settlement of such estate, so long as no interests of third parties are affected.
In the case now before us, the matter in controversy is the question of ownership of
certain of the properties involved—whether they belong to the conjugal partnership or
to the husband exclusively. This is a matter properly within the jurisdiction of the
probate court which necessarily has to liquidate the conjugal partnership in order to
determine the estate of the decedent which is to be distributed among his heirs who
are all parties to the proceedings. xxx

Same; Same; Same; Acts of the administrator of the estate are subject to the sole
jurisdiction of the probate court.—Even if we assume the property to be conjugal and
thus, part of the estate, Aurora Romero’s acts as the administrator of the estate are
subject to the sole jurisdiction of the probate court. In Acebedo v. Abesamis, 217
SCRA 186 (1993), the Court stated: In the case of Dillena vs. Court of Appeals, this
Court made a pronouncement that it is within the jurisdiction of the probate court to
approve the sale of properties of a deceased person by his prospective heirs before
final adjudication. Hence, it is error to say that this matter should be threshed out in
a separate action. The Court further elaborated that although the Rules of Court do
not specifically state that the sale of an immovable property belonging to an estate of a
decedent, in a special proceeding, should be made with the approval of the court, this
authority is necessarily included in its capacity as a probate court.

PETITION for review on certiorari of the decision and resolution of the Court of
Appeals.

The facts are stated in the opinion of the Court.

Leo C. Romero for petitioners.

SERENO, J.:

This is a Petition filed under Rule 45 of the 1997 Rules of Civil Procedure, praying for
the reversal of the Decision1 of the Court of Appeals dated 14 April 2009 and the
subsequent Resolution2 dated 21 July 2009.

The Court of Appeals (CA) dismissed the Petition for Certiorari filed by petitioners
which alleged grave abuse of discretion in the Resolutions dated 14 December 2007
and 29 January 2008 issued by Judge Maria Susana T. Baua in her capacity as
presiding judge of the Regional Trial Court (RTC) of Lingayen, Pangasinan. The said
Resolutions dismissed petitioners’ complaint against private respondents Aurora C.
Romero and Vittorio C. Romero.

Petitioners allege that upon their father’s death on 18 October 1974, their mother,
respondent Aurora Romero, was appointed as legal guardian who held several real and
personal properties in trust for her children.3 Since that year until the present, she
continues to be the administrator of the properties, businesses, and investments
comprising the estate of her late husband.

Sometime in 2006, petitioners Leo and Amando discovered that several Deeds of Sale
were registered over parcels of land that are purportedly conjugal properties of their
parents. These included the following real and personal properties:

1. A parcel of land identified as Lot 3-G of Subdivision Plan Psd-67995 situated in

Barrio Pogon-lomboy, Mangatarem, Pangasinan, containing an area of one thousand
square meters under Declaration of Real Property No. 16142 and Transfer Certificate
of Title (TCT) No. 290013 in the name of Vittorio C. Romero. A warehouse stands on
the lot, covered by Declaration of Real Property No. 16142.

2. A parcel of land identified as Lot 3-D of Subdivision Plan Psd-67995 situated in

Barrio Pogon-lomboy, Mangatarem, Pangasinan, containing an area of one thousand
square meters under Declaration of Real Property No. 405, and TCT No. 77223 in the
name of Spouses Dante Y. Romero and Aurora Cruz-Romero.

3. A parcel of land identified as Lot 3-E of Subdivision Plan Psd-67995 situated in

Barrio Pogon-lomboy, Mangatarem, Pangasinan, containing an area of one thousand
square meters under Declaration of

Real Property No. 407 and TCT No. 77224 in the names of Spouses Dante Y. Romero
and Aurora Cruz-Romero.

4. A parcel of land identified as Lot 3-H of Subdivision Plan Psd-67995 situated in

Barrio Pogon-lomboy, Mangatarem, Pangasinan, containing an area of one thousand
square meters under Declaration of Real Property No. 406, and TCT No. 77225 in the
name of Spouses Dante Y. Romero and Aurora Cruz-Romero.

5. A parcel of land identified as Lot 3815-A of Subdivision Plan Psd-227224 situated in

Barrio Pogon-lomboy, Mangatarem, Pangasinan, containing an area of four hundred
ninety-four square meters under TCT No. 113514 in the name of Aurora Cruz vda. de
Romero.

6. A parcel of land located in Barangay Burgos, Mangatarem, Pangasinan, containing

an area of more or less three hundred seventy-nine square meters under Declaration
of Real Property No. 16136. It is not yet registered under Act 496 or the Old Spanish
Mortgage Law, but registrable under Act 3344 as amended. The improvement thereon,
a building classified as a warehouse, is covered by Declaration of Real Property No.
16136 A.

7. A parcel of land located in Brgy. Burgos, Mangatarem, Pangasinan, containing an

area of more or less two hundred four square meters under Declaration of Real
Property No. 16139. It is not yet registered under Act 496 or Act 3344 as amended.
The improvement thereon is covered by Declaration of Real Property No. 16140.

8. A parcel of land located in Brgy. Pogon-lomboy, Mangatarem, Pangasinan,

containing an area of more or less eleven thousand six hundred forty-six square
meters under Declaration of Real Property No. 724 and TCT No. 284241 in the name
of Aurora P. Cruz vda. de Romero.

9. A parcel of land located in Brgy. Pogon-lomboy, Mangatarem, Pangasinan,

containing an area of more or less one thousand two hundred fifty-six square meters
under Declaration of Real Property No. 725 and TCT No. 284242 in the name of
Aurora P. Cruz vda. de Romero.4

Petitioners claim that sometime in August of 2005, their brother Vittorio – through
fraud, misrepresentation and duress – succeeded in registering the above-mentioned
properties in his name through of Deeds of Sale executed by their mother,
Aurora.5 Vittorio allegedly employed force and threat upon her, and even administered
drugs that rendered her weak and vulnerable. Thus, Aurora signed the Deeds of Sale
without reading or knowing their contents.

On 18 December 2006, petitioners filed a Complaint for Annulment of Sale,

Nullification of Title, and Conveyance of Title (Amended) 6 against private respondents
Aurora C. Romero and Vittorio C. Romero. Respondents filed their Answer, arguing
that the properties in question were acquired long after the death of their father,
Judge Dante Romero; hence, the properties cannot be considered conjugal. They allege
that the lots covered by TCT Nos. 290010, 290011, 113514, and Tax Declaration Nos.
16136 and 11639 were paraphernal properties of Aurora which she had mortgaged.
Vittorio purportedly had to shell out substantial amounts in order to redeem them.
The lots covered by TCT Nos. 77223, 77224, and 77225 were sold by Aurora herself as
attorney-in-fact of her children on 23 November 2006, since her authority to do so had
never been revoked or modified.

On 14 December 2007, the RTC rendered its Resolution dismissing petitioners’

complaint, stating thus:

xxx(T)he case under Special Proceedings No. 5185 remains pending in that no
distribution of the assets of the estate of the late Dante Y. Romero, nor a partition, has
been effected among his compulsory heirs. Thus, the contending claims of plaintiffs
and defendants in this case could not be adjudicated nor passed upon by this Court
without first getting a definitive pronouncement from the intestate court as to the
share of each of the heirs of the late Dante Y. Romero in his estate.

Even the claim of defendant Aurora C. Romero that some of the properties being
claimed by plaintiffs in this case are her own, the same being paraphernal, is an issue
which must be taken up and established in the intestate proceedings.7 (Emphasis
supplied.)

The RTC denied their Motion for Reconsideration, citing Section 3, Rule 87 of the
Rules of Court which bars an heir or a devisee from maintaining an action to recover
the title or possession of lands until such lands have actually been assigned. The
court ruled that "plaintiffs must first cause the termination of Special Proceedings No.
5185 to its logical conclusion before this case could be entertained by the Court." 8

Alleging grave abuse of discretion on the part of the trial court in rendering the said
Resolutions, petitioners filed for certiorari under Rule 65 with the CA. On 14 April
2009, the CA rendered the assailed judgment dismissing the Petition, ruling that the
properties involved in this case are part of the estate left to the heirs of Judge Romero,
the partition of which is already subject of an intestate proceeding filed on 6 January
1976 in the then Court of First Instance (CFI).9 The CA based its judgment on the
findings of the RTC that the inventory of the estate of Judge Romero submitted to the
CFI included the same parties, properties, rights and interests as in the case before it.

Petitioners now come to us on a Rule 45 Petition, arguing that the probate court may
rule on issues pertaining to title over property only in a provisional capacity. They
assert that the CA erred in dismissing their appeal, just because the intestate
proceeding has not yet terminated. Petitioners, as heirs, are purportedly allowed to
exercise their option of filing a separate civil action in order to protect their interests.

Thus, the singular issue in the case at bar is whether or not petitioners in this case
may file a separate civil action for annulment of sale and reconveyance of title, despite
the pendency of the settlement proceedings for the estate of the late Judge Dante Y.
Romero.

Ruling of the Court

The probate court has jurisdiction to determine the issues in the present case

Petitioners assert that the jurisdiction of the RTC sitting as a probate or intestate
court relates only to matters having to do with the settlement of the estate of deceased
persons or the appointment of executors, but does not extend to the determination of
questions of ownership that arise during the proceedings. 10 They cite Ongsingco v.
Tan,11Baybayan v. Aquino12 and several cases which state that when questions arise
as to ownership of property alleged to be part of the estate of a deceased person, but
claimed by some other person to be his property, not by virtue of any right of
inheritance from the deceased but by title adverse to that of the deceased and his
estate, the intestate court has no jurisdiction to adjudicate these questions.
Petitioners conclude that the issue of ownership of the properties enumerated in their
Petition and included in the inventory submitted by respondent Aurora Romero to the
intestate court, must be determined in a separate civil action to resolve title.13

The rulings in Ongsingco and Baybayan are wholly inapplicable, as they both arose
out of facts different from those in the case at bar. Baybayan involved a summary
settlement for the estate of the decedent, in which a parcel of land representing the
share of decedent’s nephews and nieces was already covered by a TCT under the name
of a third party. To defeat the writ of partition issued by the probate court, the third
party, petitioners Baybayan et al., had to file a separate civil action for quieting of their
title and for damages. The issue before the Court then devolved upon the propriety of
the probate court’s order to amend the Complaint for quieting of title before the
regular court. More importantly, Baybayan pertained to a civil action involving third
parties who were not heirs, and not privy to the intestate proceedings in the probate
court. The present action was instituted precisely by heirs of Judge Romero, against
their brother, who is also an heir, and their mother, who is the administrator of the
estate.

In Coca v. Borromeo,14 this Court allowed the probate court to provisionally pass upon
the issue of title, precisely because the only interested parties are all heirs to the
estate, subject of the proceeding, viz:

It should be clarified that whether a particular matter should be resolved by the Court
of First Instance in the exercise of its general jurisdiction or of its limited probate
jurisdiction is in reality not a jurisdictional question. In essence, it is a procedural
question involving a mode of practice "which may be waived."

As a general rule, the question as to title to property should not be passed upon in the
testate or intestate proceeding. That question should be ventilated in a separate
action. That general rule has qualifications or exceptions justified by expediency and
convenience.

Thus, the probate court may provisionally pass upon in an intestate or testate
proceeding the question of inclusion in, or exclusion from, the inventory of a piece of
property without prejudice to its final determination in a separate action.

Although generally, a probate court may not decide a question of title or ownership,
yet if the interested parties are all heirs, or the question is one of collation or
advancement, or the parties consent to the assumption of jurisdiction by the probate
court and the rights of third parties are not impaired, then the probate court is
competent to decide the question of ownership.

We hold that the instant case may be treated as an exception to the general rule that
questions of title should be ventilated in a separate action.
Here, the probate court had already received evidence on the ownership of the twelve-
hectare portion during the hearing of the motion for its exclusion from (the) inventory.
The only interested parties are the heirs who have all appeared in the intestate
proceeding.15 (Citations omitted.)

While it is true that a probate court’s determination of ownership over properties

which may form part of the estate is not final or ultimate in nature, this rule is
applicable only as between the representatives of the estate and strangers thereto.
Indeed, as early as Bacquial v. Amihan,16 the court stated thus:

xxx The rulings of this court have always been to the effect that in the special
proceeding for the settlement of the estate of a deceased person, persons not heirs,
intervening therein to protect their interests are allowed to do so protect the same, but
not for a decision on their action. In the case of In re Estate of the deceased Paulina
Vasquez Vda. de Garcia, Teresa Garcia vs. Luisa Garcia, et al., 67 Phil., 353, this
court held:

A court which takes cognizance of testate or intestate proceedings has power and
jurisdiction to determine whether or not the properties included therein or excluded
therefrom belong prima facie to the deceased, although such a determination is not
final or ultimate in nature, and without prejudice to the right of interested parties, in a
proper action, to raise the question on the ownership or existence of the right or
credit.

To this same effect are rulings in various states of the United States.

* * * That the probate court is without jurisdiction to try the title to property as
between the representatives of an estate and strangers thereto is too well established
by the authorities to require argument.

There is also authority abroad that where the court is without jurisdiction to
determine questions of title, as for example, as between the estate and persons
claiming adversely, its orders and judgments relating to the sale do not render the
issue of title res judicata.17 (Citations omitted, emphasis supplied.)

In any case, there is no merit to petitioners’ claim that the issues raised in the case at
bar pertain to title and ownership and therefore need to be ventilated in a separate
civil action. The issue before the court is not really one of title or ownership, but the
determination of which particular properties should be included in the inventory of the
estate. In Civil Case No. 18757, the RTC has listed the properties alleged by petitioners
to have been conjugal properties of their parents and, therefore, part of the estate that
was illegally sold to the respondent. Some of these real properties identified seem to be
the same real properties that form part of the inventory of the estate in the intestate
proceedings.18
Not only do petitioners assert their legal interest as compulsory heirs, they also seek to
be the owners, pro indiviso, of the said properties. To anchor their claim, they argue
that the properties are conjugal in nature and hence form part of their inheritance.
For his defense, Vittorio contends that the lots are the paraphernal properties of
Aurora that she had mortgaged, and that Vittorio subsequently redeemed.

In Bernardo v. Court of Appeals,19 the Supreme Court declared that the determination
of whether a property is conjugal or paraphernal for purposes of inclusion in the
inventory of the estate rests with the probate court:

xxx (T)he jurisdiction to try controversies between heirs of a deceased person regarding
the ownership of properties alleged to belong to his estate, has been recognized to be
vested in probate courts. This is so because the purpose of an administration
proceeding is the liquidation of the estate and distribution of the residue among the
heirs and legatees. Liquidation means determination of all the assets of the estate and
payment of all the debts and expenses.Thereafter, distribution is made of the
decedent's liquidated estate among the persons entitled to succeed him. The
proceeding is in the nature of an action of partition, in which each party is required to
bring into the mass whatever community property he has in his possession. To this
end, and as a necessary corollary, the interested parties may introduce proofs relative
to the ownership of the properties in dispute. All the heirs who take part in the
distribution of the decedent's estate are before the court, and subject to the
jurisdiction thereof, in all matters and incidents necessary to the complete settlement
of such estate, so long as no interests of third parties are affected.

In the case now before us, the matter in controversy is the question of ownership of
certain of the properties involved — whether they belong to the conjugal partnership
or to the husband exclusively. This is a matter properly within the jurisdiction of the
probate court which necessarily has to liquidate the conjugal partnership in order to
determine the estate of the decedent which is to be distributed among his heirs who
are all parties to the proceedings.20 xxx (Emphasis supplied.)

In the present case, petitioners assume that the properties subject of the allegedly
illegal sale are conjugal and constitute part of their share in the estate. To date, there
has been no final inventory of the estate or final order adjudicating the shares of the
heirs. Thus, only the probate court can competently rule on whether the properties are
conjugal and form part of the estate. It is only the probate court that can liquidate the
conjugal partnership and distribute the same to the heirs, after the debts of the estate
have been paid.

Section 3, Rule 87 bars petitioners from filing the present action

Petitioners next contend that even if the probate court has the power to rule on their
Complaint, the submission of the issues in this case to the probate court is merely
optional, and not mandatory upon them. Hence, they argue, they still have the right to
bring these issues in a separate civil action, if they so choose. They argue further that
Section 3, Rule 87 of the Revised Rules of Court is not applicable to the present case.

The said provision states that:

Sec. 3. Heir may not sue until share assigned. – When an executor or administrator is
appointed and assumes the trust, no action to recover the title or possession of lands
or for damages done to such lands shall be maintained against him by an heir or
devisee until there is an order of the court assigning such lands to such heir or
devisee or until the time allowed for paying debts has expired.

Petitioners believe that the above rule is subject to certain exceptions. They invoke the
doctrine that while heirs have no standing in court to sue for the recovery of property
of the estate represented by an administrator, these heirs may maintain such action if
the administrator is unwilling to bring the suit, or has allegedly participated in the act
complained of.

On this contention, petitioners’ theory must again fail. There is nothing on the record
that would prove that Aurora defied the orders of the probate court or entered into
sale agreements in violation of her trust. In fact, petitioners are really accusing a co-
heir, their brother Vittorio, of having acquired certain properties which they allege to
be properties of their parents.

Even if we assume the property to be conjugal and thus, part of the estate, Aurora
Romero’s acts as the administrator of the estate are subject to the sole jurisdiction of
the probate court. In Acebedo v. Abesamis,21 the Court stated:

In the case of Dillena vs. Court of Appeals, this Court made a pronouncement that it is
within the jurisdiction of the probate court to approve the sale of properties of a
deceased person by his prospective heirs before final adjudication. Hence, it is error to
say that this matter should be threshed out in a separate action.

The Court further elaborated that although the Rules of Court do not specifically state
that the sale of an immovable property belonging to an estate of a decedent, in a
special proceeding, should be made with the approval of the court, this authority is
necessarily included in its capacity as a probate court.22

Again, petitioners do not pose issues pertaining to title or ownership. They are, in
effect, questioning the validity of the sales made by the administrator, an issue that
can only be properly threshed out by the probate court. Paragraph 13 of petitioners’
Complaint alleges as follows:

13. The purported transfers and sales executed by Defendant Aurora C. Romero to
and in favor of Defendant Vittorio C. Romero are nullities since all were simulated,
entered into without the intent and volition of Defendant Aurora C. Romero, attended
by force, intimidation, duress and fraud and not supported with any valid or sufficient
consideration and with the sole depraved intentions of depriving the other compulsory
heirs of the late Judge Dante Y. Romero of their rightful share in the
estate.23 (Emphasis omitted.)

Indeed, implicit in the requirement for judicial approval of sales of property under
administration is the recognition that the probate court has the power to rescind or
nullify the disposition of a property under administration that was effected without its
authority.24 That petitioners have the prerogative of choosing where to file their action
for nullification – whether with the probate court or the regular court – is erroneous.
As held in Marcos, II v. Court of Appeals:

xxx (T)he authority of the Regional Trial Court, sitting, albeit with limited jurisdiction,
as a probate court over the estate of deceased individual, is not a trifling thing. The
court's jurisdiction, once invoked, and made effective, cannot be treated with
indifference nor should it be ignored with impunity by the very parties invoking its
authority.

In testament to this, it has been held that it is within the jurisdiction of the probate
court to approve the sale of properties of a deceased person by his prospective heirs
before final adjudication; to determine who are the heirs of the decedent; the
recognition of a natural child; the status of a woman claiming to be the legal wife of
the decedent; the legality of disinheritance of an heir by the testator; and to pass upon
the validity of a waiver of hereditary rights.25(Citations omitted.)

Thus, the validity of the sales made by Aurora, allegedly orchestrated by petitioners’
co-heir, Vittorio, can only be determined by the probate court, because it is the
probate court which is empowered to identify the nature of the property, and that has
jurisdiction over Aurora’s actions and dispositions as administrator. In Peñaverde v.
Peñaverde,26 the Court even adjudged the petitioners guilty of forum-shopping for filing
a separate civil action despite the pendency of the said petitioners’ own case seeking
that letters of administration be granted to them. Similar to the case at bar, the
petitioners in Peñaverde also sought the annulment of titles in the name of their co-
heir:

The two cases filed by petitioners are: (1) Sp. Proc. No. Q-94-19471, which seeks
letters of administration for the estate of Mariano Peñaverde; and (2) Civil Case No. Q-
95-24711, which seeks the annulment of the Affidavit of Self-Adjudication executed by
Mariano Peñaverde and the annulment of titles in his name as well as the reopening of
the distribution of his estate.

Evidently, in filing Sp. Proc. No. Q-94-19471, petitioners sought to share in the estate
of Mariano, specifically the subject land previously owned in common by Mariano and
his wife, Victorina.This is also what they hoped to obtain in filing Civil Case No. Q-95-
24711.
Indeed, a petition for letters of administration has for its object the ultimate
distribution and partition of a decedent's estate. This is also manifestly sought in Civil
Case No. Q-95-24711, which precisely calls for the "Reopening of Distribution of
Estate" of Mariano Peñaverde. In both cases, petitioners would have to prove their
right to inherit from the estate of Mariano Peñaverde, albeit indirectly, as heirs of
Mariano's wife, Victorina.1âwphi1

Under the circumstances, petitioners are indeed guilty of forum-shopping.

xxx xxx xxx

In the case at bar, it cannot be denied that the parties to Sp. Proc. No. Q-94-19471
and Civil Case No. Q-95-24711 are identical. There is also no question that the rights
asserted by petitioners in both cases are identical, i.e., the right of succession to the
estate of their aunt, Victorina, wife of Mariano. Likewise, the reliefs prayed for --- to
obtain their share in the estate of Mariano --- are the same, such relief being founded
on the same facts ---their relationship to Mariano's deceased wife, Victorina.27

WHEREFORE, the instant Petition is DENIED. As the properties herein are already
subject of an intestate proceeding filed on 6 January 1976, the 14 April 2009
judgment of the Court of Appeals in CA-G.R. SP No. 104025 finding no grave abuse of
discretion on the part of the RTC is AFFIRMED.

SO ORDERED.

G.R. No. 198680. July 8, 2013.*

HEIRS OF MAGDALENO YPON, namely, ALVARO YPON, ERUDITA Y. BARON,

CICERO YPON, WILSON YPON, VICTOR YPON, and HINIDINO Y. PEÑALOSA,
petitioners, vs. GAUDIOSO PONTERAS RICAFORTE a.k.a. “GAUDIOSO E. YPON,”
and THE REGISTER OF DEEDS of TOLEDO CITY, respondents.

Remedial Law; Civil Procedure; Cause of Action; Words and Phrases; Cause of action
is defined as the act or omission by which a party violates a right of another. It is
well-settled that the existence of a cause of action is determined by the allegations in
the complaint.―Cause of action is defined as the act or omission by which a party
violates a right of another. It is well-settled that the existence of a cause of action is
determined by the allegations in the complaint. In this relation, a complaint is said to
assert a sufficient cause of action if, admitting what appears solely on its face to be
correct, the plaintiff would be entitled to the relief prayed for. Accordingly, if the
allegations furnish sufficient basis by which the complaint can be maintained, the
same should not be dismissed, regardless of the defenses that may be averred by the
defendants.

Same; Civil Law; Succession; Matters relating to the rights of filiation and heirship
must be ventilated in the proper probate court in a special proceeding instituted
precisely for the purpose of determining such rights.―In the case of Heirs of Teofilo
Gabatan v. CA, 581 SCRA 70 (2009), the Court, citing several other precedents, held
that the determination of who are the decedent’s lawful heirs must be made in the
proper special proceeding for such purpose, and not in an ordinary suit for recovery of
ownership and/or possession, as in this case: Jurisprudence dictates that the
determination of who are the legal heirs of the deceased must be made in the proper
special proceedings in court, and not in an ordinary suit for recovery of ownership and
possession of property. This must take precedence over the action for recovery of
possession and ownership. The Court has consistently ruled that the trial court
cannot make a declaration of heirship in the civil action for the reason that such a
declaration can only be made in a special proceeding. Under Section 3, Rule 1 of the
1997 Revised Rules of Court, a civil action is defined as one by which a party sues
another for the enforcement or protection of a right, or the prevention or redress of a
wrong while a special proceeding is a remedy by which a party seeks to establish a
status, a right, or a particular fact. It is then decisively clear that the declaration of
heirship can be made only in a special proceeding inasmuch as the petitioners here
are seeking the establishment of a status or right. In the early case of Litam, et al. v.
Rivera, this Court ruled that the declaration of heirship must be made in a special
proceeding, and not in an independent civil action. This doctrine was reiterated in
Solivio v. Court of Appeals x x x: In the more recent case of Milagros Joaquino v.
Lourdes Reyes, the Court reiterated its ruling that matters relating to the rights of
filiation and heirship must be ventilated in the proper probate court in a special
proceeding instituted precisely for the purpose of determining such rights. Citing the
case of Agapay v. Palang, this Court held that the status of an illegitimate child who
claimed to be an heir to a decedent’s estate could not be adjudicated in an ordinary
civil action which, as in this case, was for the recovery of property.

Same; Same; By way of exception, the need to institute a separate special proceeding
for the determination of heirship may be dispensed with for the sake of practicality, as
when the parties in the civil case had voluntarily submitted the issue to the trial court
and already presented their evidence regarding the issue of heirship, and the Regional
Trial Court had consequently rendered judgment thereon, or when a special
proceeding had been instituted but had been finally closed and terminated, and hence,
cannot be re-opened.―By way of exception, the need to institute a separate special
proceeding for the determination of heirship may be dispensed with for the sake of
practicality, as when the parties in the civil case had voluntarily submitted the issue
to the trial court and already presented their evidence regarding the issue of heirship,
and the RTC had consequently rendered judgment thereon, or when a special
proceeding had been instituted but had been finally closed and terminated, and hence,
cannot be re-opened. In this case, none of the foregoing exceptions, or those of similar
nature, appear to exist. Hence, there lies the need to institute the proper special
proceeding in order to determine the heirship of the parties involved, ultimately
resulting to the dismissal of Civil Case No. T-2246.
PETITION for review on certiorari of the orders of the Regional Trial Court of Toledo
City, Br. 59.

The facts are stated in the resolution of the Court.

TLCM Law Firm for petitioners.

Dinopol, Malaya, Orcullo & Sandoval Law Office for respondent.

This is a direct recourse to the Court from the Regional Trial Court of Toledo City,
Branch 59 (RTC), through a petition for review on certiorari1 under Rule 45 of the
Rules of Court, raising a pure question of law. In particular, petitioners assail the July
27, 20112 and August 31, 20113 Orders of the RTC, dismissing Civil Case No. T-2246
for lack of cause of action.

The Facts

On July 29, 2010, petitioners, together with some of their cousins,4 filed a complaint
for Cancellation of Title and Reconveyance with Damages (subject complaint) against
respondent Gaudioso Ponteras Ricaforte a.k.a. “Gaudioso E. Ypon” (Gaudioso),
docketed as Civil Case No. T-2246.5 In their complaint, they alleged that Magdaleno
Ypon (Magdaleno) died intestate and childless on June 28, 1968, leaving behind Lot
Nos. 2-AA, 2-C, 2-F, and 2-J which were then covered by Transfer Certificates of Title
(TCT) Nos. T-44 and T-77-A.6 Claiming to be the sole heir of Magdaleno, Gaudioso
executed an Affidavit of Self-Adjudication and caused the cancellation of the
aforementioned certificates of title, leading to their subsequent transfer in his name
under TCT Nos. T-2637 and T-2638,7 to the prejudice of petitioners who are
Magdaleno’s collateral relatives and successors-in-interest.8

In his Answer, Gaudioso alleged that he is the lawful son of Magdaleno as evidenced
by: (a) his certificate of Live Birth; (b) two (2) letters from Polytechnic School; and (c) a
certified true copy of his passport.9 Further, by way of affirmative defense, he claimed
that: (a) petitioners have no cause of action against him; (b) the complaint fails to state
a cause of action; and (c) the case is not prosecuted by the real parties-in-interest, as
there is no showing that the petitioners have been judicially declared as Magdaleno’s
lawful heirs.10

The RTC Ruling

On July 27, 2011, the RTC issued the assailed July 27, 2011 Order,11 finding that the
subject complaint failed to state a cause of action against Gaudioso. It observed that
while the plaintiffs therein had established their relationship with Magdaleno in a
previous special proceeding for the issuance of letters of administration,12 this did not
mean that they could already be considered as the decedent’s compulsory heirs. Quite
the contrary, Gaudioso satisfactorily established the fact that he is Magdaleno’s son –
and hence, his compulsory heir – through the documentary evidence he submitted
which consisted of: (a) a marriage contract between Magdaleno and Epegenia
Evangelista; (b) a Certificate of Live Birth; (c) a Letter dated February 19, 1960; and (d)
a passport.13

The plaintiffs therein filed a motion for reconsideration which was, however, denied on
August 31, 2011 due to the counsel’s failure to state the date on which his Mandatory
Continuing Legal Education Certificate of Compliance was issued.14

Aggrieved, petitioners, who were among the plaintiffs in Civil Case No. T-2246,15
sought direct recourse to the Court through the instant petition.

The Issue Before the Court

The core of the present controversy revolves around the issue of whether or not the
RTC’s dismissal of the case on the ground that the subject complaint failed to state a
cause of action was proper.

The Court’s Ruling

The petition has no merit.

Cause of action is defined as the act or omission by which a party violates a right of
another.16 It is well-settled that the existence of a cause of action is determined by the
allegations in the complaint.17 In this relation, a complaint is said to assert a
sufficient cause of action if, admitting what appears solely on its face to be correct, the
plaintiff would be entitled to the relief prayed for.18Accordingly, if the allegations
furnish sufficient basis by which the complaint can be maintained, the same should
not be dismissed, regardless of the defenses that may be averred by the defendants.19

As stated in the subject complaint, petitioners, who were among the plaintiffs therein,
alleged that they are the lawful heirs of Magdaleno and based on the same, prayed
that the Affidavit of Self-Adjudication executed by Gaudioso be declared null and void
and that the transfer certificates of title issued in the latter’s favor be cancelled. While
the foregoing allegations, if admitted to be true, would consequently warrant the reliefs
sought for in the said complaint, the rule that the determination of a decedent’s lawful
heirs should be made in the corresponding special proceeding20 precludes the RTC, in
an ordinary action for cancellation of title and reconveyance, from granting the same.
In the case of Heirs of Teofilo Gabatan v. CA,21 the Court, citing several other
precedents, held that the determination of who are the decedent’s lawful heirs must be
made in the proper special proceeding for such purpose, and not in an ordinary suit
for recovery of ownership and/or possession, as in this case:

Jurisprudence dictates that the determination of who are the legal heirs of the
deceased must be made in the proper special proceedings in court, and not in an
ordinary suit for recovery of ownership and possession of property. This must take
precedence over the action for recovery of possession and ownership. The Court has
consistently ruled that the trial court cannot make a declaration of heirship in the civil
action for the reason that such a declaration can only be made in a special proceeding.
Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as
one by which a party sues another for the enforcement or protection of a right, or the
prevention or redress of a wrong while a special proceeding is a remedy by which a
party seeks to establish a status, a right, or a particular fact. It is then decisively clear
that the declaration of heirship can be made only in a special proceeding inasmuch as
the petitioners here are seeking the establishment of a status or right.

In the early case of Litam, et al. v. Rivera, this Court ruled that the declaration of
heirship must be made in a special proceeding, and not in an independent civil action.
This doctrine was reiterated in Solivio v. Court of Appeals x x x:cralavvonlinelawlibrary

In the more recent case of Milagros Joaquino v. Lourdes Reyes, the Court reiterated its
ruling that matters relating to the rights of filiation and heirship must be ventilated in
the proper probate court in a special proceeding instituted precisely for the purpose of
determining such rights. Citing the case of Agapay v. Palang, this Court held that the
status of an illegitimate child who claimed to be an heir to a decedent's estate could
not be adjudicated in an ordinary civil action which, as in this case, was for the
recovery of property.22 (Emphasis and underscoring supplied; citations omitted)

By way of exception, the need to institute a separate special proceeding for the
determination of heirship may be dispensed with for the sake of practicality, as when
the parties in the civil case had voluntarily submitted the issue to the trial court and
already presented their evidence regarding the issue of heirship, and the RTC had
consequently rendered judgment thereon,23 or when a special proceeding had been
instituted but had been finally closed and terminated, and hence, cannot be re-
opened.24

In this case, none of the foregoing exceptions, or those of similar nature, appear to
exist. Hence, there lies the need to institute the proper special proceeding in order to
determine the heirship of the parties involved, ultimately resulting to the dismissal of
Civil Case No. T-2246.

Verily, while a court usually focuses on the complaint in determining whether the
same fails to state a cause of action, a court cannot disregard decisions material to the
proper appreciation of the questions before it.25 Thus, concordant with applicable
jurisprudence, since a determination of heirship cannot be made in an ordinary action
for recovery of ownership and/or possession, the dismissal of Civil Case No. T-2246
was altogether proper. In this light, it must be pointed out that the RTC erred in ruling
on Gaudioso’s heirship which should, as herein discussed, be threshed out and
determined in the proper special proceeding. As such, the foregoing pronouncement
should therefore be devoid of any legal effect.
WHEREFORE, the petition is DENIED. The dismissal of Civil Case No. T-2246 is
hereby AFFIRMED, without prejudice to any subsequent proceeding to determine the
lawful heirs of the late Magdaleno Ypon and the rights concomitant therewith.

SO ORDERED.

G.R. No. 45262. July 23, 1990.*

RUPERTO REYES and REYNALDO C. SAN JUAN, in his capacity as Special

Administrator, petitioners, vs. HON. LORENZO R. MOSQUEDA, Judge of CFI,
Pampanga (Branch VII), and URSULA D. PASCUAL, respondents.

G.R. No. 45394. July 23, 1990.*

PEDRO DALUSONG, petitioner, vs. HON. LORENZO R. MOSQUEDA, JUDGE,

BRANCH VII, COURT OF FIRST INSTANCE OF PAMPANGA, and URSULA D.
PASCUAL, respondents.

G.R. Nos. 73241-42. July 23, 1990.*

OFELIA D. PARUNGAO and ROSARIO DUNCIL, petitioners, vs. THE HON.

INTERMEDIATE APPELLATE COURT, (Third Civil Cases Division), BENJAMIN P.
REYES and OSCAR REYES, respondents.

Civil Law; Donation; Jurisdiction; Provisional character of the exclusion of the

contested properties in the inventory as stressed in the order is within the jurisdiction
of probate court.—The questioned August 1, 1976 order of the then Court of First
Instance of Pampanga in S.P. Proc. No. 73-30-M categorically stated that the exclusion
from the inventory of the estate of the deceased Dr. Emilio D. Pascual was “without
prejudice to its final determination in a separate action.” The provisional character of
the exclusion of the contested properties in the inventory as stressed in the order is
within the jurisdiction of the probate court.

Same; Same; Same; Same; Rule is well-settled that a probate court or one in charge of
proceedings whether testate or intestate cannot adjudicate or determine title to
properties claimed to be a part of the estate and which are equally claimed to belong to
outside parties.—“It is wellsettled rule that a probate court or one in charge of
proceedings whether testate or intestate cannot adjudicate or determine title to
properties claimed to be a part of the estate and which are equally claimed to belong to
outside parties. All that the said court could do as regards said properties is to
determine whether they should or should not be included in the inventory or list of
properties to be administered by the administrator. If there is no dispute, well and
good; but if there is, then the parties, the administrator, and the opposing parties have
to resort to an ordinary action for a final determination of the conflicting claims of title
because the probate court cannot do so.”
Same; Same; Same; Same; Same; For the purpose of determining whether a certain
property should or should not be included in the inventory, the probate court may
pass upon the title thereto but such determination is not conclusive and is subject to
the final decision in a separate action regarding ownership which may be constituted
by the parties.—Similarly, in Valero Vda. de Rodriguez v. Court of Appeals, (91 SCRA
540) we held that for the purpose of determining whether a certain property should or
should not be included in the inventory, the probate court may pass upon the title
thereto but such determination is not conclusive and is subject to the final decision in
a separate action regarding ownership which may be instituted by the parties.

Same; Same; That the title given to a deed of donation is not the determinative factor
which makes the donation “inter vivos” or “mortis causa” now a settled rule.—It is,
now a settled rule that the title given to a deed of donation is not the determinative
factor which makes the donation “inter vivos” or “mortis causa.” As early as the case of
Laureta v. Manta, et al., (44 Phil. 668 [1928]) this Court ruled that the dispositions in
a deed of donation—whether “inter vivos” or “mortis causa” do not depend on the title
or term used in the deed of donation but on the provisions stated in such deed.

Same; Same; Same; Characteristics of a donation inter vivos and mortis causa
distinguished in Bonsato et al. vs. Court of Appeals et al.—In the later case of
Bonsato, et al. v. Court of Appeals, et al. (95 Phil. 481 [1954]) this Court,
distinguished the characteristics of a donation inter vivos and “mortis causa” in this
wise: “Did the late Domingo Bonsato make donations inter vivos or dispositions post
mortem in favor of the petitioners herein? If the latter, then the documents should
reveal any or all of the following characteristics: (1) Convey 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 (Vidal v. Posadas, 58 Phil., 108; Guzman v. Ibea, 67 Phil., 633); (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 (Bautista v. Sabiniano, G.R. No. L-4326,
November 18, 1952); (3) That the transfer should be void if the transferor should
survive the transferee.”

Same; Same; Same; Whether a donation is inter vivos or mortis causa depends upon
the nature of the disposition made.—“Whether a donation is inter vivos or mortis
causa depends upon the nature of the disposition made. ‘Did the donor intend to
transfer the ownership of the property donated upon the execution of the donation? If
this is so, as reflected from the provisions contained in the donation, then it is inter
vivos; otherwise, it is merely mortis causa, or made to take effect after death.’ ”
Same; Same; Same; Same; The so-called donations mortis causa is really a donation
inter vivos; Case at bar.—Applying the above principles to the instant petitions, there
is not doubt that the so-called DONATION MORTIS CAUSA is really a donation inter
vivos. The donation was executed by Dr. Pascual in favor of his sister Ursula Pascual
out of love and affection as well as a recognition of the personal services rendered by
the donee to the donor. The transfer of ownership over the properties donated to the
donee was immediate and independent of the death of the donor. The provision as
regards the reservation of properties for the donor’s subsistence in relation to the
other provisions of the deed of donation confirms the intention of the donor to give
naked ownership of the properties to the donee immediately after the execution of the
deed of donation.

G.R. No. 45262 and G.R. No. 45394:

PETITIONS to review the decision of the then Court of First Instance of Pampanga, Br.
7. Mosqueda, J.

The facts are stated in the opinion of the Court. `

`The instant petitions have been consolidated as they arose from the same facts and
involve similar issues. Dr. Emilio Pascual died intestate and without issue on
November 18,1972. He was survived by his sister, Ursula Pascual and the children of
his late sisters as follows: (1) Maria Pascual Reyes- Ruperto Reyes and Jose Reyes; (2)
Ines Pascual Reyes-Jose P. Reyes, Benito Reyes, and Manna Reyes Manalastas; (3)
Josefa Pascual Reyes-Augusto Reyes and Benjamin Reyes; and (4) Escolastica Pascual
Dalusong (half- blood Pedro Dalusong.

On December 3, 1973, the heirs of Dr. Pascual filed Special Proceedings No. 73-30-M
in the then Court of First Instance of Pampanga for the administration of his estate.
Atty. Marcela Macapagal, Clerk of Court of Branch VII was appointed special
administratrix. Macapagal was, however, replaced by Reynaldo San Juan.

On February 12, 1976, Ursula Pascual filed a motion to exclude some properties from
the inventory of Pascual's estate and to deliver the titles thereto to her. Ursula alleged
that Dr. Pascual during his lifetime or on November 2, 1966 executed a "Donation
Mortis Causa" in her favor covering properties which are included in the estate of Dr.
Pascual (subject of Special Proceedings No. 73-30-M) and therefore should be excluded
from the inventory.

On August 1, 1976; the trial court issued an order excluding from the inventory of the
estate the properties donated to Ursula, to wit:

WHEREFORE, in view of all the foregoing discussion, let the properties listed in
paragraph 2 of the motion of February 12, 1976 filed by Ursula D. Pascual thru
counsel be, as it is hereby ordered, excluded from the inventory of the estate of the
deceased Dr. Emilio D. Pascual, without prejudice to its final determination in a
separate action. Special Administrator Reynaldo San Juan is hereby ordered to return
to Court the custody of the corresponding certificates of titles of these properties, until
the issue of ownership is finally determined in a separate action. (G.R. No. 45262, pp.
23-24)

The Order is now the subject of G.R. Nos. 45262 and 45394. On January 5, 1977, we
issued a temporary restraining order enjoining the trial court from enforcing the
August 1, 1976 Order.

Among the properties included in the "donation mortis causa" in favor of Ursula was
Lot 24, Block No. 15 of the subdivision plan Psd-3231, located at 1109-1111 R. Papa
St., Tondo, Manila as evidenced by Transfer Certificate of Title No. 17854. The records
show that on May 15, 1969, Emilio Pascual executed a deed of donation of real
property inter vivos over the abovementioned lot in Manila in favor of Ofelia D.
Parungao, petitioner in G.R. Nos. 73241-42 a minor with her mother, Rosario Duncil,
accepting the gift and donation for and in her behalf. When Parungao reached the age
of majority or on December 20, 1976, she tried to have the donation registered.
However, she found out that the certificate of title was missing from where it was
supposed to be kept, prompting her to file a petition for reconstitution of title with the
Court of First Instance of Manila. The petition was granted in October 1977. Parungao
registered the deed of donation with the Register of Deeds of Manila who cancelled
Transfer Certificate of Title No. 17854 and issued in lieu thereof Transfer Certificate of
Title No. 129092 in the name of Ofelia Parungao. She then filed a motion for exclusion
in Special Proceedings No. 73-30-M.

In the meantime, on September 23, 1976, Ursula Pascual executed a deed of absolute
sale over the Tondo property in favor of Benjamin, Oscar, Jose and Emmanuel, all
surnamed Reyes.

On May 2, 1978, Benjamin Reyes, private respondent in G.R. Nos. 73241-42 filed a
complaint for declaration of nullity of Transfer Certificate of Title No. 129092, Register
of Deeds of Manila and/or reconveyance of deed of title against Ofelia Parungao and
Rosario Duncil, with the then Court of First Instance of Manila. The case was docketed
as Civil Case No. 115164.

In their answer with compulsory counterclaim Parungao and Duncil, denied Reyes'
assertion of ownership over the Tondo property. On November 6, 1978, Ofelia
Parungao filed a complaint for recovery of possession over the Tondo property against
Benjamin Reyes and his nephew Oscar Reyes with the Court of First Instance of
Manila. The case was docketed as Civil Case No. 119359. In her complaint, Parungao
also alleged that as early as 1973, the defendants occupied two (2) doors of the
apartment situated at the Tondo property by mere tolerance of the previous owner, Dr.
Emilio Pascual, and later by her until April 8, 1978 when she formally demanded that
the defendants vacate the premises. Parungao prayed that the defendants be evicted
from the premises.
The two cases were consolidated. On June 3, 1982, the then Court of First Instance,
Branch 8 rendered a joint decision, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered: In Civil Case No. 115164 —

1) Declaring TCT No. 129092 in the name of Ofelia Parungao null and void; and
ordering the Register of Deeds of Manila to cancel said title and to restore, in lieu
thereof, TCT No. 17854 in the name of Emilio D. Pascual;

2) Ordering Ofelia D. Parungao to pay plaintiff Benjamin P. Reyes the sum of Two
Thousand (P2,000.00) Pesos, as and for attorney's fees; and to pay the costs of suit
including all fees which the Register of Deeds may prescribe for the full
implementation of this decision. For lack of merit, the counterclaim is dismissed.

In Civil Case No. 119359 —

1) Dismissing the complaint for want of merit; and

2) On the counterclaim, ordering Ofelia Parungao to pay defendant defendants the

sum of Two Thousand (P2,000.00) Pesos as and for attorney's fees.'

Parungao appealed the decision to the then Intermediate Appellate Court. The decision
was, however, affirmed, with costs against the appellant.

The Intermediate Appellate Court decision is now the subject matter in G.R. Nos.
73241-42.

On January 29, 1986, we issued a minute resolution denying the above petition for
lack of merit. The resolution became final and executory on March 10, 1986 and on
this same day the entry of judgment was effected. The entry of judgment was however
set aside in the resolution dated January 19, 1987 on the ground that the January 29,
1986 resolution was not received by the petitioners' counsel of record. The petitioner
was granted leave to file a motion for reconsideration of the January 29, 1986
resolution.

The motion for reconsideration is now before us for resolution petition.

The issues raised in these petitions are two-fold: (1) In G.R. No. L-45394, petitioner
Pedro Dalusong questions the jurisdiction of the probate court to exclude the
properties donated to Ursula Pascual in its Order dated August 1, 1976, and (2) In
G.R. No. L-45262 and G.R. Nos. 73241-42 Ruperto Reyes, Reynaldo C. San Juan, in
his capacity as special administrator of the estate of Emilio Pascual (petitioner in G.R.
No.
L- 45262), Ofelia Parungao and Rosario Duncil (petitioners in G.R. Nos. 7324142)
question the appellate court's finding that the "Donation Mortis Causa" executed by
Emilio Pascual in favor of his sister Ursula Pascual was actually a Donation Inter
Vivos.
We first discuss the issue on jurisdiction. The questioned August 1, 1976 order of the
then Court of First Instance of Pampanga in S.P. Proc. No. 73-30-M categorically
stated that the exclusion from the inventory of the estate of the deceased Dr. Emilio D.
Pascual was "without prejudice to its final determination in a separate action." The
provisional character of the exclusion of the contested properties in the inventory as
stressed in the order is within the jurisdiction of the probate court. This was stressed
in the case of Cuizon v. Ramolete (129 SCRA 495 [1984]) which we cited in the case
of Morales v. Court of First Instance of Cavite, Branch V (146 SCRA 373 [1986]):

It is well-settled rule that a probate court or one in charge of proceedings whether

testate or intestate cannot adjudicate or determine title to properties claimed to be a
part of the estate and which are equally claimed to belong to outside parties. All that
the said court could do as regards said properties is to determine whether they should
or should not be included in the inventory or list of properties to be administered by
the administrator. If there is no dispute, well and good; but if there is, then the
parties, the administrator, and the opposing parties have to resort to an ordinary
action for a final determination of the conflicting claims of title because the probate
court cannot do so (Mallari v. Mallari, 92 Phil. 694; Baquial v. Amihan, 92 Phil.
501).i•t•c-aüsl

Similarly, in Valero Vda. de Rodriguez v. Court of Appeals, (91 SCRA 540) we held that
for the purpose of determining whether a certain property should or should not be
included in the inventory, the probate court may pass upon the title thereto but such
determination is not conclusive and is subject to the final decision in a separate action
regarding ownership which may be instituted by the parties (3 Moran's Comments on
the Rules of Court, 1970 Edition, pages 448449 and 473; Lachenal v. Salas,
L-42257, June 14, 1976, 71 SCRA 262, 266).

On the second issue, it may be noted that the Court of Appeals did not pass upon the
authenticity of the 1969 donation to Parungao because of its finding that the 1966
donation to Pascual was inter vivos. The petitioners do not press the authenticity of
the 1969 donation as their challenge centers on whether or not the 1966 donation was
inter vivos. However, the trial court has a lengthy discussion reflecting adversely on
the authenticity of the 1969 donation to Parungao.

The petitioners assert that the 1966 donation was null and void since it was not
executed with the formalities of a will. Therefore, the petitioners in G.R. No. L-45262
insist that the donated properties should revert to the estate of Emilio Pascual while
the petitioners in G.R. Nos. 73241-42 insist that the donation of real property inter
vivos in favor of Ofelia Parungao be given effect.

The subject deed of donation titled "DONATION MORTIS CAUSA" duly notarized by a
certain Cornelio M. Sigua states:
That Dr. Emilio D. Pascual, Filipino, single, of age and resident of Apalit, Pampanga,
hereinafter called the DONOR and Ursula D. Pascual, Filipino, single, also of age,
resident of and with postal address at Apalit, Pampanga, hereinafter called the
DONEE, have agreed, as they do hereby agree, to the following, to wit:

That the said DONOR, Dr. Emilio D. Pascual, for and in consideration of the love and
affection which he has and bears unto the said DONEE, as also for the personal
services rendered by the said DONEE to the said DONOR, does hereby by these
presents voluntarily GIVE, GRANT, and DONATE MORTIS CAUSA unto the said
DONEE URSULA D. PASCUAL, her heirs and assigns, all of my rights, title and
interest, in and to the following parcels of land with all the improvements thereon,
situated in the Municipality of Apalit, Pampanga, and more particularly described and
Identified as follows:

xxx xxx xxx

(Enumerated herein are 41 parcels of land)

Also included in this DONATION MORTIS CAUSA are all personal properties of the
DONOR in the form of cash money or bank deposits and insurance in his favor, and
his real properties situated in other towns of Pampanga, such as San Simon, and in
the province of Rizal, San Francisco del Monte and in the City of Manila.

That the said donor has reserved for himself sufficient property to maintain him for
life; and that the said DONEE does hereby ACCEPT and RECEIVE this DONATION
MORTIS CAUSA and further does express his appreciation and gratefulness for the
generosity of said DONOR; (Rollo of G.R. No. L-45262, pp. 12-16)

xxx xxx xxx

Considering the provisions of the DONATION MORTIS CAUSA the appellate court
ruled that the deed of donation was actually a donation inter vivos although
denominated as DONATION MORTIS CAUSA.

It is, now a settled rule that the title given to a deed of donation is not the
determinative factor which makes the donation "inter vivos" or "mortis causa" As early
as the case of Laureta v. Manta, et al., (44 Phil. 668 [1928]) this Court ruled that the
dispositions in a deed of donation-whether "inter vivos" or "mortis causa" do not
depend on the title or term used in the deed of donation but on the provisions stated
in such deed. This Court explained in Concepcion v. Concepcion (91 Phil. 823 [1952])
—

...But, it is a rule consistently followed by the courts that it is the body of the
document of donation and the statements contained therein, and not the title that
should be considered in ascertaining the intention of the donor. Here, the donation is
entitled and called donacion onerosa mortis causa. From the body, however, we find
that the donation was of a nature remunerative rather than onerous. It was for past
services rendered, services which may not be considered as a debt to be paid by the
donee but services rendered to her freely and in goodwill. The donation instead of
being onerous or for a valuable consideration, as in payment of a legal obligation, was
more of remuneratory or compensatory nature, besides being partly motivated by
affection.

We should not give too much importance or significance to or be guided by the use of
the phrase 'mortis causa in a donation and thereby to conclude that the donation is
not one of inter vivos. In the case of De Guzman et al. v. Ibea et al. (67 Phil. 633), this
Court through Mr. Chief Justice Avancena said that if a donation by its terms is inter
vivos, this character is not altered by the fact that the donor styles it mortis causa.

In the case of Laureta v. Mata, et al. (44 Phil. 668), the court held that the donation
involved was inter vivos. There, the donor Severa Magno y Laureta gave the properties
involved as —

... a reward for the services which he is rendering me, and as a token of my affection
toward him and of the fact that he stands high in my estimation, I hereby donate
'mortis causa to said youth all the properties described as follows:

xxx xxx xxx

I also declare that it is the condition of this donation that the donee cannot take
possession of the properties donated before the death of the donor, and in the event of
her death the said donee shall be under obligation to cause a mass to be held
annually as a suffrage in behalf of my sold, and also to defray the expenses of my
burial and funerals.'

It will be observed that the present case and that of Laureta above cited are similar in
that in both cases the donation was being made as a reward for services rendered and
being rendered, and as a token of affection for the donee; the phrase 'mortis causa was
used; the donee to take possession of the property donated only after the death of the
donor; the donee was under obligation to defray the expenses incident to the
celebration of the anniversary of the donor's death, including church fees. The
donation in both cases were duly accepted. In said case of Laureta this Court held that
the donation was in praesenti and not a gift in futuro.

In the later case of Bonsato et al. v. Court of appeals, et al. (95 Phil. 481 [1954]) this
Court, distinguished the characteristics of a donation inter vivos and "mortis causa" in
this wise:

Did the late Domingo Bonsato, make donations inter vivos or dispositions post mortem
in favor of the petitioners herein? If the latter, then the documents should reveal any
or all of the following characteristics:
(1) Convey 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 (fun
or naked) and control of the property while alive (Vidal v. Posadas, 58 Phil., 108;
Guzman v. Ibea 67 Phil., 633);

(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 (Bautista v. Sabiniano, G.R. No. L-
4326, November 18, 1952);

(3) That the transfer should be void if the transferor should survive the transferee.

These principles were repeated in the case of Castro v. Court of Appeals (27 SCRA
1076 [1969]), to wit:

Whether a donation is inter vivos or mortis causa depends upon the nature of the
disposition made. 'Did the donor intend to transfer the ownership of the property
donated upon the execution of the donation? If this is so, as reflected from the
provisions contained in the donation, then it is inter vivos; otherwise, it is merely
mortis causa, or made to take effect after death.' (Howard v. Padilla and Court of
Appeals, G.R. No. L-7064 and L-7098, April 22, 1955.

Applying the above principles to the instant petitions, there is no doubt that the so-
called DONATION MORTIS CAUSA is really a donation inter vivos. The donation was
executed by Dr. Pascual in favor of his sister Ursula Pascual out of love and affection
as well as a recognition of the personal services rendered by the donee to the donor.
The transfer of ownership over the properties donated to the donee was immediate and
independent of the death of the donor. The provision as regards the reservation of
properties for the donor's subsistence in relation to the other provisions of the deed of
donation confirms the intention of the donor to give naked ownership of the properties
to the donee immediately after the execution of the deed of donation.

With these findings we find no need to discuss the other arguments raised by the
petitioners.

WHEREFORE, this Court hereby renders judgment as follows:

1) In G.R. Nos. 45262 and 45394 the petitions are DENIED. The Temporary
Restraining Order issued on January 5, 1977 is hereby LIFTED; and

2) In G.R. Nos. 73241-42, the motion for reconsideration is DENIED. This DENIAL is
FINAL.

SO ORDERED.

G.R. No. 128781. August 6, 2002.*

TERESITA N. DE LEON, ZENAIDA C. NICOLAS and the HEIRS OF ANTONIO
NICOLAS, petitioners, vs. HON. COURT OF APPEALS, HON. PABLO P. INVENTOR
and RAMON NICOLAS, respondents.

Special Proceedings; Settlement of Estate; Probate Courts; Jurisdiction; A probate

court, whether in a testate or intestate proceeding, can only pass upon questions of
title provisionally.—A probate court, whether in a testate or intestate proceeding, can
only pass upon questions of title provisionally. The rationale therefor and the proper
recourse of the aggrieved party are expounded in Jimenez v. Court of Appeals: “The
patent reason is the probate court’s limited jurisdiction and the principle that
questions of title or ownership, which result in inclusion or exclusion from the
inventory of the property, can only be settled in a separate action. “All that the said
court could do as regards said properties is determine whether they should or should
not be included in the inventory or list of properties to be administered by the
administrator. If there is a dispute as to the ownership, then the opposing parties and
the administrator have to resort to an ordinary action for a final determination of the
conflicting claims of title because the probate court cannot do so.”

Same; Same; Same; Orders of Inclusion (Exclusion); Nature; An order of exclusion (or
inclusion) is not a final order.—The Court held in Valero Vda. de Rodriguez v. Court of
Appeals that the order of exclusion (or inclusion) is not a final order; that it is
interlocutory in the sense that it did not settle once and for all the title to the subject
lots; that the prevailing rule is that for the purpose of determining whether a certain
property should or should not be included in the inventory, the probate court may
pass upon the title thereto but such determination is not conclusive and is subject to
the final decision in a separate action regarding ownership which may be instituted by
the parties.

Same; Same; Appeals; Record on Appeal; The elevation of the records to the Court of
Appeals for the purpose of the petitioners’ appeal from the order removing the
administratrix is unnecessary where a record on appeal is allowed under the Rules of
Court.—The elevation of the records of Special Proceedings No. C-1679 to the Court of
Appeals for the purpose of petitioners’ appeal from the order removing the
administratrix is unnecessary where a record on appeal is allowed under the Rules of
Court. The court a quo loses jurisdiction over the subject of the appeal upon the
approval of the record on appeal and the expiration of the time to appeal of the other
parties; but retains jurisdiction over the remaining subject matter not covered by the
appeal.

PETITION for review on certiorari of the decision and resolution of the Court of
Appeals.

The facts are stated in the opinion of the Court.

Jose M. Castillo for petitioners.

Abbas and Associates for private respondent.

AUSTRIA-MARTINEZ, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court
which prays that the Decision dated February 28, 1997 and the Resolution dated April
3, 1997 issued by the Court of Appeals in CA-G.R. SP No. 42958,1 be set aside; and,
that another judgment be entered ordering the Presiding Judge of Branch 123 of the
Regional Trial Court of Caloocan City to give due course to petitioners’ notice of
appeal, to approve their record on appeal and to elevate the records of Sp. Proc. No. C-
1679 to respondent appellate court for further proceedings.

The factual background:

Herein petitioner Teresita N. de Leon was appointed administratrix of the estate of

Rafael C. Nicolas in Sp. Proc. No. C-1679, entitled, "In the Matter of the Intestate
Estate of Rafael C. Nicolas". Said case was subsequently consolidated with Sp. Proc
No. C-18102 and Civil Case No. C-17407.3 Deceased spouses Rafael and Salud Nicolas
were the parents of petitioner Teresita N. de Leon, Estrellita N. Vizconde, Antonio
Nicolas (deceased husband of petitioner Zenaida Nicolas and predecessor of the
petitioners Heirs of Antonio Nicolas), Ramon Nicolas and Roberto Nicolas.

On September 19, 1994, private respondent Ramon G. Nicolas, an oppositor–applicant

in the intestate proceedings, filed a "Motion for Collation," claiming that deceased
Rafael Nicolas, during his lifetime, had given the following real properties to his
children by gratuitous title and that administratrix-petitioner Teresita failed to include
the same in the inventory of the estate of the decedent:

"1. Title No. T-36734 located at Polo, Bulacan with an area of 14,119 sq. m.
distributed as follows:

1.1 10,110 sq. m. given to daughter Estrellita N. Visconde –

1.2 4,009 sq. m. given to son Antonio Nicolas

2. Title No. T-40333 located at Polo, Bulacan with an area of 1,000 sq. m. given to son
Antonio Nicolas

3. Title No. T-36989 located at Polo, Bulacan with an area of 4,000 sq. m. given to
daughter Teresita N. de Leon (herein petitioner)

4. Title No. T-36987 located at Polo, Bulacan with an area of 283 sq. m. given to son
Antonio Nicolas

5. T-33658 located at Polo, Bulacan with an area of 6,109 sq. m. given to daughter
Teresita N. de Leon
6. T-68554 located at Caloocan City with an area of 690 sq. m. given to son Ramon
(Oppositor-Applicant herein)

7. T-10907 located at Caloocan City with an area of 310 sq. m. given to son Ramon
but was somehow transferred to Antonio Nicolas, and the property is now titled in the
name of the latter’s widow, Zenaida Carlos Nicolas."

xxx xxx x x x."4

On September 27, 1994, the RTC issued an Order directing Ramon "to submit
pertinent documents relative to the transfer of the properties from the registered
owners during their lifetime for proper determination of the court if such properties
should be collated, and set it for hearing with notice to the present registered owners
to show cause why their properties may not be included in the collation of
properties."5

On October 10, 1994, respondent Ramon filed an Amended Motion for Collation
specifying the properties to be collated and attaching to said motion, the documents in
support thereof, to wit:

"3. A more complete list of the properties to be collated is as follows:

1. Title No. T-36734 located at Polo, Bulacan with an area of 14,119 sq. m., xerox copy
hereto attached as Annex "A", distributed as follows:

1.1 10,110 sq. m. given to daughter Estrellita N. Visconde, under TCT No. V-554 of
Valenzuela Bulacan (Annex "B"), and later sold by Estrellita to Amelia Lim Sy for
P3,405,612.00 and the Deed of Sale hereto attached as Annex "B-1";

"1.2 4,009 sq. m. given to son Antonio Nicolas, xerox copy hereto attached as Annex
"C";

2. Two lots, covered by TCT No. T-36989 located at Polo, Bulacan with an area of
4,000 sq. m. and TCT No. T-33658 located at Polo, Bulacan with an area of 6,109 sq.
m. "given to daughter Teresita N. de Leon by a Deed of Sale, xerox copies are hereto
attached as Annex "D", "D-1" and "D-2";

The 4,000 sq. m. lot was sold by Petitioner Teresita for the amount of P1,888,000.00,
xerox copy of the Deed of Sale is hereto attached as Annex "D-3";

4. Son Antonio received additional properties under a Deed of Sale, hereto attached as
Annex "E", which are those covered by TCT No. T-36987 located at Polo, Bulacan with
an area of 283 sq. m.; TCT No. T-40333 located at Polo, Bulacan with an area of 1,000
sq. m. and TCT No. T-10907 located at Caloocan City with an area of 310 sq. m., xerox
copies hereto attached as Annexes "E-1", "E-2" and "E-3";
The lot with an area of 310 sq. m. is supposedly earmarked for Oppositor-applicant
Ramon but was somehow included in the Deed of Sale to son Antonio, and the
property is now titled in the name of the latter’s widow, Zenaida Carlos Nicolas;

5. TCT No. T-68554 located at Caloocan City with an area of 690 sq. m. where the
ancestral home is presently located;

6. Son Antonio received another property with an area of 1,876 sq. m. and sold for
P850,000.00, hereto attached as Annex "F";

7. Son Antonio received another property with an area of 1,501 sq. m. and sold for
P200,000.00, hereto attached as Annex "G";

xxx xxx x x x."6

A comparison with the original motion for collation reveals that the amended motion
refers to the same real properties enumerated in the original except Nos. 6 and 7
above which are not found in the original motion.

On November 11, 1994, the RTC issued an Order, to wit:

"Acting on the Amended Motion for Collation filed by oppositor-applicant Ramon G.

Nicolas and the comment thereto filed by petitioner-administratrix, the Court finds the
following properties to be collated to the estate properties under present
administration, to wit:

(1). 4,009 sq. m. given to son Antonio Nicolas described in paragraph 1.2 of the
Amended Motion For Collation, marked as Annex "C"; (the xerox copy of the transfer
certificate of title in the name of Antonio Nicolas did not state "the number and the
technical description of the property. The administratrix should get hold of a certified
copy of the title of Antonio Nicolas about subject property;

(2). Two lots, covered by TCT No. T-36989 located at Polo, Bulacan with an area of
4,000 sq. m. and TCT No. T-33658 located at Polo, Bulacan with an area of 6,109 sq.
m. given to daughter Teresita N. de Leon by a Deed of Sale;

(3). The property covered by TCT No. T-36987 located at Polo, Bulacan, with an area of
283 sq. m.; the property covered by TCT No. T-40333 located at Polo, Bulacan, with an
area of 1,000 sq. m. and another property covered by TCT No. T-10907 located at
Caloocan City with an area of 310 sq. m. xerox copies of which are attached to the
Amended Motion For Collation, marked as Annexes "E’1", "E-2" and "E-3";

(4). The lot with an area of 310 sq. m. given to son Antonio Nicolas which property is
now titled in the name of the latter’s widow, Zenaida Carlos Nicolas.

"Accordingly, the Administratrix is hereby ordered to include the foregoing properties

which were received from the decedent for collation in the instant probate proceedings.
"SO ORDERED."7

We note that only those lots described under paragraphs 3.1.2, 3.2 and 4 of the
"Amended Motion for Collation" were ordered included for collation.1âwphi1.nêt

On November 18, 1994, petitioner Teresita N. de Leon filed a Motion for

Reconsideration alleging that the properties subject of the Order "were already titled in
their names years ago"8 and that titles may not be collaterally attacked in a motion for
collation. On February 23, 1995, the RTC issued an Order denying said motion, ruling
that it is within the jurisdiction of the court to determine whether titled properties
should be collated,9 citing Section 2, Rule 90 of the Rules of Court which provides that
the final order of the court concerning questions as to advancements made shall be
binding on the person raising the question and on the heir.

Petitioner Teresita N. de Leon filed a Motion for Reconsideration of the Order dated
February 23, 199510 which respondent opposed.11

On July 18, 1995, the RTC issued an Order, pertinent portions of which read:

"x x x Foremost to be resolved is the issue of collation of the properties of the deceased
Rafael Nicolas which were disposed by the latter long before his death. The oppositor-
applicant Ramon Nicolas should prove to the satisfaction of the Court whether the
properties disposed of by the late Rafael Nicolas before the latter’s death was
gratuitous or for valuable consideration. The Court believes that he or she who asserts
should prove whether the disposition of the properties was gratuitously made or for
valuable consideration.

The Court has already set for hearing on July 21, 1995, at 8:30 a.m., the reception
and/or presentation of evidence in the issue of collated properties disposed before the
death of Rafael Nicolas."12

On November 4, 1996, the RTC removed petitioner from her position as administratrix
on ground of conflict of interest considering her claim that she paid valuable
consideration for the subject properties acquired by her from their deceased father
and therefore the same should not be included in the collation;13 and, ordered the
hearing on the collation of properties covered by TCT No. T-V-1211 and T-V-1210
only.14

On November 28, 1996, acting on the impression that the collation of the real
properties enumerated in the Order dated November 11, 1994 is maintained by the
RTC, petitioner Teresita N. de Leon filed a Motion for Reconsideration praying that her
appointment as administratrix be maintained; and that the properties covered by TCT
Nos. T-36989, T-33658, T-36987, T-40333, T-10907 and a portion of TCT No. T-13206
described as Lot 4-A with 4,009 square meters be declared and decreed as the
exclusive properties of the registered owners mentioned therein and not subject to
collation.15
The RTC denied said motion in its Order dated December 23, 1996.16

Petitioners Teresita N. de Leon, Zenaida Nicolas (the surviving spouse of Antonio

Nicolas) and the Heirs of Antonio Nicolas filed with the Court of Appeals a petition for
certiorari, prohibition and mandamus with prayer for a temporary restraining order
and writ of preliminary injunction claiming that:

"I

"RESPONDENT JUDGE HAS ACTED IN EXCESS OF HIS JURISDICTION AND WITH

GRAVE ABUSE OF DISCRETION WHEN WITHOUT GIVING PETITIONERS
OPPORTUNITY TO VENTILATE THEIR APPEAL HE INSISTED ON HEARING THE
MATTERS ON THE APPOINTMENT OF A REGULAR ADMINISTRATOR AND
COLLATION ON DECEMBER 24, 1996 AND RESETTING ITS CONTINUATION TO
JANUARY 21 and 28, 1997 INSPITE OF THE PENDENCY OF THE NOTICE OF APPEAL
AND/OR RE-AFFIRMATION OF THE NOTICE OF APPEAL FROM WHICH ACTS THERE
IS NO APPEAL NOR ANY PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE
ORDINARY COURSE OF LAW."

"II

"RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION WHEN HE DID

NOT INCLUDE IN HIS ORDER-ANNEX J THE HEARING ON THE FINAL
DETERMINATION OF TCT NOS. T-36734, T-36989, T-33658, T-36987, T-40333 and
T-10907 (WHETHER THEY ARE STILL PART OF THE ESTATE OR SHOULD BE
EXCLUDED FROM THE INVENTORY/ESTATE) THEREBY ASSUMING WITHOUT ANY
BASIS THAT THESE PROPERTIES TO BE STILL PART OF THE ESTATE OF RAFAEL
NICOLAS WHEN THEY ARE NOT BECAUSE THEY HAVE BEEN SOLD WAY BACK IN
1979 FOR VALUABLE CONSIDERATIONS TO PETITIONER TERESITA N. DE LEON
AND ANTONIO NICOLAS HUSBAND OF PETITIONER ZENAIDA NICOLAS."17

After private respondent Ramon had filed his comment, and petitioners, their reply,
and after hearing the oral arguments of the parties, the Special Fourth Division of the
Court of Appeals found the petition devoid of merit, ruling that the Order dated
November 11, 1994 directing the inclusion of the properties therein enumerated in the
estate of the deceased Rafael Nicolas had already become final for failure of petitioners
to appeal from the order of collation; that the appeal of the petitioner from the Orders
dated November 4, 1996 and December 3, 1996 removing petitioner as administratrix
is timely appealed; and, observing that the notice of appeal and record on appeal
appear to be unacted upon by the RTC, the appellate court resolved:

"WHEREFORE, while finding no grave abuse of discretion on the part of respondent

Judge, he is hereby ORDERED to act on petitioner’s appeal on the matter of the
removal of petitioner as administratrix.

SO ORDERED."18
Hence, herein petition anchored on the following assignments of error:

"FIRST ASSIGNMENT OF ERROR

"RESPONDENT HONORABLE COURT ERRED WHEN IT DECLARED IN THE

QUESTIONED DECISION THAT THE ORDER OF THE COURT A QUO DATED
NOVEMBER 11, 1994 WAS FINAL.

"SECOND ASSIGNMENT OF ERROR</P>

"RESPONDENT HONORABLE COURT ERRED WHEN IT DECLARED IN THE

QUESTIONED RESOLUTION THAT THERE WAS NO COGENT OR COMPELLING
REASON TO DISTURB THE QUESTIONED DECISION."19

Petitioners claim that: private respondent never presented any document to prove that
the properties transferred by their deceased parents to petitioners are by gratuitous
title; private respondent never notified petitioner of any hearing on said documents to
give them opportunity to show cause why their properties should not be collated; the
assailed Order dated November 11, 1994 is arbitrary, capricious, whimsical,
confiscatory, depriving them of due process; the said order is interlocutory in nature
and therefore non-appealable; the properties acquired by petitioner Teresita N. de
Leon and her deceased brother Antonio Nicolas, married to petitioner Zenaida C.
Nicolas and their children, were sold to them as evidenced by public documents; and,
the properties were already titled in their respective names or sold to third persons.

Private respondent contends that: due process has been afforded the petitioners when
the RTC resolved the issue of collation of the subject properties after hearing;
petitioner deliberately omitted certain material facts in the petition to mislead the
Court because petitioners were actually given at least three (3) times the opportunity
to ventilate and oppose the issue of collation; as stated by the appellate court in the
Resolution promulgated on February 10, 1997, both parties affirmed that the RTC had
proceeded to conduct hearings on January 21 and 28, 1997 as originally scheduled;
presentation of evidence had been terminated and the twin issues of the appointment
of a new administratrix and the collation of two (2) properties covered by TCT No. T-V-
1210 and T-V-1211 were already submitted for resolution to the court below; 20 subject
properties are collatable under Articles 1601 and 1071 of the Civil Code and Section 2
of Rule 90 of the Rules of Court and the ruling in Guinguing v. Abuton and Abuton, 48
Phil. 144; petitioner failed to present evidence that there was valuable consideration
for these properties and failed to rebut the evidence that petitioners do not have the
financial capability to pay for these properties as evidenced by the testimony of
credible witnesses who are relatives of spouses decedents.

We find the petition partly meritorious.

Contrary to the finding of the Court of Appeals that the Order of November 11, 1994
had become final for failure of petitioners to appeal therefrom in due time, we hold
that said Order is interlocutory in nature. Our pronouncement in Garcia v.
Garcia supports this ruling:

"The court which acquires jurisdiction over the properties of a deceased person
through the filing of the corresponding proceedings, has supervision and control over
the said properties, and under the said power, it is its inherent duty to see that the
inventory submitted by the administrator appointed by it contains all the properties,
rights and credits which the law requires the administrator to set out in his inventory.
In compliance with this duty the court has also inherent power to determine what
properties, rights and credits of the deceased should be included in or excluded from
the inventory. Should an heir or person interested in the properties of a deceased
person duly call the court’s attention to the fact that certain properties, rights
or credits have been left out in the inventory, it is likewise the court’s duty to
hear the observations, with power to determine if such observations should be
attended to or not and if the properties referred to therein belong prima facie to
the intestate, but no such determination is final and ultimate in nature as to the
ownership of the said properties."21 (Emphasis supplied)

A probate court, whether in a testate or intestate proceeding,22 can only pass upon
questions of title provisionally.23The rationale therefor and the proper recourse of the
aggrieved party are expounded in Jimenez v. Court of Appeals:

"The patent reason is the probate court’s limited jurisdiction and the principle that
questions of title or ownership, which result in inclusion or exclusion from the
inventory of the property, can only be settled in a separate action.

"All that the said court could do as regards said properties is determine whether they
should or should not be included in the inventory or list of properties to be
administered by the administrator. If there is a dispute as to the ownership, then the
opposing parties and the administrator have to resort to an ordinary action for a final
determination of the conflicting claims of title because the probate court cannot do
so."24

Further, In Sanchez v. Court of Appeals, we held:

"[A] probate court or one in charge of proceedings whether testate or intestate cannot
adjudicate or determine title to properties claimed to be a part of the estate and which
are claimed to belong to outside parties. All that the said court could do as regards
said properties is to determine whether they should or should not be included in the
inventory or list of properties to be administered by the administrator. If there is no
dispute, well and good, but if there is, then the parties, the administrator, and the
opposing parties have to resort to an ordinary action for a final determination of the
conflicting claims of title because the probate court cannot do so."25

Guided by the above jurisprudence, it is clear that the Court of Appeals committed an
error in considering the assailed Order dated November 11, 1994 as final or binding
upon the heirs or third persons who dispute the inclusion of certain properties in the
intestate estate of the deceased Rafael Nicolas. Under the foregoing rulings of the
Court, any aggrieved party, or a third person for that matter, may bring an ordinary
action for a final determination of the conflicting claims.

Private respondent’s reliance on Section 2, Rule 90 of the Rules of Court, to wit:

"SEC. 2. Questions as to advancement to be determined. – Questions as to

advancement made, or alleged to have been made, by the deceased to any heir may be
heard and determined by the court having jurisdiction of the estate proceedings; and
the final order of the court thereon shall be binding on the person raising the question
and on the heir."

in support of his claim that the assailed Order is a final order and therefore appealable
and that due to petitioners’ failure to appeal in due time, they are now bound by said
Order, is not feasible.

What seems to be a conflict between the above-quoted Rule and the afore–discussed
jurisprudence that the Order in question is an interlocutory and not a final order is
more apparent than real. This is because the questioned Order was erroneously
referred to as an order of collation both by the RTC and the appellate court. For all
intents and purposes, said Order is a mere order including the subject properties in
the inventory of the estate of the decedent.

The Court held in Valero Vda. de Rodriguez v. Court of Appeals26 that the order of
exclusion (or inclusion) is not a final order; that it is interlocutory in the sense that it
did not settle once and for all the title to the subject lots; that the prevailing rule is
that for the purpose of determining whether a certain property should or should not
be included in the inventory, the probate court may pass upon the title thereto but
such determination is not conclusive and is subject to the final decision in a separate
action regarding ownership which may be instituted by the parties.

In the Rodriguez case, the Court distinguished between an order of collation and an
order of exclusion from or inclusion in the estate’s inventory, thus:

"We hold further that the dictum of the Court of Appeals and the probate court that
the two disputed lots are not subject to collation was a supererogation and was not
necessary to the disposition of the case which merely involved the issue of inclusion
in, or exclusion from, the inventory of the testator’s estate. The issue of collation was
not yet justiciable at that early stage of the testate proceeding. It is not necessary to
mention in the order of exclusion the controversial matter of collation.

"Whether collation may exist with respect to the two lots and whether Mrs. Rustia’s
Torrens titles thereto are indefeasible are matters that may be raised later or may not
be raised at all. How those issues should be resolved, if and when they are raised,
need not be touched upon in the adjudication of this appeal.
"The intestate and testate proceedings for the settlement of the estates of the deceased
Valero spouses were consolidated, as ordered by the lower court on November 21,
1974, so that the conjugal estate of the deceased spouses may be properly liquidated,
as contemplated in section 2, Rule 73 of the Rules of Court and Act No. 3176.

"We have examined the expedientes of the two cases. We found that the proceedings
have not yet reached the stage when the question of collation or advancement to an
heir may be raised and decided. The numerous debts of the decedents are still being
paid. The net remainder (remanente liquido) of their conjugal estate has not yet been
determined. On the other hand, up to this time, no separate action has been brought
by the appellants to nullify Mrs. Rustia’s Torrens titles to the disputed lots or to show
that the sale was in reality a donation.

"In this appeal, it is not proper to pass upon the question of collation and to decide
whether Mrs. Rustia’s titles to the disputed lots are questionable. The proceedings
below have not reached the stage of partition and distribution when the legitimes of
the compulsory heirs have to be determined."27

In the light of the foregoing, Section 2, Rule 90 should be interpreted in the context of
Section 1 of the same Rule, to wit:

"Section 1. When order for distribution of residue made. – When the debts, funeral
charges, and expenses of administration, the allowance to the widow, and inheritance
tax, if any, chargeable to the estate in accordance with law, have been paid, the court,
on the application of the executor or administrator, or of a person interested in the
estate, and after hearing upon notice, shall assign the residue of the estate to the
persons entitled to the same, naming them and the proportions, or parts, to which
each is entitled, and such person may demand and recover their respective shares
from the executor or administrator, or any other person having the same in his
possession. If there is a controversy before the court as to who are the lawful heirs of
the deceased person or as to the distributive shares to which each person is entitled
under the law, the controversy shall be heard and decided as in ordinary cases.

No distribution shall be allowed until the payment of the obligations above mentioned
has been made or provided for, unless the distributes, or any of them, give a bond, in
a sum to be fixed by the court, conditioned for the payment of said obligations within
such time as the court directs."

Based thereon, we find that what the parties and the lower courts have perceived to be
as an Order of Collation is nothing more than an order of inclusion in the inventory of
the estate which, as we have already discussed, is an interlocutory order. The motion
for collation was filed with the probate court at the early stage of the intestate estate
proceedings. We have examined the records of the case and we found no indication
that the debts of the decedents spouses have been paid and the net remainder of the
conjugal estate have already been determined, and the estates of the deceased spouses
at the time filing of the motion for collation were ready for partition and distribution.
In other words, the issue on collation is still premature.

And even if we consider, en arguendo, that said assailed Order is a collation order and
a final order, still, the same would have no force and effect upon the parties. It is a
hornbook doctrine that a final order is appealable. As such, the Order should have
expressed therein clearly and distinctly the facts and the laws on which it is based as
mandated by Section 14, Article VIII of the 1987 Constitution of the Republic of the
Philippines, which provides:

"SEC. 14. No decision shall be rendered by any court without expressing therein
clearly and distinctly the facts and the law on which it is based.

No petition for review or motion for reconsideration of a decision of the court shall be
refused due course or denied without stating the legal basis therefore."

An examination of the subject Order as quoted earlier,28 readily reveals that the
presiding Judge failed to comply with the said constitutional mandate. The assailed
Order did not state the reasons for ordering the collation of the properties enumerated
therein. The Order simply directed the inclusion of certain real properties in the estate
of the deceased. It did not declare that the properties enumerated therein were given
to the children of the deceased gratuitously, despite the title in the children’s names or
deeds of sale in their favor. Moreover, in his Comment, private respondent makes
mention of the testimonies of his witnesses but these were not even mentioned in the
Order of November 11, 1994. Petitioner would have been deprived of due process as
they would be divested of the opportunity of being able to point out in a motion for
reconsideration or on appeal, any errors of facts and/or law considering that there
were no facts or laws cited in support of the assailed Order of collation. As a final
Order, it is, on its face patently null and void. It could have never become final. A void
judgment is not entitled to the respect accorded to a valid judgment, but may be
entirely disregarded or declared inoperative by any tribunal in which effect is sought to
be given to it.29 For it to be considered as a valid final order, the RTC must then first
rule and state in its order whether the properties covered by TCT Nos. T-36734, T-
36989, T-33658, T-36987, T-40333, T-10907 and the 4,009 square meter lot were
acquired by petitioners from the deceased parents of the parties by onerous or
gratuitous title; and must specifically state in its order the reasons why it ordered the
subject properties collated. It is only then that the order of collation may be the
subject of a motion for reconsideration and/or appeal within the 15-day reglementary
period. Until and unless the constitutional mandate is complied with, any appeal from
said Order would have been premature.

Either way therefore, whether the Order in question is a final or interlocutory order, it
is a reversible error on the part of the appellate court to rule that the so-called order of
collation dated November 11, 1994 had already attained finality.
As to the prayer of petitioners that the RTC be ordered to give due course to their
notice of appeal from the Orders dated November 4, 1996 and December 23, 1996
removing petitioner Teresita N. de Leon as administratrix of the estate of private
parties’ deceased parents,30 to approve their record on appeal31 and to elevate the
records of Special Proceeding No. C-1679 to the Court of Appeals – It is not disputed
by the parties that said Orders are appealable. In fact, the Court of Appeals had
correctly directed the RTC to give due course to petitioners’ appeal and this is not
assailed by the private respondent.

But, the approval or disapproval of the record on appeal is not a proper subject matter
of the present petition for review on certiorari as it is not even a subject-matter in CA-
G.R. SP No. 42958. Whether or not the record on appeal should be approved is a
matter that is subject to the sound discretion of the RTC, provided that Sections 6 to
9, Rule 41 of the Rules of Court are observed by appellant.

Finally, the elevation of the records of Special Proceedings No. C-1679 to the Court of
Appeals for the purpose of petitioners’ appeal from the order removing the
administratrix is unnecessary where a record on appeal is allowed under the Rules of
Court. The court a quo loses jurisdiction over the subject of the appeal upon the
approval of the record on appeal and the expiration of the time to appeal of the other
parties; but retains jurisdiction over the remaining subject matter not covered by the
appeal.32

WHEREFORE, the petition is partly GRANTED. The assailed Decision dated February
28, 1997 and Resolution dated April 3, 1997 of the Court of Appeals are MODIFIED.
The Order dated November 11, 1994 issued by the Regional Trial Court and all other
orders of said court emanating from said Order which involve the properties
enumerated therein are considered merely provisional or interlocutory, without
prejudice to any of the heirs, administrator or approving parties to resort to an
ordinary action for a final determination of the conflicting claims of title.

The Regional Trial Court of Caloocan City (Branch 123) is directed to immediately act,
without further delay, on petitioners’ appeal from the Orders dated November 4, 1996
and December 23, 1996, subject to Sections 6 to 9, Rule 41 of the Rules of
Court.1âwphi1.nêt

No costs.

SO ORDERED.

G.R. No. 177099 June 8, 2011

EDUARDO G. AGTARAP, Petitioner,

vs.
SEBASTIAN AGTARAP, JOSEPH AGTARAP, TERESA AGTARAP, WALTER DE
SANTOS, and ABELARDO DAGORO, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 177192

SEBASTIAN G. AGTARAP, Petitioner,

vs.

EDUARDO G. AGTARAP, JOSEPH AGTARAP, TERESA AGTARAP, WALTER DE

SANTOS, and ABELARDO DAGORO, Respondents.

DECISION

NACHURA, J.:

Before us are the consolidated petitions for review on certiorari of petitioners

Sebastian G. Agtarap (Sebastian)1 and Eduardo G. Agtarap (Eduardo),2 assailing the
Decision dated November 21, 20063 and the Resolution dated March 27, 20074 of the
Court of Appeals (CA) in CA-G.R. CV No. 73916.

The antecedent facts and proceedings—

On September 15, 1994, Eduardo filed with the Regional Trial Court (RTC), Branch
114, Pasay City, a verified petition for the judicial settlement of the estate of his
deceased father Joaquin Agtarap (Joaquin). It was docketed as Special Proceedings No.
94-4055.

The petition alleged that Joaquin died intestate on November 21, 1964 in Pasay City
without any known debts or obligations. During his lifetime, Joaquin contracted two
marriages, first with Lucia Garcia (Lucia),5 and second with Caridad Garcia (Caridad).
Lucia died on April 24, 1924. Joaquin and Lucia had three children—Jesus (died
without issue), Milagros, and Jose (survived by three children, namely, Gloria,6
Joseph, and Teresa7). Joaquin married Caridad on February 9, 1926. They also had
three children—Eduardo, Sebastian, and Mercedes (survived by her daughter Cecile).
At the time of his death, Joaquin left two parcels of land with improvements in Pasay
City, covered by Transfer Certificates of Title (TCT) Nos. 873-(38254) and 874-(38255).
Joseph, a grandson of Joaquin, had been leasing and improving the said realties and
had been appropriating for himself ₱26,000.00 per month since April 1994.

Eduardo further alleged that there was an imperative need to appoint him as special
administrator to take possession and charge of the estate assets and their civil fruits,
pending the appointment of a regular administrator. In addition, he prayed that an
order be issued (a) confirming and declaring the named compulsory heirs of Joaquin
who would be entitled to participate in the estate; (b) apportioning and allocating unto
the named heirs their aliquot shares in the estate in accordance with law; and (c)
entitling the distributees the right to receive and enter into possession those parts of
the estate individually awarded to them.

On September 26, 1994, the RTC issued an order setting the petition for initial
hearing and directing Eduardo to cause its publication.

On December 28, 1994, Sebastian filed his comment, generally admitting the
allegations in the petition, and conceding to the appointment of Eduardo as special
administrator.

Joseph, Gloria, and Teresa filed their answer/opposition. They alleged that the two
subject lots belong to the conjugal partnership of Joaquin with Lucia, and that, upon
Lucia’s death in April 1924, they became the pro indiviso owners of the subject
properties. They said that their residence was built with the exclusive money of their
late father Jose, and the expenses of the extensions to the house were shouldered by
Gloria and Teresa, while the restaurant (Manong’s Restaurant) was built with the
exclusive money of Joseph and his business partner. They opposed the appointment of
Eduardo as administrator on the following grounds: (1) he is not physically and
mentally fit to do so; (2) his interest in the lots is minimal; and (3) he does not possess
the desire to earn. They claimed that the best interests of the estate dictate that
Joseph be appointed as special or regular administrator.

On February 16, 1995, the RTC issued a resolution appointing Eduardo as regular
administrator of Joaquin’s estate. Consequently, it issued him letters of
administration.

On September 16, 1995, Abelardo Dagoro filed an answer in intervention, alleging that
Mercedes is survived not only by her daughter Cecile, but also by him as her husband.
He also averred that there is a need to appoint a special administrator to the estate,
but claimed that Eduardo is not the person best qualified for the task.

After the parties were given the opportunity to be heard and to submit their respective
proposed projects of partition, the RTC, on October 23, 2000, issued an Order of
Partition,8 with the following disposition—

In the light of the filing by the heirs of their respective proposed projects of partition
and the payment of inheritance taxes due the estate as early as 1965, and there being
no claim in Court against the estate of the deceased, the estate of JOAQUIN AGTARAP
is now consequently – ripe – for distribution among the heirs minus the surviving
spouse Caridad Garcia who died on August 25, 1999.

Considering that the bulk of the estate property were acquired during the existence of
the second marriage as shown by TCT No. (38254) and TCT No. (38255) which showed
on its face that decedent was married to Caridad Garcia, which fact oppositors failed
to contradict by evidence other than their negative allegations, the greater part of the
estate is perforce accounted by the second marriage and the compulsory heirs
thereunder.

The Administrator, Eduardo Agtarap rendered a true and just accounting of his
administration from his date of assumption up to the year ending December 31, 1996
per Financial and Accounting Report dated June 2, 1997 which was approved by the
Court. The accounting report included the income earned and received for the period
and the expenses incurred in the administration, sustenance and allowance of the
widow. In accordance with said Financial and Accounting Report which was duly
approved by this Court in its Resolution dated July 28, 1998 – the deceased JOAQUIN
AGTARAP left real properties consisting of the following:

I LAND:

Two lots and two buildings with one garage quarter located at #3030 Agtarap St.,
Pasay City, covered by Transfer Certificate of Title Nos. 38254 and 38255 and
registered with the Registry of Deeds of Pasay City, Metro Manila, described as follows:

TCT NO. LOT NO. AREA/SQ.M. ZONAL VALUE AMOUNT

38254 745-B-1 1,335 sq. m. ₱5,000.00 ₱6,675,000.00

38255 745-B-2 1,331 sq. m. ₱5,000.00 ₱6,655,000.00

TOTAL------------------------------------------------------------- ₱13,330,000.00

II BUILDINGS AND IMPROVEMENTS:

BUILDING I (Lot # 745-B-1) ------------------------------ ₱350,000.00

BUILDING II (Lot # 745-B-2) ----------------------------- 320,000.00

Building Improvements -------------------------------------- 97,500.00

Restaurant ------------------------------------------------------ 80,000.00

TOTAL --------------------------------------------------------- ₱847,500.00

TOTAL NET WORTH ----------------------------------------- ₱14,177,500.00

WHEREFORE, the net assets of the estate of the late JOAQUIN AGTARAP with a total
value of ₱14,177,500.00, together with whatever interest from bank deposits and all
other incomes or increments thereof accruing after the Accounting Report of December
31, 1996, after deducting therefrom the compensation of the administrator and other
expenses allowed by the Court, are hereby ordered distributed as follows:

TOTAL ESTATE – ₱14,177,500.00

CARIDAD AGTARAP – ½ of the estate as her conjugal share – ₱7,088,750.00, the other
half of ₱7,088,750.00 – to be divided among the compulsory heirs as follows:

1) JOSE (deceased) - ₱1,181,548.30

2) MILAGROS (deceased) - ₱1,181,548.30

3) MERCEDES (deceased) - ₱1,181,548.30

4) SEBASTIAN - ₱1,181,548.30

5) EDUARDO - ₱1,181,548.30

6) CARIDAD - ₱1,181,548.30

The share of Milagros Agtarap as compulsory heir in the amount of ₱1,181,548.30 and
who died in 1996 will go to Teresa Agtarap and Joseph Agtarap, Walter de Santos and
half brothers Eduardo and Sebastian Agtarap in equal proportions.

TERESA AGTARAP - ₱236,291.66

JOSEPH AGTARAP - ₱236,291.66

WALTER DE SANTOS - ₱236,291.66

SEBASTIAN AGTARAP - ₱236,291.66

EDUARDO AGTARAP - ₱236,291.66

Jose Agtarap died in 1967. His compulsory heirs are as follows:

COMPULSORY HEIRS:

1) GLORIA – (deceased) – represented by Walter de Santos –

- ₱295,364.57

2) JOSEPH AGTARAP - ₱295,364.57

3) TERESA AGTARAP - ₱295,364.57

4) PRISCILLA AGTARAP - ₱295,364.57

Hence, Priscilla Agtarap will inherit ₱295,364.57.

Adding their share from Milagros Agtarap, the following heirs of the first marriage
stand to receive the total amount of:
HEIRS OF THE FIRST MARRIAGE:

1) JOSEPH AGTARAP - ₱236,291.66 – share from Milagros Agtarap

₱295,364.57 – as compulsory heir of

₱531,656.23 Jose Agtarap

2) TERESA AGTARAP - ₱236,291.66 – share from Milagros Agtarap

₱295,364.57 – as compulsory heir of

₱531,656.23 Jose Agtarap

3) WALTER DE SANTOS - ₱236,291.66 – share from Milagros Agtarap

₱295,364.57 – as compulsory heir of

₱531,656.23 Jose Agtarap

HEIRS OF THE SECOND MARRIAGE:

a) CARIDAD AGTARAP - died on August 25, 1999

₱7,088,750.00 - as conjugal share

₱1,181,458.30

- as compulsory heir

Total of ₱8,270,208.30

b) SEBASTIAN AGTARAP - ₱1,181,458.38 – as compulsory heir

₱ 236,291.66 – share from Milagros

c) EDUARDO AGTARAP - ₱1,181,458.38 – as compulsory heir

₱ 236,291.66 – share from Milagros

d) MERCEDES - as represented by Abelardo Dagoro as the

surviving spouse of a compulsory heir

₱1,181,458.38

REMAINING HEIRS OF CARIDAD AGTARAP:

1) SEBASTIAN AGTARAP
2) EDUARDO AGTARAP

MERCEDES AGTARAP (Predeceased Caridad Agtarap)

In sum, Sebastian Agtarap and Eduardo Agtarap stand to inherit:

SEBASTIAN – ₱4,135,104.10

₱1,181,458.30

₱ 236,291.66

₱5,522,854.06 – share from Caridad Garcia

- as compulsory heir

- share from Milagros

EDUARDO – ₱4,135,104.10

₱1,181,458.30

₱ 236,291.66

₱5,522,854.06 – share from Caridad Garcia

– as compulsory heir

– share from Milagros

SO ORDERED.9

Eduardo, Sebastian, and oppositors Joseph and Teresa filed their respective motions
for reconsideration.

On August 27, 2001, the RTC issued a resolution10 denying the motions for
reconsideration of Eduardo and Sebastian, and granting that of Joseph and Teresa. It
also declared that the real estate properties belonged to the conjugal partnership of
Joaquin and Lucia. It also directed the modification of the October 23, 2000 Order of
Partition to reflect the correct sharing of the heirs. However, before the RTC could
issue a new order of partition, Eduardo and Sebastian both appealed to the CA.

On November 21, 2006, the CA rendered its Decision, the dispositive portion of which
reads—

WHEREFORE, premises considered, the instant appeals are DISMISSED for lack of
merit. The assailed Resolution dated August 27, 2001 is AFFIRMED and pursuant
thereto, the subject properties (Lot No. 745-B-1 [TCT No. 38254] and Lot No. 745-B-2
[TCT No. 38255]) and the estate of the late Joaquin Agtarap are hereby partitioned as
follows:

The two (2) properties, together with their improvements, embraced by TCT No. 38254
and TCT No. 38255, respectively, are first to be distributed among the following:

Lucia Mendietta - ½ of the property. But since she is deceased, her share shall be
inherited by Joaquin, Jesus, Milagros and Jose in equal shares.

Joaquin Agtarap - ½ of the property and ¼ of the other half of the property which
pertains to Lucia Mendietta’s share.

Jesus Agtarap - ¼ of Lucia Mendietta’s share. But since he is already deceased (and
died without issue), his inheritance shall, in turn, be acquired by Joaquin Agtarap.

Milagros Agtarap - ¼ of Lucia Mendietta’s share. But since she died in 1996 without
issue, 5/8 of her inheritance shall be inherited by Gloria (represented by her husband
Walter de Santos and her daughter Samantha), Joseph Agtarap and Teresa Agtarap,
(in representation of Milagros’ brother Jose Agtarap) and 1/8 each shall be inherited
by Mercedes (represented by her husband Abelardo Dagoro and her daughter Cecile),
Sebastian Eduardo, all surnamed Agtarap.

Jose Agtarap - ¼ of Lucia Mendietta’s share. But since he died in 1967, his
inheritance shall be acquired by his wife Priscilla, and children Gloria (represented by
her husband Walter de Santos and her daughter Samantha), Joseph Agtarap and
Teresa in equal shares.

Then, Joaquin Agtarap’s estate, comprising three-fourths (3/4) of the subject

properties and its improvements, shall be distributed as follows:

Caridad Garcia - 1/6 of the estate. But since she died in 1999, her share shall be
inherited by her children namely Mercedes Agtarap (represented by her husband
Abelardo Dagoro and her daughter Cecilia), Sebastian Agtarap and Eduardo Agtarap
in their own right, dividing the inheritance in equal shares.

Milagros Agtarap - 1/6 of the estate. But since she died in 1996 without issue, 5/8 of
her inheritance shall be inherited by Gloria (represented by her husband Walter de
Santos and her daughter Samantha), Joseph Agtarap and Teresa Agtarap, (in
representation of Milagros’ brother Jose Agtarap) and 1/8 each shall be inherited by
Mercedes (represented by her husband Abelardo Dagoro and her daughter Cecile),
Sebastian and Eduardo, all surnamed Agtarap.

Jose Agtarap - 1/6 of the estate. But since he died in 1967, his inheritance shall be
acquired by his wife Priscilla, and children Gloria (represented by her husband Walter
de Santos and her daughter Samantha), Joseph Agtarap and Teresa Agtarap in equal
shares.
Mercedes Agtarap - 1/6 of the estate. But since she died in 1984, her inheritance shall
be acquired by her husband Abelardo Dagoro and her daughter Cecile in equal shares.

Sebastian Agtarap - 1/6 of the estate.

Eduardo Agtarap - 1/6 of the estate.

SO ORDERED.11

Aggrieved, Sebastian and Eduardo filed their respective motions for reconsideration.

In its Resolution dated March 27, 2007, the CA denied both motions. Hence, these
petitions ascribing to the appellate court the following errors:

G.R. No. 177192

1. – The Court of Appeals erred in not considering the aforementioned important

facts12 which alter its Decision;

2. – The Court of Appeals erred in not considering the necessity of hearing the issue of
legitimacy of respondents as heirs;

3. – The Court of Appeals erred in allowing violation of the law and in not applying the
doctrines of collateral attack, estoppel, and res judicata.13

G.R. No. 177099

THE COURT OF APPEALS (FORMER TWELFTH DIVISION) DID NOT ACQUIRE

JURISDICTION OVER THE ESTATE OF MILAGROS G. AGTARAP AND ERRED IN
DISTRIBUTING HER INHERITANCE FROM THE ESTATE OF JOAQUIN AGTARAP
NOTWITHSTANDING THE EXISTENCE OF HER LAST WILL AND TESTAMENT IN
VIOLATION OF THE DOCTRINE OF PRECEDENCE OF TESTATE PROCEEDINGS
OVER INTESTATE PROCEEDINGS.

II.

THE COURT OF APPEALS (FORMER TWELFTH DIVISION) ERRED IN DISMISSING

THE DECISION APPEALED FROM FOR LACK OF MERIT AND IN AFFIRMING THE
ASSAILED RESOLUTION DATED AUGUST 27, 2001 OF THE LOWER COURT
HOLDING THAT THE PARCELS OF LAND COVERED BY TCT NO. 38254 AND TCT
(NO.) 38255 OF THE REGISTRY OF DEEDS FOR THE CITY OF PASAY BELONG TO
THE CONJUGAL PARTNERSHIP OF JOAQUIN AGTARAP MARRIED TO LUCIA GARCIA
MENDIETTA NOTWITHSTANDING THEIR REGISTRATION UNDER THEIR EXISTING
CERTIFICATES OF TITLE AS REGISTERED IN THE NAME OF JOAQUIN AGTARAP,
CASADO CON CARIDAD GARCIA. UNDER EXISTING JURISPRUDENCE, THE
PROBATE COURT HAS NO POWER TO DETERMINE THE OWNERSHIP OF THE
PROPERTY DESCRIBED IN THESE CERTIFICATES OF TITLE WHICH SHOULD BE
RESOLVED IN AN APPROPRIATE SEPARATE ACTION FOR A TORRENS TITLE UNDER
THE LAW IS ENDOWED WITH INCONTESTABILITY UNTIL IT HAS BEEN SET ASIDE
IN THE MANNER INDICATED IN THE LAW ITSELF.14

As regards his first and second assignments of error, Sebastian contends that Joseph
and Teresa failed to establish by competent evidence that they are the legitimate heirs
of their father Jose, and thus of their grandfather Joaquin. He draws attention to the
certificate of title (TCT No. 8026) they submitted, stating that the wife of their father
Jose is Presentacion Garcia, while they claim that their mother is Priscilla. He avers
that the marriage contracts proffered by Joseph and Teresa do not qualify as the best
evidence of Jose’s marriage with Priscilla, inasmuch as they were not authenticated
and formally offered in evidence. Sebastian also asseverates that he actually
questioned the legitimacy of Joseph and Teresa as heirs of Joaquin in his motion to
exclude them as heirs, and in his reply to their opposition to the said motion. He
further claims that the failure of Abelardo Dagoro and Walter de Santos to oppose his
motion to exclude them as heirs had the effect of admitting the allegations therein. He
points out that his motion was denied by the RTC without a hearing.

With respect to his third assigned error, Sebastian maintains that the certificates of
title of real estate properties subject of the controversy are in the name of Joaquin
Agtarap, married to Caridad Garcia, and as such are conclusive proof of their
ownership thereof, and thus, they are not subject to collateral attack, but should be
threshed out in a separate proceeding for that purpose. He likewise argues that
estoppel applies against the children of the first marriage, since none of them
registered any objection to the issuance of the TCTs in the name of Caridad and
Joaquin only. He avers that the estate must have already been settled in light of the
payment of the estate and inheritance tax by Milagros, Joseph, and Teresa, resulting
to the issuance of TCT No. 8925 in Milagros’ name and of TCT No. 8026 in the names
of Milagros and Jose. He also alleges that res judicata is applicable as the court order
directing the deletion of the name of Lucia, and replacing it with the name of Caridad,
in the TCTs had long become final and executory.

In his own petition, with respect to his first assignment of error, Eduardo alleges that
the CA erroneously settled, together with the settlement of the estate of Joaquin, the
estates of Lucia, Jesus, Jose, Mercedes, Gloria, and Milagros, in contravention of the
principle of settling only one estate in one proceeding. He particularly questions the
distribution of the estate of Milagros in the intestate proceedings despite the fact that
a proceeding was conducted in another court for the probate of the will of Milagros,
bequeathing all to Eduardo whatever share that she would receive from Joaquin’s
estate. He states that this violated the rule on precedence of testate over intestate
proceedings.

Anent his second assignment of error, Eduardo contends that the CA gravely erred
when it affirmed that the bulk of the realties subject of this case belong to the first
marriage of Joaquin to Lucia, notwithstanding that the certificates of title were
registered in the name of Joaquin Agtarap casado con ("married to") Caridad Garcia.
According to him, the RTC, acting as an intestate court with limited jurisdiction, was
not vested with the power and authority to determine questions of ownership, which
properly belongs to another court with general jurisdiction.

The Court’s Ruling

As to Sebastian’s and Eduardo’s common issue on the ownership of the subject real
properties, we hold that the RTC, as an intestate court, had jurisdiction to resolve the
same.

The general rule is that the jurisdiction of the trial court, either as a probate or an
intestate court, relates only to matters having to do with the probate of the will and/or
settlement of the estate of deceased persons, but does not extend to the determination
of questions of ownership that arise during the proceedings.15 The patent rationale for
this rule is that such court merely exercises special and limited jurisdiction.16 As held
in several cases,17 a probate court or one in charge of estate proceedings, whether
testate or intestate, cannot adjudicate or determine title to properties claimed to be a
part of the estate and which are claimed to belong to outside parties, not by virtue of
any right of inheritance from the deceased but by title adverse to that of the deceased
and his estate. All that the said court could do as regards said properties is to
determine whether or not they should be included in the inventory of properties to be
administered by the administrator. If there is no dispute, there poses no problem, but
if there is, then the parties, the administrator, and the opposing parties have to resort
to an ordinary action before a court exercising general jurisdiction for a final
determination of the conflicting claims of title.

However, this general rule is subject to exceptions as justified by expediency and

convenience.

First, the probate court may provisionally pass upon in an intestate or a testate
proceeding the question of inclusion in, or exclusion from, the inventory of a piece of
property without prejudice to the final determination of ownership in a separate
action.18 Second, if the interested parties are all heirs to the estate, or the question is
one of collation or advancement, or the parties consent to the assumption of
jurisdiction by the probate court and the rights of third parties are not impaired, then
the probate court is competent to resolve issues on ownership.19 Verily, its
jurisdiction extends to matters incidental or collateral to the settlement and
distribution of the estate, such as the determination of the status of each heir and
whether the property in the inventory is conjugal or exclusive property of the deceased
spouse.20

We hold that the general rule does not apply to the instant case considering that the
parties are all heirs of Joaquin and that no rights of third parties will be impaired by
the resolution of the ownership issue. More importantly, the determination of whether
the subject properties are conjugal is but collateral to the probate court’s jurisdiction
to settle the estate of Joaquin.1auuphi1

It should be remembered that when Eduardo filed his verified petition for judicial
settlement of Joaquin’s estate, he alleged that the subject properties were owned by
Joaquin and Caridad since the TCTs state that the lots were registered in the name of
Joaquin Agtarap, married to Caridad Garcia. He also admitted in his petition that
Joaquin, prior to contracting marriage with Caridad, contracted a first marriage with
Lucia. Oppositors to the petition, Joseph and Teresa, however, were able to present
proof before the RTC that TCT Nos. 38254 and 38255 were derived from a mother title,
TCT No. 5239, dated March 17, 1920, in the name of FRANCISCO VICTOR BARNES Y
JOAQUIN AGTARAP, el primero casado con Emilia Muscat, y el Segundo con Lucia
Garcia Mendietta (FRANCISCO VICTOR BARNES y JOAQUIN AGTARAP, the first
married to Emilia Muscat, and the second married to Lucia Garcia Mendietta).21
When TCT No. 5239 was divided between Francisco Barnes and Joaquin Agtarap, TCT
No. 10864, in the name of Joaquin Agtarap, married to Lucia Garcia Mendietta, was
issued for a parcel of land, identified as Lot No. 745 of the Cadastral Survey of Pasay,
Cadastral Case No. 23, G.L.R.O. Cadastral Record No. 1368, consisting of 8,872
square meters. This same lot was covered by TCT No. 5577 (32184)22 issued on April
23, 1937, also in the name of Joaquin Agtarap, married to Lucia Garcia Mendietta.

The findings of the RTC and the CA show that Lucia died on April 24, 1924, and
subsequently, on February 9, 1926, Joaquin married Caridad. It is worthy to note that
TCT No. 5577 (32184) contained an annotation, which reads—

Ap-4966 – NOTA: Se ha enmendado el presente certificado de titulo, tal como aparece,

tanchando las palabras "con Lucia Garcia Mendiet[t]a" y poniendo en su lugar, entre
lineas y en tinta encarnada, las palabras "en segundas nupcias con Caridad Garcia",
en complimiento de un orden de fecha 28 de abril de 1937, dictada por el Hon. Sixto
de la Costa, juez del Juzgado de Primera Instancia de Rizal, en el expediente cadastal
No. 23, G.L.R.O. Cad. Record No. 1368; copia de cual orden has sido presentada con
el No. 4966 del Libro Diario, Tomo 6.0 y, archivada en el Legajo T-No. 32184.

Pasig, Rizal, a 29 abril de 1937.23

Thus, per the order dated April 28, 1937 of Hon. Sixto de la Costa, presiding judge of
the Court of First Instance of Rizal, the phrase con Lucia Garcia Mendiet[t]a was
crossed out and replaced by en segundas nuptias con Caridad Garcia, referring to the
second marriage of Joaquin to Caridad. It cannot be gainsaid, therefore, that prior to
the replacement of Caridad’s name in TCT No. 32184, Lucia, upon her demise, already
left, as her estate, one-half (1/2) conjugal share in TCT No. 32184. Lucia’s share in the
property covered by the said TCT was carried over to the properties covered by the
certificates of title derivative of TCT No. 32184, now TCT Nos. 38254 and 38255. And
as found by both the RTC and the CA, Lucia was survived by her compulsory heirs –
Joaquin, Jesus, Milagros, and Jose.

Section 2, Rule 73 of the Rules of Court provides that when the marriage is dissolved
by the death of the husband or the wife, the community property shall be inventoried,
administered, and liquidated, and the debts thereof paid; in the testate or intestate
proceedings of the deceased spouse, and if both spouses have died, the conjugal
partnership shall be liquidated in the testate or intestate proceedings of either. Thus,
the RTC had jurisdiction to determine whether the properties are conjugal as it had to
liquidate the conjugal partnership to determine the estate of the decedent. In fact,
should Joseph and Teresa institute a settlement proceeding for the intestate estate of
Lucia, the same should be consolidated with the settlement proceedings of Joaquin,
being Lucia’s spouse.24 Accordingly, the CA correctly distributed the estate of Lucia,
with respect to the properties covered by TCT Nos. 38254 and 38255 subject of this
case, to her compulsory heirs.

Therefore, in light of the foregoing evidence, as correctly found by the RTC and the CA,
the claim of Sebastian and Eduardo that TCT Nos. 38254 and 38255 conclusively
show that the owners of the properties covered therein were Joaquin and Caridad by
virtue of the registration in the name of Joaquin Agtarap casado con (married to)
Caridad Garcia, deserves scant consideration. This cannot be said to be a collateral
attack on the said TCTs. Indeed, simple possession of a certificate of title is not
necessarily conclusive of a holder’s true ownership of property.25 A certificate of title
under the Torrens system aims to protect dominion; it cannot be used as an
instrument for the deprivation of ownership.26 Thus, the fact that the properties were
registered in the name of Joaquin Agtarap, married to Caridad Garcia, is not sufficient
proof that the properties were acquired during the spouses’ coverture.27 The phrase
"married to Caridad Garcia" in the TCTs is merely descriptive of the civil status of
Joaquin as the registered owner, and does not necessarily prove that the realties are
their conjugal properties.28

Neither can Sebastian’s claim that Joaquin’s estate could have already been settled in
1965 after the payment of the inheritance tax be upheld. Payment of the inheritance
tax, per se, does not settle the estate of a deceased person. As provided in Section 1,
Rule 90 of the Rules of Court—

SECTION 1. When order for distribution of residue made. -- When the debts, funeral
charges, and expenses of administration, the allowance to the widow, and inheritance
tax, if any, chargeable to the estate in accordance with law, have been paid, the court,
on the application of the executor or administrator, or of a person interested in the
estate, and after hearing upon notice, shall assign the residue of the estate to the
persons entitled to the same, naming them and the proportions, or parts, to which
each is entitled, and such persons may demand and recover their respective shares
from the executor or administrator, or any other person having the same in his
possession. If there is a controversy before the court as to who are the lawful heirs of
the deceased person or as to the distributive share to which each person is entitled
under the law, the controversy shall be heard and decided as in ordinary cases.

No distribution shall be allowed until the payment of the obligations above mentioned
has been made or provided for, unless the distributees, or any of them, give a bond, in
a sum to be fixed by the court, conditioned for the payment of said obligations within
such time as the court directs.

Thus, an estate is settled and distributed among the heirs only after the payment of
the debts of the estate, funeral charges, expenses of administration, allowance to the
widow, and inheritance tax. The records of these cases do not show that these were
complied with in 1965.

As regards the issue raised by Sebastian on the legitimacy of Joseph and Teresa,
suffice it to say that both the RTC and the CA found them to be the legitimate children
of Jose. The RTC found that Sebastian did not present clear and convincing evidence
to support his averments in his motion to exclude them as heirs of Joaquin, aside
from his negative allegations. The RTC also noted the fact of Joseph and Teresa being
the children of Jose was never questioned by Sebastian and Eduardo, and the latter
two even admitted this in their petitions, as well as in the stipulation of facts in the
August 21, 1995 hearing.29 Furthermore, the CA affirmed this finding of fact in its
November 21, 2006 Decision.30

Also, Sebastian’s insistence that Abelardo Dagoro and Walter de Santos are not heirs
to the estate of Joaquin cannot be sustained. Per its October 23, 2000 Order of
Partition, the RTC found that Gloria Agtarap de Santos died on May 4, 1995, and was
later substituted in the proceedings below by her husband Walter de Santos. Gloria
begot a daughter with Walter de Santos, Georgina Samantha de Santos. The RTC
likewise noted that, on September 16, 1995, Abelardo Dagoro filed a motion for leave
of court to intervene, alleging that he is the surviving spouse of Mercedes Agtarap and
the father of Cecilia Agtarap Dagoro, and his answer in intervention. The RTC later
granted the motion, thereby admitting his answer on October 18, 1995.31 The CA also
noted that, during the hearing of the motion to intervene on October 18, 1995,
Sebastian and Eduardo did not interpose any objection when the intervention was
submitted to the RTC for resolution.32

Indeed, this Court is not a trier of facts, and there appears no compelling reason to
hold that both courts erred in ruling that Joseph, Teresa, Walter de Santos, and
Abelardo Dagoro rightfully participated in the estate of Joaquin. It was incumbent
upon Sebastian to present competent evidence to refute his and Eduardo’s admissions
that Joseph and Teresa were heirs of Jose, and thus rightful heirs of Joaquin, and to
timely object to the participation of Walter de Santos and Abelardo Dagoro.
Unfortunately, Sebastian failed to do so. Nevertheless, Walter de Santos and Abelardo
Dagoro had the right to participate in the estate in representation of the Joaquin’s
compulsory heirs, Gloria and Mercedes, respectively.33

This Court also differs from Eduardo’s asseveration that the CA erred in settling,
together with Joaquin’s estate, the respective estates of Lucia, Jesus, Jose, Mercedes,
and Gloria. A perusal of the November 21, 2006 CA Decision would readily show that
the disposition of the properties related only to the settlement of the estate of Joaquin.
Pursuant to Section 1, Rule 90 of the Rules of Court, as cited above, the RTC was
specifically granted jurisdiction to determine who are the lawful heirs of Joaquin, as
well as their respective shares after the payment of the obligations of the estate, as
enumerated in the said provision. The inclusion of Lucia, Jesus, Jose, Mercedes, and
Gloria in the distribution of the shares was merely a necessary consequence of the
settlement of Joaquin’s estate, they being his legal heirs.

However, we agree with Eduardo’s position that the CA erred in distributing Joaquin’s
estate pertinent to the share allotted in favor of Milagros. Eduardo was able to show
that a separate proceeding was instituted for the probate of the will allegedly executed
by Milagros before the RTC, Branch 108, Pasay City.34 While there has been no
showing that the alleged will of Milagros, bequeathing all of her share from Joaquin’s
estate in favor of Eduardo, has already been probated and approved, prudence
dictates that this Court refrain from distributing Milagros’ share in Joaquin’s estate.

It is also worthy to mention that Sebastian died on January 15, 2010, per his
Certificate of Death.35 He is survived by his wife Teresita B. Agtarap (Teresita) and his
children Joaquin Julian B. Agtarap (Joaquin Julian) and Ana Ma. Agtarap Panlilio
(Ana Ma.).

Henceforth, in light of the foregoing, the assailed November 21, 2006 Decision and the
March 27, 2007 Resolution of the CA should be affirmed with modifications such that
the share of Milagros shall not yet be distributed until after the final determination of
the probate of her purported will, and that Sebastian shall be represented by his
compulsory heirs.

WHEREFORE, the petition in G.R. No. 177192 is DENIED for lack of merit, while the
petition in G.R. No. 177099 is PARTIALLY GRANTED, such that the Decision dated
November 21, 2006 and the Resolution dated March 27, 2007 of the Court of Appeals
are AFFIRMED with the following MODIFICATIONS: that the share awarded in favor of
Milagros Agtarap shall not be distributed until the final determination of the probate
of her will, and that petitioner Sebastian G. Agtarap, in view of his demise on January
15, 2010, shall be represented by his wife Teresita B. Agtarap and his children
Joaquin Julian B. Agtarap and Ana Ma. Agtarap Panlilio.
These cases are hereby remanded to the Regional Trial Court, Branch 114, Pasay City,
for further proceedings in the settlement of the estate of Joaquin Agtarap. No
pronouncement as to costs.

SO ORDERED.

G.R. No. 116835. March 5, 1998.*

ANTONIETTA GARCIA VDA. DE CHUA, petitioner, vs. COURT OF APPEALS

(Special Eighth Division), HON. JAPAL M. GUIANI, RTC, Branch 14, 12th Judicial
Region, Cotabato City, and FLORITA A. VALLEJO, as Administratrix of the
Estate of the late Roberto L. Chua, respondents.

Remedial Law; Special Proceedings; Letters Testamentary and of Administration;

Jurisdictional facts required in a petition for issuance of letters of administration.—
The jurisdictional facts required in a petition for issuance of letters of administration
are: (1) the death of the testator; (2) residence at the time of death in the province
where the probate court is located; and (3) if the decedent was a non-resident, the fact
of being a resident of a foreign country and that the decedent has left an estate in the
province where the court is sitting.

Same; Same; Same; Only an interested person may oppose the petition for issuance of
letters of administration.—Be that as it may, petitioner has no legal standing to file the
motion to dismiss as she is not related to the deceased, nor does she have any interest
in his estate as creditor or otherwise. x x x Only an interested person may oppose the
petition for issuance of letters of administration. An interested person is one who
would be benefited by the estate such as an heir, or one who has a claim against the
estate, such as a creditor; his interest is material and direct, and not one that is only
indirect or contingent.

Same; Due Process; Due process was designed to afford opportunity to be heard, not
that an actual hearing should always and indispensably be held; Denial of due process
cannot be successfully invoked by a party who has had the opportunity to be heard on
his motion for reconsideration.—Due process was designed to afford opportunity to be
heard, not that an actual hearing should always and indispensably be held. The
essence of due process is simply an opportunity to be heard. Here, even granting that
the petitioner was not notified of the orders of the trial court marked as Exhibits “P” to
“T,” inclusive, nonetheless, she was duly heard in her motions to recall letters of
administration and to declare the proceedings of the court as a “mistrial,” which
motions were denied in the Order dated 22 November 1993. A motion for the
reconsideration of this order of denial was also duly heard by the trial court but was
denied in its Order of 13 December 1993. Denial of due process cannot be successfully
invoked by a party who has had the opportunity to be heard on his motion for
reconsideration.
Same; Appeals; Certiorari; Court agrees with the Court of Appeals that the proper
remedy of the petitioner in said court was an ordinary appeal and not a special civil
action for certiorari.—As to the last assignment of errors, we agree with the Court of
Appeals that the proper remedy of the petitioner in said court was an ordinary appeal
and not a special civil action for certiorari; which can be availed of if a party has no
plain, speedy and adequate remedy in the ordinary course of law. Except for her bare
allegation that an ordinary appeal would be inadequate, nothing on record would
indicate that extraordinary remedy of certiorari or prohibition is warranted.

KAPUNAN, J.:

Assailed before us in this Appeal by Certiorari under Rule 45 of the Rules of Court is
the decision of the Court of Appeals in CA-GR Sp. No. 33101, promulgated on 19 April
1994 affirming the decision of the Regional Trial Court, Branch 14, of Cotabato City in
Special Procedure Case No. 331.

As culled from the records, the following facts have been established by evidence:

During his lifetime, Roberto Lim Chua lived out of wedlock with private respondent
Florita A. Vallejo from 1970 up to 1981. Out of this union, the couple begot two
illegitimate children, namely, Roberto Rafson Alonzo and Rudyard Pride Alonzo.

On 28 May 1992, Roberto Chua died intestate in Davao City.

On 2 July 1992, private respondent filed with the Regional Trial Court of Cotabato City
a Petition 1 which is reproduced hereunder:

IN RE: PETITION FOR DECLARATION

OF HEIRSHIP, GUARDIANSHIP OVER

THE PERSONS AND PROPERTIES OF

MINORS ROBERT RAFSON ALONZO SP. PROC. NO/ 331

and RUDYARD PRIDE ALONZO, all

surnamed CHUA and ISSUANCE OF

LETTERS OF ADMINISTRATION.

FLORITA ALONZO VALLEJO,

Petitioner

PETITION

COMES NOW the petitioner assisted by counsel and unto this Honorable Court most
respectfully states:
1. That she is of legal age, Filipino, married but separated from her husband and
residing at Quezon Avenue, Cotabato City, Philippines;

2. That sometime from 1970 up to and until late 1981 your petitioner lived with
Roberto Lim Chua as husband and wife and out of said union they begot two (2)
children, namely, Robert Rafson Alonzo Chua who was born in General Santos City on
April 28, 1977 and Rudyard Pride Alonzo Chua who was born in Davao City on August
30, 1978. A xerox copy of the birth certificate of each child is hereto attached as annex
"A" and "B", respectively.

3. That the aforementioned children who are still minors today are both staying with
herein petitioner at her address at Quezon Avenue, Cotabato City;

4. That Roberto Lim Chua, father of the above-mentioned minors, died intestate on
May 28, 1992 in Davao City.

5. That the aforementioned deceased left properties both real and personal worth
P5,000,000.00 consisting of the following:

a) Lot in Kakar, Cotabato City covered by TCT

No. T-12835 with an area of 290 sq. m. estimated at P50,000.00

b) Lot in Kakar, Cotabato City covered by TCT

No. T-12834 with an area of 323 sq. m. 50,000.00

c) Lot in Davao City covered by TCT

No. T-126583 with an area of 303 sq. m. 50,000.00

d) Lot in Davao City covered by TCT

No. T-126584 with an area of 303 sq. m. 50,000.00

e) Residential house in Cotabato City valued at 30,000.00

f) Residential house in Davao City valued at 600,000.00

g) Car, Colt Lancer with Motor No. 4G33-3 AF6393 210,000.00

h) Colt, Galant Super Saloon with Motor

No. 4G37-GB0165 545,000.00

i) Car, Colt Galant with Motor No. 4G52-52D75248 110,000.00

j) Reo Isuzu Dump Truck with Motor

No. DA640-838635 350,000.00

k) Hino Dump Truck with Motor No. ED100-T47148 350,000.00

l) Stockholdings in various corporations with par value
estimated at 3,335,000.00

Total P5,000,000.00

6. That deceased Roberto Lim Chua died single and without legitimate descendants or
ascendants, hence, the above named minors Robert Rafson Alonzo Chua and Rudyard
Pride Alonzo Chua, his children with herein petitioner shall succeed to the entire
estate of the deceased. (Article 988 of the Civil Code of the Philippines).

7. That the names, ages and residences of the relatives of said minors are the
following, to wit:

Names Relationship Ages Residence

1. Carlos Chua Uncle 60 Quezon Avenue,

Cotabato City

2. Aida Chua Auntie 55 Rosary Heights,

Cotabato City

3. Romulo Uy Uncle 40 c/o Overseas

Fishing Exporation
Co. Inc., Matina,
Davao City

6. That considering the fact that the aforementioned minors by operation of law are to
succeed to the entire estate of Roberto Lim Chua under the provisions of Article 988 of
the New Civil Code of the Philippines, it is necessary that for the protection of the
rights and interest of Robert Rafson Alonzo Chua and Rudyard Pride Alonzo Chua,
both minors and heirs of deceased Roberto Lim Chua, a guardian over the persons
and properties of said minors be appointed by this Honorable Court.

7. That herein petitioner being the mother and natural guardian of said minors is also
competent and willing to act as the guardian of minors Robert Rafson Alonzo Chua
and Rudyard Pride Alonzo Chua both staying and living with her; that petitioner
possesses all the qualifications and none of the disqualifications of a guardian.

WHEREFORE, premises considered, it is most respectfully prayed:

1. That, upon proper notice and hearing, an order be issued declaring minors
ROBERTO RAFSON ALONZO CHUA and RUDYARD PRIDE ALONZO CHUA as heirs to
the intestate estate of deceased ROBERTO LIM CHUA;

2. That Letters of Administration be issued to herein petitioner for the administration

of the estate of the deceased ROBERTO LIM CHUA;
3. That the petitioner be also appointed the guardian of the persons and estate of
minors ROBERT RAFSON ALONZO CHUA and RUDYARD PRIDE ALONZO CHUA;

4. That after all the property of deceased Roberto Lim Chua have been inventoried and
expenses and just debts, have been paid, the intestate estate of Roberto Lim Chua be
distributed to its rightful heirs, the minors in this case, pursuant to the provisions of
Article 988 of the New Civil Code of the Philippines.

5. And for such other reliefs and remedies this Honorable Court may consider fit and
proper in the premises.

Cotabato City, Philippines, June 29, 1992.

(Sgd.) FLORITA ALONZO VALLEJO

(Petitioner)

The trial court issued an order setting the hearing of the petition on 14 August 1992
and directed that notice thereof be published in a newspaper of general circulation in
the province of Maguindanao and Cotabato City and or Davao City.

On 21 July 1992, herein petitioner Antonietta Garcia Vda. de Chua, representing to be

the surviving spouse of Roberto Chua, filed a Motion to Dismiss 2 on the ground of
improper venue. Petitioner alleged that at the time of the decedent's death Davao City
was his residence, hence, the Regional Trial Court of Davao City is the proper forum.

Private respondent filed an opposition to the Motion to Dismiss 3 dated July 20, 1992
based on the following grounds:

(1) That this petition is for the guardianship of the minor children of the petitioner who
are heirs to the estate of the late Roberto L. Chua and under Section 1, Rule 92 of the
Rules of Court the venue shall be at the place where the minor resides;

(2) That the above-named minors are residents of Cotabato City:

(3) That the movant in this case has no personality to intervene nor oppose in the
granting of this petition for the reason that she is a total stranger to the minors Robert
Rafson Alonzo and Rudyard Pride Alonzo, all surnamed Chua.

(4) That deceased Roberto L. Chua died a bachelor. He is the father of the above-
named minors with the petitioner in this case;

(5) That movant/oppositor Antonietta Chua is not the surviving spouse of the late
Roberto L. Chua but a pretender to the estate of the latter since the deceased never
contracted marriage with any woman until he died.

On 6 August 1992, private respondent Vallejo filed a Motion for Admission of an

Amended Petition 4 "in order that the designation of the case title can properly and
appropriately capture or capsulize in clear terms the material averments in the body of
the pleadings; thus avoiding any confusion or misconception of the nature and real
intent and purpose of this petition." The amended petition 5 contained identical
material allegations but differed in its title, thus:.

IN RE: PETITION FOR THE SETTLEMENT OF THE INTESTATE ESTATE OF ROBERTO

L. CHUA, DECLARATION OF HEIRSHIP, GUARDIANSHIP OVER THE PERSONS AND
PROPERTIES OF MINORS ROBERT AND RUDYARD, all surnamed CHUA and
ISSUANCE OF LETTERS OF ADMINISTRATION.

FLORITA ALONZO VALLEJO,

Petitioner.

Paragraph 4 of the original petition was also amended to read as follows:

4. That Roberto Lim Chua, father of the abovementioned minors is a resident of

Cotabato City and died intestate on May 28, 1992 at Davao City.

The petition contained exactly the same prayers as the original petition.

Petitioner opposed the motion to amend petition alleging that at the hearing of said
motion on 24 July 1992, private respondent's counsel allegedly admitted that the sole
intention of the original petition was to secure guardianship over the persons and
property of the minors. 6

On 21 August 1992, the trial court issued an Order 7denying the motion to dismiss for
lack of merit. The court ruled that Antonietta Garcia had no personality to file the
motion to dismiss not having proven her status as wife of the decedent. Further, the
court found that the actual residence of the deceased was Cotabato City, and even
assuming that there was concurrent venue among the Regional Trial Courts where the
decedent had resided, the R.T.C. of Cotabato had already taken cognizance of the
settlement of the decedent's estate to the exclusion of all others. The pertinent
portions of the order read:

At the hearing of the motion to dismiss on August 19, 1992, counsel for movant
Antonietta G. Chua presented 18 Exhibits in support of her allegation that she was
the lawful wife of the decedent and that the latter resides in Davao City at the time of
his death. Exh. "1" was the xerox copy of the alleged marriage contract between the
movant and the petitioner. This cannot be admitted in evidence on the ground of the
timely objection of the counsels for petitioner that the best evidence is the original
copy or authenticated copy which the movant cannot produce. Further, the counsels
for petitioner in opposition presented the following: a certification from the Local Civil
Registrar concerned that no such marriage contract was ever registered with them; a
letter from Judge Augusto Banzali, the alleged person to have solemnized the alleged
marriage that he has not solemnized such alleged marriage. Exhibit "2" through "18"
consist among others of Transfer Certificate of Title issued in the name of Roberto L.
Chua married to Antonietta Garcia, and a resident of Davao City; Residence
Certificates from 1988 and 1989 issued at Davao City indicating that he was married
and was born in Cotabato City; Income Tax Returns for 1990 and 1991 filed in Davao
City where the status of the decedent was stated as married; passport of the decedent
specifying that he was married and his residence was Davao City. Petitioner through
counsels, objected to the admission in evidence of Exhibits "2" through "18" if the
purpose is to establish the truth of the alleged marriage between the decedent and
Antonietta Garcia. The best evidence they said is the marriage contract. They do not
object to the admission of said exhibit if the purpose is to show that Davao City was
the business residence of the decedent.

Petitioner through counsels, presented Exhibit "A" through "K" to support her
allegation that the decedent was a resident of Cotabato City; that he died a bachelor;
that he begot two illegitimate children with the petitioner as mother. Among these
exhibits are Income Tax Returns filed in Cotabato City from 1968 through 1979
indicating therein that he was single; birth certificates of the alleged two illegitimate
children of the decedent; Resident Certificates of the decedent issued in Cotabato City;
Registration Certificate of Vehicle of the decedent showing that his residence is
Cotabato City.

It is clear from the foregoing that the movant failed to establish the truth of her
allegation that she was the lawful wife of the decedent. The best evidence is a valid
marriage contract which the movant failed to produce. Transfer Certificates of Title,
Residence Certificates, passports and other similar documents cannot prove marriage
especially so when the petitioner has submitted a certification from the Local Civil
Registrar concerned that the alleged marriage was not registered and a letter from the
judge alleged to have solemnized the marriage that he has not solemnized said alleged
marriage. Consequently, she has no personality to file the subject motion to dismiss.

On the issue of the residence of the decedent at the time of his death, the decedent as
a businessman has many business residences from different parts of the country
where he usually stays to supervise and pursue his business ventures. Davao City is
one of them. It cannot be denied that Cotabato City is his actual residence where his
alleged illegitimate children also reside.

The place of residence of the deceased in settlement of estates, probate of will, and
issuance of letters of administration does not constitute an element of jurisdiction over
the subject matter. It is merely constitutive of venue (Fule vs. CA, L-40502, November
29, 1976). Even assuming that there is concurrent venue among the Regional Trial
Courts of the places where the decedent has residences, the Regional Trial Court first
taking cognizance of the settlement of the estate of the decedent, shall exercise
jurisdiction to the exclusion of all other courts (Section 1, Rule 73). It was this Court
which first took cognizance of the case when the petition was filed on July 2, 1992,
docketed as Special Proceeding No. 331 and an order of publication issued by this
Court on July 13, 1992.
WHEREFORE, in view of the foregoing, the motion to dismiss is hereby denied for lack
of merit.

On 31 August 1992, upon motion of private respondent, the trial court issued an
order appointing Romulo Lim Uy, a first cousin of the deceased, as special
administrator of the decedent's estate. 8

On the same day, the trial court, likewise, issued an Order appointing Florita Vallejo
as guardian over the persons and properties of the two minor children. 9

Thereafter, petitioner filed a Motion dated 25 October 1993 10 praying that the letters
of administration issued to Vallejo be recalled and that new letters of administration
be issued to her. She, likewise, filed a Motion dated 5 November 1993 11 to declare the
proceedings a mistrial. Both motions were denied by the trial court in its Order dated
22 November 1993. 12Petitioner's motion for reconsideration of the order was denied
by the trial court in an Order dated 13 December 1993. 13

Assailing the last two orders of the trial court, petitioner filed a petition
for certiorari and prohibition (Rule 65) with the respondent Court of Appeals, docketed
as CA G.R. No. Sp. 33101, alleging that the trial court acted with grave abuse of
discretion in:

(1) unilaterally and summarily converting, if not treating, the guardianship

proceedings into an intestate proceeding;

(2) summarily hearing the intestate proceedings without jurisdiction and without any
notice to herein petitioner whatsoever; and

(3) issuing the questioned order (sic) on the alleged pretension that herein petitioner
has no personality to intervene in SPL Proc. No. 331 questioning the highly anomalous
orders precipitately issued ex-parte by the public respondent R.T.C. without notice to
the petitioners.

Petitioner in the main argued that private respondent herself admitted in her
opposition to petitioner's motion to dismiss filed in the trial court and in open court
that the original petition she filed is one for guardianship; hence, the trial court acted
beyond its jurisdiction when it issued letters of administration over the estate of
Roberto L. Chua, thereby converting the petition into an intestate proceeding, without
the amended petition being published in a newspaper of general circulation as
required by Section 3, Rule 79.

The Court of Appeals, in its decision promulgated on 19 April 1994, 14 denied the
petition ratiocinating that the original petition filed was one for guardianship of the
illegitimate children of the deceased as well as for administration of his intestate
estate. While private respondent may have alleged in her opposition to the motion to
dismiss that petition was for guardianship, the fact remains that the very allegations
of the original petition unmistakably showed a twin purpose: (1) guardianship; and (2)
issuance of letters of administration. As such, it was unnecessary for her to republish
the notice of hearing through a newspaper of general circulation in the province. The
amended petition was filed for the only reason stated in the motion for leave: so that
the "case title can properly and appropriately capture or capsulize in clear terms the
material averments in the body of the pleadings; thus avoiding any confusion or
misconception of the nature and real intent and purpose of this petition," which was
for guardianship over the persons and properties of her minor children and for the
settlement of the intestate estate of the decedent who was their father. In other words,
there being no change in the material allegations between the original and amended
petitions, the publication of the first in a newspaper of general circulation sufficed for
purposes of compliance with the legal requirements of notice.

Moreover, the appellate court ruled that the petitioner's remedy is appeal from the
orders complained of under Section 1(f), Rule 109 of the Rules of Court,
not certiorari and prohibition.

Not satisfied with the decision of the Court of Appeals, petitioner comes to this Court
contending that the appellate court committed the following errors:

THE PUBLIC RESPONDENT COURT OF APPEALS GRAVELY AND SERIOUSLY ERRED

IN HOLDING THAT THE ORIGINAL PETITION (Annex F, Petition) WAS FOR A TWIN
PURPOSE, TO WIT: FOR GUARDIANSHIP AND FOR INTESTATE ESTATE
PROCEEDINGS;

II

THE PUBLIC RESPONDENT COURT APPEALS SERIOUSLY ERRED IN HOLDING THAT

THERE IS NO NEED TO PUBLISH THE AMENDED PETITION FOR ADMINISTRATION
OF THE INTESTATE ESTATE THEREBY CONTRAVENING THE RULES OF COURT
AND THE RULINGS OF THE SUPREME COURT.

III

THE PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN NOT

NULLIFYING THE ORDERS (Annex "P" to "T") PRECIPITATELY ISSUED EX-PARTE BY
THE PUBLIC RESPONDENT REGIONAL TRIAL COURT IN THE INTESTATE
PROCEEDINGS WITHOUT PRIOR HEARING OR NOTICE TO HEREIN PETITIONER
THEREBY DEPRIVING THE LATTER (ANTONIETTA GARCIA VDA. DE CHUA ) OF DUE
PROCESS AND OPPORTUNITY TO BE HEARD.

IV

THE PUBLIC RESPONDENT COURT OF APPEALS GRAVELY ERRED IN SWEEPINGLY

HOLDING THAT PETITIONER'S REMEDY IS APPEAL. 15
In support of her first assignment of error, petitioner submits that the Court of
Appeals' conclusion that the original petition was one for guardianship and
administration of the intestate estate is contradicted by the evidence on hand,
asserting that the original petition failed to allege and state the jurisdictional facts
required by the Rules of Court in petitions for administration of a decedent's estate,
such as: (a) the last actual residence of the decedent at the time of his death; (b)
names, ages and residences of the heirs; and (c) the names and residences of the
creditors of the decedent. Petitioner also reiterates her argument regarding private
respondent's alleged admission that the original petition was one for guardianship and
not for issuance of letters of administration, pointing to the Opposition to the Motion
to Dismiss dated 20 July 1992, where the private respondent alleged.

1. That this petition is for guardianship of the minor children of the petitioner who are
heirs to the estate of the late Roberto L. Chua and under Section 1, Rule 92 of the
Rules of Court the venue shall be at the place where the minor resides. 16

as well as to the statements made by counsel for the private respondent during the 24
July 1992 hearing on the motion to dismiss:

ATTY. RENDON:

We filed our opposition to the motion to dismiss the petition because this is a petition
for guardianship of minors, not for intestate proceedings. So this is a case where the
mother wanted to be appointed as guardian because she is also the litigant here.
Because whenever there is an intestate proceedings, she has to represent the minors,
and under the Rules of Court in any guardianship proceedings, the venue is at the
place where the minor is actually residing. 17

The petition is devoid of merit.

The title alone of the original petition clearly shows that the petition is one which
includes the issuance of letters of administration. The title of said petition reads:

IN RE: PETITION FOR DECLARATION OF HEIRSHIPS, GUARDIANSHIP OVER THE

PERSON AND PROPERTIES OF MINORS ROBERTO ALONZO AND RUDYARD
ALONZO, all surnamed CHUA and ISSUANCE OF LETTERS OF ADMINISTRATION. 18

Likewise, the prayer of the petition states:

2. That Letters of Administration be issued to herein petition for the administration of

the estate of the deceased ROBERTO LIM CHUA.

The original petition also contains the jurisdictional facts required in a petition for the
issuance of letters of administration. Section 2, Rule 79 of the Rules of Court reads:
Sec. 2. Contents of petition for letters of administration - A petition for letters of
administration must be filed by an interested person and must show, so far as known
to the petitioner:

(a) jurisdictional facts;

(b) The names, ages, and residences of the heirs and the names and residences of the
creditors, of the decedent'

(c) The probative value and character of the property of the estate;.

(d) The name of the person for whom letters of administration are prayed;

But no defect in the petition shall render void the issuance of letters of administration.
(emphasis ours).

The jurisdictional facts required in a petition for issuance of letters of administration

are: (1) the death of the testator; (2) residence at the time of death in the province
where the probate court is located; and (3) if the decedent was a non-resident, the fact
of being a resident of a foreign country and that the decedent has left an estate in the
province where the court is sitting.19

While paragraph 4 of the original petition stating:

(4) That Roberto Lim Chua, father of the above mentioned minors, died intestate on
May 28, 1992 in Davao City.

failed to indicate the residence of the deceased at the time of his death, the omission
was cured by the amended petitions wherein the same paragraph now reads:

(4) That Roberto Lim Chua, father of the abovementioned minors is a resident of
Cotabato City and died intestate on May 28, 1992 at Davao City. 20 (Emphasis in the
original.)

All told the original petition alleged substantially all the facts required to be stated in
the petition for letters of administration. Consequently, there was no need to publish
the amended petition as petitioner would insist in her second assignment of errors.

Be that as it may, petitioner has no legal standing to file the motion to dismiss as she
is not related to the deceased, nor does she have any interest in his estate as creditor
or otherwise. The Rules are explicit on who may do so:

Sec. 4. Opposition to petition for administration - Any interested person, may by filing
a written opposition, contest the petition on the ground of incompetency of the person
for whom letters of administration are prayed therein, or on the ground of the
contestant's own right to the administration, and may pray that letters issue to
himself, or to any competent person or persons named in the opposition..
Only an interested person may oppose the petition for issuance of letters of
administration. An interested person is one who would be benefited by the estate such
as an heir, or one who has a claim against the estate, such as a creditor; his interest
is material and direct, and not one that is only indirect or contingent.21

Petitioner was not able to prove her status as the surviving wife of the decedent. The
best proof of marriage between man and wife is a marriage contract which Antonietta
Chua failed to produce. The lower court correctly disregarded the photostat copy of the
marriage certificate which she presented, this being a violation of the best evidence
rule, together with other worthless pieces of evidence. The trial court correctly ruled in
its 21 August 1992 Order that:

. . . Transfer Certificates of Title, Residence Certificates, passports and other similar

documents cannot prove marriage especially so when the petitioner has submitted a
certification from the Local Civil Registrar concerned that the alleged marriage was not
registered and a letter from the judge alleged to have solemnized the marriage that he
has not solemnized said alleged marriage. . . . 22

Under her third assignment of error, petitioner claims that the trial court issued its
orders, Annexes "P" to "T" without prior hearing or notice to her, thus, depriving her of
due process.

The orders referred to by petitioner are: Order dated 31 August 1992 appointing
Romulo Lim Uy, first cousin of the deceased, as special administrator of the estate;
Order dated 31 August 1992 appointing private respondent as guardian over the
person and property of the minors; Order dated 5 August 1993, directing the transfer
of the remains of the deceased from Davao City to Cotabato City; Order dated 6
September 1993 directing petitioner to turn over a Mitsubishi Gallant car owned by
the estate of the deceased to the special administrator; and Order dated 28 September
1993, authorizing the sheriff to break open the deceased's house for the purpose of
conducting an inventory of the properties found therein, after the sheriff was refused
entry to the house by the driver and maid of petitioner.

Apart from the fact that petitioner was not entitled to notice of the proceedings of the
trial court, not being able to establish proof of her alleged marriage to the deceased, or
of her interest in the estate as creditor or otherwise, petitioner categorically stated in
the instant petition that on 25 October 1993 she filed a motion praying for the recall of
the letters of administration issued by the trial court and another motion dated 5
August 1993 praying that the proceedings conducted by the trial court be declared as
a mistrial and the court orders relative thereto be set aside and nullified. Petitioner
further stated that her motions were denied by the trial court in its Order dated 22
November 21, 1993 and that on 30 November 1993 she filed a motion for
reconsideration of the order of denial which in turn was denied by the trial court on 13
December 1993.
Due process was designed to afford opportunity to be heard, not that an actual
hearing should always and indispensably be held. 23 The essence of due process is
simply an opportunity to be heard. 24 Here, even granting that the petitioner was not
notified of the orders of the trial court marked as Exhibits "P" to "T," inclusive,
nonetheless, she was duly heard in her motions to recall letters of administration and
to declare the proceedings of the court as a "mistrial," which motions were denied in
the Order dated 22 November 1993. 25 A motion for the reconsideration of this order of
denial was also duly heard by the trial court but was denied in its Order of 13
December 1993. 26

Denial of due process cannot be successfully invoked by a party who has had the
opportunity to be heard on his motion for reconsideration. 27

As to the last assignment of errors, we agree with the Court of Appeals that the proper
remedy of the petitioner in said court was an ordinary appeal and not a special civil
action for certiorari; which can be availed of if a party has no plain, speedy and
adequate remedy in the ordinary course of law. Except for her bare allegation that an
ordinary appeal would be inadequate, nothing on record would indicate that
extraordinary remedy of certiorari or prohibition is warranted.

Finally, petitioner further argues as supplement to her memorandum that the ruling of
the Court of Appeals treating the Special Proceeding No. 331 as one for both
guardianship and settlement of estate is in contravention of our ruling in Gomez
vs. Imperial, 28which the petitioner quotes:

The distribution of the residue of the estate of the deceased is a function pertaining
property not to the guardianship proceedings, but to another proceeding which the
heirs are at liberty to initiate.

Petitioner's reliance on said case is misplaced. In the Gomez case, the action before the
lower court was merely one for guardianship. Therefore said court did not have the
jurisdiction to distribute the estate of the deceased. While in the case at bar, the
petition filed before the court was both for guardianship and settlement of estate.

IN VIEW OF THE FOREGOING, the petition of petitioner Antonietta Chua is hereby

denied.

SO ORDERED.

No. L-34760. September 28, 1973

SERAFIN MEDINA and ROSALIA M. DEL CARMEN, assisted by DOMINADOR DEL

CARMEN, petitioners, vs. THE HONORABLE COURT OF APPEALS, THE
HONORABLE COURT OF FlRST INSTANCE OF ZAMBALES and BEDA GONZALES,
respondents.

Estates of decedents; Executors and administrators; Administrator’s personal interest

should not conflict with his official duties.—An administrator is deemed unsuitable
and should be removed where his personal interests conflict with his official duties, by
virtue of the equally established principle that an administrator is a quasi trustee,
disqualified from acquiring properties of the estate, and who should be indifferent
between the estate and claimants of the property except to preserve it for due
administration, and who should be removed when his interest conflicts with such
right and duty.

Same; Same; Appointment of clerk of court to act as special administrator should be a

voided.—The Court does not look with favor on such practice of clerks of court or
other court employees being appointed as administrators of estates of decedents
pending settlement before the probate court. The objectivity and impartiality of such
clerks of court or other employees so appointed as administrators in discharging their
regular functions may be easily compromised by extraneous considerations.

Same; Need for speedy settlement of estate of decedent stressed.—While the provisions
of the Rules of Court may be deemed directory in nature, “the speedy settlement of the
estates of deceased persons for the benefit of creditors and those entitled to the
residue by way of inheritance or legacy after the debts and expenses of administration
have been paid, is the ruling spirit of our probate law” and “courts of first instance
should exert themselves to close up estate within twelve months from the time they
are presented, and they may refuse to allow any compensation to executors and
administrators who do not actively labor to that end, and they may even adopt harsher
measures.”

TEEHANKEE, J.:

In this review by certiorari of the appellate court's resolution dismissing the petition
filed by petitioners challenging the lower court's orders appointing private respondent
Beda Gonzales as special administrator of the intestate estate of the decedent Agustin
Medina, the Court excludes the said special administrator from interfering in the
possession and enjoyment of the harvests of the property known as "Bitukang Manok"
by petitioner Rosalia M. del Carmen to whom the said property had been sold, and full
payment therefor received, by the estate through Gonzales' predecessor with the
approval of the lower court, which overruled Gonzales' opposition thereto as an
assignee of some heirs of the estate, and as one personally interested in the purchase
of the property for himself.

The Court's action is based on the established doctrine that a person with an adverse
conflicting interest is unsuitable for the trust reposed in an administrator of an estate.
Respondent Gonzales, whose appeal of the lower court's order of approval of the sale
to the Court of Appeals is pending, cannot be at the same time an appellant in his
personal capacity opposing the sale of the property and an appellee representing the
estate and upholding the same sale as made by the estate through Gonzales'
predecessor as special administrator with the due approval and confirmation of the
lower court. Since the estate proceedings have been pending for over 13 years now
without the lower court once having appointed a regular administrator, said court is
directed to name a suitable person as regular administrator charged with the task of
accomplishing the administration of the estate with the utmost reasonable dispatch.

From the papers submitted with the petition, it appears that as noted by respondent
court of first instance of Zambales, presided by Judge Augusto M. Amores in an order
dated March 6, 1970,1 wherein it approved and confirmed the deed of sale executed on
May 8, 1969 by then special administrator Demetrio Encarnacion of the intestate
estate of the decedent Agustin Medina covering the sale of its property known as
"Bitukang Manok" for P24,000.00 to petitioner Rosalia M. del Carmen, a daughter-heir
of the decedent, the said intestate proceedings have "already lasted for over ten (10)
years now contrary to the spirit of the law in the settlement of estates the most
expeditious way", and the said court expressed its "desire ... to terminate the
proceedings once and for all."

Respondent lower court, through its said order, overruled the opposition of therein
oppositor-heir Uldarico S. Medina and of assignee Beda J. Gonzales, private
respondent herein, who claimed therein "to have an interest over the estate on the
ground that certain heirs have already sold their shares and/or interest over the same
in his favor" as being "without merit." It found Uldarico's interest as "confined solely to
his desire to partake of whatever share he has in the estate in the same way with that
of the rest of the heirs." It further held that respondent Beda J. Gonzales "could not ...
claim a better right over that of the herein vendee Rosalia Medina del Carmen in the
deed of sale because the said Beda J. Gonzales is merely subrogated, if at all, to the
interests of the heirs concerned who according to the records, have received more
benefits from the estate even before its distribution as against that of the vendee, who
according to the records has never received anything yet from the estate."2

In the same order, upon "suggestion and agreement of the parties" which the lower
court "considered to be well taken for the speedy termination of the instant
proceedings," it designated its clerk of court, Atty. Pastor de Castro, Jr. as "special
administrator and to qualify immediately as such in lieu of special administrator
Demetrio Encarnacion."3

No regular administrator to settle the estate once and for all appears to have ever been
appointed by respondent lower court during the period of over thirteen years that the
estate has been pending settlement.

Respondent Gonzales appealed respondent court's order of approval and confirmation

of the sale of the "Bitukang Manok" property as an interested party-assignee opposed
to the sale executed by the estate of the deceased Agustin Medina through its then
special administrator Demetrio Encarnacion, later replaced by the clerk of court, Atty.
Pastor de Castro, Jr., as above stated, on his assertion that he had bought the rights
of the other heirs of the estate — those of a majority of the heirs, according to his
answer at bar. The appeal is now pending in the Court of Appeals.4

Almost a year later, in an order dated February 11, 1971, acting on the motion dated
October 5, 1970 of respondent Gonzales for appointment as regular administrator of
the estate, respondent lower court appointed him "not as a regular administrator but
only as special administrator for the intestate estate of the deceased Agustin Medina"
and he qualified as such upon posting of the bond fixed in the amount of P5,000.00
and replaced "judicial administrator Pastor de Castro, Jr."5

An urgent motion dated March 22, 1971 to revoke Gonzales' appointment as special
administrator on the ground that "by said order, Beda Gonzales is now assuming
the inconsistent positions of administering the estate especially the Bitukang Manok
property and at the same time appealing from the order approving the sale of that
property only for the purpose of enabling himself to buy and acquire that property to
the loss and prejudice of the estate contrary to law"6 was denied by respondent lower
court in its order dated July 21, 1971.7

In the same order of July 21, 1971, said court also rejected the petitioner Rosalia's
petition dated May 5, 1971, for the appointment of a regular administrator as "very
urgent and necessary" and proposing that co-petitioner Serafin Medina, as heir and
son and next of kin of the decedent, who has no adverse interests in his favor and
against the estate and is a qualified and competent resident of Olongapo City be
named as such, holding that:

... considering that whatever rights and interest the heirs may have over the estate
now under administration by Beda J. Gonzales could be amply protected since the
said special administrator has posted a bond in the amount of P5,000.00; considering
further that there is no showing that said administrator has been remiss in the
performance of his duties or violated the trust reposed on him as administrator; and
in order not to delay any further the termination of this proceeding which has lagged
long enough, the Court finds said petition of Serafin Medina to be without merit and
the same is hereby denied and the appointment of said J. Gonzales as special
administrator is hereby retained.8

Reconsideration having been denied by respondent lower court under its order
of September 28, 1971, petitioners instituted in the Court of Appeals an action
for certiorari with preliminary injunction under date of September 20, 1971, citing
respondent Gonzales' conflicting interests as special administrator and as "interested
buyer ... persisting in objecting to the sale, in his desire to be the buyer (of the
Bitukang Manok property) despite Court approval, thereby causing the estate
unnecessary delay and expense to the prejudice of the other heirs" and his
interference with and collection of the harvests of the said property duly sold to
petitioner Rosalia M. del Carmen, as well as pressing for the appointment instead of
petitioner Serafin Medina, as disinterested heir and next of kin, as administrator of
the estate.9

Respondent court of appeals, however, under its resolution of January 6, 1972, found
the "petition insufficient in substance to merit due course" and ordered the dismissal
thereof, on the ground "(1) that it is not disputed that the lower court has jurisdiction
to appoint respondent Beda J. Gonzales as special administrator; (2) that petitioners
merely allege that the lower court had gravely abused its discretion without any prima
facie showing to this effect: (3) considering further that the lower court had considered
and resolved herein petitioners' objections to respondent Gonzales' continuation as
such administrator, to wit, [quoting the considerations stated in the lower court's
order dated July 21, 1971, already quoted hereinabove]; considering, finally, that it is
well-settled that the actuations of the trial court should not be disturbed except upon
showing of lack of jurisdiction or grave abuse of discretion on the part of the tribunal,
involving whimsical and/or capricious exercise of discretion."

Their motion for reconsideration of such dismissal having failed, petitioners instituted
the present action for review on February 23, 1972. The Court issued on February 29,
1972 a temporary restraining order restraining respondent lower court and
respondent Gonzales "from implementing (the lower court's) orders dated February 11,
1971, July 21, 1971 and September 28, 1971 ... and from otherwise interfering in the
possession by the petitioner Rosalia M. del Carmen of a property known as "Bitukang
Manok" of the intestate estate of the deceased Agustin Medina ... and private
respondent ... from interfering in the cultivation and harvests or otherwise disturbing
the possession of aforementioned property by said petitioner." Upon the Court's giving
due course to the petition per its resolution of March 24, 1972, it ordered the issuance
of a writ of preliminary injunction to the same effect upon the posting of an injunction
bond of P2,000.00, and such writ was issued on May 29, 1972.

Insofar as the petition assails the appointment of respondent Gonzales as special

administrator giving rise to the anomalous situation "where in an appealed intestate
case to the Court of Appeals (CA-G.R. No. 49439-R, entitled "Intestate Estate of the
Deceased Agustin R. Medina; Pastor de Castro, Jr. (now Beda Gonzales) Special
Administrator, versus Uldarico Medina and Beda J. Gonzales, Movant's)
the appellate and the appellant are one and the same person," the petition is manifestly
meritorious and must be granted.The sale to Rosalia of the Bitukang Manok property
having been approved and confirmed by respondent lower court over the personal
opposition of said respondent on March 6, 1970 which approval he appealed to the
Court of Appeals, his subsequent appointment as special administrator of the estate
a year later under respondent lower court's order of February 11, 1971 created a clear
conflict of interest that could cause grave damage and prejudice to the estate and
subject it to unnecessary suits.
With specific reference to the Bitukang Manok property as sold by the estate through
Gonzales' predecessor as special administrator and confirmed by the lower court, the
same has passed to petitioner Rosalia's ownership and possession since the court's
confirmation of the sale on March 6, 1970 and the estate makes no further claim
against the same but on the contrary has defended the sale and Rosalia's title thereto
as the vendee thereof as against Gonzales' adverse opposition in the appeal brought by
Gonzales in his personal capacity. Yet now, as complained of by Rosalia, Gonzales by
virtue of his appointment, as special administrator a year later seeks in
such other capacity to interfere with her in the harvests of the property purportedly
on behalf of the estate when in fact he is going against the official stand of the estate
which upholds the sale.

It is readily seen thereby that Gonzales has been placed in an unduly favored position
where he may use his position as special administrator to favor his personal interests
as one interested in the purchase of the property for himself, although he denies
obliquely in his brief such personal interest with the statement that "there is no
evidence or pleading of record that (he) is interested in the acquisition for himself of
the Bitukang Manok property ... and it is a matter of record that having acquired the
rights and interests of the majority of the heirs, he had stepped into the shoes of such
heirs, hence, his concern and interest to protect the estate, as special
administrator" 10 — which is to say, to protect his claimed majority interest in the
estate, hence his insistence on opposing the sale.

Grave prejudice may thus be inflicted by him on petitioner Rosalia's as an heir as well
as the other heirs such as petitioner Serafin Medina because of the further delay (13
years now) in their receiving their distributive shares of their father's estate (as against
their co-heirs who have sold and assigned their rights and shares in the estate to
Gonzales) as well as to Rosalia as buyer because of Gonzales' interference with her
enjoyment of the property paid for in full by her since 1970.

Hence, the established doctrine that an administrator is deemed unsuitable and

should be removed where his personal interests conflict with his official duties, by
virtue of the equally established principle that an administrator is a quasi
trustee, disqualified from acquiring properties of the estate, 11 and who should be
indifferent between the estate and claimants of the property except to preserve it for
due administration, and who should be removed when his interest conflicts with such
right and duly. 12

As restated by the Court in Lim vs. Dias-Millares, 13 "(I)n this jurisdiction, one is
considered to be unsuitable for appointment as administrator when he has adverse
interest of some kind of hostility to those immediately interested in the estate.".

The Court noted from the questioned order of February 11, 1971 that respondent
Gonzales was designated special administrator in replacement of the lower court's
clerk of court, Atty. Pastor de Castro, Jr., who had been appointed as such in the
earlier order of March 6, 1970. The Court does not look with favor on such practice of
clerks of court or other court employees being appointed as administrators of estates
of decedents pending settlement before the probate court. The objectivity and
impartiality of such clerks of court or other employees so appointed as administrators
in discharging their regular functions may be easily compromised by extraneous
considerations. Furthermore, because of the administrator's fees and compensation
payable to them, it is not inconceivable that self-interest intrudes and consciously or
unconsciously, obstacles are placed against the prompt settlement and termination of
the proceedings in derogation of the primordial purpose of the law to strive to have the
estate settled expeditiously and promptly so that the benefits that may flow therefrom
may be immediately enjoyed by the decedent's heirs and beneficiaries. 14 Probate
courts are therefore enjoined to desist from such practice of appointing their clerks of
court or other court employees as administrators or receivers of estates or the like.

On this consideration (the replacement of the clerk of court) and on the further
consideration of the specific and limited powers of special administrators and that
their appointment merely temporary and subsists only until a regular administrator is
duly appointed (since Rule 80, section 1 provides for the appointment of a special
administrator as a caretaker only "when there is delay in granting letters testamentary
or of administration by any cause") 15 the Court has resolved to allow the appointment
of respondent Gonzales as special administrator to stand, insofar as taking care of the
other properties of the estate are concerned, to the exclusion of the Bitukang Manok
property already sold by the estate to petitioner Rosalia del Carmen. (The said property
shall pertain to said petitioner's possession and enjoyment as the vendee thereof and
in the event that the appellate courts find cause to set aside the lower court's
confirmation of the sale in her favor in the pending appeal of Gonzales in his personal
capacity, then shall be the time for the estate and/or the heirs to reclaim possession of
the property upon return to her of the purchase price paid by her).

The Court has finally noted that while the estate involved is not large and there seem
to be no complicated questions that have impeded its prompt settlement, and
notwithstanding the lower court's avowed desire to terminate the proceedings once
and for all, the said estate proceedings have been pending now for over thirteen
years without the lower court once having appointed a regular administrator in
accordance with the Rules of Court to take charge of the settlement thereof and the
distribution and partition of the net estate to the heirs entitled thereto.

As time and again stated by the Court, while the provisions of the Rules of Court may
be deemed directory in nature, "the speedy settlement of the estates of deceased
persons for the benefit of creditors and those entitled to residue by way of inheritance
or legacy after the debts and expenses of administration have been paid, is the ruling
spirit of our probate law" 16 and "courts of first instance should exert themselves to
close up estate within twelve months from the time they are presented, and they may
refuse to allow any compensation to executors and administrators who do not actively
labor to that end, and they may even adopt harsher measures." 17

As in the cited jurisprudence, therefore, respondent lower court is directed to name a

suitable person or entity, who is competent and qualified and doesnot suffer from any
proscribed conflict of interest, (and preferably upon the common agreement of the
heirs, to avoid any further bickerings) as regular administrator charged with the task
of accomplishing and terminating the administration of the estate with the utmost
reasonable dispatch, with a view to an early distribution of the net estate among the
heirs and persons entitled thereto.

ACCORDINGLY, the dismissal resolution of the Court of Appeals is hereby modified

and in lieu thereof, judgment is entered allowing the appointment of respondent
Gonzales special administrator to stand, insofar as taking care temporarily of the
other properties of the estate are concerned, but to the exclusion of the Bitukang
Manok property previously sold by the estate to petitioner Rosalia M. del Carmen, who
is entitled to the enjoyment of said property as the vendee thereof.

The writ of preliminary injunction heretofore granted is hereby ordered liftedexcept as

to the portion thereof enjoining private respondent from interfering in the cultivation
and harvests or otherwise disturbing the possession of the Bitukang Manok property
by petitioner Rosalia M. del Carmen which is hereby made permanent.

Respondent lower court is ordered to implement the above directive of this Court to
name a suitable person as regular administrator charged with the task of
accomplishing and terminating the administration of the estate with the utmost
reasonable dispatch and to submit a report of his action thereon to the Court within
thirty (30) days from notice of entry of this judgment.

Without pronouncement as to costs. SO ORDERED.

INTESTATE ESTATE OF THE LATE EMILIO AGUINALDO. CRISTINA AGUINALDO

SUNTAY, petitioner-appellant, vs. EMILIO AGUINALDO,JR., and HON. ALFREDO
CATOLICO,Presiding Judge of the Court of First Instance of Cavite, Branch III,
respondents-appellees.

Appeals; Transfer of cases from Supreme Court and Court of Appeals to proper court;
Absence of procedure.—No law has been enacted by Congress nor has any rule been
promulgated by the Supreme Court outlining definitely the procedure to be observed
in instances of appeal “erroneously brought” to the Supreme Court or the Court of
Appeals, beyond the injunction of section 3 of Rule 50, precisely the rule on
DISMISSAL OF AP. PEALS that “Where the appealed case has been erroneously
brought to the Court of Appeals (or to the Supreme Court), i shall not dismiss the
appeal, but shall certify the case to the proper court.”
Same; Same; Same; Case at bar.—Neither Congress nor the Supreme Court has yet
clearly provided for the contingency involved in the case at bar, namely, a case
wherein a petition for review by certiorari has been timely filed with the Supreme
Court and the Court certifies or sends the same to the Court of Appeals under the
authority of section 31 of the Judiciary Act. There is no known or set procedure as to
what should be done or what, steps should be taken either by the Court of Appeals or
by the appellant subsequent to and as a consequence of such certification.

Same; Same; Section 6t Rule 135 of the Rules of Court; Means to carry jurisdiction
into effect by suitable process or mode of proceeding conformable to the spirit of the
law conferring jurisdiction on a court or to the rules.—Under the provision, it was
incumbent upon the Court of Appeals, the moment it received the certification from
the Supreme Court of the appeal of the petitioner, to remand the case to the court of
origin for the completion of the reglementary formalities for the perfection of her
appeal to the court.

Same; Resolution of Court of Appeals appealable to the Supreme Court.—The private

respondent contends that the resolutions in question cannot be considered as
constituting a judgment of the Court of Appeals from which an appeal may be taken to
the Supreme Court under Rule 45. It is to be observed that said resolutions directed
the dismissal of petitioner’s appeal, and for all intents and purposes, such dismissal is
not less than a judgment affirming in toto the appealed judgment of the trial court.

BARREDO, J.:

Originally a petition for review but subsequently considered by the Court as a special
civil action of certiorari to set aside the resolution of the Court of Appeals in CA-G.R.
No. 45994-R, entitled Cristina Aguinaldo-Suntay versus Emilio Aguinaldo and
Honorable Alfredo Catolico, Judge CFI, Branch III, Cavite City, promulgated on
February 19, 1971, dismissing petitioner’s appeal from several orders of the trial court
as well as the resolutions denying petitioner’s motion for reconsideration thereof.

In Special Proceedings No. N-705 of the Court of First Instance of Cavite, entitled
Intestate Estate of the Deceased Spouses Emilio Aguinaldo and Maria Agoncillo,
Emilio Aguinaldo, Jr., Administrator, upon motion of said administrator, the court, in
its order of July 24, 1969, granted him authority to sell certain parcels of land of the
estate of the deceased, which, however, by an amendatory order of September 26,
1969, were specifically provided must be taken only from "the one-half . . . belonging
to the intestacy of the late Emilio Aguinaldo." Subsequently, other orders which speak
for themselves as to the circumstances that gave rise to their issuance were issued
thus:jgc:chanrobles.com.ph

"This is a Petition dated January 12, 1970, filed by the administrator of intestacy of
the late General Emilio Aguinaldo seeking approval by the Court of the sale of a
certain property covered by Transfer Certificate of Title Nos. 15388, OCT No. 463, OCT
No. a-465 and OCT No. 832, all of the land records of Cavite Province.

"The sale was executed by the administrator in favor of Alice Aguinaldo Dizon of one
half of the said property covered originally by order of this Court of July 24, 1969,
which was later amended in an order of September 26, 1969 for the amount of
P192,000 00.

"The said petition being in accordance with the said previously issued order of this
Court for the sale of the same property in order to procure funds for the payment of
the inheritance taxes, realty taxes and other obligations of the deceased Emilio
Aguinaldo, same is hereby approved.

"SO ORDERED.

"Given in open Court at Cavite City, this 19th day of January, 1970." (Annex C, Rollo,
p. 61).

"Before this Court is a pleading entitled ‘Urgent Manifestation and Motion,’ dated
February 6, 1970, submitted for its consideration today.

"As regards the urgent manifestation, let it stay as such for there is nothing to provide.
As regards the motion with prayer that the order of this Court dated January 19,
1970, be reconsidered and set aside and that the motion for reconsideration dated
October 9, 1969, be heard and resolved, it has something to do with an authority
granted by this Court for the administrator to sell certain property in order to procure
enough funds to pay pending obligations of the intestacy. This authority was granted
the administrator in an order of July 24, 1969 and in accordance therewith the said
administrator has sold a certain property which is already registered with the register
of deeds and title was cancelled, and in lieu thereof a transfer certificate of title was
issued to the buyer, and this sale is the object of certiorari proceedings by one of the
persons who wanted to buy and actually did offer a price for the said property which
case is pending with the Court of Appeals now.

"As regards the motion for reconsideration on the part of Cristina Aguinaldo Suntay,
the said motion for reconsideration and petition to be heard is hereby rendered
ineffective in that the sale has already been consummated.

"As regards the prayer for the reconsideration of the order of this Court dated January
19, 1970, approving the sale, inasmuch as the same has already been consummated
and actually registered with the Register of Deeds, the same may not be granted.

"WHEREFORE, said motion for reconsideration is hereby denied.

"SO ORDERED.

"Given at Cavite City, this 18th day of February, 1970." (Annex D, Rollo, pp. 62-63).
"After the prayer denying the double-barrelled motion presented by counsel movant
dated February 6, 1970, the same counsel, in order to gain time, verbally sought the
reconsideration of the order of denial upon the ground that he will have only one day
to file the necessary petition attacking the validity or propriety of said order, and in
order to place the legal issues on the record, the said verbal petition for
reconsideration is hereby denied.

"SO ORDERED.

"Given in open Court at Cavite City this 18th day of February, 1970." (Annex E, Rollo,
p. 64)

Against these five orders, a petition for review was filed with this Supreme Court in
G.R. No. L-31659 alleging:jgc:chanrobles.com.ph

"The lower Court, presided over by the respondent Judge, acting as an administration
court, had no power or jurisdiction to authorize the sale of the properties claimed by
your petitioner; thus, it grievously erred when it did authorize said sale and
subsequently approved the same, before the question of title over the contested
properties could be determined in a separate action. (1st Assignment of Error)

"Assuming, for argument’s sake, that the lower court had power or jurisdiction to
grant the estates’ administrator authority to sell adversely claimed properties, it
nonetheless palpably erred in ordering the sale and confirming the same without
complying with the elementary but mandatory requirements of Rule 89, Section 7 of
the Rules of Court." (2nd Assignment of Error)

Evidently because the said appeal necessarily involved the factual issue of whether the
properties authorized to be sold belong to the intestate estate of the deceased Emilio
Aguinaldo or to his daughter Cristina Aguinaldo-Suntay the Court issued the following
resolution:jgc:chanrobles.com.ph

"L-31659 (Cristina Aguinaldo Suntay v. Emilio Aguinaldo, Jr., Et. Al.) — Considering
the allegations thereof, the issues raised and the arguments adduced in the Petition
for Review on Certiorari of the orders of the First Instance of Cavite, Branch III, THE
COURT RESOLVED to refer the petition to the Court of Appeals."cralaw virtua1aw
library

It is not disputed that thereafter the following proceedings took

place:jgc:chanrobles.com.ph

"6. Acting on the referral, the Honorable Court of Appeals (FIFTH DIVISION), on
August 19, 1970, issued a Resolution giving due course to the Petition and requiring
respondents to answer (not to file a motion to dismiss) the Petition.

"A true and correct copy of this Court of Appeals’ Resolution is hereto attached and
made an integral part hereof as Annex ‘F’.
"7. On September 14, 1970, respondents-appellees filed their answer to the Petition. A
true and correct copy of this Answer is hereto attached to form an integral part hereof
as Annex ‘G’.

"8. In a Resolution dated October 21, 1970, the Honorable Court of Appeals set the
case for ‘hearing on the merits’ on November 23, 1970, upon an ex-parte motion of
counsel for Respondent-Appellee Emilio Aguinaldo, Jr.

"A true and correct copy of this Resolution is hereto attached to form an integral part
hereof as Annex ‘H’.

"9. At the hearing of November 23, 1970, the Honorable Court of Appeals resolved to
grant the verbal manifestation of both counsel that they be allowed to file a
memorandum in lieu of oral argument. After expiration of the periods therein granted,
the case would be deemed submitted for decision.

"A true and correct copy of this November 23, 1970 Resolution is hereto attached to
form an integral part hereof as Annex ‘I’.

"10. On January 28, 1971, petitioner-appellant filed a Manifestation with the

Honorable Court of Appeals waiving her right to submit a memorandum in lieu of oral
argument in support of her Petition.

"A true and correct copy of said Manifestation is hereto attached to form an integral
part hereof as Annex ‘J’.

"11. A Counter-Manifestation and Urgent Motion for Immediate Resolution of case

dated February 2, 1971 was filed by the respondents-appellees whereby they similarly
submitted the case for decision without any memorandum.

"A true and correct copy of this counter-manifestation is hereto attached to form an
integral part hereof as Annex ‘K’.

"12. On February 19, 1971, the Honorable Court of Appeals passed the questioned
Resolution, dismissing the petition for review on certiorari for ‘not being sufficient in
form and substance’ (Annex ‘A’ of this Petition).

"13. By Resolution of the Honorable Court of Appeals, dated March 24, 1971,
petitioner-appellant was given up to March 29, 1971 within which to file her Motion
for Reconsideration.

"A true and correct copy of this Resolution is hereto attached to form an integral part
hereof as Annex ‘L’.

"14. On March 29, 1971, petitioner-appellant filed her motion for reconsideration of
the Honorable Court of Appeals’ February 19, 1971 Resolution.
"A true and correct copy of this Motion for Reconsideration is hereto attached to form
an integral part hereof as Annex ‘M’.

"15. Under date March 31, 1971, respondents-appellees filed their Opposition to the
said Motion for Reconsideration.

"A true and correct copy of said opposition is hereto attached to form an integral part
hereof as Annex ‘N’.

"16. On April 14, 1971, the Honorable Court of Appeals promulgated a Resolution
denying petitioner-appellant’s Motion for Reconsideration (Annex ‘B’ of this
Petition)."cralaw virtua1aw library

The simple question that arises from all the foregoing is, in the light of the
circumstances related above, was it legally proper for the Court of Appeals to have
dismissed petitioner’s appeal in CA-G.R No. 45944 only because said petitioner had
not perfected her appeal by duly filing and securing the approval of the corresponding
record on appeal, appeal bond and notice of appeal, as required by Sections 3 to 9 of
Rule 41 of the Rules of Court? In the premises, We do not hesitate to rule that the
dismissal of petitioner’s appeal is not in accordance with law and, what is more, it is
inconsistent with the fundamental tenet of procedural law that technicalities of form
must be overlooked when the best interests of justice so require, particularly when
there is no express statutory provision or rule of court clearly applicable being
violated.

The most important point to consider in this case is that petitioner first appealed to
this Supreme Court evidently in the belief that her appeal involved purely questions of
law. It must be conceded that her assumption was in good faith, if only because the
principal complaint she had against the trial court was that it had authorized the sale
of property involved in the intestate proceeding notwithstanding that -petitioner had
made representations, in her motion for reconsideration of the order approving the
sale, that she was claiming the property as her own by virtue of a sale to her by the
deceased, her own father, and the only observation being made against such posture
was that her claim of ownership could, anyway, be resolved in a separate appropriate
proceeding. But this Court, upon consideration of the allegations in her petition, took
a different view, and, as already stated, opined that the ultimate resolution of her
contention against the actuations of the trial court calls for the determination of the
fact of ownership, and, accordingly, referred her appeal to the Court of Appeals. In
other words, this is a case plainly within the contemplation of Section 31 of the
Judiciary Act providing as follows:jgc:chanrobles.com.ph

"SEC. 31. Transfer of cases from Supreme Court and Court of Appeals to proper court.
— All cases which may be erroneously brought to the Supreme Court or to the Court
of Appeals shall be sent to the proper court, which shall hear the same, as if it has
originally been brought before it."cralaw virtua1aw library
In the very recent case of Sonora v. Court of Appeals, G.R. No. L-33095, promulgated
April 19, 1972, We held that:jgc:chanrobles.com.ph

". . . The law has not overlooked the possibility that appeals belonging to the appellate
jurisdiction of this Court may be actually taken to the Court of Appeals and vice-versa
and has accordingly specifically provided therefor, to the end that the interests of
justice may not suffer merely because of a mistake of an appellant or of the trial court
in transmitting the appeal to the wrong court. Besides, it is quite absurd for the Court
of Appeals or this Court to dismiss an appeal that is not properly within its respective
appellate jurisdiction. Thus, under Section 31 of the Judiciary Act, ‘all cases which
may be erroneously brought to the Supreme Court or to the Court of Appeals shall be
sent to the proper court, which shall hear the same, as if it had originally been
brought before it.’ Indeed, in dismissing outright petitioners’ appeal, the Court of
Appeals acted in complete disregard of the unequivocal injunction of Section 3 of Rule
50 of the Rules of Court that ‘(w)here the appealed case has been erroneously brought
before the Court of Appeals, it shall not dismiss the case, but shall certify the case to
the proper court, with a specific and clear statement of the grounds therefor." ‘

Unfortunately, and precisely even after the approval of Republic Act 5440, relied upon
by the Court of Appeals in its impugned resolution, no law has been enacted by
Congress nor has any rule been promulgated by the Supreme Court outlining
definitely the procedure to be observed in instances of appeals "erroneously brought"
to the Supreme Court or the Court of Appeals, beyond the injunction of Section 3 of
Rule 50, precisely the rule on DISMISSAL OF APPEAL that "Where the appealed case
has been erroneously brought to the Court of Appeals (or to the Supreme Court), it
shall not dismiss the appeal, but shall certify the case to the proper court." The rule,
of course, goes further to require that the certifying court should make "a specific and
clear statement of the grounds therefor."cralaw virtua1aw library

In this connection, and in the context of the proceedings involved in this case, it must
be borne in mind that notwithstanding that Republic Act 5440 established a different
procedure for appeals from decisions of the courts of first instance to the Supreme
Court in cases within the latter’s appellate jurisdiction, that is, review by certiorari,
from those to the Court of Appeals, which has remained to be by the ordinary
procedure of appeal by writ of error, with record on appeal, appeal bond and notice of
appeal, neither Congress nor this Supreme Court has yet clearly provided for the
contingency involved in the case at bar, namely, a case wherein a petition for review
by certiorari has been timely filed with the Supreme Court and the Court certifies or
sends the same to the Court of Appeals under the authority of Section 31 of the
Judiciary Act, hence, there is no known or set procedure as to what should be done or
what steps should be taken either by the Court of Appeals or by the appellant
subsequent to and as a consequence of such certification.

It is a matter of judicial notice that, as decried by Us in the above-mentioned case of

Sonora, despite the length of time that has elapsed since the passage of Republic Act
5440, because of the mistake of lawyers, abetted or, at least, not corrected by the trial
courts, appeals still keep on coming to this Supreme Court by records on appeal
approved by the corresponding trial judges, but never yet has the Court dismissed any
of said appeals just because of such error of form. Giving allowance to the possibility
that the new legislation has not generally reached the knowledge of the bar, We have
invariably accepted said appeals, with no other imposition upon the appellant than for
the said party to file the corresponding petition for review by certiorari within a
specified period, provided the appeal by notice of appeal, appeal bond and record on
appeal had been taken on time. This liberality, which, to be sure, We have already
announced in Sonora We will soon withdraw, is dictated by the equitable and just
consideration that no party should be denied the right to appeal on account of an
error of form not directly violative of any clear provision of the law or the rules.

Herein lies the fault in the questioned resolutions of the Court of Appeals in the case
at bar. Oblivious of the considerations that have motivated the considerate attitude of
the Supreme Court just referred to, the Court of Appeals failed to avail of its authority
found in Section 6 of Rule 135, which provides thus:jgc:chanrobles.com.ph

"SEC. 6. Means to carry jurisdiction into effect. — When by law jurisdiction is

conferred on a court or judicial officer, all auxiliary writs, processes and other means
necessary to carry it into effect may be employed by such court or officer; and if the
procedure to be followed in the exercise of such jurisdiction is not specifically pointed
out by law or by these rules, any suitable process or mode of proceeding may be
adopted which appears conformable to the spirit of said law or rules."cralaw virtua1aw
library

Very little reflection is needed to realize that, under this provision, it was incumbent
upon the Court of Appeals, the moment it received the certification from the Supreme
Court of the appeal of the petitioner, to remand the case to the court of origin for the
completion of the reglementary formalities for the perfection of her appeal to that
court. Surely, the Court of Appeals cannot blame petitioner for unconditionally
submitting her appeal for its resolution after she was made to undergo all the
proceedings noted in the statement of facts at the beginning of this opinion. The
observation of counsel for respondent that the petitioner had impliedly agreed that her
appeal be considered by the Court of Appeals as a "simple certiorari", hence that Court
rightly held that certiorari cannot take the place of appeal, is utterly baseless, it
appearing from the main resolution itself now under scrutiny that the Court of
Appeals referred to the proceeding before it as "a petition for review by certiorari." Of
course, the Court of Appeals is correct in holding that appeals to it cannot be done by
such a petition except in appeals from decisions rendered by the courts of first
instance in the exercise of their appellate jurisdiction over cases coming from
municipal courts, but to hold at the same time that petitioner’s appeal should be
dismissed outright is, as already explained, to make petitioner suffer for a procedural
faux pas not entirely and exclusively of her own making, and certainly, not in bad
faith. Needless to say, the Court is animated in this case by the same considerations it
took into account in Sonora.

As to the point raised by private respondent that the resolutions in question cannot be
considered as constituting a judgment of the Court of Appeals from which an appeal
may be taken to this Court under Rule 45, it is to be observed that said resolutions
directed the dismissal of petitioner’s appeal, and for all intents and purposes, such
dismissal is not less than a judgment affirming in toto the appealed judgment of the
trial court. The fact that this Court has considered petitioner’s present remedy as an
original action of certiorari under Rule 65 should not be taken as an indication that
respondent’s contention is well taken. Under its supervisory authority, it has been the
practice of the Court to consider petitions for review filed under Rule 45 as original
certiorari actions under Rule 65 whenever by so doing a more expeditious and prompt
determination of the case is feasible. In this manner, the interests of justice can better
be served, without regard to technicalities of procedure.

Likewise, the contention of private respondent that petitioner’s present remedy is

frivolous and dilatory, since, anyway, "her ultimate objective, which is to establish the
validity of the alleged ‘Kasulatan’ in her favor, could still be attained in other incidents
in the intestate proceeding in the lower court" is at the most off-tangent. As We see
petitioner’s position, she is not seeking to establish in said intestate proceeding the
validity of the "Kasulatan" ; what she is insisting on is that the lands in question
should not be allowed to be sold until after her claim of ownership thereof has been
settled in an appropriate proceeding. And, of course, contrary to the view of private
respondent, such pose of petitioner involves the jurisdictional question of whether or
not the trial court had authority to permit the administrator to sell property allegedly
belonging to the estate of the deceased after it was brought to its attention that
another party is claiming ownership thereof as against the estate. But this point, We
do not have to pass upon now; it is precisely the Court of Appeals that should rule on
it, after finding that there was indeed a "Kasulatan" or deed of sale in favor of
petitioner. All that We decide here is that the Court of Appeals erred in dismissing
petitioner’s appeal in CA-G.R. No. 45944 and that instead of dismissing the same, the
appellate court should have returned the case to the court of origin with instructions
to determine whether or not the petition for review in G.R. No. L-31659 was filed
within the reglementary period, and, in the affirmative, to have appellant submit the
corresponding notice of appeal, appeal bond and record on appeal and perfect her
appeal, after which the case should be re-elevated to the appellate court for the
appropriate appellate proceeding, unless, on the basis of the record as it stands, with
all the pleadings, motions and other papers filed by the parties, the Court is satisfied
that all the necessary information needed as basis for a proper decision are already
before it and a record on appeal can be dispensed with, in which event, to save time
and without causing prejudice and injustice to any party, the appellate court should
already proceed to decide petitioner’s appeal on its merits.
ACCORDINGLY, the resolutions of the Court of Appeals herein in question are set
aside, and this case is returned to the Court of Appeals for further proceedings in line
with the above opinion, with costs against private Respondent.

G.R. No. 170243. April 16, 2008.*

NANCY H. ZAYCO and REMO HINLO in their capacity as judicial co-

administrators of the Estate of Enrique Hinlo, petitioners, vs. ATTY. JESUS V.
HINLO, JR.,** respondent.

Remedial Law; Settlement of Estates; Appeals; An order appointing an administrator of

a deceased person’s estate is a final determination of the rights of the parties in
connection with the administration, management and settlement of the decedent’s
estate; It is a final order, hence, appealable.—An order appointing an administrator of
a deceased person’s estate is a final determination of the rights of the parties in
connection with the administration, management and settlement of the decedent’s
estate. It is a final order and, hence, appealable.

Same; Same; Same; In appeals in special proceedings, a record on appeal is required;

The 30-day period to file the notice of appeal and record on appeal should be reckoned
from the receipt of the order denying the motion for new trial or motion for
reconsideration.—In appeals in special proceedings, a record on appeal is required.
The notice of appeal and the record on appeal should both be filed within 30 days from
receipt of the notice of judgment or final order. Pursuant to Neypes v. CA, 469 SCRA
633 (2005), the 30-day period to file the notice of appeal and record on appeal should
be reckoned from the receipt of the order denying the motion for new trial or motion
for reconsideration.

CORONA, J.:

This is a petition for review1 of the June 27, 2005 decision2 and October 27, 2005
resolution of the Court of Appeals (CA) in CA-G.R. SP No. 82129.

After Enrique Hinlo died intestate on January 31, 1986, his heirs filed a petition for
letters of administration of his estate in the Regional Trial Court (RTC) of Negros
Occidental, Silay City, Branch 40. Ceferina Hinlo, widow of Enrique, was initially
appointed as special administratrix of Enrique's estate. On December 23, 1991,
petitioners Nancy H. Zayco and Remo Hinlo were appointed as co-administrators in
lieu of their mother Ceferina who was already sickly and could no longer effectively
perform her duties as special administratrix.

On March 4, 2003, respondent Atty. Jesus V. Hinlo, Jr., a grandson of Enrique and
heir to his estate by virtue of representation,3 filed a petition for the issuance of letters
of administration in his favor and an urgent motion for the removal of petitioners as
co-administrators of Enrique's estate.4 Petitioners opposed both the petition and the
motion.

In an order dated July 23, 2002,5 the RTC revoked the appointment of petitioners as
co-administrators of the estate of Enrique and directed the issuance of letters of
administration in favor of respondent on a P50,000 bond. Respondent posted the
required bond, took his oath as administrator and was issued letters of
administration.

Petitioners received a copy of the July 23, 2002 order on August 2, 2002 and moved
for its reconsideration on August 9, 2002. The RTC denied the motion for
reconsideration in an order dated July 23, 2003.6

Petitioners received a copy of the July 23, 2003 order on July 31, 2003 and filed a
notice of appeal the same day. They submitted a record on appeal on August 29, 2003.

In an order dated January 5, 2004,7 the RTC denied the notice of appeal and record on
appeal. It ruled that petitioners resorted to a wrong remedy as the July 23, 2002 and
July 23, 2003 orders were interlocutory and not subject to appeal. Even assuming
that appeal was the proper remedy, it was filed late:

Granting [a]rguendo, that the Orders dated July 23, 2002 and July 23, 2003 maybe
the subject of appeal, the Notice of Appeal and the Record on Appeal were already filed
out of time. Records will show that the Order of this Court dated July 23, 2002
removing the former co-administrators were received by them on August 2, 2002.
Subsequently, they filed a Motion for Reconsideration on August 9[, 2002] which was
denied by this Court in its Order dated July 23, 2003 and was received by them on
July 31, 2003. A Notice of Appeal was filed on July 31, 2003 but a Record on Appeal
was only filed on August 29, 2003. The 30 days reglementary period to file an appeal
in special proceedings started to run on August 2, 2002 when [the] former [co-
]administrators received the order of this Court and stopped to run when they filed
their Motion for Reconsideration and started to run again [on] July 31, 2003 when
they received the order denying their Motion for Reconsideration until they filed their
Record on Appeal on August 29, 2003. Thus, from August 2, 2002 to August 9,
2002, [the] former [co-]administrators already consumed a period of 7 days and
from July 31, 2003 to August 29, 2003, a period of 29 days[,] or a total of 36
days. x x x8 (emphasis supplied)

Petitioners challenged the January 5, 2004 RTC order in the CA by way of a petition
for certiorari and mandamus. In a decision dated June 27, 2005, the CA dismissed the
petition.9 It ruled that there was no grave abuse of discretion on the part of the RTC as
the notice of appeal and record on appeal were in fact filed beyond the prescribed
period.

Petitioners sought reconsideration but the CA denied it. Hence, this petition.
Petitioners contend that the RTC erred when it ruled that the July 23, 2002 and July
23, 2003 orders were not appealable. They also claim that their notice of appeal and
record on appeal were filed on time.

We agree.

An order appointing an administrator of a deceased person's estate is a final

determination of the rights of the parties in connection with the administration,
management and settlement of the decedent's estate.10 It is a final order and, hence,
appealable.11

In appeals in special proceedings, a record on appeal is required. The notice of appeal

and the record on appeal should both be filed within 30 days from receipt of the notice
of judgment or final order.12 Pursuant to Neypes v. CA,13 the 30-day period to file the
notice of appeal and record on appeal should be reckoned from the receipt of the order
denying the motion for new trial or motion for reconsideration.

From the time petitioners received the July 23, 2003 order (denying their motion for
reconsideration of the July 23, 2002 order) on July 31, 2003, they had 30 days or
until August 30, 2003 to file their notice of appeal and record on appeal. They did so
on August 29, 2003. Thus, the appeal was made on time.

WHEREFORE, the petition is hereby GRANTED. The June 27, 2005 decision and
October 27, 2005 resolution of the Court of Appeals in CA-G.R. SP No. 82129
affirming the January 5, 2004 order of the Regional Trial Court of Negros Occidental,
Silay City, Branch 40 are REVERSED and SET ASIDE. The trial court is hereby
directed to approve the notice of appeal and record on appeal and, thereafter, to
forward the same to the Court of Appeals.

SO ORDERED.

G.R. No. 187879. July 5, 2010.*

DALISAY E. OCAMPO, VINCE E. OCAMPO, MELINDA CARLA E. OCAMPO, and

LEONARDO E. OCAMPO, JR., petitioners, vs. RENATO M. OCAMPO and ERLINDA
M. OCAMPO, respondents.

Probate Proceedings; Settlement of Estates; Administrators; When appointed, a special

administrator is not regarded as an agent or representative of the parties suggesting
the appointment.—A special administrator is an officer of the court who is subject to
its supervision and control, expected to work for the best interest of the entire estate,
with a view to its smooth administration and speedy settlement. When appointed, he
or she is not regarded as an agent or representative of the parties suggesting the
appointment. The prin cipal object of the appointment of a temporary administrator is
to preserve the estate until it can pass to the hands of a person fully authorized to
administer it for the benefit of creditors and heirs, pursuant to Section 2 of Rule 80 of
the Rules of Court.

Same; Same; Same; It has long been settled that the selection or removal of special
administrators is not governed by the rules regarding the selection or removal of
regular administrators—the probate court may appoint or remove special
administrators based on grounds other than those enumerated in the Rules at its
discretion.—While the RTC considered that respondents were the nearest of kin to
their deceased parents in their appointment as joint special administrators, this is not
a mandatory requirement for the appointment. It has long been settled that the
selection or removal of special administrators is not governed by the rules regarding
the selection or removal of regular administrators. The probate court may appoint or
remove special administrators based on grounds other than those enumerated in the
Rules at its discretion, such that the need to first pass upon and resolve the issues of
fitness or unfitness and the application of the order of preference under Section 6 of
Rule 78, as would be proper in the case of a regular administrator, do not obtain. As
long as the discretion is exercised without grave abuse, and is based on reason,
equity, justice, and legal principles, interference by higher courts is unwarranted. The
appointment or removal of special administrators, being discretionary, is thus
interlocutory and may be assailed through a petition for certiorari under Rule 65 of
the Rules of Court.

Same; Same; Administrator’s Bond; The administration bond is for the benefit of the
creditors and the heirs, as it compels the administrator, whether regular or special, to
perform the trust reposed in, and discharge the obligations incumbent upon, him.—
Pursuant to Section 1 of Rule 81, the bond secures the performance of the duties and
obligations of an administrator namely: (1) to administer the estate and pay the debts;
(2) to perform all judicial orders; (3) to account within one (1) year and at any other
time when required by the probate court; and (4) to make an inventory within three (3)
months. More specifically, per Section 4 of the same Rule, the bond is conditioned on
the faithful execution of the administration of the decedent’s estate requiring the
special administrator to (1) make and return a true inventory of the goods, chattels,
rights, credits, and estate of the deceased which come to his possession or knowledge;
(2) truly account for such as received by him when required by the court; and (3)
deliver the same to the person appointed as executor or regular administrator, or to
such other person as may be authorized to receive them. Verily, the administration
bond is for the benefit of the creditors and the heirs, as it compels the administrator,
whether regular or special, to perform the trust reposed in, and discharge the
obligations incumbent upon, him. Its object and purpose is to safeguard the properties
of the decedent, and, therefore, the bond should not be considered as part of the
necessary expenses chargeable against the estate, not being included among the acts
constituting the care, management, and settlement of the estate. Moreover, the ability
to post the bond is in the nature of a qualification for the office of administration.
NACHURA, J.:

This petition1 for review on certiorari under Rule 45 of the Rules of Court seeks to
reverse and set aside the Decision2 dated December 16, 2008 and the
Resolution3 dated April 30, 2009 of the Court of Appeals (CA) in CA-G.R. SP No.
104683. The Decision annulled and set aside the Order dated March 13, 2008 4 of the
Regional Trial Court (RTC), Branch 24, Biñan, Laguna, in Sp. Proc. No. B-3089; while
the Resolution denied the motion for reconsideration of the Decision.

The Antecedents

Petitioners Dalisay E. Ocampo (Dalisay), Vince E. Ocampo (Vince), Melinda Carla E.

Ocampo (Melinda), and Leonardo E. Ocampo, Jr. (Leonardo, Jr.) are the surviving wife
and the children of Leonardo Ocampo (Leonardo), who died on January 23, 2004.
Leonardo and his siblings, respondents Renato M. Ocampo (Renato) and Erlinda M.
Ocampo (Erlinda) are the legitimate children and only heirs of the spouses Vicente and
Maxima Ocampo, who died intestate on December 19, 1972 and February 19, 1996,
respectively. Vicente and Maxima left several properties, mostly situated in Biñan,
Laguna. Vicente and Maxima left no will and no debts.

On June 24, 2004, five (5) months after the death of Leonardo, petitioners initiated a
petition for intestate proceedings, entitled "In Re: Intestate Proceedings of the Estate of
Sps. Vicente Ocampo and Maxima Mercado Ocampo, and Leonardo M. Ocampo," in
the RTC, Branch 24, Biñan, Laguna, docketed as Spec. Proc. No. B-3089.5The petition
alleged that, upon the death of Vicente and Maxima, respondents and their brother
Leonardo jointly controlled, managed, and administered the estate of their parents.
Under such circumstance, Leonardo had been receiving his share consisting of one-
third (1/3) of the total income generated from the properties of the estate. However,
when Leonardo died, respondents took possession, control and management of the
properties to the exclusion of petitioners. The petition prayed for the settlement of the
estate of Vicente and Maxima and the estate of Leonardo. It, likewise, prayed for the
appointment of an administrator to apportion, divide, and award the two estates
among the lawful heirs of the decedents.

Respondents filed their Opposition and Counter-Petition dated October 7,

2004,6 contending that the petition was defective as it sought the judicial settlement of
two estates in a single proceeding. They argued that the settlement of the estate of
Leonardo was premature, the same being dependent only upon the determination of
his hereditary rights in the settlement of his parents’ estate. In their counter-petition,
respondents prayed that they be appointed as special joint administrators of the estate
of Vicente and Maxima.

In an Order dated March 4, 2005,7 the RTC denied respondents’ opposition to the
settlement proceedings but admitted their counter-petition. The trial court also
clarified that the judicial settlement referred only to the properties of Vicente and
Maxima.

Through a Motion for Appointment of Joint Special Administrators dated October 11,
2005,8 respondents reiterated their prayer for appointment as special joint
administrators of the estate, and to serve as such without posting a bond.

In their Comment dated November 3, 2005,9 petitioners argued that, since April 2002,
they had been deprived of their fair share of the income of the estate, and that the
appointment of respondents as special joint administrators would further cause
injustice to them. Thus, they prayed that, in order to avoid further delay, letters of
administration to serve as joint administrators of the subject estate be issued to
respondents and Dalisay.

In another Motion for Appointment of a Special Administrator dated December 5,

2005,10 petitioners nominated the Biñan Rural Bank to serve as special administrator
pending resolution of the motion for the issuance of the letters of administration.

In its June 15, 2006 Order,11 the RTC appointed Dalisay and Renato as special joint
administrators of the estate of the deceased spouses, and required them to post a
bond of ₱200,000.00 each.12

Respondents filed a Motion for Reconsideration dated August 1, 200613 of the Order,
insisting that Dalisay was incompetent and unfit to be appointed as administrator of
the estate, considering that she even failed to take care of her husband Leonardo
when he was paralyzed in 1997. They also contended that petitioners’ prayer for
Dalisay’s appointment as special administrator was already deemed abandoned upon
their nomination of the Biñan Rural Bank to act as special administrator of the estate.

In their Supplement to the Motion for Reconsideration,14 respondents asserted their

priority in right to be appointed as administrators being the next of kin of Vicente and
Maxima, whereas Dalisay was a mere daughter-in-law of the decedents and not even a
legal heir by right of representation from her late husband Leonardo.

Pending the resolution of the Motion for Reconsideration, petitioners filed a Motion to
Submit Inventory and Accounting dated November 20, 2006,15 praying that the RTC
issue an order directing respondents to submit a true inventory of the estate of the
decedent spouses and to render an accounting thereof from the time they took over
the collection of the income of the estate.

Respondents filed their Comment and Manifestation dated January 15,

2007,16 claiming that they could not yet be compelled to submit an inventory and
render an accounting of the income and assets of the estate inasmuch as there was
still a pending motion for reconsideration of the June 15, 2006 Order appointing
Dalisay as co-special administratrix with Renato.
In its Order dated February 16, 2007, the RTC revoked the appointment of Dalisay as
co-special administratrix, substituting her with Erlinda. The RTC took into
consideration the fact that respondents were the nearest of kin of Vicente and
Maxima. Petitioners did not contest this Order and even manifested in open court
their desire for the speedy settlement of the estate.

On April 23, 2007, or two (2) months after respondents’ appointment as joint special
administrators, petitioners filed a Motion for an Inventory and to Render Account of
the Estate,17 reiterating their stance that respondents, as joint special administrators,
should be directed to submit a true inventory of the income and assets of the estate.

Respondents then filed a Motion for Exemption to File Administrators’ Bond 18 on May
22, 2007, praying that they be allowed to enter their duties as special administrators
without the need to file an administrators’ bond due to their difficulty in raising the
necessary amount. They alleged that, since petitioners manifested in open court that
they no longer object to the appointment of respondents as special co-administrators,
it would be to the best interest of all the heirs that the estate be spared from incurring
unnecessary expenses in paying for the bond premiums. They also assured the RTC
that they would faithfully exercise their duties as special administrators under pain of
contempt should they violate any undertaking in the performance of the trust of their
office.

In an Order dated June 29, 2007,19 the RTC directed the parties to submit their
respective comments or oppositions to the pending incidents, i.e., petitioners’ Motion
for Inventory and to Render Account, and respondents’ Motion for Exemption to File
Administrators’ Bond.

Respondents filed their Comment and/or Opposition,20 stating that they have already
filed a comment on petitioners’ Motion for Inventory and to Render Account. They
asserted that the RTC should, in the meantime, hold in abeyance the resolution of this
Motion, pending the resolution of their Motion for Exemption to File Administrators’
Bond.

On October 15, 2007, or eight (8) months after the February 16, 2007 Order
appointing respondents as special joint administrators, petitioners filed a Motion to
Terminate or Revoke the Special Administration and to Proceed to Judicial Partition or
Appointment of Regular Administrator.21 Petitioners contended that the special
administration was not necessary as the estate is neither vast nor complex, the
properties of the estate being identified and undisputed, and not involved in any
litigation necessitating the representation of special administrators. Petitioners,
likewise, contended that respondents had been resorting to the mode of special
administration merely to delay and prolong their deprivation of what was due them.
Petitioners cited an alleged fraudulent sale by respondents of a real property for
₱2,700,000.00, which the latter represented to petitioners to have been sold only for
₱1,500,000.00, and respondents’ alleged misrepresentation that petitioners owed the
estate for the advances to cover the hospital expenses of Leonardo, but, in fact, were
not yet paid.

Respondents filed their Opposition and Comment22 on March 10, 2008, to which, in
turn, petitioners filed their Reply to Opposition/Comment23 on March 17, 2008.

In its Order dated March 13, 2008,24 the RTC granted petitioners’ Motion, revoking
and terminating the appointment of Renato and Erlinda as joint special
administrators, on account of their failure to comply with its Order, particularly the
posting of the required bond, and to enter their duties and responsibilities as special
administrators, i.e., the submission of an inventory of the properties and of an income
statement of the estate. The RTC also appointed Melinda as regular administratrix,
subject to the posting of a bond in the amount of ₱200,000.00, and directed her to
submit an inventory of the properties and an income statement of the subject estate.
The RTC likewise found that judicial partition may proceed after Melinda had assumed
her duties and responsibilities as regular administratrix.

Aggrieved, respondents filed a petition for certiorari25 under Rule 65 of the Rules of
Court before the CA, ascribing grave abuse of discretion on the part of the RTC in (a)
declaring them to have failed to enter the office of special administration despite lapse
of reasonable time, when in truth they had not entered the office because they were
waiting for the resolution of their motion for exemption from bond; (b) appointing
Melinda as regular administratrix, a mere granddaughter of Vicente and Maxima,
instead of them who, being the surviving children of the deceased spouses, were the
next of kin; and (c) declaring them to have been unsuitable for the trust, despite lack
of hearing and evidence against them.

Petitioners filed their Comment to the Petition and Opposition to Application for
temporary restraining order and/or writ of preliminary injunction,26 reiterating their
arguments in their Motion for the revocation of respondents’ appointment as joint
special administrators. Respondents filed their Reply.27

On December 16, 2008, the CA rendered its assailed Decision granting the petition
based on the finding that the RTC gravely abused its discretion in revoking
respondents’ appointment as joint special administrators without first ruling on their
motion for exemption from bond, and for appointing Melinda as regular administratrix
without conducting a formal hearing to determine her competency to assume as such.
According to the CA, the posting of the bond is a prerequisite before respondents could
enter their duties and responsibilities as joint special administrators, particularly their
submission of an inventory of the properties of the estate and an income statement
thereon.

Petitioners filed a Motion for Reconsideration of the Decision.28 The CA, however,
denied it. Hence, this petition, ascribing to the CA errors of law and grave abuse of
discretion for annulling and setting aside the RTC Order dated March 13, 2008.
Our Ruling

The pertinent provisions relative to the special administration of the decedents’ estate
under the Rules of Court provide—

Sec. 1. Appointment of special administrator. – When there is delay in granting letters

testamentary or of administration by any cause including an appeal from the
allowance or disallowance of a will, the court may appoint a special administrator to
take possession and charge of the estate of the deceased until the questions causing
the delay are decided and executors or administrators appointed.29

Sec. 2. Powers and duties of special administrator. – Such special administrator shall
take possession and charge of goods, chattels, rights, credits, and estate of the
deceased and preserve the same for the executor or administrator afterwards
appointed, and for that purpose may commence and maintain suits as administrator.
He may sell only such perishable and other property as the court orders sold. A
special administrator shall not be liable to pay any debts of the deceased unless so
ordered by the court.30

Sec. 1. Bond to be given before issuance of letters; Amount; Conditions. – Before an

executor or administrator enters upon the execution of his trust, and letters
testamentary or of administration issue, he shall give a bond, in such sum as the
court directs, conditioned as follows:

(a) To make and return to the court, within three (3) months, a true and complete
inventory of all goods, chattels, rights, credits, and estate of the deceased which shall
come to his possession or knowledge or to the possession of any other person for him;

(b) To administer according to these rules, and, if an executor, according to the will of
the testator, all goods, chattels, rights, credits, and estate which shall at any time
come to his possession or to the possession of any other person for him, and from the
proceeds to pay and discharge all debts, legacies, and charges on the same, or such
dividends thereon as shall be decreed by the court;

(c) To render a true and just account of his administration to the court within one (1)
year, and at any other time when required by the court;

(d) To perform all orders of the court by him to be performed.31

Sec. 4. Bond of special administrator. – A special administrator before entering upon

the duties of his trust shall give a bond, in such sum as the court directs, conditioned
that he will make and return a true inventory of the goods, chattels, rights, credits,
and estate of the deceased which come to his possession or knowledge, and that he
will truly account for such as are received by him when required by the court, and will
deliver the same to the person appointed executor or administrator, or to such other
person as may be authorized to receive them.32
Inasmuch as there was a disagreement as to who should be appointed as
administrator of the estate of Vicente and Maxima, the RTC, acting as a probate court,
deemed it wise to appoint joint special administrators pending the determination of
the person or persons to whom letters of administration may be issued. The RTC was
justified in doing so considering that such disagreement caused undue delay in the
issuance of letters of administration, pursuant to Section 1 of Rule 80 of the Rules of
Court. Initially, the RTC, on June 15, 2006, appointed Renato and Dalisay as joint
special administrators, imposing upon each of them the obligation to post an
administrator’s bond of ₱200,000.00. However, taking into account the arguments of
respondents that Dalisay was incompetent and unfit to assume the office of a special
administratrix and that Dalisay, in effect, waived her appointment when petitioners
nominated Biñan Rural Bank as special administrator, the RTC, on February 16,
2007, revoked Dalisay’s appointment and substituted her with Erlinda.

A special administrator is an officer of the court who is subject to its supervision and
control, expected to work for the best interest of the entire estate, with a view to its
smooth administration and speedy settlement.33 When appointed, he or she is not
regarded as an agent or representative of the parties suggesting the
appointment.34 The principal object of the appointment of a temporary administrator
is to preserve the estate until it can pass to the hands of a person fully authorized to
administer it for the benefit of creditors and heirs, pursuant to Section 2 of Rule 80 of
the Rules of Court.35

While the RTC considered that respondents were the nearest of kin to their deceased
parents in their appointment as joint special administrators, this is not a mandatory
requirement for the appointment. It has long been settled that the selection or removal
of special administrators is not governed by the rules regarding the selection or
removal of regular administrators.36 The probate court may appoint or remove special
administrators based on grounds other than those enumerated in the Rules at its
discretion, such that the need to first pass upon and resolve the issues of fitness or
unfitness37 and the application of the order of preference under Section 6 of Rule
78,38 as would be proper in the case of a regular administrator, do not obtain. As long
as the discretion is exercised without grave abuse, and is based on reason, equity,
justice, and legal principles, interference by higher courts is unwarranted. 39The
appointment or removal

of special administrators, being discretionary, is thus interlocutory and may be

assailed through a petition for certiorari under Rule 65 of the Rules of Court.40

Granting the certiorari petition, the CA found that the RTC gravely abused its
discretion in revoking respondents’ appointment as joint special administrators, and
for failing to first resolve the pending Motion for Exemption to File Administrators’
Bond, ratiocinating that the posting of the administrators’ bond is a pre-requisite to
respondents’ entering into the duties and responsibilities of their designated office.
This Court disagrees.
It is worthy of mention that, as early as October 11, 2005, in their Motion for
Appointment as Joint Special Administrators, respondents already prayed for their
exemption to post bond should they be assigned as joint special administrators.
However, the RTC effectively denied this prayer when it issued its June 15, 2006
Order, designating Renato and Dalisay as special administrators and enjoining them
to post bond in the amount of ₱200,000.00 each. This denial was, in effect, reiterated
when the RTC rendered its February 16, 2007 Order substituting Dalisay with Erlinda
as special administratrix.

Undeterred by the RTC’s resolve to require them to post their respective

administrators’ bonds, respondents filed anew a Motion for Exemption to File
Administrators’ Bond on May 22, 2007, positing that it would be to the best interest of
the estate of their deceased parents and all the heirs to spare the estate from incurring
the unnecessary expense of paying for their bond premiums since they could not raise
the money themselves. To note, this Motion was filed only after petitioners filed a
Motion for an Inventory and to Render Account of the Estate on April 23, 2007.
Respondents then argued that they could not enter into their duties and
responsibilities as special administrators in light of the pendency of their motion for
exemption. In other words, they could not yet submit an inventory and render an
account of the income of the estate since they had not yet posted their bonds.

Consequently, the RTC revoked respondents’ appointment as special administrators

for failing to post their administrators’ bond and to submit an inventory and
accounting as required of them, tantamount to failing to comply with its lawful orders.
Inarguably, this was, again, a denial of respondents’ plea to assume their office sans a
bond. The RTC rightly did so.

Pursuant to Section 1 of Rule 81, the bond secures the performance of the duties and
obligations of an administrator namely: (1) to administer the estate and pay the debts;
(2) to perform all judicial orders; (3) to account within one (1) year and at any other
time when required by the probate court; and (4) to make an inventory within three (3)
months. More specifically, per Section 4 of the same Rule, the bond is conditioned on
the faithful execution of the administration of the decedent’s estate requiring the
special administrator to (1) make and return a true inventory of the goods, chattels,
rights, credits, and estate of the deceased which come to his possession or knowledge;
(2) truly account for such as received by him when required by the court; and (3)
deliver the same to the person appointed as executor or regular administrator, or to
such other person as may be authorized to receive them.

Verily, the administration bond is for the benefit of the creditors and the heirs, as it
compels the administrator, whether regular or special, to perform the trust reposed in,
and discharge the obligations incumbent upon, him. Its object and purpose is to
safeguard the properties of the decedent, and, therefore, the bond should not be
considered as part of the necessary expenses chargeable against the estate, not being
included among the acts constituting the care, management, and settlement of the
estate. Moreover, the ability to post the bond is in the nature of a qualification for the
office of administration.41

Hence, the RTC revoked respondents’ designation as joint special administrators,

especially considering that respondents never denied that they have been in
possession, charge, and actual administration of the estate of Vicente and Maxima
since 2002 up to the present, despite the assumption of Melinda as regular
administratrix. In fact, respondents also admitted that, allegedly out of good faith and
sincerity to observe transparency, they had submitted a Statement of Cash
Distribution42 for the period covering April 2002 to June 2006,43 where they indicated
that Renato had received ₱4,241,676.00, Erlinda ₱4,164,526.96, and petitioners
₱2,486,656.60, and that the estate had advanced ₱2,700,000.00 for the hospital and
funeral expenses of Leonardo.44 The latter cash advance was questioned by petitioners
in their motion for revocation of special administration on account of the demand
letter45 dated June 20, 2007 of Asian Hospital and Medical Center addressed to
Dalisay, stating that there still remained unpaid hospital bills in the amount of
₱2,087,380.49 since January 2004. Undeniably, respondents had already been
distributing the incomes or fruits generated from the properties of the decedents’
estate, yet they still failed to post their respective administrators’ bonds despite
collection of the advances from their supposed shares. This state of affairs continued
even after a considerable lapse of time from the appointment of Renato as a special
administrator of the estate on June 15, 2006 and from February 16, 2007 when the
RTC substituted Erlinda, for Dalisay, as special administratrix.

What is more, respondents’ insincerity in administering the estate was betrayed by the
Deed of Conditional Sale dated January 12, 200446 discovered by petitioners. This
Deed was executed between respondents, as the only heirs of Maxima, as vendors,
thus excluding the representing heirs of Leonardo, and Spouses Marcus Jose B.
Brillantes and Amelita Catalan-Brillantes, incumbent lessors, as vendees, over a real
property situated in Biñan, Laguna, and covered by Transfer Certificate of Title No. T-
332305 of the Registry of Deeds of Laguna, for a total purchase price of
₱2,700,000.00. The Deed stipulated for a payment of ₱1,500,000.00 upon the signing
of the contract, and the balance of ₱1,200,000.00 to be paid within one (1) month from
the receipt of title of the vendees. The contract also stated that the previous contract of
lease between the vendors and the vendees shall no longer be effective; hence, the
vendees were no longer obligated to pay the monthly rentals on the property. And yet
there is a purported Deed of Absolute Sale47 over the same realty between
respondents, and including Leonardo as represented by Dalisay, as vendors, and the
same spouses, as vendees, for a purchase price of only ₱1,500,000.00. Notably, this
Deed of Absolute Sale already had the signatures of respondents and vendee-spouses.
Petitioners claimed that respondents were coaxing Dalisay into signing the same, while
respondents said that Dalisay already got a share from this transaction in the amount
of ₱500,000.00. It may also be observed that the time of the execution of this Deed of
Absolute Sale, although not notarized as the Deed of Conditional Sale, might not have
been distant from the execution of the latter Deed, considering the similar Community
Tax Certificate Numbers of the parties appearing in both contracts.

Given these circumstances, this Court finds no grave abuse of discretion on the part of
the RTC when it revoked the appointment of respondents as joint special
administrators, the removal being grounded on reason, equity, justice, and legal
principle. Indeed, even if special administrators had already been appointed, once the
probate court finds the appointees no longer entitled to its confidence, it is justified in
withdrawing the appointment and giving no valid effect thereto.48

On the other hand, the Court finds the RTC’s designation of Melinda as regular
administratrix improper and abusive of its discretion.

In the determination of the person to be appointed as regular administrator, the

following provisions of Rule 78 of the Rules of Court, state –

Sec. 1. Who are incompetent to serve as executors or administrators. – No person is

competent to serve as executor or administrator who:

(a) Is a minor;

(b) Is not a resident of the Philippines; and

(c) Is in the opinion of the court unfit to execute the duties of the trust by reason of
drunkenness, improvidence, or want of understanding or integrity, or by reason of
conviction of an offense involving moral turpitude.

xxxx

Sec. 6. When and to whom letters of administration granted. – If no executor is named

in the will, or the executor or executors are incompetent, refuse the trust, or fail to
give bond, or a person dies intestate, administration shall be granted:

(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the
discretion of the court, or to such person as such surviving husband or wife, or next of
kin, requests to have appointed, if competent and willing to serve;

(b) If such surviving husband or wife, as the case may be, or next of kin, or the person
selected by them, be incompetent or unwilling, or if the husband or widow, or next of
kin, neglects for thirty (30) days after the death of the person to apply for
administration or to request that administration be granted to some other person, it
may be granted to one or more of the principal creditors, if competent and willing to
serve;

(c) If there is no such creditor competent and willing to serve, it may be granted to
such other person as the court may select.
Further, on the matter of contest for the issuance of letters of administration, the
following provisions of Rule 79 are pertinent –

Sec. 2. Contents of petition for letters of administration. – A petition for letters of

administration must be filed by an interested person and must show, so far as known
to the petitioner:

(a) The jurisdictional facts;

(b) The names, ages, and residences of the heirs, and the names and residences of the
creditors, of the decedent;

(c) The probable value and character of the property of the estate;

(d) The name of the person for whom letters of administration are prayed.

But no defect in the petition shall render void the issuance of letters of administration.

Sec. 3. Court to set time for hearing. Notice thereof. – When a petition for letters of
administration is filed in the court having jurisdiction, such court shall fix a time and
place for hearing the petition, and shall cause notice thereof to be given to the known
heirs and creditors of the decedent, and to any other persons believed to have an
interest in the estate, in the manner provided in Sections 3 and 4 of Rule 76.

Sec. 4. Opposition to petition for administration. – Any interested person may, by filing
a written opposition, contest the petition on the ground of the incompetency of the
person for whom letters are prayed therein, or on the ground of the contestant’s own
right to the administration, and may pray that letters issue to himself, or to any
competent person or persons named in the opposition.

Sec. 5. Hearing and order for letters to issue. – At the hearing of the petition, it must
first be shown that notice has been given as herein-above required, and thereafter the
court shall hear the proofs of the parties in support of their respective allegations, and
if satisfied that the decedent left no will, or that there is no competent and willing
executor, it shall order the issuance of letters of administration to the party best
entitled thereto.1avvphi1

Admittedly, there was no petition for letters of administration with respect to Melinda,
as the prayer for her appointment as co-administrator was embodied in the motion for
the termination of the special administration. Although there was a hearing set for the
motion on November 5, 2007, the same was canceled and reset to February 8, 2008
due to the absence of the parties’ counsels. The February 8, 2008 hearing was again
deferred to March 10, 2008 on account of the ongoing renovation of the Hall of
Justice. Despite the resetting, petitioners filed a Manifestation/Motion dated February
29, 2008,49 reiterating their prayer for partition or for the appointment of Melinda as
regular administrator and for the revocation of the special administration. It may be
mentioned that, despite the filing by respondents of their Opposition and Comment to
the motion to revoke the special administration, the prayer for the appointment of
Melinda as regular administratrix of the estate was not specifically traversed in the
said pleading. Thus, the capacity, competency, and legality of Melinda’s appointment
as such was not properly objected to by respondents despite being the next of kin to
the decedent spouses, and was not threshed out by the RTC acting as a probate court
in accordance with the above mentioned Rules.

However, having in mind the objective of facilitating the settlement of the estate of
Vicente and Maxima, with a view to putting an end to the squabbles of the heirs, we
take into account the fact that Melinda, pursuant to the RTC Order dated March 13,
2008, already posted the required bond of ₱200,000.00 on March 26, 2008, by virtue
of which, Letters of Administration were issued to her the following day, and that she
filed an Inventory of the Properties of the Estate dated April 15, 2008.50 These acts
clearly manifested her intention to serve willingly as administratrix of the decedents’
estate, but her appointment should be converted into one of special administration,
pending the proceedings for regular administration. Furthermore, since it appears that
the only unpaid obligation is the hospital bill due from Leonardo’s estate, which is not
subject of this case, judicial partition may then proceed with dispatch.

WHEREFORE, the petition is PARTIALLY GRANTED. The Decision dated December 16,
2008 and the Resolution dated April 30, 2009 of the Court of Appeals in CA-G.R. SP
No. 104683 are AFFIRMED with the MODIFICATION that the Order dated March 13,
2008 of the Regional Trial Court, Branch 24, Biñan, Laguna, with respect to the
revocation of the special administration in favor of Renato M. Ocampo and Erlinda M.
Ocampo, is REINSTATED. The appointment of Melinda Carla E. Ocampo as regular
administratrix is SET ASIDE. Melinda is designated instead as special administratrix
of the estate under the same administrator’s bond she had posted. The trial court is
directed to conduct with dispatch the proceedings for the appointment of the regular
administrator and, thereafter, to proceed with judicial partition. No costs.

SO ORDERED.

G.R. No. 129242. January 16, 2001.*

PILAR S. VDA. DE MANALO, ANTONIO S. MANALO, ORLANDO S. MANALO, and

ISABELITA MANALO, petitioners, vs. HON. COURT OF APPEALS, HON. REGIONAL
TRIAL COURT OF MANILA (BRANCH 35), PURITA S. JAYME, MILAGROS M.
TERRE, BELEN M. ORILLANO, ROSALINA M. ACUIN, ROMEO S. MANALO,
ROBERTO S. MANALO, AMALIA MANALO and IMELDA MANALO, respondents.

Pleadings and Practice; Estate Proceedings; Probate Courts; It is a fundamental rule

that, in the determination of the nature of an action or proceeding, the averments and
the character of the relief sought in the complaint, or petition, shall be controlling; The
fact of death of the decedent and of his residence within the country are foundation
facts upon which all the subsequent proceedings in the administration of the estate
rest.—It is a fundamental rule that, in the determination of the nature of an action or
proceeding, the averments and the character of the relief sought in the complaint, or
petition, as in the case at bar, shall be controlling. A careful scrutiny of the Petition for
Issuance of Letters of Administration, Settlement and Distribution of Estate in SP.
PROC. No. 92-63626 belies herein petitioners’ claim that the same is in the nature of
an ordinary civil action. The said petition contains sufficient jurisdictional facts
required in a petition for the settlement of estate of a deceased person such as the fact
of death of the late Troadio Manalo on February 14, 1992, as well as his residence in
the City of Manila at the time of his said death. The fact of death of the decedent and
of his residence within the country are foundation facts upon which all the
subsequent proceedings in the administration of the estate rest. The petition in SP.
PROC. No. 92-63626 also contains an enumeration of the names of his legal heirs
including a tentative list of the properties left by the deceased which are sought to be
settled in the probate proceedings. In addition, the reliefs prayed for in the said
petition leave no room for doubt as regard the intention of the petitioners therein
(private respondents herein) to seek judicial settlement of the estate of their deceased
father, Troadio Manalo.

Same; Same; Same; A party may not be allowed to defeat the purpose of an essentially
valid petition for the settlement of the estate of a decedent by raising matters that are
irrelevant and immaterial to the said petition; A trial court, sitting as a probate court,
has limited and special jurisdiction and cannot hear and dispose of collateral matters
and issues which may be properly threshed out only in an ordinary civil action.—It is
our view that herein petitioners may not be allowed to defeat the purpose of the
essentially valid petition for the settlement of the estate of the late Troadio Manalo by
raising matters that are irrelevant and immaterial to the said petition. It must be
emphasized that the trial court, sitting as a probate court, has limited and special
jurisdiction and cannot hear and dispose of collateral matters and issues which may
be properly threshed out only in an ordinary civil action. In addition, the rule has
always been to the effect that the jurisdiction of a court, as well as the concomitant
nature of an action, is determined by the averments in the complaint and not by the
defenses contained in the answer. If it were otherwise, it would not be too difficult to
have a case either thrown out of court or its proceedings unduly delayed by simple
strategem. So it should be in the instant petition for settlement of estate.

Same; Same; Same; Motion to Dismiss; A party may not take refuge under the
provisions of Rule 1, Section 2, of the Rules of Court to justify an invocation of Article
222 of the Civil Code for the dismissal of a petition for settlement of estate.—The
argument is misplaced. Herein petitioners may not validly take refuge under the
provisions of Rule 1, Section 2, of the Rules of Court to justify the invocation of Article
222 of the Civil Code of the Philippines for the dismissal of the petition for settlement
of the estate of the deceased Troadio Manalo inasmuch as the latter provision is clear
enough, to wit: Art. 222. No suit shall be filed or maintained between members of the
same family unless it should appear that earnest efforts toward a compromise have
been made, but that the same have failed, subject to the limitations in Article 2035.

Same; Same; Article 222 of the Civil Code applies only to civil actions which are
essentially adversarial and involve members of the same family.—The above-quoted
provision of the law is applicable only to ordinary civil actions. This is clear from the
term “suit” that it refers to an action by one person or persons against another or
others in a court of justice in which the plaintiff pursues the remedy which the law
affords him for the redress of an injury or the enforcement of a right, whether at law or
in equity. A civil action is thus an action filed in a court of justice, whereby a party
sues another for the enforcement of a right, or the prevention or redress of a wrong.
Besides, an excerpt from the Report of the Code Commission unmistakably reveals the
intention of the Code Commission to make that legal provision applicable only to civil
actions which are essentially adversarial and involve members of the same family,
thus: It is difficult to imagine a sadder and more tragic spectacle than a litigation
between members of the same family. It is necessary that every effort should be made
toward a compromise before a litigation is allowed to breed hate and passion in the
family. It is known that lawsuit between close relatives generates deeper bitterness
than strangers.

Same; Same; Special Proceedings; A petition for issuance of letters of administration,

settlement and distribution of estate is a special proceeding and, as such, it is a
remedy whereby the petitioner therein seek to establish a status, a right, or a
particular fact.—It must be emphasized that the oppositors (herein petitioners) are not
being sued in SP. PROC. No. 92-63626 for any cause of action as in fact no defendant
was impleaded therein. The Petition for Issuance of Letters of Administration,
Settlement and Distribution of Estate in SP. PROC. No. 92-63626 is a special
proceeding and, as such, it is a remedy whereby the petitioners therein seek to
establish a status, a right, or a particular fact. The petitioners therein (private
respondents herein) merely seek to establish the fact of death of

Same; Same; Same; Motion to Dismiss; A party may not take refuge under the
provisions of Rule 1, Section 2, of the Rules of Court to justify an invocation of Article
222 of the Civil Code for the dismissal of a petition for settlement of estate.—The
argument is misplaced. Herein petitioners may not validly take refuge under the
provisions of Rule 1, Section 2, of the Rules of Court to justify the invocation of Article
222 of the Civil Code of the Philippines for the dismissal of the petition for settlement
of the estate of the deceased Troadio Manalo inasmuch as the latter provision is clear
enough, to wit: Art. 222. No suit shall be filed or maintained between members of the
same family unless it should appear that earnest efforts toward a compromise have
been made, but that the same have failed, subject to the limitations in Article 2035.

Same; Same; Article 222 of the Civil Code applies only to civil actions which are
essentially adversarial and involve members of the same family.—The above-quoted
provision of the law is applicable only to ordinary civil actions. This is clear from the
term “suit” that it refers to an action by one person or persons against another or
others in a court of justice in which the plaintiff pursues the remedy which the law
affords him for the redress of an injury or the enforcement of a right, whether at law or
in equity. A civil action is thus an action filed in a court of justice, whereby a party
sues another for the enforcement of a right, or the prevention or redress of a wrong.
Besides, an excerpt from the Report of the Code Commission unmistakably reveals the
intention of the Code Commission to make that legal provision applicable only to civil
actions which are essentially adversarial and involve members of the same family,
thus: It is difficult to imagine a sadder and more tragic spectacle than a litigation
between members of the same family. It is necessary that every effort should be made
toward a compromise before a litigation is allowed to breed hate and passion in the
family. It is known that lawsuit between close relatives generates deeper bitterness
than strangers.

Same; Same; Special Proceedings; A petition for issuance of letters of administration,

settlement and distribution of estate is a special proceeding and, as such, it is a
remedy whereby the petitioner therein seek to establish a status, a right, or a
particular fact.—It must be emphasized that the oppositors (herein petitioners) are not
being sued in SP. PROC. No. 92-63626 for any cause of action as in fact no defendant
was impleaded therein. The Petition for Issuance of Letters of Administration,
Settlement and Distribution of Estate in SP. PROC. No. 92-63626 is a special
proceeding and, as such, it is a remedy whereby the petitioners therein seek to
establish a status, a right, or a particular fact. The petitioners therein (private
respondents herein) merely seek to establish the fact of death of

This is a petition for review on certiorari filed by petitioners Pilar S. Vda De Manalo, et.
Al., seeking to annul the Resolution 1 of the Court of Appeals 2 affirming the Orders 3 of
the Regional Trial Court and the Resolution 4 which denied petitioner' motion for
reconsideration.

The antecedent facts 5 are as follows:

Troadio Manalo, a resident of 1996 Maria Clara Street, Sampaloc, Manila died
intestate on February 14, 1992. He was survived by his wife, Pilar S. Manalo, and his
eleven (11) children, namely: Purita M. Jayme, Antonio Manalo, Milagros M. Terre,
Belen M. Orillano, Isabelita Manalo, Rosalina M. Acuin, Romeo Manalo, Roberto
Manalo, Amalia Manalo, Orlando Manalo and Imelda Manalo, who are all of legal
age.1âwphi1.nêt

At the time of his death on February 14, 1992, Troadio Manalo left several real
properties located in Manila and in the province of Tarlac including a business under
the name and style Manalo's Machine Shop with offices at No. 19 Calavite Street, La
Loma, Quezon City and at NO. 45 General Tinio Street, Arty Subdivision, Valenzuela,
Metro Manila.
On November 26, 1992, herein respondents, who are eight (8) of the surviving children
of the late Troadio Manalo, namely; Purita, Milagros, Belen Rocalina, Romeo, Roberto,
Amalia, and Imelda filed a petition 6 with the respondent Regional Trial Court of
Manila 7 of the judicial settlement of the estate of their late father, Troadio Manalo,
and for the appointment of their brother, Romeo Manalo, as administrator thereof.

On December 15, 1992, the trial court issued an order setting the said petition for
hearing on February 11, 1993 and directing the publication of the order for three (3)
consecutive weeks in a newspaper of general circulation in Metro Manila, and further
directing service by registered mail of the said order upon the heirs named in the
petition at their respective addresses mentioned therein.

On February 11, 1993, the date set for hearing of the petition, the trial court issued an
order 'declaring the whole world in default, except the government," and set the
reception of evidence of the petitioners therein on March 16, 1993. However, the trial
court upon motion of set this order of general default aside herein petitioners
(oppositors therein) namely: Pilar S. Vda. De Manalo, Antonio, Isabelita and Orlando
who were granted then (10) days within which to file their opposition to the petition.

Several pleadings were subsequently filed by herein petitioners, through counsel,

culminating in the filling of an Omnibus Motion 8 on July 23, 1993 seeking; (1) to seat
aside and reconsider the Order of the trial court dated July 9, 1993 which denied the
motion for additional extension of time file opposition; (2) to set for preliminary
hearing their affirmative defenses as grounds for dismissal of the case; (3) to declare
that the trial court did not acquire jurisdiction over the persons of the oppositors; and
(4) for the immediate inhibition of the presiding judge.

On July 30, 1993, the trial court issued an order9 which resolved, thus:

A. To admit the so-called Opposition filed by counsel for the oppositors on July 20,
1993, only for the purpose of considering the merits thereof;

B. To deny the prayer of the oppositors for a preliminary hearing of their affirmative
defenses as ground for the dismissal of this proceeding, said affirmative defenses being
irrelevant and immaterial to the purpose and issue of the present proceeding;

C. To declare that this court has acquired jurisdiction over the persons of the
oppositors;

D. To deny the motion of the oppositors for the inhibition of this Presiding Judge;

E. To set the application of Romeo Manalo for appointment as regular administrator in

the intestate estate of the deceased Troadio Manalo for hearing on September 9, 1993
at 2:00 o'clock in the afternoon.

Herein petitioners filed a petition for certiorari under Rule 65 of the Rules of Court
with the Court of Appeals, docketed as CA-G.R. SP. No. 39851, after the trial court in
its Order 10 dated September 15, 1993. In their petition for improperly laid in SP.
PROC. No. 92-63626; (2) the trial court did not acquire jurisdiction over their persons;
(3) the share of the surviving spouse was included in the intestate proceedings; (4)
there was absence of earnest efforts toward compromise among members of the same
family; and (5) no certification of non-forum shopping was attached to the petition.

Finding the contentions untenable, the Court of Appeals dismissed the petition for
certiorari in its Resolution11promulgated on September 30, 1996. On May 6, 1997 the
motion for reconsideration of the said resolution was likewise dismissed.12

The only issue raised by herein petitioners in the instant petition for review is whether
or not the respondent Court of Appeals erred in upholding the questioned orders of the
respondent trial court which denied their motion for the outright dismissal of the
petition for judicial settlement of estate despite the failure of the petitioners therein to
aver that earnest efforts toward a compromise involving members of the same family
have been made prior to the filling of the petition but that the same have failed.

Herein petitioners claim that the petition in SP. PROC. No. 92-63626 is actually an
ordinary civil action involving members of the same family. They point out that it
contains certain averments, which, according to them, are indicative of its adversarial
nature, to wit:

X X X

Par. 7. One of the surviving sons, ANTONIO MANALO, since the death of his father,
TROADIO MANALO, had not made any settlement, judicial or extra-judicial of the
properties of the deceased father TROADIO MANALO.

Par. 8. xxx the said surviving son continued to manage and control the properties
aforementioned, without proper accounting, to his own benefit and advantage xxx.

X X X

Par. 12. That said ANTONIO MANALO is managing and controlling the estate of the
deceased TROADIO MANALO to his own advantage and to the damage and prejudice
of the herein petitioners and their co-heirs xxx.

X X X

Par. 14. For the protection of their rights and interests, petitioners were compelled to
bring this suit and were forced to litigate and incur expenses and will continue to
incur expenses of not less than, P250,000.00 and engaged the services of herein
counsel committing to pay P200,000.00 as and attorney's fees plus honorarium of
P2,500.00 per appearance in court xxx.13

Consequently, according to herein petitioners, the same should be dismissed under

Rule 16, Section 1(j) of the Revised Rules of Court which provides that a motion to
dismiss a complaint may be filed on the ground that a condition precedent for filling
the claim has not been complied with, that is, that the petitioners therein failed to aver
in the petition in SP. PROC. No. 92-63626, that earnest efforts toward a compromise
have been made involving members of the same family prior to the filling of the
petition pursuant to Article 222 14 of the Civil Code of the Philippines.

The instant petition is not impressed with merit.

It is a fundamental rule that in the determination of the nature of an action or

proceeding, the averments15 and the character of the relief sought 16 in the complaint,
or petition, as in the case at bar, shall be controlling. A careful srutiny of the Petition
for Issuance of Letters of Administration, Settlement and Distribution of Estatein SP.
PROC. No. 92-63626 belies herein petitioners' claim that the same is in the nature of
an ordinary civil action. The said petition contains sufficient jurisdictional facts
required in a petition for the settlement of estate of a deceased person such as the fat
of death of the late Troadio Manalo on February 14, 1992, as well as his residence in
the City of Manila at the time of his said death. The fact of death of the decedent and
of his residence within he country are foundation facts upon which all the subsequent
proceedings in the administration of the estate rest.17 The petition is SP.PROC No. 92-
63626 also contains an enumeration of the names of his legal heirs including a
tentative list of the properties left by the deceased which are sought to be settled in the
probate proceedings. In addition, the relief's prayed for in the said petition leave no
room for doubt as regard the intention of the petitioners therein (private respondents
herein) to seek judicial settlement of the estate of their deceased father, Troadio
Manalo, to wit;

PRAYER

WHEREFORE, premises considered, it is respectfully prayed for of this Honorable

Court:

a. That after due hearing, letters of administration be issued to petitioner ROMEO

MANALO for the administration of the estate of the deceased TROADIO MANALO upon
the giving of a bond in such reasonable sum that this Honorable Court may fix.

b. That after all the properties of the deceased TROADIO MANALO have been
inventoried and expenses and just debts, if any, have been paid and the legal heirs of
the deceased fully determined, that the said estate of TROADIO MANALO be settled
and distributed among the legal heirs all in accordance with law.

c. That the litigation expenses of these proceedings in the amount of P250,000.00 and
attorney's fees in the amount of P300,000.00 plus honorarium of P2,500.00 per
appearance in court in the hearing and trial of this case and costs of suit be taxed
solely against ANTONIO MANALO.18
Concededly, the petition in SP. PROC. No. 92-63626 contains certain averments which
may be typical of an ordinary civil action. Herein petitioners, as oppositors therein,
took advantage of the said defect in the petition and filed their so-called Opposition
thereto which, as observed by the trial court, is actually an Answer containing
admissions and denials, special and affirmative defenses and compulsory
counterclaims for actual, moral and exemplary damages, plus attorney's fees and
costs 19 in an apparent effort to make out a case of an ordinary civil action and
ultimately seek its dismissal under Rule 16, Section 1(j) of the Rules of Court vis-à-
vis, Article 222 of civil of the Civil Code.

It is our view that herein petitioners may not be allowed to defeat the purpose of the
essentially valid petition for the settlement of the estate of the late Troadio Manalo by
raising matters that as irrelevant and immaterial to the said petition. It must be
emphasized that the trial court, siting as a probate court, has limited and special
jurisdiction 20and cannot hear and dispose of collateral matters and issues which may
be properly threshed out only in an ordinary civil action. In addition, the rule has
always been to the effect that the jurisdiction of a court, as well as the concomitant
nature of an action, is determined by the averments in the complaint and not by the
defenses contained in the answer. If it were otherwise, it would not be too difficult to
have a case either thrown out of court or its proceedings unduly delayed by simple
strategem.21 So it should be in the instant petition for settlement of estate.

Herein petitioners argue that even if the petition in SP. PROC. No. 92-63626 were to
be considered as a special proceeding for the settlement of estate of a deceased person,
Rule 16, Section 1(j) of the Rules of Court vis-à-visArticle 222 of the Civil Code of the
Philippines would nevertheless apply as a ground for the dismissal of the same by
virtue of ule 1, Section 2 of the Rules of Court which provides that the 'rules shall be
liberally construed in order to promote their object and to assist the parties in
obtaining just, speedy and inexpensive determination of every action and proceedings.'
Petitioners contend that the term "proceeding" is so broad that it must necessarily
include special proceedings.

The argument is misplaced. Herein petitioners may not validly take refuge under the
provisions of Rule 1, Section 2, of the Rules of Court to justify the invocation of Article
222 of the Civil Code of the Philippines for the dismissal of the petition for settlement
of the estate of the deceased Troadio Manalo inasmuch as the latter provision is clear
enough. To wit:

Art. 222. No suit shall be filed or maintained between members of the same family
unless it should appear that earnest efforts toward a compromise have been made, but
that the same have failed, subject to the limitations in Article 2035(underscoring
supplied).22

The above-quoted provision of the law is applicable only to ordinary civil actions. This
is clear from the term 'suit' that it refers to an action by one person or persons against
another or other in a court of justice in which the plaintiff pursues the remedy which
the law affords him for the redress of an injury or the enforcement of a right, whether
at law or in equity. 23 A civil action is thus an action filed in a court of justice, whereby
a party sues another for the enforcement of a right, or the prevention or redress of a
wrong.24 Besides, an excerpt form the Report of the Code Commission unmistakably
reveals the intention of the Code Commission to make that legal provision applicable
only to civil actions which are essentially adversarial and involve members of the same
family, thus:

It is difficult to imagine a sadder and more tragic spectacle than a litigation between
members of the same family. It is necessary that every effort should be made toward a
compromise before litigation is allowed to breed hate and passion in the family. It is
know that lawsuit between close relatives generates deeper bitterness than stranger.25

It must be emphasized that the oppositors (herein petitioners) are not being sued in
SP. PROC. No. 92-63626 for any cause of action as in fact no defendant was imploded
therein. The Petition for issuance of letters of Administration, Settlement and
Distribution of Estate in SP. PROC. No. 92-63626 is a special proceeding and, as
such, it is a remedy whereby the petitioners therein seek to establish a status, a right,
or a particular fact. 26 the petitioners therein (private respondents herein) merely seek
to establish the fat of death of their father and subsequently to be duly recognized as
among the heirs of the said deceased so that they can validly exercise their right to
participate in the settlement and liquidation of the estate of the decedent consistent
with the limited and special jurisdiction of the probate court.1âwphi1.nêt

WHEREFORE, the petition in the above-entitled case, is DENIED for lack of merit,
Costs against petitioners.

SO ORDERED.

Before us are consolidated petitions for review of the decision of the Court of Appeals
in CA-G.R. CV No. 39975 which affirmed the trial court's pronouncement that the
deed of sale of rights, interests and participation in favor of petitioners is null and
void.

The case arose from the following facts:

Spouses Guillermo Nombre and Victoriana Cari-an died without issue in 1924 and
1938, respectively. Nombre's heirs include his nephews and grandnephews. Victoriana
Cari-an was succeeded by her late brother's son, Gregorio Cari-an. The latter was
declared as Victoriana's heir in the estate proceedings for Nombre and his wife (Special
Proceeding No. 7-7279).1 After Gregorio died in 1971, his wife, Generosa Martinez, and
children, Rodolfo, Carmen, Leonardo and Fredisminda, all surnamed Cari-an, were
also adjudged as heirs by representation to Victoriana's estate.2 Leonardo Cari-an
passed away, leaving his widow, Nelly Chua vda. de Cari-an and minor son Leonell, as
his heirs.

Two parcels of land, denominated as Lot No. 1616 and 1617 of the Kabankalan
Cadastre with an area of 29,350 square meters and 460,948 square meters,
respectively, formed part of the estate of Nombre and Cari-an.

On September 15, 1978, Gregorio Cari-an's heirs, herein collectively referred to as

private respondents Cari-an, executed the Deed of Sale of Rights, Interests and
Participation worded as follows:

NOW, THEREFORE, for and in consideration of the sum of TWO HUNDRED

SEVENTY-FIVE THOUSAND (P275,000.00) Pesos, Philippine Currency, to be paid by
the VENDEES to the VENDORS, except the share of the minor child of Leonardo Cari-
an, which should be deposited with the Municipal Treasurer of Himamaylan, Province
of Negros Occidental, by the order of the Court of First Instance of Negros Occidental,
Branch VI, Himamaylan, by those presents, do hereby SELL, CEDE, TRANSFER and
CONVEY by way of ABSOLUTE SALE, all the RIGHTS, INTERESTS and PARTICIPATION
of the Vendors as to the one-half (1/2) portion pro-indiviso of Lots Nos. 1616 and 1617
(Fishpond), of the Kabankalan Cadastre, pertaining to the one-half (1/2) portion pro-
indiviso of late Victoriana Cari-an unto and in favor of the Vendees, their heirs,
successors and assigns;

xxx xxx xxx

That this Contract of Sale of rights, interests and participations shall become effective
only upon the approval by the Honorable Court of First Instance of Negros Occidental,
Branch VI- Himamayla. (Emphasis supplied.)

Pedro Escanlar and Francisco Holgado, the vendees, were concurrently the lessees of
the lots referred to above.3They stipulated that the balance of the purchase price
(P225,000.00) shall be paid on or before May 1979 in a Deed of Agreement executed by
the parties on the same day:

WHEREAS, at the time of the signing of the Contract, VENDEES has (sic) only FIFTY
THOUSAND (P50,000.00) Pesos available thereof, and was not able to secure the
entire amount;

WHEREAS, the Vendors and one of the Vendees by the name of Pedro Escanlar are
relatives, and absolute faith and trust exist between them, wherein during economic
crisis, has not failed to give monetary succor to the Vendors;

WHEREAS, Vendors herein understood the present scarcity of securing available each
(sic) in the amount stated in the contract;
NOW THEREFORE, for and in consideration of the sum of FIFTY THOUSAND
(P50,000.00) Pesos, Philippine Currency, the balance of TWO HUNDRED TWENTY FIVE
THOUSAND (P25,000.00) Pesos to be paid by the Vendees on or before May, 1979, the
Vendors herein, by these Presents, do hereby CONFIRM and AFFIRM the Deed of Sale
of the Rights, Interests and Participation dated September 15, 1978, over Lots Nos.
1616 and 1617 (fishpond) of the Kabankalan Cadastre in favor of the VENDEES, their
heirs and assigns.

That pending the complete payment thereof, Vendees shall not assign, sell, lease, nor
mortgage the lights, interests and participation thereof;

That in the event the Vendees fail and/or omit to pay the balance of said purchase
price on May 31, 1979 and the cancellation of said Contract of Sale is made thereby,
the sum of FIFTY THOUSAND (P50,000.00) Pesos shall be deemed as damages thereof
to Vendors. (Emphasis supplied).4

Petitioners were unable to pay the Cari-an heirs' individual shares, amounting to
P55,000.00 each, by the due date. However, said heirs received at least 12
installments from petitioners after May 1979.5 Rodolfo Cari-an was fully paid by June
21, 1979. Generosa Martinez, Carmen Cari-an and Fredisminda Cari-an were likewise
fully compensated for their individual shares, per receipts given in evidence. 6 The
minor Leonell's share was deposited with the Regional Trial Court on September 7,
1982.7

Being former lessees, petitioners continued in possession of Lot Nos. 1616 and 1617.
Interestingly, they continued to pay rent based on their lease contract. On September
10, 1981, petitioners moved to intervene in the probate proceedings of Nombre and
Cari-an as the buyers of private respondent Cari-an's share in Lot Nos. 1616 and
1617. Petitioners' motion for approval of the September 15, 1978 sale before the same
court, filed on November 10, 1981, was opposed by private respondents Cari-an on
January 5, 1982.8

On September 16, 1982, the probate court approved a motion filed by the heirs of
Cari-an and Nombre to sell their respective shares in the estate. On September 21,
1982, private respondents Cari-an, in addition to some heirs of Guillermo
Nombre,9 sold their shares in eight parcels of land including Lot Nos. 1616 and 1617
to the spouses Ney Sarrosa Chua and Paquito Chua for P1,850,000.00. One week
later, the vendor-heirs, including private respondents Cari-an, filed a motion for
approval of sale of hereditary rights, i.e. the sale made on September 21, 1982 to the
Chuas.

Private respondents Cari-an instituted this case for cancellation of sale against
petitioners (Escanlar and Holgado) on November 3, 1982. 10 They complained of
petitioners' failure to pay the balance of the purchase price by May 31, 1979 and
alleged that they only received a total of P132,551.00 in cash and goods. Petitioners
replied that the Cari-ans, having been paid, had no right to resell the subject lots; that
the Chuas were purchasers in bad faith; and that the court approval of the sale to the
Chuas was subject to their existing claim over said properties.

On April 20, 1983, petitioners also sold their rights and interests in the subject
parcels of land (Lot Nos. 1616 and 1617) to Edwin Jayme for P735,000.00 11 and
turned over possession of both lots to the latter. The Jaymes in turn, were included in
the civil case as fourth-party defendants.

On December 3, 1984, the probate court approved the September 21, 1982 sale
"without prejudice to whatever rights, claims and interests over any of those properties
of the estate which cannot be properly and legally ventilated and resolved by the court
in the same intestate proceedings."12 The certificates of title over the eight lots sold by
the heirs of Nombre and Cari-an were later issued in the name of respondents Ney
Sarrosa Chua and Paquito Chua.

The trial court allowed a third-party complaint against the third-party defendants
Paquito and Ney Chua on January 7, 1986 where Escanlar and Holgado alleged that
the Cari-ans conspired with the Chuas when they executed the second sale on
September 21, 1982 and that the latter sale is illegal and of no effect. Respondents
Chua countered that they did not know of the earlier sale of one-half portion of the
subject lots to Escanlar and Holgado. Both parties claimed damages.13

On April 28, 1988, the trial court approved the Chuas' motion to file a fourth-party
complaint against the spouses Jayme. Respondents Chua alleged that the Jaymes
refused to vacate said lots despite repeated demands; and that by reason of the illegal
occupation of Lot Nos. 1616 and 1617 by the Jaymes, they suffered materially from
uncollected rentals.

Meanwhile, the Regional Trial Court of Himamaylan which took cognizance of Special
Proceeding No. 7-7279 (Intestate Estate of Guillermo Nombre and Victoriana Cari-an)
had rendered its decision on October 30,
1987. The probate court concluded that since all the properties of the estate were
14

disposed of or sold by the declared heirs of both spouses, the case is considered
terminated and the intestate estate of Guillermo Nombre and Victoriana Cari-an is
closed. The court held:

As regards the various incidents of this case, the Court finds no cogent reason to
resolve them since the very object of the various incidents in this case is no longer m
existence, that is to say, the properties of the estate of Guillermo Nombre and
Victoriana Cari-an had long been disposed of by the rightful heirs of Guillermo
Nombre and Victoriana Cari-an. In this respect, there is no need to resolve the Motion
for Subrogation of Movants Pedro Escanlar and Francisco Holgado to be subrogated to
the rights of the heirs of Victoriana Cari-an since all the properties of the estate had been
transferred and titled to in the name of spouses Ney S.Chua and Dr. Paquito
Chua. Since the nature of the proceedings in this case is summary, this Court, being a
Probate Court, has no jurisdiction to pass upon the validity or invalidity of the sale of
rights of the declared heirs of Guillermo Nombre and Victoriana Cari-an to third
Parties. This issue must be raised in another action where it can be properly ventilated
and resolved. . . . Having determined, after exhausted (sic) and lengthy hearings, the
rightful heirs of Guillermo Nombre and Victoriana Cari-an, the Court found out that
the second issue has become moot and academic considering that there are no more
properties left to be partitioned among the declared heirs as that had long ago been
disposed of by the declared heirs . . . . (Emphasis supplied).

The seminal case at bar was resolved by the trial court on December 18, 1991 in favor
of cancellation of the September 15, 1978 sale. Said transaction was nullified because
it was not approved by the probate court as required by the contested deed of sale of
rights, interests and participation and because the Cari-ans were not fully paid.
Consequently, the Deed of Sale executed by the heirs of Nombre and Cari-an in favor
of Paquito and Ney Chua, which was approved by the probate court, was upheld. The
dispositive portion of the lower court's decision reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1) Declaring the following contracts null and void and of no effect:

a) The Deed of Sale, dated Sept. 15, 1978, executed by the plaintiffs in favor of the
defendants Pedro Escanlar and Francisco Holgado (Exh. "A," Plaintiffs)

b) The Deed of Agreement, dated Sept. 15, 1978, executed by the plaintiffs in favor of
the defendants, Pedro Escanlar and Francisco Holgado (Exh. "A," Plaintiffs)

c) The Deed of Sale, dated April 20, 1983, executed by the defendants in favor of the
fourth-party defendants, Dr. Edwin Jayme and Elisa Tan Jayme

d) The sale of leasehold rights executed by the defendants in favor of the fourth-party
defendants

2) Declaring the amount of Fifty Thousand Pesos (P50,000.00) paid by the defendants
to the plaintiffs in connection with the Sept. 15, 1978 deed of sale, as forfeited in favor
of the plaintiffs, but ordering the plaintiffs to return to the defendants whatever
amounts they have received from the latter after May 3, 1979 and the amount of
Thirty Five Thousand Two Hundred Eighteen & 75/100 (P35,218.75) 15 deposited with
the Treasurer of Himamaylan, Negros Occidental, for the minor Leonell C. Cari-an —

3) Declaring the deed of sale, dated September 23, 1982, executed by Lasaro Nombre,
Victorio Madalag, Domingo Campillanos, Sofronio Campillanos, Generosa Vda. de
Martinez, Carmen Cari-an, Rodolfo Cari-an, Nelly Chua Vda. de Cari-an, for herself
and as guardian ad litem of the minor Leonell C. Cari-an, and Fredisminda Cari-an in
favor of the third-party defendants and fourth-party plaintiffs, spouses Dr. Paquito
Chua and Ney Sarrosa Chua (Exh. "2"-Chua) as legal, valid and enforceable provided
that the properties covered by the said deed of sale are subject of the burdens of the
estate, if the same have not been paid yet.

4) Ordering the defendants Francisco Holgado and Pedro Escanlar and the fourth-
party defendants, spouses Dr. Edwin Jayme and Elisa Tan Jayme, to pay jointly and
severally the amount of One Hundred Thousand Pesos (P100,000.00 as moral
damages and the further sum of Thirty Thousand Pesos (P30,000.00) as attorney's
fees to the third-party defendant spouses, Dr. Paquito Chua and Ney Sarrosa-Chua.

5) Ordering the fourth-party defendant spouses, Dr. Edwin Jayme and Elisa Tan
Jayme, to pay to the third-party defendants and fourth-party plaintiffs, spouses Dr.
Paquito Chua and Ney Sarrosa-Chua, the sum of One Hundred Fifty Seven Thousand
Pesos (P157,000.00) as rentals for the riceland and Three Million Two Hundred
Thousand Pesos (P3,200,000.00) as rentals for the fishpond from October, 1985 to
July 24, 1989 plus the rentals from the latter date until the property shall have been
delivered to the spouses Dr. Paquito Chua and Ney Sarrosa-Chua;

6) Ordering the defendants and the fourth-party defendants to immediately vacate

Lots Nos. 1616 and 1617, Kabankalan Cadastre;

7) Ordering the defendants and the fourth-party defendants to pay costs.

SO ORDERED.16

G.R. No. 119777. October 23, 1997.*

THE HEIRS OF PEDRO ESCANLAR, FRANCISCO HOLGADO and the SPOUSES DR.
EDWIN A. JAYME and ELISA TAN-JAYME, petitioners, vs. THE HON. COURT OF
APPEALS, GENEROSA MARTINEZ, CARMEN CARI-AN, RODOLFO CARI-AN, NELLY
CHUA CARI-AN, for herself and as guardian ad litem of her minor son, LEONELL C.
CARIAN, FREDISMINDA CARI-AN, the SPOUSES PAQUITO CHUA and NEY SARROSA-
CHUA and THE REGISTER OF DEEDS OF NEGROS OCCIDENTAL, respondents. Heirs
of Pedro Escanlar vs. Court of Appeals, 281 SCRA 176, G.R. No. 119777 October 23,
1997

Petitioners raised the case to the Court of Appeals.17 Respondent court affirmed the
decision of the trial court on February 17, 1995 and held that the questioned deed of
sale of rights, interests and participation is a contract to sell because it shall become
effective only upon approval by the probate court and upon full payment of the
purchase price.18

Petitioners' motion for reconsideration was denied by respondent court on April 3,

1995.19 Hence, these petitions.20
1. We disagree with the Court of Appeals' conclusion that the September 15, 1978
Deed of Sale of Rights, Interests and Participation is a contract to sell and not one of
sale.

The distinction between contracts of sale and contracts to sell with reserved title has
been recognized by this Court in repeated decisions, according to Justice J.B.L. Reyes
in Luzon Brokerage Co. Inc. v. Maritime Building Co.,Inc.,21 upholding the power of
promisors under contracts to sell in case of failure of the other party to complete
payment, to extrajudicially terminate the operation of the contract, refuse the
conveyance, and retain the sums of installments already received where such rights
are expressly provided for.

In contracts to sell, ownership is retained by the seller and is not to pass until the full
payment of the price. Such payment is a positive suspensive condition, the failure of
which is not a breach of contract but simply an event that prevented the obligation of
the vendor to convey title from acquiring binding force.22 To illustrate, although a deed
of conditional sale is denominated as such, absent a proviso that title to the property
sold is reserved in the vendor until full payment of the purchase price nor a
stipulation giving the vendor the right to unilaterally rescind the contract the moment
the vendee fails to pay within a fixed period, by its nature, it shall be declared a deed
of absolute sale.23

The September 15, 1978 sale of rights, interests and participation as to 1/2
portion pro indiviso of the two subject lots is a contract of sale for the following
reasons: First, private respondents as sellers did not reserve unto themselves the
ownership of the property until full payment of the unpaid balance of P225,000.00.
Second, there is no stipulation giving the sellers the right to unilaterally rescind the
contract the moment the buyer fails to pay within the fixed period.24 Prior to the sale,
petitioners were in possession of the subject property as lessees. Upon sale to them of
the rights, interests and participation as to the 1/2 portion pro indiviso, they remained
in possession, not in concept of lessees anymore but as owners now through symbolic
delivery known as traditio brevi manu.25 Under Article 1477 of the Civil Code, the
ownership of the thing sold is acquired by the vendee upon actual or constructive
delivery thereof.26

In a contract of sale, the non-payment of the price is a resolutory condition which

extinguishes the transaction that, for a time, existed and discharges the obligations
created thereunder. The remedy of an unpaid seller in a contract of sale is to seek
either specific performance or rescission.27

2. Next to be discussed is the stipulation in the disputed September 15, 1978 Deed of
Sale of Rights, Interests and Participation which reads: "(t)his Contract of Sale of
rights, interests and participations shall become effective only upon the approval by
the Honorable Court of First Instance of Negros Occidental, Branch VI-Himamaylan."
Notably, the trial court and the Court of Appeals both held that the deed of sale is null
and void for not having been approved by the probate court.

There has arisen here a confusion in the concepts of validity and the efficacy of a
contract. Under Art. 1318 of the Civil Code, the essential requisites of a contract are:
consent of the contracting parties; object certain which is the subject matter of the
contract and cause of the obligation which is established. Absent one of the above, no
contract can arise. Conversely, where all are present, the result is a valid contract.
However, some parties introduce various kinds of restrictions or modalities, the lack of
which will not, however, affect the validity of the contract.

In the instant case, the Deed of Sale, complying as it does with the essential
requisites, is a valid one. However, it did not bear the stamp of approval of the court.
This notwithstanding, the contract's validity was not affected for in the words of the
stipulation, " . . . this Contract of Sale of rights, interests and participations shall
become effectiveonly upon the approval by the Honorable Court . . ." In other words,
only the effectivity and not the validity of the contract is affected.

Then, too, petitioners are correct in saying that the need for approval by the probate
court exists only where specific properties of the estate are sold and not when only
ideal and indivisible shares of an heir are disposed of.

In the case of Dillena v. Court of Appeals,28 the Court declared that it is within the
jurisdiction of the probate court to approve the sale of properties of a deceased person
by his prospective heirs before final adjudication.29 It is settled that court approval is
necessary for the validity of any disposition of the decedent's estate. However,
reference to judicial approval cannot adversely affect the substantive rights of the
heirs to dispose of their ideal share in the co-heirship and/or co-ownership among the
heirs.30 It must be recalled that during the period of indivision of a decedent's estate,
each heir, being a co-owner, has full ownership of his part and may therefore alienate
it.31 But the effect of the alienation with respect to the co-owners shall be limited to
the portion which may be allotted to him in the division upon the termination of the
co-ownership.32

From the foregoing, it is clear that hereditary rights in an estate can be validly sold
without need of court approval and that when private respondents Cari-an sold their
rights, interests and participation in Lot Nos. 1616 and 1617, they could legally sell
the same without the approval of the probate court.

As a general rule, the pertinent contractual stipulation (requiring court approval)

should be considered as the law between the parties. However, the presence of two
factors militate against this conclusion. First, the evident intention of the parties
appears to be contrary to the mandatory character of said stipulation.33 Whoever
crafted the document of conveyance, must have been of the belief that the
controversial stipulation was a legal requirement for the validity of the sale. But the
contemporaneous and subsequent acts of the parties reveal that the original objective
of the parties was to give effect to the deed of sale even without court
approval.34 Receipt and acceptance of the numerous installments on the balance of the
purchase price by the Cari-ans and leaving petitioners in possession of Lot Nos. 1616
and 1617 reveal their intention to effect the mutual transmission of rights and
obligations. It was only after private respondents Cari-an sold their shares in the
subject lots again to the spouses Chua, in September 1982, that these same heirs filed
the case at bar for the cancellation of the September 1978 conveyance. Worth
considering too is the fact that although the period to pay the balance of the purchase
price expired in May 1979, the heirs continued to accept payments until late 1979 and
did not seek judicial relief until late 1982 or three years later.

Second, we hold that the requisite approval was virtually rendered impossible by the
Cari-ans because they opposed the motion for approval of the sale filed by
petitioners35 and sued the latter for the cancellation of that sale. The probate court
explained:

(e) While it is true that Escanlar and Holgado filed a similar motion for the approval of
Deed of Sale executed by some of the heirs in their favor concerning the one-half (1/2)
portions of Lots 1616 and 1617 as early as November 10, 1981, yet the Court could
not have favorably acted upon it, because there exists a pending case for the
rescission of that contract, instituted by the vendors therein against Pedro Escanlar
and Francisco Holgado and filed before another branch of this Court. Until now, this
case, which attacks the very source of whatever rights or interests Holgado and
Escanlar may have acquired over one-half (1/2) portions of Lots Nos. 1616 and 1617,
is pending resolution by another court. Otherwise, if this Court meddles on these
issues raised in that ordinary civil action seeking for the rescission of an existing
contract, then, the act of this Court would be totally ineffective, as the same would be
in excess of its jurisdiction.36

Having provided the obstacle and the justification for the stipulated approval not to be
granted, private respondents Cari-an should not be allowed to cancel their first
transaction with petitioners because of lack of approval by the probate court, which
lack is of their own making.

3. With respect to rescission of a sale of real property, Article 1592 of the Civil Code
governs:

In the sale of immovable property, even though it may have been stipulated that upon
failure to pay the price at the time agreed upon the rescission of the contract shall of
right take place, the vendee may pay, even after the expiration of the period, as long as
no demand for rescission of the contract has been made upon him either judicially or by
a notarial act. After the demand, the court may not grant him a new term. (Emphasis
added)
In the instant case, the sellers gave the buyers until May 1979 to pay the balance of
the purchase price. After the latter failed to pay installments due, the former made no
judicial demand for rescission of the contract nor did they execute any notarial act
demanding the same, as required under Article 1592. Consequently, the buyers could
lawfully make payments even after the May 1979 deadline, as in fact they paid several
installments to the sellers which the latter accepted. Thus, upon the expiration of the
period to pay, the sellers made no move to rescind but continued accepting late
payments, an act which cannot but be construed as a waiver of the right to rescind.
When the sellers, instead of availing of their right to rescind, accepted and received
delayed payments of installments beyond the period stipulated, and the buyers were
in arrears, the sellers in effect waived and are now estopped from exercising said right
to rescind.37

4. The matter of full payment is another issue taken up by petitioners. An exhaustive

review of the records of this case impels us to arrive at a conclusion at variance with
that of both the trial and the appellate courts.

The sole witness in the cancellation of sale case was private respondent herein
Fredisminda Cari-an Bustamante. She initially testified that after several installments,
she signed a receipt for the full payment of her share in December 1979 but denied
having actually received the P5,000.00 intended to complete her share. She claims
that Escanlar and Holgado made her sign the receipt late in the afternoon and
promised to give the money to her the following morning when the banks opened. She
also claimed that while her brother Rodolfo
Cari-an's share had already been fully paid, her mother Generosa Martinez only
received P28,334.00 and her sister-in-law Nelly Chua vda. de Cari-an received only
P11,334.00. Fredisminda also summed up all the installments and came up with the
total of P132,551.00 from the long list on a sheet of a calendar which was transferred
from a small brown notebook. She later admitted that her list may not have been
complete for she gave the receipts for installments to petitioners Escanlar and
Holgado. She thus claimed that they were defrauded because petitioners are wealthy
and private respondents are poor.

However, despite all her claims, Fredisminda's testimony fails to convince this Court
that they were not fully compensated by petitioners. Fredisminda admits that her
mother and her sister signed their individual receipts of full payment on their own and
not in her presence. 38 The receipts presented in evidence show that Generosa
Martinez was paid P45,625.00; Carmen Cari-an , P45,625.00; Rodolfo Cari-an ,
P47,500.00 on June 21, 1979; Nelly Chua vda. de Cari-an, P11,334.00 and the sum of
P34,218.00 was consigned in court for the minor Leonell Cari-an.39Fredisminda insists
that she signed a receipt for full payment without receiving the money therefor and
admits that she did not object to the computation. We find it incredible that a mature
woman like Fredisminda Cari-an, would sign a receipt for money she did not receive.
Furthermore, her claims regarding the actual amount of the installments paid to her
and her kin are quite vague and unsupported by competent evidence. She even admits
that all the receipts were taken by petitioner Escanlar.40 Worth noting too is the
absence of supporting testimony from her co-heirs and siblings Carmen Cari-an,
Rodolfo Cari-an and Nelly Chua vda. de Cari-an.

The trial court reasoned out that petitioners, in continuing to pay the rent for the
parcels of land they allegedly bought, admit not having fully paid the Cari-ans.
Petitioners' response, that they paid rent until 1986 in compliance with their lease
contract, only proves that they respected this contract and did not take undue
advantage of the heirs of Nombre and Cari-an who benefited from the lease. Moreover,
it is to be stressed that petitioners purchased the hereditary shares solely of the Cari-
ans and not the entire lot.

The foregoing discussion ineluctably leads us to conclude that the

Cari-ans were indeed paid the balance of the purchase price, despite having accepted
installments therefor belatedly. There is thus no ground to rescind the contract of sale
because of non-payment.

5. Recapitulating, we have held that the September 15, 1978 deed of sale of rights,
interests and participations is valid and that the sellers-private respondents Cari-an
were fully paid the contract price. However, it must be emphasized that what was sold
only the Cari-an's hereditary shares in Lot Nos. 1616 and 1617 being held pro
indiviso by them and is thus a valid conveyance only of said ideal shares. Specific or
designated portions of land were not involved.

Consequently, the subsequent sale of 8 parcels of land, including Lot Nos. 1616 and
1617, to the spouses Chua is valid except to the extent of what was sold to petitioners
in the September 15, 1978 conveyance. It must be noted however, that the probate
court in Special Proceeding No. 7-7279 desisted from awarding the individual shares
of each heir because all the properties belonging to the estate had already been
sold.41 Thus it is not certain how much private respondents Cari-an were entitled to
with respect to the two lots, or if they were even going to be awarded shares in said
lots.

The proceedings surrounding the estate of Nombre and Cari-an having attained
finality for nearly a decade now, the same cannot be re-opened. The protracted
proceedings which have undoubtedly left the property under a cloud and the parties
involved in a state of uncertainty compels us to resolve it definitively.

The decision of the probate court declares private respondents Cari-an as the sole
heirs by representation of Victoriana Cari-an who was indisputably entitled to half of
the estate.42 There being no exact apportionment of the shares of each heir and no
competent proof that the heirs received unequal shares in the disposition of the estate,
it can be assumed that the heirs of Victoriana Cari-an collectively are entitled to half of
each property in the estate. More particularly, private respondents Cari-an are entitled
to half of Lot Nos. 1616 and 1617, i.e. 14,675 square meters of Lot No. 1616 and
230,474 square meters of Lot No. 1617. Consequently, petitioners, as their
successors-in-interest, own said half of the subject lots and ought to deliver the
possession of the other half, as well as pay rents thereon, to the private respondents
Ney Sarrosa Chua and Paquito Chua but only if the former (petitioners) remained in
possession thereof.

The rate of rental payments to be made were given in evidence by Ney Sarrosa Chua in
her unrebutted testimony on July 24, 1989: For the fishpond (Lot No. 1617) — From
1982 up to 1986, rental payment of P3,000.00 per hectare; from 1986-1989 (and
succeeding years), rental payment of P10,000.00 per hectare. For the riceland (Lot No.
1616) — 15 cavans per hectare per year; from 1982 to 1986, P125.00 per cavan; 1987-
1988, P175.00 per cavan; and 1989 and succeeding years, P200.00 per cavan.43

WHEREFORE, the petitions are hereby GRANTED. The decision of the Court of
Appeals under review is hereby REVERSED AND SET ASIDE. The case is REMANDED
to the Regional Trial Court of Negros Occidental, Branch 61 for petitioners and private
respondents Cari-an or their successors-in-interest to determine exactly which 1/2
portion of Lot Nos. 1616 and 1617 will be owned by each party, at the option of
petitioners. The trial court is DIRECTED to order the issuance of the corresponding
certificates of title in the name of the respective parties and to resolve the matter of
rental payments of the land not delivered to the Chua spouses subject to the rates
specified above with legal interest from date of demand.

SO ORDERED.

G.R. No. 125835. July 30, 1998.*

NATALIA CARPENA OPULENCIA, petitioner, vs. COURT OF APPEALS, ALADIN

SIMUNDAC and MIGUEL OLIVAN, respondents.

Succession; Probate Proceedings; Sales; Section 7 of Rule 89 of the Rules of Court is

not applicable where a party enters into a Contract to Sell in his capacity as an heir,
not as an executor or administrator of the estate.—As correctly ruled by the Court of
Appeals, Section 7 of Rule 89 of the Rules of Court is not applicable, because
petitioner entered into the Contract to Sell in her capacity as an heiress, not as an
executrix or administratrix of the estate. In the contract, she represented herself as
the “lawful owner” and seller of the subject parcel of land. She also explained the
reason for the sale to be “difficulties in her living” conditions and consequent “need of
cash.” These representations clearly evince that she was not acting on behalf of the
estate under probate when she entered into the Contract to Sell. Accordingly, the
jurisprudence cited by petitioner has no application to the instant case.
Same; Same; Same; An heir becomes owner of his hereditary share the moment the
decedent dies, thus, the lack of judicial approval does not invalidate the Contract to
Sell, because the heir has the substantive right to sell the whole or a part of his share
in the estate of the decedent.—We emphasize that hereditary rights are vested in the
heir or heirs from the moment of the decedent’s death. Petitioner, therefore, became
the owner of her hereditary share the moment her father died. Thus, the lack of
judicial approval does not invalidate the Contract to Sell, because the petitioner has
the substantive right to sell the whole or a part of her share in the estate of her late
father.

Same; Same; Same; The sale made by an heir of his share in an inheritance, subject to
the pending administration, in no wise stands in the way of such administration.—The
Contract to Sell stipulates that petitioner’s offer to sell is contingent on the “complete
clearance of the court on the Last Will and Testament of her father.” Consequently,
although the Contract to Sell was perfected between the petitioner and private
respondents during the pendency of the probate proceedings, the consummation of
the sale or the transfer of ownership over the parcel of land to the private respondents
is subject to the full payment of the purchase price and to the termination and
outcome of the testate proceedings. Therefore, there is no basis for petitioner’s
apprehension that the Contract to Sell may result in a premature partition and
distribution of the properties of the estate. Indeed, it is settled that “the sale made by
an heir of his share in an inheritance, subject to the pending administration, in no
wise stands in the way of such administration.”

Estoppel; Jurisprudence teaches us that neither the law nor the courts will extricate a
party from an unwise or undesirable contract he or she entered into with all the
required formalities and with full awareness of its consequences.—Petitioner is
estopped from backing out of her representations in her valid Contract to Sell with
private respondents, from whom she had already received P300,000 as initial payment
of the purchase price. Petitioner may not renege on her own acts and representations,
to the prejudice of the private respondents who have relied on them. Jurisprudence
teaches us that neither the law nor the courts will extricate a party from an unwise or
undesirable contract he or she entered into with all the required formalities and with
full awareness of its consequences.

PANGANIBAN, J.:

Is a contract to sell a real property involved in restate proceedings valid and binding
without the approval of the probate court?

Statement of the Case

This is the main question raised in this petition for review before us, assailing the
Decision 1 of the Court of Appeals 2 in CA-GR CV No. 41994 promulgated on February
6, 1996 and its Resolution 3 dated July 19, 1996. The challenged Decision disposed as
follows:

WHEREFORE, premises considered, the order of the lower court dismissing the
complaint is SET ASIDE and judgment is hereby rendered declaring the CONTRACT
TO SELL executed by appellee in favor of appellants as valid and binding, subject to
the result of the administration proceedings of the testate Estate of Demetrio Carpena.

SO ORDERED. 4

Petitioner's Motion for Reconsideration was denied in the challenged Resolution. 5

The Facts

The antecedent facts, as succinctly narrated by Respondent Court of Appeals, are:

In a complaint for specific performance filed with the court a quo [herein private
respondents] Aladin Simundac and Miguel Oliven alleged that [herein petitioner]
Natalia Carpena Opulencia executed in their favor a "CONTRACT TO SELL" Lot 2125
of the Sta. Rosa Estate, consisting of 23,766 square meters located in Sta. Rosa,
Laguna at P150.00 per square meter; that plaintiffs paid a downpayment of
P300,000.00 but defendant, despite demands, failed to comply with her obligations
under the contract. [Private respondents] therefore prayed that [petitioner] be ordered
to perform her contractual obligations and to further pay damages, attorney's fee and
litigation expenses.

In her traverse, [petitioner] admitted the execution of the contract in favor of plaintiffs
and receipt of P300,000.00 as downpayment. However, she put forward the following
affirmative defenses: that the property subject of the contract formed part of the Estate
of Demetrio Carpena (petitioner's father), in respect of which a petition for probate was
filed with the Regional Trial Court, Branch 24, Biñan, Laguna; that at the time the
contract was executed, the parties were aware of the pendency of the probate
proceeding; that the contract to sell was not approved by the probate court; that
realizing the nullity of the contract [petitioner] had offered to return the downpayment
received from [private respondents], but the latter refused to accept it; that [private
respondents] further failed to provide funds for the tenant who demanded P150,00.00
in payment of his tenancy rights on the land; that [petitioner] had chosen to rescind
the contract.

At the pre-trial conference the parties stipulated on [sic] the following facts:

1. That on February 3, 1989, [private respondents] and [petitioner] entered into a

contract to sell involving a parcel of land situated in Sta. Rosa, Laguna, otherwise
known as Lot No. 2125 of the Sta. Rosa Estate.

2. That the price or consideration of the said sell [sic] is P150.00 per square meters;
3. That the amount of P300,000.00 had already been received by [petitioner];

4. That the parties have knowledge that the property subject of the contract to sell is
subject of the probate proceedings;

5. That [as] of this time, the probate Court has not yet issued an order either
approving or denying the said sale. (p. 3, appealed Order of September 15, 1992, pp.
109-112, record).

[Private respondents] submitted their evidence in support of the material allegations of

the complaint. In addition to testimonies of witnesses, [private respondents] presented
the following documentary evidences: (1) Contract to Sell (Exh A); (2) machine copy of
the last will and testament of Demetrio Carpena (defendant's father) to show that the
property sold by defendant was one of those devised to her in said will (Exh B); (3)
receipts signed by defendant for the downpayment in the total amount of P300,000.00
(Exhs C, D & E); and (4) demand letters sent to defendant (Exhs F & G).

It appears that [petitioner], instead of submitting her evidence, filed a Demurrer to

Evidence. In essence, defendant maintained that the contract to sell was null and void
for want of approval by the probate court. She further argued that the contract was
subject to a suspensive condition, which was the probate of the will of defendant's
father Demetrio Carpena. An Opposition was filed by [private respondents]. It appears
further that in an Order dated December 15, 1992 the court a quo granted the
demurrer to evidence and dismissed the complaint. It justified its action in dismissing
the complaint in the following manner:

It is noteworthy that when the contract to sell was consummated, no petition was filed
in the Court with notice to the heirs of the time and place of hearing, to show that the
sale is necessary and beneficial. A sale of properties of an estate as beneficial to the
interested parties must comply with the requisites provided by law, (Sec. 7, Rule 89,
Rules of Court) which are mandatory, and without them, the authority to sell, the sale
itself, and the order approving it, would be null and void ab initio. (Arcilla vs. David, 77
Phil. 718, Gabriel, et al., vs. Encarnacion, et al., L-6736, May 4, 1954; Bonaga vs.
Soler, 2 Phil. 755) Besides, it is axiomatic that where the estate of a deceased person
is already the subject of a testate or intestate proceeding, the administrator cannot
enter into any transaction involving it without prior approval of the probate Court.
(Estate of Obave, vs. Reyes, 123 SCRA 767).

As held by the Supreme Court, a decedent's representative (administrator) is not

estopped from questioning the validity of his own void deed purporting to convey land.
(Bona vs. Soler, 2 Phil, 755). In the case at bar, the [petitioner,] realizing the illegality
of the transaction[,] has interposed the nullity of the contract as her defense, there
being no approval from the probate Court, and, in good faith offers to return the
money she received from the [private respondents]. Certainly, the administratrix is not
estop[ped] from doing so and the action to declare the inexistence of contracts do not
prescribe. This is what precipitated the filing of [petitioner's] demurrer to evidence. 6

The trial court's order of dismissal was elevated to the Court of Appeals by private
respondents who alleged:

1. The lower court erred in concluding that the contract to sell is null and void, there
being no approval of the probate court.

2. The lower court erred in concluding that [petitioner] in good faith offers to return
the money to [private respondents].

3. The lower court erred in concluding that [petitioner] is not under estoppel to
question the validity of the contract to sell.

4. The lower court erred in not ruling on the consideration of the contract to sell which
is tantamount to plain unjust enrichment of [petitioner] at the expense of [private
respondents]. 7

Public Respondent's Ruling

Declaring the Contract to Sell valid, subject to the outcome of the testate proceedings
on Demetrio Carpena's estate, the appellate court set aside the trial court's dismissal
of the complaint and correctly ruled as follows:

It is apparent from the appealed order that the lower court treated the contract to sell
executed by appellee as one made by the administratrix of the Estate of Demetrio
Carpena for the benefit of the estate. Hence, its main reason for voiding the contract in
question was the absence of the probate court's approval. Presumably, what the lower
court had in mind was the sale of the estate or part thereof made by the administrator
for the benefit of the estate, as authorized under Rule 89 of the Revised Rules of
Court, which requires the approval of the probate court upon application therefor with
notice to the heirs, devisees and legatees.

However, as adverted to by appellants in their brief, the contract to sell in question is

not covered by Rule 89 of the Revised Rules of Court since it was made by appellee in
her capacity as an heir, of a property that was devised to her under the will sought to
be probated. Thus, while the document inadvertently stated that appellee executed the
contract in her capacity as "executrix and administratrix" of the estate, a cursory
reading of the entire text of the contract would unerringly show that what she
undertook to sell to appellants was one of the "other properties given to her by her late
father," and more importantly, it was not made for the benefit of the estate but for her
own needs. To illustrate this point, it is apropos to refer to the preambular or
preliminary portion of the document, which reads:

WHEREAS, the SELLER is the lawful owner of a certain parcel of land, which is more
particularly described as follows:
xxx xxx xxx

xxx xxx xxx

xxx xxx xxx

WHEREAS, the SELLER suffers difficulties in her living and has forced to offer the sale
of the above-described property, "which property was only one among the other
properties given to her by her late father," to anyone who can wait for complete
clearance of the court on the Last Will Testament of her father.

WHEREAS, the SELLER in order to meet her need of cash, has offered for sale the said
property at ONE HUNDRED FIFTY PESOS (150.00) Philippine Currency, per square
meter unto the BUYERS, and with this offer, the latter has accepted to buy and/or
purchase the same, less the area for the road and other easements indicated at the
back of Transfer Certificate of Title No. 2125 duly confirmed after the survey to be
conducted by the BUYER's Licensed Geodetic Engineer, and whatever area [is] left.
(Emphasis added).

To emphasize, it is evident from the foregoing clauses of the contract that appellee sold
Lot 2125 not in her capacity as executrix of the will or administratrix of the estate of
her father, but as an heir and more importantly as owner of said lot which, along with
other properties, was devised to her under the will sought to be probated. That being
so, the requisites stipulated in Rule 89 of the Revised Rules of Court which refer to a
sale made by the administrator for the benefit of the estate do not apply.

xxx xxx xxx

It is noteworthy that in a Manifestation filed with this court by appellants, which is

not controverted by appellee, it is mentioned that the last will and testament of
Demetrio Carpena was approved in a final judgment rendered in Special Proceeding
No. B-979 by the Regional Trial Court, Branch 24 Biñan, Laguna. But of course such
approval does not terminate the proceeding[s] since the settlement of the estate will
ensue. Such proceedings will consist, among others, in the issuance by the court of a
notice to creditors (Rule 86), hearing of money claims and payment of taxes and estate
debts (Rule 88) and distribution of the residue to the heirs or persons entitled thereto
(Rule 90). In effect, the final execution of the deed of sale itself upon appellants'
payment of the balance of the purchase price will have to wait for the settlement or
termination of the administration proceedings of the Estate of Demetrio Carpena.
Under the foregoing premises, what the trial court should have done with the
complaint was not to dismiss it but to simply put on hold further proceedings until
such time that the estate or its residue will be distributed in accordance with the
approved will.

The rule is that when a demurrer to the evidence is granted by the trial court but
reversed on appeal, defendant loses the right to adduce his evidence. In such a case,
the appellate court will decide the controversy on the basis of plaintiff's evidence. In
the case at bench, while we find the contract to sell valid and binding between the
parties, we cannot as yet order appellee to perform her obligations under the contract
because the result of the administration proceedings of the testate Estate of Demetrio
Carpena has to be awaited. Hence, we shall confine our adjudication to merely
declaring the validity of the questioned Contract to Sell.

Hence, this appeal. 8

The Issue

Petitioner raises only one issue:

Whether or not the Contract to Sell dated 03 February 1989 executed by the
[p]etitioner and [p]rivate [r]espondent[s] without the requisite probate court approval is
valid.

The Court's Ruling

The petition has no merit.

Contract to Sell Valid

In a nutshell, petitioner contends that "where the estate of the deceased person is
already the subject of a testate or intestate proceeding, the administrator cannot enter
into any transaction involving it without prior approval of the Probate Court." 9 She
maintains that the Contract to Sell is void because it was not approved by the probate
court, as required by Section 7, Rule 89 of the Rules of Court:

Sec. 7. Regulations for granting authority to sell, mortgage, or otherwise encumber

estate. — The court having jurisdiction of the estate of the deceased may authorize the
executor or administrator to sell, mortgage, or otherwise encumber real estate, in
cases provided by these rules and when it appears necessary or beneficial, under the
following regulations:

xxx xxx xxx

Insisting that the above rule should apply to this case, petitioner argues that the
stipulations in the Contract to Sell require her to act in her capacity as an executrix or
administratrix. She avers that her obligation to eject tenants pertains to the
administratrix or executrix, the estate being the landlord of the said
tenants. 10Likewise demonstrating that she entered into the contract in her capacity as
executor is the stipulation that she must effect the conversion of subject land from
irrigated rice land to residential land and secure the necessary clearances from
government offices. Petitioner alleges that these obligations can be undertaken only by
an executor or administrator of an estate, and not by an heir. 11
The Court is not persuaded. As correctly ruled by the Court of Appeals, Section 7 of
Rule 89 of the Rules of Court is not applicable, because petitioner entered into the
Contract to Sell in her capacity as an heiress, not as an executrix or administratrix of
the estate. In the contract, she represented herself as the "lawful owner" and seller of
the subject parcel of land. 12 She also explained the reason for the sale to be
"difficulties in her living" conditions and consequent "need of cash." 13 These
representations clearly evince that she was not acting on behalf of the estate under
probate when she entered into the Contract to Sell. Accordingly, the jurisprudence
cited by petitioners has no application to the instant case.

We emphasize that hereditary rights are vested in the heir or heirs from the moment of
the decedent's death. 14 Petitioner, therefore, became the owner of her hereditary share
the moment her father died. Thus, the lack of judicial approval does not invalidate the
Contract to Sell, because the petitioner has the substantive right to sell the whole or a
part of her share in the estate of her late father. 15 Thus, in Jakosalem vs.
Rafols, 16 the Court resolved an identical issue under the old Civil Code and held:

Art. 440 of the Civil Code provides that "the possession of hereditary property is
deemed to be transmitted to the heir without interruption from the instant of the
death of the decedent, in case the inheritance be accepted." And Manresa with reason
states that upon the death of a person, each of his heirs "becomes the undivided
owner of the whole estate left with respect to the part or portion which might be
adjudicated to him, a community of ownership being thus formed among the coowners
of the estate while it remains undivided." . . . And according to article 399 of the Civil
Code, every part owner may assign or mortgage his part in the common property, and
the effect of such assignment or mortgage shall be limited to the portion which may be
allotted him in the partition upon the dissolution of the community. Hence, where
some of the heirs, without the concurrence of the others, sold a property left by their
deceased father, this Court, speaking thru its then Chief Justice Cayetano Arellano,
said that the sale was valid, but that the effect thereof was limited to the share which
may be allotted to the vendors upon the partition of the estate.

Administration of the Estate Not

Prejudiced by the Contract to Sell

Petitioner further contends that "[t]o sanction the sale at this stage would bring about
a partial distribution of the decedent's estate pending the final termination of the
testate proceedings." 17 This becomes all the more significant in the light of the trial
court's finding, as stated in its Order dated August 20, 1997, that "the legitimate of
one of the heirs has been impaired." 18

Petitioner's contention is not convincing. The Contract to Sell stipulates that

petitioner's offer to sell is contingent on the "complete clearance of the court on the
Last Will Testament of her father." 19Consequently, although the Contract to Sell was
perfected between the petitioner and private respondents during the pendency of the
probate proceedings, the consummation of the sale or the transfer of ownership over
the parcel of land to the private respondents is subject to the full payment of the
purchase price and to the termination and outcome of the testate proceedings.
Therefore, there is no basis for petitioner's apprehension that the Contract to Sell may
result in a premature partition and distribution of the properties of the estate. Indeed,
it is settled that "the sale made by an heir of his share in an inheritance, subject to the
pending administration, in no wise stands in the way of such administration." 20

Estoppel

Finally, petitioner is estopped from backing out of her representations in her valid
Contract to Sell with private respondents, from whom she had already received
P300,000 as initial payment of the purchase price. Petitioner may not renege on her
own acts and representations, to the prejudice of the private respondents who have
relied on them. 21 Jurisprudence teaches us that neither the law nor the courts will
extricate a party from an unwise or undesirable contract he or she entered into with
all the required formalities and with full awareness of its consequences. 22

WHEREFORE, the petition is hereby DENIED and the assailed Decision of the Court of
Appeals AFFIRMED. Costs against petitioner.

SO ORDERED.

G.R. No. 174581. February 4, 2015.*

ATTY. LEO N. CAUBANG, petitioner, vs. JESUS G. CRISOLOGO and NANETTE B.

CRISOLOGO, respondents.

Remedial Law; Special Proceedings; Extrajudicial Foreclosure of Mortgage; Failure to

advertise a mortgage foreclosure sale in compliance with the statutory requirements
constitutes a jurisdictional defect, and any substantial error in a notice of sale will
render the notice insufficient and will consequently vitiate the sale.—The principal
object of a notice of sale in a foreclosure of mortgage is not so much to notify the
mortgagor as to inform the public generally of the nature and condition of the property
to be sold, and of the time, place, and terms of the sale. Notices are given to secure
bidders and prevent a sacrifice of the property. Therefore, statutory provisions
governing publication of notice of mortgage foreclosure sales must be strictly complied
with and slight deviations therefrom will invalidate the notice and render the sale, at
the very least, voidable. Certainly, the statutory requirements of posting and
publication are mandated and imbued with public policy considerations. Failure to
advertise a mortgage foreclosure sale in compliance with the statutory requirements
constitutes a jurisdictional defect, and any substantial error in a notice of sale will
render the notice insufficient and will consequently vitiate the sale. Caubang vs.
Crisologo, 749 SCRA 563, G.R. No. 174581 February 4, 2015
PERALTA, J.:

For the Court's resolution is a Petition for Review under Rule 45 of the Rules of Court
which petitioner Atty. Leo N. Caubang filed, questioning the Decision1 of the Court of
Appeals (CA), dated May 22, 2006, and its Resolution2dated August 16, 2006 in CA-
G.R. CV. No. 68365. The CA affirmed the Decision3 of the Regional Trial Court (RTC) of
Davao City, Branch 12, dated August 1, 2000, with modifications, in Civil Case No.
27168-99.

The facts, as gathered from the records, are as follows:

On December 17, 1993, respondents spouses Jesus and Nannette Crisologo (the
Spouses Crisologo) obtained an Express Loan in the amount of ₱200,000.00 from
PDCP Development Bank Inc. (PDCP Bank). On January 26, 1994, the Spouses
Crisologo acquired another loan from the same bank, this time a Term Loan of
₱1,500,000.00 covered by a Loan Agreement. As security for both loans,the spouses
mortgaged their property covered by Transfer Certificate of Title (TCT) No. T-181103.
Upon release of the Term Loan, they were given two (2) promissory notes, for the
amount of ₱500,000.00 on February 9, 1994 and ₱1,000,000.00 on February 21,
1994.

Under the promissory notes, the Spouses Crisologo agreed to pay the principal
amount of the loan over a periodof three (3) years in twelve (12) equal quarterly
amortizations. Although they were able to pay the Express Loan, starting August 22,
1994, however, or after payment of the first few installments on the other loans, the
spouses defaulted in the amortizations. Despite several demands made by the
bank,the spouses still failed to pay.

On May 31, 1996, the spouses received a detailed breakdown of their outstanding
obligation. Finding the charges to be excessive, they wrote a letter to the bank
proposing to pay their loan in full with a request that the interest and penalty charges
be waived. The manager of PDCP Bank, Davao Branch, advised them to deposit their
₱1,500,000.00 obligation as manifestation of their intent to pay the loan. As a counter-
offer, the spouses agreed to deposit the amount but on the condition that the bank
should first return to them the title over the mortgaged property. The bank did not
reply until July 7, 1997, where they senta letter denying the spouses’ counteroffer and
demanding payment of the loan already amounting to ₱2,822,469.90. By October 20,
1997, the debt had ballooned to ₱3,041,287.00. For failure to settle the account, the
Davao branch of the bank recommended the foreclosure of the mortgage to its head
office. On March 20, 1998, PDCP Bank filed a Petition for the Extrajudicial
Foreclosure of the Mortgage.

On June 8, 1998, petitioner Leo Caubang, as Notary Public, prepared the Notices of
Sale, announcing the foreclosure of the real estate mortgage and the sale of the
mortgaged property at public auction on July 15, 1998. He caused the posting of said
notices in three (3) public places: the Barangay Hall of Matina, City Hall of Davao,and
Bangkerohan Public Market. Publication was, likewise, made in the Oriental Daily
Examiner, one of the local newspapers in Davao City.

On July 15, 1998, Caubang conducted the auction sale of the mortgaged property,
with the bank as the only bidder.1âwphi1The bank bidded for ₱1,331,460.00, leaving
a deficiencyof ₱2,207,349.97. Thereafter, a Certificate of Sale in favor of the bank was
issued.

Later, the Spouses Crisologo were surprised to learn that their mortgaged property
had already been soldto the bank. Thus, they filed a Complaint for Nullity of
Extrajudicial Foreclosure and Auction Sale and Damages against PDCP Bank and
Caubang.

On August 1, 2000, the Davao RTC rendered a Decision nullifying the extrajudicial
foreclosure of the real estate mortgage for failure to comply with the publication
requirement, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered:

1. Declaring the Extra-Judicial Foreclosure sale of plaintiffs’ property, covered by TCT

No. T-181103, null and void.

2. Ordering the Register of Deeds for the City of Davao to cancel Entry No. 113255 on
TCT No. T-181103, the entry relative to the Certificate of Sale executed by Atty. Leo
Caubang on August 5, 1998, and if a new title has been issued to defendant PDCP, to
cancel the same, and to reinstate TCT No. T-181103 in the name of Nannette B.
Crisologo, of legal age, Filipino, married to Jesus Crisologo, and a resident of Davao
City, Philippines.

All the other claims of the parties are disallowed.

No pronouncement as to costs.

SO ORDERED.4

The Spouses Crisologo appealed before the CA, seeking a partial modification of the
RTC Decision, insofar as their claims for moral and exemplary damages, attorney’s
fees, and costs of suit were concerned. On May 22, 2006, the appellate court modified
the decretal portion to read: WHEREFORE, judgment is hereby rendered:

1. Declaring the Extra-Judicial Foreclosure sale of plaintiffs’ property, covered by TCT

# T-181103, null and void.

2. Ordering the Register of Deeds for the City of Davao to cancel Entry No. T-181103,
the entry relative to the Certificate of Sale executed by Atty. Leo Caubang on August 5,
1998, and if a new title has been issued to defendant PDCP, to cancel the same, and
to reinstate TCT No. T-181103 in the name of Nannette B. Crisologo, of legal age,
Filipino, married to Jesus Crisologo, and a resident of Davao City, Philippines; and

3. Atty. Caubang is ordered to pay appellants the sum of ₱41,500.00 as attorney’s fees
and ₱30,248.50 as litigation expenses.

All other claims of the parties are disallowed.

SO ORDERED.5

Caubang filed a Motion for Reconsideration, but the same was denied. Hence, he filed
the present petition.

Caubang mainly assails the CA’s ruling on the publication of the notices in the
Oriental Daily Examiner. He firmly contends that the CA’s finding was based on
assumptions and speculations.

The petition lacks merit.

Under Section 3 of Act No. 3135:6

Section 3. Notice of sale; posting; when publication required.– Notice shall be given by
posting notices ofthe sale for not less than twenty days in at least three public places
ofthe municipality or city where the property is situated, and if such property is worth
more than four hundred pesos, such notices shall also be published once a week for at
least three consecutive weeksin a newspaper of general circulation in the municipality
or city.7

Caubang never made an effort toinquire as to whether the Oriental Daily Examinerwas
indeed a newspaper of general circulation, as required by law. It was shown that the
Oriental Daily Examineris not even on the list of newspapers accredited to publish
legal notices, as recorded in the Davao RTC’s Office of the Clerk of Court. It also has
no paying subscribers and it would only publish whenever there are customers. Since
there was no proper publication of the notice of sale, the Spouses Crisologo, as well as
the rest of the general public, were never informed thatthe mortgaged property was
about to be foreclosed and auctioned. As a result,PDCP Bank became the sole bidder.
This allowed the bank to bid for a very low price (₱1,331,460.00) and go after the
spouses for a bigger amount as deficiency.1âwphi1

The principal object of a notice of sale in a foreclosure of mortgage is not so much to

notify the mortgagor as to inform the public generally of the nature and condition of
the property to be sold, and of the time, place, and terms of the sale. Notices are given
to secure bidders and prevent a sacrifice of the property. Therefore, statutory
provisions governing publication of notice of mortgage foreclosure sales must be
strictly complied with and slight deviations therefrom will invalidate the notice and
render the sale, at the very least, voidable. Certainly, the statutory requirements of
posting and publication are mandated and imbued with public policy considerations.
Failure to advertise a mortgage foreclosure sale in compliance with the statutory
requirements constitutes a jurisdictional defect, and any substantial error in a notice
of sale will render the notice insufficient and will consequently vitiate the sale. 8

Since it was Caubang who caused the improper publication of the notices which, in
turn, compelled the Spouses Crisologo to litigate and incur expenses involving the
declaration of nullity of the auction sale for the protection of their interest on the
property, the CA aptly held that Caubang shall be the one liable for the spouses' claim
for litigation expenses and attorney's fees.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals, dated
May 22, 2006, and its Resolution dated August 16, 2006, in CA-G.R. CV. No. 68365,
are hereby AFFIRMED.

SO ORDERED.

G.R. No. 129008. January 13, 2004.*

TEODORA A. RIOFERIO, VERONICA O. EVANGELISTA assisted by her husband

ZALDY EVANGELISTA, ALBERTO ORFINADA, and ROWENA O. UNGOS, assisted
by her husband BEDA UNGOS, petitioners, vs. COURT OF APPEALS, ESPERANZA
P. ORFINADA, LOURDES P. ORFINADA, ALFONSO ORFINADA, NANCY P.
ORFINADA, ALFONSO JAMES P. ORFINADA, CHRISTOPHER P. ORFINADA and
ANGELO P. ORFINADA, respondents.

Remedial Law; Actions; Party-in-interest; Pending the filing of administration

proceedings, the heirs without doubt have legal personality to bring suit in behalf of
the estate of the decedent in accordance with the provision of Article 777 of the New
Civil Code.—Pending the filing of administration proceedings, the heirs without doubt
have legal personality to bring suit in behalf of the estate of the decedent in
accordance with the provision of Article 777 of the New Civil Code “that (t)he rights to
succession are transmitted from the moment of the death of the decedent.” The
provision in turn is the foundation of the principle that the property, rights and
obligations to the extent and value of the inheritance of a person are transmitted
through his death to another or others by his will or by operation of law.

Same; Same; Same; Court recognized the legal standing of the heirs to represent the
rights and properties of the decedent under administration pending the appointment
of an administrator.—Even if administration proceedings have already been
commenced, the heirs may still bring the suit if an administrator has not yet been
appointed. This is the proper modality despite the total lack of advertence to the heirs
in the rules on party representation, namely Section 3, Rule 3 and Section 2, Rule 87
of the Rules of Court. In fact, in the case of Gochan v. Young, this Court recognized
the legal standing of the heirs to represent the rights and properties of the decedent
under administration pending the appointment of an administrator.

Whether the heirs may bring suit to recover property of the estate pending the
appointment of an administrator is the issue in this case.

This Petition for Review on Certiorari, under Rule 45 of the Rules of Court, seeks to set
aside the Decision1 of the Court of Appeals in CA-G.R. SP No. 42053 dated January
31, 1997, as well as its Resolution2 dated March 26, 1997, denying petitioners’ motion
for reconsideration.

On May 13, 1995, Alfonso P. Orfinada, Jr. died without a will in Angeles City leaving
several personal and real properties located in Angeles City, Dagupan City and
Kalookan City.3 He also left a widow, respondent Esperanza P. Orfinada, whom he
married on July 11, 1960 and with whom he had seven children who are the herein
respondents, namely: Lourdes P. Orfinada, Alfonso "Clyde" P. Orfinada, Nancy P.
Orfinada-Happenden, Alfonso James P. Orfinada, Christopher P. Orfinada, Alfonso
Mike P. Orfinada (deceased) and Angelo P. Orfinada.4

Apart from the respondents, the demise of the decedent left in mourning his paramour
and their children. They are petitioner Teodora Riofero, who became a part of his life
when he entered into an extra-marital relationship with her during the subsistence of
his marriage to Esperanza sometime in 1965, and co-petitioners Veronica5, Alberto
and Rowena.6

On November 14, 1995, respondents Alfonso James and Lourdes Orfinada discovered
that on June 29, 1995, petitioner Teodora Rioferio and her children executed an
Extrajudicial Settlement of Estate of a Deceased Person with Quitclaim involving the
properties of the estate of the decedent located in Dagupan City and that accordingly,
the Registry of Deeds in Dagupan issued Certificates of Titles Nos. 63983, 63984 and
63985 in favor of petitioners Teodora Rioferio, Veronica Orfinada-Evangelista, Alberto
Orfinada and Rowena Orfinada-Ungos. Respondents also found out that petitioners
were able to obtain a loan of P700,000.00 from the Rural Bank of Mangaldan Inc. by
executing a Real Estate Mortgage over the properties subject of the extra-judicial
settlement.7

On December 1, 1995, respondent Alfonso "Clyde" P. Orfinada III filed a Petition for
Letters of Administration docketed as S.P. Case No. 5118 before the Regional Trial
Court of Angeles City, praying that letters of administration encompassing the estate
of Alfonso P. Orfinada, Jr. be issued to him.8

On December 4, 1995, respondents filed a Complaint for the Annulment/Rescission of

Extra Judicial Settlement of Estate of a Deceased Person with Quitclaim, Real Estate
Mortgage and Cancellation of Transfer Certificate of Titles with Nos. 63983, 63985 and
63984 and Other Related Documents with Damages against petitioners, the Rural
Bank of Mangaldan, Inc. and the Register of Deeds of Dagupan City before the
Regional Trial Court, Branch 42, Dagupan City.9

On February 5, 1996, petitioners filed their Answer to the aforesaid complaint

interposing the defense that the property subject of the contested deed of extra-
judicial settlement pertained to the properties originally belonging to the parents of
Teodora Riofero10 and that the titles thereof were delivered to her as an advance
inheritance but the decedent had managed to register them in his name.11 Petitioners
also raised the affirmative defense that respondents are not the real parties-in-interest
but rather the Estate of Alfonso O. Orfinada, Jr. in view of the pendency of the
administration proceedings.12 On April 29, 1996, petitioners filed a Motion to Set
Affirmative Defenses for Hearing13 on the aforesaid ground.

The lower court denied the motion in its Order14 dated June 27, 1996, on the ground
that respondents, as heirs, are the real parties-in-interest especially in the absence of
an administrator who is yet to be appointed in S.P. Case No. 5118. Petitioners moved
for its reconsideration15 but the motion was likewise denied.16

This prompted petitioners to file before the Court of Appeals their Petition for
Certiorari under Rule 65 of the Rules of Court docketed as CA G.R. S.P. No. 42053.17
Petitioners averred that the RTC committed grave abuse of discretion in issuing the
assailed order which denied the dismissal of the case on the ground that the proper
party to file the complaint for the annulment of the extrajudicial settlement of the
estate of the deceased is the estate of the decedent and not the respondents.18

The Court of Appeals rendered the assailed Decision19 dated January 31, 1997,
stating that it discerned no grave abuse of discretion amounting to lack or excess of
jurisdiction by the public respondent judge when he denied petitioners’ motion to set
affirmative defenses for hearing in view of its discretionary nature.

A Motion for Reconsideration was filed by petitioners but it was denied.20 Hence, the
petition before this Court.

The issue presented by the petitioners before this Court is whether the heirs have legal
standing to prosecute the rights belonging to the deceased subsequent to the
commencement of the administration proceedings.21

Petitioners vehemently fault the lower court for denying their motion to set the case for
preliminary hearing on their affirmative defense that the proper party to bring the
action is the estate of the decedent and not the respondents. It must be stressed that
the holding of a preliminary hearing on an affirmative defense lies in the discretion of
the court. This is clear from the Rules of Court, thus:

SEC. 5. Pleadings grounds as affirmative defenses.- Any of the grounds for dismissal
provided for in this rule, except improper venue, may be pleaded as an affirmative
defense, and a preliminary hearing may be had thereon as if a motion to dismiss had
been filed.22 (Emphasis supplied.)

Certainly, the incorporation of the word "may" in the provision is clearly indicative of
the optional character of the preliminary hearing. The word denotes discretion and
cannot be construed as having a mandatory effect.23 Subsequently, the electivity of
the proceeding was firmed up beyond cavil by the 1997 Rules of Civil Procedure with
the inclusion of the phrase "in the discretion of the Court", apart from the retention of
the word "may" in Section 6,24 in Rule 16 thereof.

Just as no blame of abuse of discretion can be laid on the lower court’s doorstep for
not hearing petitioners’ affirmative defense, it cannot likewise be faulted for
recognizing the legal standing of the respondents as heirs to bring the suit.

Pending the filing of administration proceedings, the heirs without doubt have legal
personality to bring suit in behalf of the estate of the decedent in accordance with the
provision of Article 777 of the New Civil Code "that (t)he rights to succession are
transmitted from the moment of the death of the decedent." The provision in turn is
the foundation of the principle that the property, rights and obligations to the extent
and value of the inheritance of a person are transmitted through his death to another
or others by his will or by operation of law.25

Even if administration proceedings have already been commenced, the heirs may still
bring the suit if an administrator has not yet been appointed. This is the proper
modality despite the total lack of advertence to the heirs in the rules on party
representation, namely Section 3, Rule 326 and Section 2, Rule 8727 of the Rules of
Court. In fact, in the case of Gochan v. Young,28 this Court recognized the legal
standing of the heirs to represent the rights and properties of the decedent under
administration pending the appointment of an administrator. Thus:

The above-quoted rules,29 while permitting an executor or administrator to represent

or to bring suits on behalf of the deceased, do not prohibit the heirs from representing
the deceased. These rules are easily applicable to cases in which an administrator has
already been appointed. But no rule categorically addresses the situation in which
special proceedings for the settlement of an estate have already been instituted, yet no
administrator has been appointed. In such instances, the heirs cannot be expected to
wait for the appointment of an administrator; then wait further to see if the
administrator appointed would care enough to file a suit to protect the rights and the
interests of the deceased; and in the meantime do nothing while the rights and the
properties of the decedent are violated or dissipated.

Even if there is an appointed administrator, jurisprudence recognizes two exceptions,

viz: (1) if the executor or administrator is unwilling or refuses to bring suit;30 and (2)
when the administrator is alleged to have participated in the act complained of31 and
he is made a party defendant.32 Evidently, the necessity for the heirs to seek judicial
relief to recover property of the estate is as compelling when there is no appointed
administrator, if not more, as where there is an appointed administrator but he is
either disinclined to bring suit or is one of the guilty parties himself.

All told, therefore, the rule that the heirs have no legal standing to sue for the recovery
of property of the estate during the pendency of administration proceedings has three
exceptions, the third being when there is no appointed administrator such as in this
case.

As the appellate court did not commit an error of law in upholding the order of the
lower court, recourse to this Court is not warranted.

WHEREFORE, the petition for review is DENIED. The assailed decision and resolution
of the Court of Appeals are hereby AFFIRMED. No costs.

SO ORDERED.

No. L-56340. June 24, 1983.*

SPOUSES ALVARO PASTOR, JR. and MA. ELENA ACHAVAL DE PASTOR,

petitioners, vs. THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF BRANCH I,
COURT OF FIRST INSTANCE OF CEBU and LEWELLYN BARLITO QUEMADA,
respondents.

Succession; The question of ownership is as a rule, an extraneous matter in a probate

proceeding.—In a special proceeding for the probate of a will, the issue by and large is
restricted to the extrinsic validity of the will, i.e., whether the testator, being of sound
mind, freely executed the will in accordance with the formalities prescribed by law.
(Rules of Court, Rule 75, Section 1; Rule 76, Section 9.) As a rule, the question of
ownership is an extraneous matter which the Probate Court cannot resolve with
finality. Thus, for the purpose of determining whether a certain property should or
should not be included in the inventory of estate properties, the Probate Court may
pass upon the title thereto, but such determination is provisional, not conclusive, and
is subject to the final decision in a separate action to resolve title.

Judgment; Execution; Writ of execution must conform with the dispositive portion but
body of decision may be consulted in case of ambiguity.—The rule is that execution of
a judgment must conform to that decreed in the dispositive part of the decision.
(Philippine-American Insurance Co. vs. Honorable Flores, 97 SCRA 811.) However, in
case of ambiguity or uncertainty, the body of the decision may be scanned for
guidance in construing the judgment. (Heirs of Presto vs. Galang, 78 SCRA 534;
Fabular vs. Court of Appeals, 119 SCRA 329; Robles vs. Timario, 107 Phil. 809.)

Same; Succession; Issue of ownership was not resolved by the probate court in this
case.—Nowhere in the dispositive portion is there a declaration of ownership of specific
properties. On the contrary, it is manifest therein that ownership was not resolved.
For it confined itself to the question of extrinsic validity of the will, and the need for
and propriety of appointing a special administrator. Thus it allowed and approved the
holographic will “with respect to its extrinsic validity, the same having been duly
authenticated pursuant to the requisites or solemnities prescribed by law.” It declared
that the intestate estate administration aspect must proceed “subject to the outcome
of the suit for reconveyance of ownership and possession of real and personal
properties in Civil Case 274-T before Branch IX of the CFI of Cebu.” [Parenthetically,
although the statement refers only to the “intestate” aspect, it defies understanding
how ownership by the estate of some properties could be deemed finally resolved for
purposes of testate administration, but not so for intestate purposes. Can the estate
be the owner of a property for testate but not for intestate purposes?] Then again, the
Probate Order (while indeed it does not direct the implementation of the legacy)
conditionally stated that the intestate administration aspect must proceed “unless . . .
it is proven . . . that the legacy to be given and delivered to the petitioner does not
exceed the free portion of the estate of the testator,” which clearly implies that the
issue of impairment of legitime (an aspect of intrinsic validity) was in fact not resolved.
Finally, the Probate Order did not rule on the propriety of allowing QUEMADA to
remain as special administrator of estate properties not covered by the holographic
will, “considering that this (Probate) Order should have been properly issued solely as
a resolution on the issue of whether or not to allow and approve the aforestated will.”

Same; Same; The Supreme Court affirmed in the previous case only what was
adjudged in the Probate Court’s Probate Order.—What, therefore, the Court of Appeals
and, in effect, the Supreme Court affirmed en toto when they reviewed the Probate
Order were only the matters properly adjudged in the said Order.

Same; Same; Probate Court erred in assuming in its implementing Order that the
Probate Order adjudged the issue of ownership.—It was, therefore, error for the
assailed implementing Orders to conclude that the Probate Order adjudged with
finality the question of ownership of the mining properties and royalties, and that,
premised on this conclusion, the dispositive portion of the said Probate Court directed
the special administrator to pay the legacy in dispute.

Succession; In case of death of one of the spouses their respective proprietary rights
must be liquidated and the debts paid in the succession proceedings for the deceased
spouse.—When PASTOR, SR. died in 1966, he was survived by his wife, aside from his
two legitimate children and one illegitimate son. There is therefore a need to liquidate
the conjugal partnership and set apart the share of PASTOR, SR.’s wife in the conjugal
partnership preparatory to the administration and liquidation of the estate of PASTOR,
SR. which will include, among others, the determination of the extent of the statutory
usufructuary right of his wife until her death. When the disputed Probate Order was
issued on December 5, 1972, there had been no liquidation of the community
properties of PASTOR, SR. and his wife.
Same; Same.—So also, as of the same date, there had been no prior definitive
determination of the assets of the estate of PASTOR, SR. There was an inventory of his
properties presumably prepared by the special administrator, but it does not appear
that it was ever the subject of a hearing or that it was judicially approved. The
reconveyance or recovery of properties allegedly owned but not in the name of
PASTOR, SR. was still being litigated in another court. There was no appropriate
determination, much less payment, of the debts of the decedent and his estate. x x x

Certiorari; Certiorari is proper where probate court issued erroneous implementing

orders of its Probate Order.—Under the circumstances of the case at bar, the challenge
must be rejected. Grave abuse of discretion amounting to lack of jurisdiction is much
too evident in the actuations of the probate court to be overlooked or condoned.
Without a final, authoritative adjudication of the issue as to what properties compose
the estate of PASTOR, SR. in the face of conflicting claims made by heirs and a non-
heir (MA. ELENA ACHAVAL DE PASTOR) involving properties not in the name of the
decedent, and in the absence of a resolution on the intrinsic validity of the will here in
question, there was no basis for the Probate Court to hold in its Probate Order of
1972, which it did not, that private respondent is entitled to the payment of the
questioned legacy. Therefore, the Order of Execution of August 20, 1980 and the
subsequent implementing orders for the payment of QUEMADA’s legacy, in alleged
implementation of the dispositive part of the Probate Order of December 5, 1972, must
fall for lack of basis.

Succession; Taxation; Legacy made in a will cannot be distributed without a prior

liquidation of the decedent’s estate and payment of debts and taxes.—The ordered
payment of legacy would be violative of the rule requiring prior liquidation of the estate
of the deceased, i.e., the determination of the assets of the estate and payment of all
debts and expenses, before apportionment and distribution of the residue among the
heirs and legatees. (Bernardo vs. Court of Appeals, 7 SCRA 367.) Neither has the
estate tax been paid on the estate of PASTOR, SR. Payment therefore of the legacy to
QUEMADA would collide with the provision of the National Internal Revenue Code
requiring payment of estate tax before delivery to any beneficiary of his distributive
share of the estate (Section 107 [c]).

Same; Judgment; A legacy is not a debt of the estate for which a writ of execution may
issue.—The above provision clearly authorizes execution to enforce payment of debts
of estate. A legacy is not a debt of the estate; indeed, legatees are among those against
whom execution is authorized to be issued.

Execution; Certiorari; An order of execution that varies the terms of a final order can
be questioned in a certiorari proceeding.—It is within a court’s competence to order
the execution of a final judgment; but to order the execution of a final order (which is
not even meant to be executed) by reading into it terms that are not there and in utter
disregard of existing rules and law, is manifest grave abuse of discretion tantamount
to lack of jurisdiction. Consequently, the rule that certiorari may not be invoked to
defeat the right of a prevailing party to the execution of a valid and final judgment, is
inapplicable. For when an order of execution is issued with grave abuse of discretion
or is at variance with the judgment sought to be enforced (PVTA vs. Honorable
Gonzales, 92 SCRA 172), certiorari will lie to abate the order of execution.

Same; Same; Action; Motions; A motion for leave to intervene need not be resorted to
first and certiorari may be commenced at once in case of urgent relief from an
implementing order.—Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of PASTOR,
JR., is the holder in her own right of three mining claims which are one of the objects
of conflicting claims of ownership. She is not an heir of PASTOR, SR. and was not a
party to the probate proceedings. Therefore, she could not appeal from the Order of
execution issued by the Probate Court. On the other hand, after the issuance of the
execution order, the urgency of the relief she and her co-petitioner husband seek in
the petition for certiorari militates against requiring her to go through the
cumbersome procedure of asking for leave to intervene in the probate proceedings to
enable her, if leave is granted, to appeal from the challenged order of execution which
has ordered the immediate transfer and/or garnishment of the royalties derived from
mineral properties of which she is the duly registered owner and/or grantee together
with her husband. She could not have intervened before the issuance of the assailed
orders because she had no valid ground to intervene. The matter of ownership over the
properties subject of the execution was then still being litigated in another court in a
reconveyance suit filed by the special administrator of the estate of PASTOR, SR.

PLANA, J.:

I. FACTS:

This is a case of hereditary succession.

Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in Cebu City on June 5,
1966, survived by his Spanish wife Sofia Bossio (who also died on October 21, 1966),
their two legitimate children Alvaro Pastor, Jr. (PASTOR, JR.) and Sofia Pastor de
Midgely (SOFIA), and an illegitimate child, not natural, by the name of Lewellyn Barlito
Quemada QUEMADA PASTOR, JR. is a Philippine citizen, having been naturalized in
1936. SOFIA is a Spanish subject. QUEMADA is a Filipino by his mother's citizenship.

On November 13, 1970, QUEMADA filed a petition for the probate and allowance of an
alleged holographic will of PASTOR, SR. with the Court of First Instance of Cebu,
Branch I (PROBATE COURT), docketed as SP No. 3128-R. The will contained only one
testamentary disposition: a legacy in favor of QUEMADA consisting of 30% of PASTOR,
SR.'s 42% share in the operation by Atlas Consolidated Mining and Development
Corporation (ATLAS) of some mining claims in Pina-Barot, Cebu.

On November 21, 1970, the PROBATE COURT, upon motion of QUEMADA and after
an ex parte hearing, appointed him special administrator of the entire estate of
PASTOR, SR., whether or not covered or affected by the holographic will. He assumed
office as such on December 4, 1970 after filing a bond of P 5,000.00.

On December 7, 1970, QUEMADA as special administrator, instituted against

PASTOR, JR. and his wife an action for reconveyance of alleged properties of the
estate, which included the properties subject of the legacy and which were in the
names of the spouses PASTOR, JR. and his wife, Maria Elena Achaval de Pastor, who
claimed to be the owners thereof in their own rights, and not by inheritance. The
action, docketed as Civil Case No. 274-R, was filed with the Court of First Instance of
Cebu, Branch IX.

On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their opposition to the
petition for probate and the order appointing QUEMADA as special administrator.

On December 5, 1972, the PROBATE COURT issued an order allowing the will to
probate. Appealed to the Court of Appeals in CA-G.R. No. 52961- R, the order was
affirmed in a decision dated May 9, 1977. On petition for review, the Supreme Court in
G.R. No. L-46645 dismissed the petition in a minute resolution dated November 1,
1977 and remanded the same to the PROBATE COURT after denying reconsideration
on January 11, 1978.

For two years after remand of the case to the PROBATE COURT, QUEMADA filed
pleading after pleading asking for payment of his legacy and seizure of the properties
subject of said legacy. PASTOR, JR. and SOFIA opposed these pleadings on the ground
of pendency of the reconveyance suit with another branch of the Cebu Court of First
Instance. All pleadings remained unacted upon by the PROBATE COURT.

On March 5, 1980, the PROBATE COURT set the hearing on the intrinsic validity of
the will for March 25, 1980, but upon objection of PASTOR, JR. and SOFIA on the e
ground of pendency of the reconveyance suit, no hearing was held on March 25.
Instead, the PROBATE COURT required the parties to submit their respective position
papers as to how much inheritance QUEMADA was entitled to receive under the wig.
Pursuant thereto, PASTOR. JR. and SOFIA submitted their Memorandum of
authorities dated April 10, which in effect showed that determination of how much
QUEMADA should receive was still premature. QUEMADA submitted his Position
paper dated April 20, 1980. ATLAS, upon order of the Court, submitted a sworn
statement of royalties paid to the Pastor Group of tsn from June 1966 (when Pastor,
Sr. died) to February 1980. The statement revealed that of the mining claims being
operated by ATLAS, 60% pertained to the Pastor Group distributed as follows:

1. A. Pastor, Jr. ...................................40.5%

2. E. Pelaez, Sr. ...................................15.0%

3. B. Quemada .......................................4.5%
On August 20, 1980, while the reconveyance suit was still being litigated in Branch IX
of the Court of First Instance of Cebu, the PROBATE COURT issued the now assailed
Order of Execution and Garnishment, resolving the question of ownership of the
royalties payable by ATLAS and ruling in effect that the legacy to QUEMADA was not
inofficious. [There was absolutely no statement or claim in the Order that the Probate
Order of December 5, 1972 had previously resolved the issue of ownership of the
mining rights of royalties thereon, nor the intrinsic validity of the holographic will.]

The order of August 20, 1980 found that as per the holographic will and a written
acknowledgment of PASTOR, JR. dated June 17, 1962, of the above 60% interest in
the mining claims belonging to the Pastor Group, 42% belonged to PASTOR, SR. and
only 33% belonged to PASTOR, JR. The remaining 25% belonged to E. Pelaez, also of
the Pastor Group. The PROBATE COURT thus directed ATLAS to remit directly to
QUEMADA the 42% royalties due decedent's estate, of which QUEMADA was
authorized to retain 75% for himself as legatee and to deposit 25% with a reputable
banking institution for payment of the estate taxes and other obligations of the estate.
The 33% share of PASTOR, JR. and/or his assignees was ordered garnished to answer
for the accumulated legacy of QUEMADA from the time of PASTOR, SR.'s death, which
amounted to over two million pesos.

The order being "immediately executory", QUEMADA succeeded in obtaining a Writ of

Execution and Garnishment on September 4, 1980, and in serving the same on ATLAS
on the same day. Notified of the Order on September 6, 1980, the oppositors sought
reconsideration thereof on the same date primarily on the ground that the PROBATE
COURT gravely abused its discretion when it resolved the question of ownership of the
royalties and ordered the payment of QUEMADA's legacy after prematurely passing
upon the intrinsic validity of the will. In the meantime, the PROBATE COURT ordered
suspension of payment of all royalties due PASTOR, JR. and/or his assignees until
after resolution of oppositors' motion for reconsideration.

Before the Motion for Reconsideration could be resolved, however, PASTOR, JR., this
time joined by his wife Ma. ELENA ACHAVAL DE PASTOR, filed with the Court of
Appeals a Petition for certiorari and Prohibition with a prayer for writ of preliminary
injunction (CA-G.R. No. SP- 11373-R). They assailed the Order dated August 20, 1980
and the writ of execution and garnishment issued pursuant thereto. The petition was
denied on November 18, 1980 on the grounds (1) that its filing was premature because
the Motion for Reconsideration of the questioned Order was still pending
determination by the PROBATE COURT; and (2) that although "the rule that a motion
for reconsideration is prerequisite for an action for certiorari is never an absolute
rule," the Order assailed is "legally valid. "

On December 9, 1980, PASTOR, JR. and his wife moved for reconsideration of the
Court of Appeal's decision of November 18, 1980, calling the attention of the appellate
court to another order of the Probate Court dated November 11, 1980 (i.e., while their
petition for certiorari was pending decision in the appellate court), by which the
oppositors' motion for reconsideration of the Probate Court's Order of August 20, 1980
was denied. [The November 11 Order declared that the questions of intrinsic validity of
the will and of ownership over the mining claims (not the royalties alone) had been
finally adjudicated by the final and executory Order of December 5, 1972, as affirmed
by the Court of Appeals and the Supreme Court, thereby rendering moot and
academic the suit for reconveyance then pending in the Court of First Instance of
Cebu, Branch IX. It clarified that only the 33% share of PASTOR, JR. in the royalties
(less than 7.5% share which he had assigned to QUEMADA before PASTOR, SR. died)
was to be garnished and that as regards PASTOR, SR.'s 42% share, what was ordered
was just the transfer of its possession to the custody of the PROBATE COURT through
the special administrator. Further, the Order granted QUEMADA 6% interest on his
unpaid legacy from August 1980 until fully paid.] Nonetheless, the Court of Appeals
denied reconsideration.

Hence, this Petition for Review by certiorari with prayer for a writ of pre y injunction,
assailing the decision of the Court of Appeals dated November 18, 1980 as well as the
orders of the Probate Court dated August 20, 1980, November 11, 1980 and December
17, 1980, Med by petitioners on March 26, 1981, followed by a Supplemental Petition
with Urgent Prayer for Restraining Order.

In April 1981, the Court (First Division) issued a writ of preliminary injunction, the
lifting of which was denied in the Resolution of the same Division dated October 18,
1982, although the bond of petitioners was increased from P50,000.00 to
P100,000.00.

Between December 21, 1981 and October 12, 1982, private respondent filed seven
successive motions for early resolution. Five of these motions expressly prayed for the
resolution of the question as to whether or not the petition should be given due
course.

On October 18, 1982, the Court (First Division) adopted a resolution stating that "the
petition in fact and in effect was given due course when this case was heard on the
merits on September 7, (should be October 21, 1981) and concise memoranda in
amplification of their oral arguments on the merits of the case were filed by the parties
pursuant to the resolution of October 21, 1981 . . . " and denied in a resolution dated
December 13, 1982, private respondent's "Omnibus motion to set aside resolution
dated October 18, 1982 and to submit the matter of due course to the present
membership of the Division; and to reassign the case to another ponente."

Upon Motion for Reconsideration of the October 18, 1982 and December 13, 1982
Resolutions, the Court en banc resolved to CONFIRM the questioned resolutions
insofar as hey resolved that the petition in fact and in effect had been given due
course.

II. ISSUES:
Assailed by the petitioners in these proceedings is the validity of the Order of
execution and garnishment dated August 20, 1980 as well as the Orders subsequently
issued allegedly to implement the Probate Order of December 5, 1972, to wit: the
Order of November 11, 1980 declaring that the Probate Order of 1972 indeed resolved
the issues of ownership and intrinsic validity of the will, and reiterating the Order of
Execution dated August 20, 1980; and the Order of December 17, 1980 reducing to
P2,251,516.74 the amount payable to QUEMADA representing the royalties he should
have received from the death of PASTOR, SR. in 1966 up to February 1980.

The Probate Order itself, insofar as it merely allowed the holographic will in probate, is
not questioned. But petitioners denounce the Probate Court for having acted beyond
its jurisdiction or with grave abuse of discretion when it issued the assailed Orders.
Their argument runs this way: Before the provisions of the holographic win can be
implemented, the questions of ownership of the mining properties and the intrinsic
validity of the holographic will must first be resolved with finality. Now, contrary to the
position taken by the Probate Court in 1980 — i.e., almost eight years after the
probate of the will in 1972 — the Probate Order did not resolve the two said issues.
Therefore, the Probate Order could not have resolved and actually did not decide
QUEMADA's entitlement to the legacy. This being so, the Orders for the payment of
the legacy in alleged implementation of the Probate Order of 1972 are unwarranted for
lack of basis.

Closely related to the foregoing is the issue raised by QUEMADA The Probate Order of
1972 having become final and executory, how can its implementation (payment of
legacy) be restrained? Of course, the question assumes that QUEMADA's entitlement
to the legacy was finally adjudged in the Probate Order.

On the merits, therefore, the basic issue is whether the Probate Order of December 5,
1972 resolved with finality the questions of ownership and intrinsic validity. A negative
finding will necessarily render moot and academic the other issues raised by the
parties, such as the jurisdiction of the Probate Court to conclusively resolve title to
property, and the constitutionality and repercussions of a ruling that the mining
properties in dispute, although in the name of PASTOR, JR. and his wife, really
belonged to the decedent despite the latter's constitutional disqualification as an alien.

On the procedural aspect, placed in issue is the propriety of certiorari as a means to

assail the validity of the order of execution and the implementing writ.

III. DISCUSSION:

1. Issue of Ownership —

(a) In a special proceeding for the probate of a will, the issue by and large is restricted
to the extrinsic validity of the will, i.e., whether the testator, being of sound mind,
freely executed the will in accordance with the formalities prescribed by law. (Rules of
Court, Rule 75, Section 1; Rule 76, Section 9.) As a rule, the question of ownership is
an extraneous matter which the Probate Court cannot resolve with finality. Thus, for
the purpose of determining whether a certain property should or should not be
included in the inventory of estate properties, the Probate Court may pass upon the
title thereto, but such determination is provisional, not conclusive, and is subject to
the final decision in a separate action to resolve title. [3 Moran, Comments on the
Rules of Court (1980 ed.), p. 458; Valero Vda. de Rodriguez vs. Court of Appeals, 91
SCRA 540.]

(b) The rule is that execution of a judgment must conform to that decreed in the
dispositive part of the decision. (Philippine-American Insurance Co. vs. Honorable
Flores, 97 SCRA 811.) However, in case of ambiguity or uncertainty, the body of the
decision may be scanned for guidance in construing the judgment. (Heirs of Presto vs.
Galang, 78 SCRA 534; Fabular vs. Court of Appeals, 119 SCRA 329; Robles vs.
Timario. 107 Phil. 809.)

The Order sought to be executed by the assailed Order of execution is the Probate
Order of December 5, 1972 which allegedly resolved the question of ownership of the
disputed mining properties. The said Probate Order enumerated the issues before the
Probate Court, thus:

Unmistakably, there are three aspects in these proceedings: (1) the probate of the
holographic will (2) the intestate estate aspect; and (3) the administration proceedings
for the purported estate of the decedent in the Philippines.

In its broad and total perspective the whole proceedings are being impugned by the
oppositors on jurisdictional grounds, i.e., that the fact of the decedent's residence and
existence of properties in the Philippines have not been established.

Specifically placed in issue with respect to the probate proceedings are: (a) whether or
not the holographic will (Exhibit "J") has lost its efficacy as the last will and testament
upon the death of Alvaro Pastor, Sr. on June 5, 1966, in Cebu City, Philippines; (b)
Whether or not the said will has been executed with all the formalities required by law;
and (c) Did the late presentation of the holographic will affect the validity of the same?

Issues In the Administration Proceedings are as follows: (1) Was the ex- parte
appointment of the petitioner as special administrator valid and proper? (2) Is there
any indispensable necessity for the estate of the decedent to be placed under
administration? (3) Whether or not petition is qualified to be a special administrator of
the estate; and (4) Whether or not the properties listed in the inventory (submitted by
the special administrator but not approved by the Probate Court) are to be excluded.

Then came what purports to be the dispositive portion:

Upon the foregoing premises, this Court rules on and resolves some of the problems
and issues presented in these proceedings, as follows:
(a) The Court has acquired jurisdiction over the probate proceedings as it hereby
allows and approves the so-called holographic will of testator Alvaro Pastor, Sr.,
executed on July 31, 1961 with respect to its extrinsic validity, the same having been
duly authenticated pursuant to the requisites or solemnities prescribed by law. Let,
therefore, a certificate of its allowance be prepared by the Branch Clerk of this Court
to be signed by this Presiding Judge, and attested by the seal of the Court, and
thereafter attached to the will, and the will and certificate filed and recorded by the
clerk. Let attested copies of the will and of the certificate of allowance thereof be sent
to Atlas Consolidated Mining & Development Corporation, Goodrich Bldg., Cebu City,
and the Register of Deeds of Cebu or of Toledo City, as the case may be, for recording.

(b) There was a delay in the granting of the letters testamentary or of administration
for as a matter of fact, no regular executor and/or administrator has been appointed
up to this time and - the appointment of a special administrator was, and still is,
justified under the circumstances to take possession and charge of the estate of the
deceased in the Philippines (particularly in Cebu) until the problems causing the delay
are decided and the regular executor and/or administrator appointed.

(c) There is a necessity and propriety of a special administrator and later on an executor
and/or administrator in these proceedings, in spite of this Court's declaration that the
oppositors are the forced heirs and the petitioner is merely vested with the character of
a voluntary heir to the extent of the bounty given to him (under) the will insofar as the
same will not prejudice the legitimes of the oppositorfor the following reasons:

1. To submit a complete inventory of the estate of the decedent-testator Alvaro Pastor,

Sr.

2. To administer and to continue to put to prolific utilization of the properties of the

decedent;

3. To keep and maintain the houses and other structures and belonging to the estate,
since the forced heirs are residing in Spain, and prepare them for delivery to the heirs
in good order after partition and when directed by the Court, but only after the
payment of estate and inheritance taxes;

(d) Subject to the outcome of the suit for reconveyance of ownership and possession of
real and personal properties in Civil Case No. 274-T before Branch IX of the Court of
First Instance of Cebu, the intestate estate administration aspect must proceed, unless,
however, it is duly proven by the oppositors that debts of the decedent have already
been paid, that there had been an extrajudicial partition or summary one between the
forced heirs, that the legacy to be given and delivered to the petitioner does not exceed
the free portion of the estate of the testator, that the respective shares of the forced
heirs have been fairly apportioned, distributed and delivered to the two forced heirs of
Alvaro Pastor, Sr., after deducting the property willed to the petitioner, and the estate
and inheritance taxes have already been paid to the Government thru the Bureau of
Internal Revenue.

The suitability and propriety of allowing petitioner to remain as special administrator

or administrator of the other properties of the estate of the decedent, which properties
are not directly or indirectly affected by the provisions of the holographic will (such as
bank deposits, land in Mactan etc.), will be resolved in another order as separate
incident, considering that this order should have been properly issued solely as a
resolution on the issue of whether or not to allow and approve the aforestated will.
(Emphasis supplied.)

Nowhere in the dispositive portion is there a declaration of ownership of specific

properties. On the contrary, it is manifest therein that ownership was not resolved.
For it confined itself to the question of extrinsic validity of the win, and the need for
and propriety of appointing a special administrator. Thus it allowed and approved the
holographic win "with respect to its extrinsic validity, the same having been duly
authenticated pursuant to the requisites or solemnities prescribed by law." It declared
that the intestate estate administration aspect must proceed " subject to the outcome
of the suit for reconveyance of ownership and possession of real and personal
properties in Civil Case 274-T before Branch IX of the CFI of Cebu." [Parenthetically,
although the statement refers only to the "intestate" aspect, it defies understanding
how ownership by the estate of some properties could be deemed finally resolved for
purposes of testate administration, but not so for intestate purposes. Can the estate be
the owner of a property for testate but not for intestate purposes?] Then again, the
Probate Order (while indeed it does not direct the implementation of the legacy)
conditionally stated that the intestate administration aspect must proceed "unless . . .
it is proven . . . that the legacy to be given and delivered to the petitioner does not
exceed the free portion of the estate of the testator," which clearly implies that the
issue of impairment of legitime (an aspect of intrinsic validity) was in fact not resolved.
Finally, the Probate Order did not rule on the propriety of allowing QUEMADA to
remain as special administrator of estate properties not covered by the holographic
will, "considering that this (Probate) Order should have been properly issued solely as
a resolution on the issue of whether or not to allow and approve the aforestated will. "

(c) That the Probate Order did not resolve the question of ownership of the properties
listed in the estate inventory was appropriate, considering that the issue of ownership
was the very subject of controversy in the reconveyance suit that was still pending in
Branch IX of the Court of First Instance of Cebu.

(d) What, therefore, the Court of Appeals and, in effect, the Supreme Court affirmed en
toto when they reviewed the Probable Order were only the matters properly adjudged
in the said Order.

(e) In an attempt to justify the issuance of the Order of execution dated August 20,
1980, the Probate Court in its Order of November 11, 1980 explained that the basis for
its conclusion that the question of ownership had been formally resolved by the
Probate Order of 1972 are the findings in the latter Order that (1) during the lifetime of
the decedent, he was receiving royalties from ATLAS; (2) he had resided in the
Philippines since pre-war days and was engaged in the mine prospecting business
since 1937 particularly in the City of Toledo; and (3) PASTOR, JR. was only acting as
dummy for his father because the latter was a Spaniard.

Based on the premises laid, the conclusion is obviously far-fetched.

(f) It was, therefore, error for the assailed implementing Orders to conclude that the
Probate Order adjudged with finality the question of ownership of the mining
properties and royalties, and that, premised on this conclusion, the dispositive portion
of the said Probate Order directed the special administrator to pay the legacy in
dispute.

2. Issue of Intrinsic Validity of the Holographic Will -

(a) When PASTOR, SR. died in 1966, he was survived by his wife, aside from his two
legitimate children and one illegitimate son. There is therefore a need to liquidate the
conjugal partnership and set apart the share of PASTOR, SR.'s wife in the conjugal
partnership preparatory to the administration and liquidation of the estate of PASTOR,
SR. which will include, among others, the determination of the extent of the statutory
usufructuary right of his wife until her death. * When the disputed Probate order was
issued on December 5, 1972, there had been no liquidation of the community
properties of PASTOR, SR. and his wife.

(b) So, also, as of the same date, there had been no prior definitive determination of
the assets of the estate of PASTOR, SR. There was an inventory of his properties
presumably prepared by the special administrator, but it does not appear that it was
ever the subject of a hearing or that it was judicially approved. The reconveyance or
recovery of properties allegedly owned but not in the name of PASTOR, SR. was still
being litigated in another court.

(c) There was no appropriate determination, much less payment, of the debts of the
decedent and his estate. Indeed, it was only in the Probate Order of December 5, 1972
where the Probate Court ordered that-

... a notice be issued and published pursuant to the provisions of Rule 86 of the Rules
of Court, requiring all persons having money claims against the decedent to file them
in the office of the Branch Clerk of this Court."

(d) Nor had the estate tax been determined and paid, or at least provided for, as of
December 5, 1972.

(e) The net assets of the estate not having been determined, the legitime of the forced
heirs in concrete figures could not be ascertained.
(f) All the foregoing deficiencies considered, it was not possible to determine whether
the legacy of QUEMADA - a fixed share in a specific property rather than an aliquot
part of the entire net estate of the deceased - would produce an impairment of the
legitime of the compulsory heirs.

(g) Finally, there actually was no determination of the intrinsic validity of the will in
other respects. It was obviously for this reason that as late as March 5, 1980 - more
than 7 years after the Probate Order was issued the Probate Court scheduled on
March 25, 1980 a hearing on the intrinsic validity of the will.

3. Propriety of certiorari —

Private respondent challenges the propriety of certiorari as a means to assail the

validity of the disputed Order of execution. He contends that the error, if any, is one of
judgment, not jurisdiction, and properly correctible only by appeal, not certiorari.

Under the circumstances of the case at bar, the challenge must be rejected. Grave
abuse of discretion amounting to lack of jurisdiction is much too evident in the
actuations of the probate court to be overlooked or condoned.

(a) Without a final, authoritative adjudication of the issue as to what properties

compose the estate of PASTOR, SR. in the face of conflicting claims made by heirs and
a non-heir (MA. ELENA ACHAVAL DE PASTOR) involving properties not in the name of
the decedent, and in the absence of a resolution on the intrinsic validity of the will
here in question, there was no basis for the Probate Court to hold in its Probate Order
of 1972, which it did not, that private respondent is entitled to the payment of the
questioned legacy. Therefore, the Order of Execution of August 20, 1980 and the
subsequent implementing orders for the payment of QUEMADA's legacy, in alleged
implementation of the dispositive part of the Probate Order of December 5, 1972, must
fall for lack of basis.

(b) The ordered payment of legacy would be violative of the rule requiring prior
liquidation of the estate of the deceased, i.e., the determination of the assets of the
estate and payment of all debts and expenses, before apportionment and distribution
of the residue among the heirs and legatees. (Bernardo vs. Court of Appeals, 7 SCRA
367.)

(c) Neither has the estate tax been paid on the estate of PASTOR, SR. Payment
therefore of the legacy to QUEMADA would collide with the provision of the National
Internal Revenue Code requiring payment of estate tax before delivery to any
beneficiary of his distributive share of the estate (Section 107 [c])

(d) The assailed order of execution was unauthorized, having been issued purportedly
under Rule 88, Section 6 of the Rules of Court which reads:
Sec. 6. Court to fix contributive shares where devisees, legatees, or heirs have been in
possession. — Where devisees, legatees, or heirs have entered into possession of
portions of the estate before the debts and expenses have been settled and paid and
have become liable to contribute for the payment of such debts and expenses, the
court having jurisdiction of the estate may, by order for that purpose, after hearing,
settle the amount of their several liabilities, and order how much and in what manner
each person shall contribute, and may issue execution as circumstances require.

The above provision clearly authorizes execution to enforce payment of debts of estate.
A legacy is not a debt of the estate; indeed, legatees are among those against whom
execution is authorized to be issued.

... there is merit in the petitioners' contention that the probate court generally cannot
issue a writ of execution. It is not supposed to issue a writ of execution because its
orders usually refer to the adjudication of claims against the estate which the executor
or administrator may satisfy without the necessity of resorting to a writ of execution.
The probate court, as such, does not render any judgment enforceable by execution.

The circumstances that the Rules of Court expressly specifies that the probate court
may issue execution (a) to satisfy (debts of the estate out of) the contributive shares of
devisees, legatees and heirs in possession of the decedent's assets (Sec. 6. Rule 88), (b)
to enforce payment of the expenses of partition (Sec. 3, Rule 90), and (c) to satisfy the
costs when a person is cited for examination in probate proceedings (Sec. 13, Rule
142) may mean, under the rule of inclusion unius est exclusion alterius, that those
are the only instances when it can issue a writ of execution. (Vda. de Valera vs.
Ofilada, 59 SCRA 96, 108.)

(d) It is within a court's competence to order the execution of a final judgment; but to
order the execution of a final order (which is not even meant to be executed) by
reading into it terms that are not there and in utter disregard of existing rules and
law, is manifest grave abuse of discretion tantamount to lack of jurisdiction.
Consequently, the rule that certiorari may not be invoked to defeat the right of a
prevailing party to the execution of a valid and final judgment, is inapplicable. For
when an order of execution is issued with grave abuse of discretion or is at variance
with the judgment sought to be enforced (PVTA vs. Honorable Gonzales, 92 SCRA
172), certiorari will lie to abate the order of execution.

(e) Aside from the propriety of resorting to certiorari to assail an order of execution
which varies the terms of the judgment sought to be executed or does not find support
in the dispositive part of the latter, there are circumstances in the instant case which
justify the remedy applied for.

Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of PASTOR, JR., is the holder in
her own right of three mining claims which are one of the objects of conflicting claims
of ownership. She is not an heir of PASTOR, SR. and was not a party to the probate
proceedings. Therefore, she could not appeal from the Order of execution issued by the
Probate Court. On the other hand, after the issuance of the execution order, the
urgency of the relief she and her co-petitioner husband seek in the petition for
certiorari states against requiring her to go through the cumbersome procedure of
asking for leave to intervene in the probate proceedings to enable her, if leave is
granted, to appeal from the challenged order of execution which has ordered
the immediate transfer and/or garnishment of the royalties derived from mineral
properties of which she is the duly registered owner and/or grantee together with her
husband. She could not have intervened before the issuance of the assailed orders
because she had no valid ground to intervene. The matter of ownership over the
properties subject of the execution was then still being litigated in another court in a
reconveyance suit filed by the special administrator of the estate of PASTOR, SR.

Likewise, at the time petitioner PASTOR, JR. Med the petition for certiorari with the
Court of Appeals, appeal was not available to him since his motion for reconsideration
of the execution order was still pending resolution by the Probate Court. But in the
face of actual garnishment of their major source of income, petitioners could no longer
wait for the resolution of their motion for reconsideration. They needed prompt relief
from the injurious effects of the execution order. Under the circumstances, recourse to
certiorari was the feasible remedy.

WHEREFORE, the decision of the Court of Appeals in CA G.R. No. SP-11373-R is

reversed. The Order of execution issued by the probate Court dated August 20, 1980,
as well as all the Orders issued subsequent thereto in alleged implementation of the
Probate Order dated December 5, 1972, particularly the Orders dated November 11,
1980 and December 17, 1980, are hereby set aside; and this case is remanded to the
appropriate Regional Trial Court for proper proceedings, subject to the judgment to be
rendered in Civil Case No. 274-R.

SO ORDERED.

G.R. No. L-39492. March 23, 1990.*

ANTIPAZ L. PINEDA, CARLOS P. PINPIN, AMADEO J. HILARIO and SALVADOR D.

SANTOS, petitioners, vs. THE HONORABLE COURT OF APPEALS, FELISA
ESGUERRA, BENJAMIN ESGUERRA, DAVID ESGUERRA, LOLITA ESGUERRA,
SOLEDAD ESGUERRA, ARTURO ESGUERRA, ROMULO ESGUERRA, EDUARDO
ESGUERRA, ANGEL DOMINGO, LEONARDO REYES, respondents.

Public Land Law; Land Registration Law; Alienable public land held openly,
continuously and exclusively for the prescribed period is converted to private property
by mere lapse or completion of said period ipso jure.—Under present jurisprudence,
alienable public land held by a possessor personally, or through his predecessors-in-
interest, openly, continuously and exclusively for the prescribed period, is converted to
private property by mere lapse or completion of said period ipso jure.
Same; Same; Same; Private respondents are deemed to have acquired by operation of
law not only a right to grant but also a grant of the government over the controversial
land; The property in litigation having been segregated from the public domain, the
Director of Lands no longer has jurisdiction.—Following the Susi doctrine, (supra)
therefore, private respondents are deemed to have acquired, by operation of law, not
only a right to grant, but also a grant of the Government over the controversial land.
By such grant, the property in litigation is segregated from the public domain; and
becomes private property, over which necessarily, the Director of Lands no longer has
jurisdiction.

Same; Same; Same; The certificates of title issued in favor of petitioners are null and
void; Issue of indefeasibility of title becomes irrelevant.—Absent such jurisdiction and
being thus private property, it is clear that the certificates of title issued in favor of
petitioners are null and void, and the issue on indefeasibility of title becomes
irrelevant.

Same; Same; Same; Same; The Public Land Law applies only to lands of the public
domain.—“Private ownership of land (as when there is a prima facie proof of ownership
like a duly registered posse sory information) is not affected by the issuance of a free
patent over the same land, because the Public Land Law applies only to lands of the
public domain. The Director of Lands has no authority to grant to another a free
patent for land that has ceased to be a public land and has passed to private
ownership (Garcia vs. Director of Lands, 80 Phil. 424). Consequently, a certificate of
title issued pursuant to a homestead patent partakes of the nature of a certificate
issued in a judicial proceeding only if the land covered by it is really a part of the
disposable land of the public domain.”

Remedial Law; Evidence; Rule that findings of trial court are accorded great respect
well-settled.—It is a well-settled rule that findings of trial courts are accorded great
respect in the absence of any showing that they ignored, overlooked or failed to
properly appreciate matters of substance which would affect the results.

BIDIN, J.:

This is a petition for review on certiorari of the August 31, 1968 Decision of the Court
of Appeals in CA-G.R. No. 34750-R'* entitled "Antonio J. Alberto, Jr., thru his mother
as his natural guardian, Andrea Jongco, plaintiff-appellant, vs. Natividad del Rosario
Vda. de Alberto, in her individual capacity and as judicial guardian of the minors,
Lourdes Alberto and Antonio Alberto, Jr., defendants-appellees", reversing the August
10, 1964. Decision of the then Court of First Instance of Manila.

The case originated from a complaint for acknowledgment and partition filed on
September 8, 1960 with the then Court of First Instance of Manila by the herein
private respondent, a minor, 18 years of age, assisted by his mother, Andrea Jongco,
as his natural guardian, against the herein petitioners (Record on Appeal, pp. 2-8). In
the said Complaint, private respondent alleged, in substance, that in 1941 his alleged
father, Antonio C. Alberto, and his mother, Andrea Jongco, lived together as husband
and wife and as a result of which, he was born on September 10, 1942; that during
the time that his alleged father and mother lived together as husband and wife and up
to the time of his birth, both were single and had no legal impediment to marry each
other; that after his birth, his father and mother continued living together as husband
and wife, his father supporting them and introducing him to the public as his natural
child; that even the family of his father recognized him as such; that on or about the
year 1944, his father and mother separated, and subsequently, his father married
herein petitioner Natividad del Rosario; that as a result of the marriage, two (2)
children were born herein petitioners Lourdes Alberto and Antonio Alberto, Jr.; that
although his father was separated from his mother, he continued to support him and
recognized him as his own child; that on July 3, 1949, his father died, and without
notice to him, petitioner Natividad del Rosario Vda. de Alberto, on July 17, 1949,
instituted before the then Court of First Instance of Manila an intestate proceedings
for the estate of his deceased father, docketed therein as Special Proceedings No.
9092; that in the said intestate proceedings, petitioners deliberately omitted him as
one of the heirs and for this reason they succeeded in having the properties of his
deceased father adjudicated and partitioned among themselves; that the said intestate
proceedings were terminated on November 9, 1953; that his father left properties
valued at P74,963.81, and accordingly, as a natural child of his father, he is entitles to
at least P18,000.00; and that he had absolutely no previous knowledge of the intestate
proceedings and came to know about it only recently and thereupon made a demand
from the petitioners who refused to give him his share. Accordingly, he prays that the
petitioners be ordered to acknowledge him as the natural child of Antonio C. Alberto;
that his one-fourth share be turned over to him; and that petitioners be sentenced to
pay him the sum of P5,000.00 as attorney's fee and the cost of suit (Record on
Appeals, pp. 2-9).

On September 21, 1960, petitioners filed a Motion to Dismiss on the grounds that (1)
the cause of action is barred by prior judgment; and (2) that the cause of action is also
barred by the statute of limitation (Ibid, pp. 9-19). To this motion, private respondents
filed an opposition on October 22, 1960 (Ibid, pp. 20-58).

On November 11, 1960, the trial court issued an Order denying the Motion to Dismiss
(Ibid, pp. 97-98).

On November 18, 1964, petitioners filed their Answer to the Complaint (Ibid, pp. 98-
102).

On November 23, 1964, private respondent filed his Answer to Defendants'

counterclaim (Ibid, pp. 102-104). On August 10, 1964, the trial court rendered a
decision in favor of the petitioners (Ibid, pp. 104- 123). The dispositive portion of the
Decision reads:

Considering all the foregoing, the Court orders the dismissal of the complaint without
pronouncement as to the costs. The counterclaim is also dismissed.

SO ORDERED.

Private respondent, not satisfied with the decision, appealed to respondent Court, and
in a Decision promulgated on August 31, 1968 (Ibid, pp. 61-75), respondent Court
reversed the decision of the trial court. The dispositive portion of the said Decision,
reads:

Wherefore, the decision appealed from is hereby reversed and set aside and another
rendered declaring plaintiff Antonio J. Alberto, Jr., an acknowledged Natural Child of
the deceased Antonio C. Alberto; declaring said plaintiff the owner pro indiviso of one-
fifth (1/5) of the hereditary estate of Antonio C. Alberto; and ordering the defendants
to deliver to plaintiff Antonio J. Alberto, Jr., his one-fifth (1/5) share in said estate,
subject to the usufructuary rights of defendants Natividad del Rosario Vda. de Alberto
pursuant to Articles 834 of the Old Civil Code, and to pay the costs of suit.

SO ORDERED.

On September 24, 1968, petitioners filed a Motion for Reconsideration, but the same
was denied in a Resolution dated October 14, 1968 (Rollo, p. 77). Hence, the instant
petition.

This Court, in a resolution dated November 27,1968, resolved to give due course to the
petition (Rollo, p. 91).

Petitioners assigned the following errors:

THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE COURT
OF FIRST INSTANCE OF MANILA (TRIAL COURT) HAD NO JURISDICTION TO TAKE
COGNIZANCE OF THE INSTANT CASE.

II

ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD JURISDICTION TO TAKE

COGNIZANCE OF THE INSTANT CASE, THE HONORABLE COURT OF APPEALS
ERRED IN HOLDING THAT RESPONDENT ALBERTO JR.'S CAUSE OF ACTION WAS
NOT BARRED BY PRIOR JUDGMENT.

III
ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD JURISDICTION TO TAKE
COGNIZANCE OF THE INSTANT CASE, THE HONORABLE COURT OF APPEALS
ERRED IN HOLDING THAT RESPONDENT ALBERTO JR.'S CAUSE OF ACTION HAD
NOT YET PRESCRIBED.

IV

ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD JURISDICTION TO TAKE

COGNIZANCE OF THE INSTANT CASE, THE HONORABLE COURT OF APPEALS
ERRED IN NOT HOLDING THAT RESPONDENT ALBERTO, JR., IN NOT BRINGING
THE INSTANT ACTION FOR AN UNREASONABLE LENGTH OF TIME, WAS GUILTY OF
LACHES.

ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD JURISDICTION TO TAKE

COGNIZANCE OF THE INSTANT CASE, THE HONORABLE COURT OF APPEALS
GROSSLY ERRED IN REVERSING THE FINDINGS OF THE TRIAL COURT BY BASING
ITS JUDGMENT ON A MISAPPREHENSION OF FACTS, GIVING CREDENCE TO THE
TESTIMONIES OF ANDREA JONGCO AND OTHER WITNESSES OF RESPONDENT
ALBERTO, JR., DESPITE THE SERIOUS CONTRADICTIONS, INCONSISTENCIES AND
IMPROBABILITIES IN THEIR TESTIMONIES AS FOUND BY THE TRIAL COURT AND
CATEGORICALLY STATED IN ITS DECISION.

VI

ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD JURISDICTION TO TAKE

COGNIZANCE OF THE INSTANT CASE, THE HONORABLE COURT OF APPEALS
COMMITTED A GROSS ERROR OF LAW AND A GRAVE ABUSE OF DISCRETION
WHEN IT ARBITRARILY AND CAPRICIOUSLY DISREGARDED PETITIONERS'
EVIDENCE.

VII

ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD JURISDICTION TO TAKE

COGNIZANCE OF THE INSTANT CASE, THE HONORABLE COURT OF APPEALS
ERRED IN HOLDING THAT RESPONDENT ALBERTO, JR., WAS AN ACKNOWLEDGED
NATURAL CHILD OF THE DECEASED ALBERTO AND IN DECLARING HIM OWNER
PRO-INDIVISO OF ONE-FIFTH OF THE HEREDITARY ESTATE OF THE DECEASED.

I.

It is the contention of petitioners that inasmuch as the instant case was filed on
September 8, 1960, almost five (5) years after the enactment of R.A. No. 1401 —
creating the Juvenile and Domestic Relations Court, the questions of paternity and
acknowledgment fall beyond the jurisdictional pale of the Court of First Instance of
Manila and instead comes within the exclusive original jurisdiction of the Juvenile and
Domestic Relations Court. While petitioners admitted that this objection to lack of
jurisdiction by the Court of First Instance of Manila over the subject matter of the
present action had not been raised either in the said court or in the Court of Appeals
and is brought to this Court for resolution for the first time on appeal, they contend
that a party may object to the jurisdiction of the court over the subject matter of the
action at any stage of the proceedings, even for the first time on appeal since lack of
jurisdiction of the court over the subject matter cannot be waived. Such contention is
untenable.

This Court has already ruled that the question of jurisdiction not raised in the trial
court cannot be raised on appeal (Dalman vs. City Court of Dipolog City, Branch II,
134 SCRA 243 [1985]). Besides, a party who had voluntarily participated in the trial,
like the herein petitioners, cannot later on raise the issue of the court's lack of
jurisdiction (Philippine National Bank vs. Intermediate Appellate Court, 143 SCRA 299
[1986]; Royales vs. Intermediate Appellate Court, 143 SCRA 470 [1984]; Tijam vs.
Sibonghanoy, 23 SCRA 29 [1968]). Moreover, there are no more Juvenile and Domestic
Relations Courts today. Under Batas Pambansa Blg. 129, the functions of the Juvenile
and Domestic Relations Court have been transferred to the Regional Trial Courts
(Divinagracia vs. Bellosillo, 143 SCRA 356 [1986]).

II.

Petitioners alleged that the intestate proceedings for the settlement of estate of the
deceased Antonio C. Alberto (Special Proceedings No. 9092) had already been
terminated on November 9, 1953 by the order of distribution directing the delivery of
the residue of the estate to the persons entitled thereto and that in said proceedings
the court also declared who are the heirs of the deceased. Consequently, the instant
case which seeks to secure the recognition of Antonio J. Alberto, Jr. as an
acknowledged natural child of the deceased in order to establish his rights to the
inheritance is already barred by prior judgment (Petitioners' Brief, p. 47) despite
private respondent's insistence that he had no knowledge or notice of the intestate
proceedings of his alleged natural father (Record on Appeal, p. 21).

Petitioners' submission is impressed with merit.

This Court has invariably ruled that insolvency proceedings and settlement of a
decedent's estate are both proceedings in rem which are binding against the whole
world. All persons having interest in the subject matter involved, whether they were
notified or not, are equally bound (Philippine Savings Bank vs. Lantin, 124 SCRA 483
[1983]). The court acquires jurisdiction over all persons interested, through the
publication of the notice prescribed ... and any order that may be entered therein is
binding against all of them (Ramon vs. Ortuzar, 89 Phil. 741 [1951] citing in re Estate
of Johnson, 39 Phil. 156). It was ruled further that a final order of distribution of the
estate of a deceased person vests the title to the land of the estate in the distributees;
and that the only instance where a party interested in a probate proceeding may have
a final liquidation set aside is when he is left out by reason of circumstances beyond
his control or through mistake or inadvertence not imputable to negligence. Even
then, the better practice to secure relief is reopening of the same case by proper
motion within the reglementary period, instead of an independent action, the effect of
which, if successful, would be, as in the instant case, for another court or judge to
throw out a decision or order already final and executed and reshuffle properties long
ago distributed and disposed of (Ramon vs. Ortuzar, supra; Santos vs. Roman Catholic
Bishop of Nueva Caceres 45 Phil. 895).

III.

As to the issue of prescription, the Civil Code of the Philippines clearly provides:

Art. 1100. The action for rescission on account of lesion shall prescribe after four
years from the time the partition was made.

Intestate proceedings were terminated as alleged in the complaint itself on November

9, 1953 so that said four years prescriptive period expired on November 9,1957.
Hence, the present action filed on September 8, 1960 and which has for one of its
objects the rescission of the agreement of partition among the petitioners, as approved
by the intestate court, is already barred by prescription.

That an action for rescission is also the proper action in case of an alleged preterition
of a compulsory heir by reason of alleged bad faith or fraud of the other persons
interested, which is what the complaint in this case alleges in substance, is indicated
in Article 1104 of the Civil Code as follows:

Art. 1104. A partition made with preterition of any of the compulsory heirs shall not
be rescinded, unless it be proved that there was bad faith or fraud on the part of the
other persons interested; ...

It has also been ruled by this Court that the four years period provided in Article 1100
of the Civil Code (formerly Art. 1076 of the old Civil Code) should commence to run
from the approval of the agreement of partition by the Court (Samson vs. Araneta, 60
Phil. 27, 36). Thus, in the case at bar, it is evident that the action to rescind the
Agreement of Partition which was approved by the Court on November 9, 1953, had
already prescribed when respondent filed the complaint in the case at bar on
September 8, 1960.

While as a general rule the action for partition among co-owners does not prescribe so
long as the co-ownership is expressly or impliedly recognized (Art. 494, Civil Code),
petitioners herein had never recognized respondent as a co-owner or co-heir either
expressly or impliedly. Consequently, the rule on non-prescription of action for
partition of property owned in common (Art. 494) does not apply to the case at bar.
Moreover, private respondent cannot claim exemption from the effects of prescription
on the plea of minority under the New Civil Code which provides:

Art. 1108. Prescription, both acquisitive and extinctive, runs against: (1) Minors and
other incapacitated persons who have parents, guardians or other legal
representatives:

xxx xxx xxx

Respondent Alberto, Jr. who has a living parent, his mother, Andrea Jongco, who in
fact filed the complaint in the case at bar for him, falls squarely under the above-cited
provision.

Granting arguendo that respondent is a natural child of the deceased Antonio Alberto,
Sr., the action for recognition of natural child may be brought only during the lifetime
of the presumed parent. And if the presumed father or mother died during the
minority of the child, the latter may file the action within four (4) years from the
attainment of majority (Art. 285 [1]). However, if the minor has a guardian as in this
case, prescription runs against him even during minority (Wenzel etc., et al. vs.
Surigao Consolidated Mining, Inc., 108 Phil. 530 [1960]). In such case, the action for
recognition must be instituted within four (4) years after the death of the natural
father (Magallanes, et al. vs. Court of Appeals, et al., 95 Phil. 795 [1954]). Antonio C.
Alberto, Sr., the alleged father, died on July 3, 1949. The complaint for
acknowledgment and partition was filed eleven (11) years later, on September 8, 1960.
Hence, prescription had set in.

Neither can it be claimed that the present action is in substance one for recovery of
property in order to avoid the consequences of prescription, for as correctly stated by
the petitioners, to be entitled to the recovery of the property from the estate, Alberto,
Jr. must first rescind the partition and distribution approved by the intestate
proceedings, otherwise, the recovery of any property from the petitioners is not
possible. Be that as it may, such partition can no longer be rescinded having been
already barred by the Statute of Limitations.

Furthermore, even granting that Article 1104 of the Civil Code does not apply and
there is an injury to the rights of plaintiff, tills action would still not prosper under
Articles 1146 and 1149 of the same Code which provide that the action must be
brought within four and five years, respectively, from the time the right of action
accrues.

IV

Petitioners' claim of laches is likewise tenable. The trial court in its findings clearly
and unmistakably declared that respondent Alberto, Jr. is guilty of laches as follows:
About 1944, Andrea Jongco said she learned of Antonio Alberto's marriage to
Natividad del Rosario. Yet, she took no steps to protect the interests of her child,
Antonio, although she was already confronted with the incontrovertible proof of
Antonio's infidelity and the hallowness of his promises.

It might be that Andrea Jongco was then relying on Antonio Alberto's not denying that
Alberto, Jr. was his child, if such was the case. If this was so, however, how can we
explain her inaction even after the death of Antonio Alberto in 1949, or until
September 8, 1960, when she filed this action, Andrea kept silent, took no action to
have her child recognized as the son of the alleged father. Her laches, as well as the
inherent improbabilities in her testimony rendered it unworthy of belief.

... It is evident that the plaintiff's case is adversely affected by his long delay in
bringing this action. 'Undue delay in the separate enforcement of a right is strongly
persuasive of lack of merit in this claim, since it is human nature for a person to
assert his rights most strongly when they are threatened or invaded. (Buenaventura
vs. David, 37 Phil. 435-440). (Record on Appeal, pp. 108-109).

This Court has consistently declared that laches is the failure or neglect, for an
unreasonable and unexplained length of time, to do that which by exercising due
diligence, could or should have been done earlier. The negligence or omission to assert
a right within a reasonable time, warrants a presumption that the party entitled to
assert it either has abandoned it or declined to assert it (Corro vs. Lising, 137 SCRA
541 [1985]; Tendo vs. Zamacoma, 138 SCRA 78 [1985]; De Castro vs. Tan, 129 SCRA
85 [1984]; Medija vs. Patcho, 132 SCRA 540 [1984]; Burgos, Sr. vs. Chief of Staff,
Armed Forces of the Phil., 133 SCRA 800 [1984]; Gumonpin vs. CA, 120 SCRA 687
[1983]).

As pointed out by the trial court, there appears to be no explanation for the surprising
delay in the filing of the complaint in the case at bar except perhaps, the fact that
during the lifetime of the deceased Antonio Alberto, private respondents were receiving
support until the latter died in 1949; but thereafter, they allowed more than ten years
to elapse or until September 8, 1960 before they filed the present action to assert their
rights despite Andrea Jongco's allegation that they stopped receiving support after
Alberto, Sr.'s death.

On the other hand, there is merit in petitioners' allegations that such delay is
prejudicial to them. Private respondents could have filed the action in 1944 when
Andrea Jongco learned of the marriage of the deceased with petitioner Natividad del
Rosario instead of waiting for 16 years when the supposed father's lips had been
sealed by death and possible witnesses like Antonio Alberto, Sr.'s mother had become
too old to give coherent testimony.

On this point, the Supreme Court ruled:

The assertion of doubtful claims, after long delay, cannot be favored by the courts.
Time inevitably tends to obliterate occurrences from the memory of witnesses, and
even where the recollection appears to be entirely clear, the true clue to the solution of
a case may be hopelessly lost. These considerations constitute one of the pillars of the
doctrine long familiar in equity jurisprudence to the effect that laches or unreasonable
delay on the part of a plaintiff in seeking to enforce a right is not only persuasive of a
want of merit but may, according to the circumstances, be destructive of the right
itself. Vigilantibus non dormientibus equites subvenit (Buenaventura vs. David, 37
Phil. 435, reiterated in Edralin vs. Edralin, 1 SCRA 227 [1961]).

The other explanation might have been the minority of Antonio Alberto, Jr. at the time
of his supposed father's death. But such explanation as discussed earlier is unavailing
even in case of prescription under Article 1108 of the Civil Code where minority does
not stop the running of the prescriptive period for minors who have parents, guardians
or legal representatives.

Thus, it is well established that "The law serves those who are vigilant and diligent and
not those who sleep when the law requires them to act (Cui and Joven vs. Henson, 51
Phil. 606, 610; Bacolod-Murcia Milling Co. vs. Villaluz, Sept. 29, 1951, 90 Phil. 154)."
The law does not encourage laches, indifference, negligence or ignorance. On the
contrary, for a party to deserve the considerations of the courts, he... must show that
he is not guilty of any of the aforesaid failings (Samson vs. Yateo, August 28,1958; 104
PMI. 378).

V.

Finally on the merits of this case, petitioners would have this Court review and reverse
the conclusions of fact of the Court of Appeals. As a general rule, this is a function
this Court does not undertake. The established principle is that the factual findings of
the Court of Appeals are final and may not be reviewed on appeal to this Court;
except: (1) when the conclusion is grounded entirely on speculation, surmises and
conjectures; (2) when the inference is manifestly mistaken, absurd and impossible; (3)
where there is grave abuse of discretion; (4) when the judgment is based on a
misapprehension of facts; (5) when the Court in making its findings went beyond the
issues of the case, and the same are contrary to the admissions of both the apellant
and the appellee; (6) when the findings of the Appellate Court are contrary to those of
the trial court; (7) when the findings are without citation of specific evidence on which
they are based (Manlapaz vs. C.A., 147 SCRA 238-239 [1987]; Guita vs. C.A., 139
SCRA 576 [1985]; Sacay vs. Sandiganbayan, 147 SCRA 593 [1986]).

It is readily evident that this case falls within one of the recognized exceptions to the
rule, specifically that the findings of the Appellate Court are contrary to those of the
trial court.
At the trial, the lower court in evaluating the evidence presented by the complainants
is of the view that the testimony alone of Andrea Jongco is sufficient to totally discredit
not only her testimony but also her entire case. Aside from being inherently
improbable and the merit of her claim being adversely affected by her testimony and
her long delay in bringing action, her testimony is contradicted by the testimonies of
Jose, Zoilo and Pilar who are brothers and sister of the deceased Antonio Alberto and
who have no pecuniary interest whatsoever in the outcome of the controversy. They
testified that during the period Andrea Jongco claimed that Antonio Alberto, Sr. lived
with her, the deceased in fact lived with his mother and brothers at the family
residence except for his brief stint with the army (Decision, Civil Case No. 44164;
Record on appeal, pp. 111-112).

More than that, the trial court found among others, that Andrea Jongco has had five
children (aside from her son Antonio) with four different men. The assumption,
therefore, is that she lived with at least four different men without being married to
any of them. Thus, the trial court aptly ruled that his propensity to promiscuous
relationship with different men, render it unjust to state with definiteness that any
particular person is the father of any one of her children." (Ibid, p. 121).

Other witnesses are Eufracia Cailan who allegedly took care of Antonio, the father,
since the latter was a child and then of Antonio, the alleged son, and Encarnacion
Peralta, an alleged former lessor of Andrea Jongco and Antonio Alberto. Their
testimonies were, however, found by the trial court to be inherently improbable,
inconsistent with human experience and deliberately invented to conform with the
testimony of Andrea Jongco (Ibid, pp. 109-117).

On the other hand, the Court of Appeals in its decision gave more credence to the
testimonies of Eufracia Cailan and Encarnacion Peralta and declared that their
testimonies have sufficiently established the fact that Antonio J. Alberto, Jr. is the son
of the late Antonio C. Alberto and Andrea Jongco which finds further proof in the birth
certificate and the baptismal certificate of Alberto, Jr. (Rollo, pp. 6-11).

In this connection, it must be stated that in the case of Reyes vs. Court of Appeals,
135 SCRA 439 (1985), this Court, citing the cases of Bercilles vs. GSIS, 128 SCRA 53;
People vs. Villeza, 127 SCRA 349; Cid vs. Burnaman, 24 SCRA 434; Vudaurrazaga vs.
C.A., 91 Phil. 492; and Capistrano vs. Gabino, 8 Phil. 135, ruled that a birth
certificate not signed by the alleged father therein indicated, like in the instant case, is
not competent evidence of paternity.

In casting doubt upon the credibility of petitioner Natividad's testimony, the Court of
Appeals pointed out her serious inconsistency on material points such as her claim
that she was married to the deceased in 1941 and her later admission in the answer
that they were married in 1944.
The record shows, however, that both admissions were correct, the first marriage was
a secret civil marriage celebrated in Pililla, Rizal while the second was a religious
ratification of the former. The lack of marriage certificate as evidence was also
considered by the Court of Appeals as an impairment of credibility despite a
certification to the effect that all pre-war records in the Municipality of Pililla, Rizal
were destroyed during the last war. Said Appellate Court is of the view that if they did
plan to marry secretly at that time, they could have chosen a city or municipality near
Manila and that Pililla must have been chosen as the place of the supposed marriage
so that petitioners could have an apparent good reason for the non-presentation of the
marriage certificate.

As aptly argued by the petitioners, such conclusion is purely conjectural. Besides

petitioners' reasons for the choice of that place, the celebration of the marriage was
positively confirmed by Damaso Herrera, one of the sponsors thereof.

In any event, it is a fundamental rule that conclusions and findings of fact by the trial
court are entitled to great weight on appeal and should not be disturbed unless for
strong and cogent reasons because the trial court is in a better position to examine
real evidence, as well as to observe the demeanor of the witnesses while testifying in
the case (People vs. Pimentel, 147 SCRA 29, 30 [19871; People vs. Grefiel, 125 SCRA
108 [1983]; Chase vs. Buencamino, 136 SCRA 381 [1985]; People vs. Fernandez, 124
SCRA 248 (1983]; Olangco vs. C.F.I. of Misamis Oriental, 121 SCRA 338 [1983];
Minuchechi vs. C.A., 129 SCRA 479 [1984]).

After a careful review of the records and the evidence presented by the contending
parties, no cogent reasons could be found to justify the reversal of the findings of the
trial court.

In view of the foregoing, there appears to be no need to discuss the last two
assignments of errors.

WHEREFORE, the assailed decision of the Court of Appeals is hereby Reversed and
the decision of the trial court is Reinstated. No costs.

SO ORDERED.

SARMIENTO, J.:

This petition seeks the nullification of the Order of respondent Judge Romulo P.
Untalan, 1 dated July 16,1981, excluding from the probate proceedings sixty-three
parcels of land, as well as the Orders issued by respondent Judge Domingo Coronel
Reyes, 2 denying the petitioner's motions for reconsideration of the same Order of
Judge Untalan dated July 16, 1981.
The petition's beginnings are traced to January 27, 1959, when Rosendo Ralla, a
widower, filed a petition for the probate of his own will in the then Court of First
Instance (now Regional Trial Court) of Albay, which was docketed as Special
Proceedings No. 564. In his will he left his entire estate to his son, Pablo (the petitioner
herein who, upon his death during the pendency of this petition, was substituted by
his heirs), leaving nothing to his other son, Pedro.

In the same year, Pedro Ralla filed an action for the partition of the estate of their
mother, Paz Escarella; this was docketed as Civil Case No. 2023.

In the course of the hearing of the probate case (Special Proceedings No. 564), Pablo
Ralla filed a motion to dismiss the petition for probate on the ground that he was no
longer interested in the allowance of the will of his late father, Rosendo Ralla, for its
probate would no longer be beneficial and advantageous to him. This motion was
denied, and the denial was denied by the Court of Appeals. (The latter court agreed
with the lower court's conclusion that, indeed, the petitioner stood to gain if the
testate proceedings were to be dismissed because then he would not be compelled to
submit for inclusion in the inventory of the estate of Rosendo Ralla 149 parcels of land
from which he alone had been collecting rentals and receiving income, to the exclusion
and prejudice of his brother, Pedro Ralla, who was being deprived of his successional
rights over the said properties.) The denial of this motion to dismiss was likewise
affirmed by this Court (in G.R. No. L-26253). 3 On the scheduled hearing on November
3, 1966, the petitioner reiterated his lack of interest in the probate of the subject will.
Consequently, the court, through Judge Perfecto Quicho, declared Pedro and Pablo
Ralla the only heirs of Rosendo Ralla who should share equally upon the division of
the latter's estate, and thereupon converted the testate proceedings into one of
intestacy.

Meanwhile, the brothers agreed to compromise in the partition case (Civil Case No.
2023). On December 18, 1967, they entered into a project of partition whereby sixty-
three parcels of land, apparently forming the estate of their deceased mother, Paz
Escarella, were amicably divided between the two of them. This project of partition was
approved on December 19,1967 by Judge Ezekiel Grageda.

Eleven years later, or on February 28, 1978, Joaquin Chancoco, brother-in- law of the
petitioner (Pablo) filed a petition, docketed as Special Proceedings No. 1106, for the
probate of the same will of Rosendo Ralla on the ground that the decedent owed him
P5,000.00. Pablo Ralla then filed a manifestation stating that he had no objections to
the probate; thereafter, he filed a "Motion to Intervene as Petitioner for the Probate of
the Will." This motion was heard ex parte and granted despite the written opposition of
the heirs of Pedro Ralla. Likewise, the petition for probate was granted; Teodorico
Almine, son-in-law of the petitioner, was appointed special administrator, over and
above the objection of the heirs of Pedro Ralla. However, in taking possession of the
properties belonging to the estate of Rosendo Ralla, Teodorico Almine also took
possession of the sixty-three parcels of land covered by the project of partition
mentioned earlier. Consequently, the heirs of Pedro Ralla (the private respondents
herein) moved to exclude from the estate of Rosendo Ralla the aforesaid parcels of
land.

In an Omnibus order dated August 3, 1979, 4 respondent Judge Romulo P. Untalan

ruled, inter alia, that the sixty-three parcels of land should be included in the
proceedings for the settlement of the estate of Rosendo Ralla and that said proceedings
(both Special Proceedings No. 564 and Special Proceedings No. 1106, which were
ordered consolidated by this Court) should proceed as probate proceedings.

About two years later, or on June 11, 1981, the private respondents filed a "Petition To
Submit Anew For Consideration Of The Court The Exclusion Of 67 (sic) Parcels of
Land Subject Of The Project Of Partition In Civil Case No. 2023." 5 In his Order of July
16,1981, Judge Untalan reconsidered his earlier Order, to wit:

Premises considered, Order is hereby issued reconsidering the Omnibus Order of this
Court dated August 3,1979, more particularly paragraph 3 of the dispositive portion
thereof. The Project of Partition should, therefore, be respected and upheld. Hence, the
sixty-three (63) parcels referred to therein should be excluded from the probate
proceedings and, likewise from the administration of Special Administrator Teodorico
Almine, Jr.

SO ORDERED. 6

Thereafter, the petitioner filed a motion for reconsideration of the foregoing order but
the same was denied 7 by respondent Judge Domingo Coronel Reyes, to whose sala
Special Proceedings No. 564 and No. 1 1 06 were apparently transferred. Still, a
second motion for reconsideration was filed; the same, however, was also denied. 8

In assailing the aforesaid Order of July 16, 1981, the following arguments are raised
in the present special civil action for certiorari.

The first argument is stated as follows:

... The extrajudicial partition of the 63 parcels made after the filing of the petition for
the probate of the Will, and before said Will was probated, is a NULLITY, considering
that as already decided by this Court in the case of Ernesto M. Guevara, vs. Rosario
Guevara et al., Vol. 74 Phil. Reports, there can be no valid partition among the heirs
till after the Will had been probated. ... 9

The above argument is obviously flawed and misleading for the simple reason that the
aforementioned partition was made in the civil case for partition of the estate of Paz
Escarella, which is distinct from, and independent of, the special proceedings for the
probate of the will of Rosendo Ralla.

Verily, the rule is that there can be no valid partition among the heirs till after the will
has been probated. This, of course, presupposes that the properties to be partitioned
are the same properties embraced in the win. Thus the rule invoked is inapplicable in
this instance where there are two separate cases (Civil Case No. 2023 for partition,
and Special Proceedings No. 564 originally for the probate of a will), each involving the
estate of a different person (Paz Escarella and Rosendo Ralla, respectively) comprising
dissimilar properties.

In his second and third arguments, 10 the petitioner claims that the Order of August
3, 1979 mentioned earlier could no longer be validly reversed by the court two years
after it was issued. Thus, it is alleged that by flip-flopping, Judge Untalan committed a
grave abuse of discretion.

An examination of the August 3, 1979 Order would reveal that the same resolved a
number of divergent issues (ten as enumerated) 11 springing from four separate
special proceedings,12 all of which were pending in Branch I of the then Court of First
Instance of Albay; accordingly, there are at least nine 13 specific directives contained
therein. However, a distinction must be made between those directives that partake of
final orders and the other directives that are in the nature of inter-locutory orders.

Two closely related orders are the following quoted portions of the said August 3, 1979
Order of respondent Judge Untalan:

xxx xxx xxx

2. The 149 parcels referred to in our elucidation on issue No. 2 as well as the 63
lots also mentioned therein all of which may be summed up to 212 parcels, except
those already validly disposed, conveyed, or transferred to third persons, should be
submitted, at least provisionally, to the probate or testate proceedings. Hence, the
Motion to exclusion the 149 parcels filed on June 2, 1979, by petitioner intervenor
Pablo Ralla thru counsel in Special Proceeding 1106 and the motion for exclusion filed
by the heirs of Pedro Ralla thru counsel in Special Proceedings 564 and 1106 are
hereby Denied; (Emphasis supplied.)

3. The Project of partition, for purposes of these proceedings, is hereby stripped of its
judicial recognition; 14

xxx xxx xxx

As regards the abovequoted paragraph 2, this Court finds that the same is
interlocutory in character because it did not decide the action with finality and left
substantial proceedings still to be had.15 The foregoing order of inclusion of the
subject parcels of land was a mere incident that arose in the settlement of the estate of
Rosendo Ralla. It is elementary that interlocutory orders, prior to the rendition of the
final judgment, are, at any time, subject to such corrections or amendments as the
court may deem proper. Thus, in issuing the questioned Order dated July 16,1981,
which reversed the aforementioned interlocutory order and upheld the project of
partition, respondent Judge Untalan acted well within his jurisdiction and without
grave abuse of discretion.

There is, however, a more important reason why we do not find any grave abuse of
discretion in the issuance of the questioned Order dated July 16,1981. Consider the
following undisputed facts: the properties involved in the present petition were the
subject of the project of partition signed by both the petitioner, Pablo Ralla, and Pedro
Ralla in Civil Case No. 2023; the lower court approved the said project of partition on
December 19, 1967; subsequently, Pablo and Pedro Ralla jointly manifested that they
had already received "the ownership and possession of the respective parcels of land
adjudicated to them in the said project of partition," 16 and upon their motion Judge
Ezekiel Grageda declared the partition case closed and terminated in its Order of
December 29, 1967; there was no appeal made from this decision within the
reglementary period to do so, consequently, it attained finality.

Furthermore, the Court had occasion to rule that

Where a partition had not only been approved and thus become a judgment of the
court, but distribution of the estate in pursuance of such partition had fully been
carried out, and the heirs had received the property assigned to them, they are
precluded from subsequently attacking its validity or any part of it. 17

Likewise:

Where a piece of land has been included in a partition, and there is no allegation that
the inclusion was effected through improper means or without the petitioners'
knowledge, the partition barred any further litigation on said title and operated to bring
the property under the control and jurisdiction of the court for proper disposition
according to the tenor of the partition . . . They can not attack the partition collaterally,
as they are trying to do in this case. 18 (Emphasis supplied.)

Based on the foregoing pronouncements, the Order of August 3, 1979 setting aside the
project of Partition was clearly erroneous. Realizing this and the fact that it was not
yet too late for him to correct his mistake, respondent Judge Untalan issued the
questioned Order of July 16, 1981.

In fine, the partition in Civil Case No. 2023 is valid and binding upon the petitioner
and Pedro Ralla, as well as upon their heirs, especially as this was accompanied by
delivery of possession to them of their respective shares in the inheritance from their
mother, the late Paz Escarella. They are duty bound to respect the division agreed
upon by them and embodied in the document of partition.

Thus, the petitioner could no longer question the exclusion of the lands subject of the
partition from the proceedings for the settlement of the estate of Rosendo Ralla. Could
it be that the petitioner's keen interest in including these lands in the estate
proceedings is directly related to the fact that his son-in-law is the administrator of
the said estate of Rosendo Ralla?

WHEREFORE, the petition is hereby DISMISSED.

Costs against the petitioner.

SO ORDERED.

G.R. Nos. 63253-54. April 27, 1989.*

PABLO RALLA, petitioner, vs. HON. ROMULO P. UNTALAN, HON. DOMINGO

CORONEL REYES, AND LEONIE RALLA, PETER RALLA AND MARINELLA RALLA,
respondents.

Remedial Law; Special Proceedings; Settlement of Estates; Partition; Probate of Wills;

There can be no valid partition among the heirs until after the will has been probated,
but this rule presupposes that the properties to be partitioned are the same properties
embraced in the will.—–Verily, the rule is that there can be no valid partition among
the heirs till after the will has been probated. This, of course, presupposes that the
properties to be partitioned are the same properties embraced in the will. Thus, the
rule invoked is inapplicable in this instance where there are two separate cases (Civil
Case No. 2023 for partition, and Special Proceedings No. 564 originally for the probate
of a will), each involving the estate of a different person (Paz Escarella and Rosendo
Ralla, respectively) comprising dissimilar properties.

Same; Civil Procedure; Interlocutory Orders; Interlocutory orders, prior to the

rendition of final judgment, are, at any time, subject to such corrections and
amendments as the court may deem proper.—–As regards the abovequoted paragraph
2, this Court finds that the same is interlocutory in character because it did not decide
the action with finality and left substantial proceedings still to be had. The foregoing
order of inclusion of the subject parcels of land was a mere incident that arose in the
settlement of the estate of Rosendo Ralla. It is elementary that interlocutory orders,
prior to the rendition of the final Ralla vs. Untalan, 172 SCRA 858, G.R. Nos. 63253-
54 April 27, 1989

judgment, are at any time, subject to such corrections or amendments as the court
may deem proper. Thus, in issuing the questioned Order dated July 16, 1981, which
reversed the aforementioned interlocutory order and upheld the project of partition,
respondent Judge Untalan acted well within his jurisdiction and without grave abuse
of discretion.
Same; Same; Partition; Judgments; After a partition has become a judgment of the
court, and distribution thereof fully carried out, with the heirs receiving the properties
assigned to them, the latter are precluded from attacking the validity of said partition
or any part thereof.—–Furthermore, the Court had occasion to rule that: Where a
partition had not only been approved and thus become a judgment of the court, but
distribution of the estate in pursuance of such partition had fully been carried out,
and the heirs had received the property assigned to them, they are precluded from
subsequently attacking its validity or any part of it. Likewise: Where a piece of land
has been included in a partition, and there is no allegation that the inclusion was
effected through improper means or without the petitioners’ knowledge, the partition
barred any further litigation on said title and operated to bring the property under the
control and jurisdiction of the court for proper disposition according to the tenor of the
partition . . . They can not attack the partition collaterally, as they are trying to do in
this case. (Italics supplied)

SARMIENTO, J.:

This petition seeks the nullification of the Order of respondent Judge Romulo P.
Untalan, 1 dated July 16,1981, excluding from the probate proceedings sixty-three
parcels of land, as well as the Orders issued by respondent Judge Domingo Coronel
Reyes, 2 denying the petitioner's motions for reconsideration of the same Order of
Judge Untalan dated July 16, 1981.

The petition's beginnings are traced to January 27, 1959, when Rosendo Ralla, a
widower, filed a petition for the probate of his own will in the then Court of First
Instance (now Regional Trial Court) of Albay, which was docketed as Special
Proceedings No. 564. In his will he left his entire estate to his son, Pablo (the petitioner
herein who, upon his death during the pendency of this petition, was substituted by
his heirs), leaving nothing to his other son, Pedro.

In the same year, Pedro Ralla filed an action for the partition of the estate of their
mother, Paz Escarella; this was docketed as Civil Case No. 2023.

In the course of the hearing of the probate case (Special Proceedings No. 564), Pablo
Ralla filed a motion to dismiss the petition for probate on the ground that he was no
longer interested in the allowance of the will of his late father, Rosendo Ralla, for its
probate would no longer be beneficial and advantageous to him. This motion was
denied, and the denial was denied by the Court of Appeals. (The latter court agreed
with the lower court's conclusion that, indeed, the petitioner stood to gain if the
testate proceedings were to be dismissed because then he would not be compelled to
submit for inclusion in the inventory of the estate of Rosendo Ralla 149 parcels of land
from which he alone had been collecting rentals and receiving income, to the exclusion
and prejudice of his brother, Pedro Ralla, who was being deprived of his successional
rights over the said properties.) The denial of this motion to dismiss was likewise
affirmed by this Court (in G.R. No. L-26253). 3 On the scheduled hearing on November
3, 1966, the petitioner reiterated his lack of interest in the probate of the subject will.
Consequently, the court, through Judge Perfecto Quicho, declared Pedro and Pablo
Ralla the only heirs of Rosendo Ralla who should share equally upon the division of
the latter's estate, and thereupon converted the testate proceedings into one of
intestacy.

Meanwhile, the brothers agreed to compromise in the partition case (Civil Case No.
2023). On December 18, 1967, they entered into a project of partition whereby sixty-
three parcels of land, apparently forming the estate of their deceased mother, Paz
Escarella, were amicably divided between the two of them. This project of partition was
approved on December 19,1967 by Judge Ezekiel Grageda.

Eleven years later, or on February 28, 1978, Joaquin Chancoco, brother-in- law of the
petitioner (Pablo) filed a petition, docketed as Special Proceedings No. 1106, for the
probate of the same will of Rosendo Ralla on the ground that the decedent owed him
P5,000.00. Pablo Ralla then filed a manifestation stating that he had no objections to
the probate; thereafter, he filed a "Motion to Intervene as Petitioner for the Probate of
the Will." This motion was heard ex parte and granted despite the written opposition of
the heirs of Pedro Ralla. Likewise, the petition for probate was granted; Teodorico
Almine, son-in-law of the petitioner, was appointed special administrator, over and
above the objection of the heirs of Pedro Ralla. However, in taking possession of the
properties belonging to the estate of Rosendo Ralla, Teodorico Almine also took
possession of the sixty-three parcels of land covered by the project of partition
mentioned earlier. Consequently, the heirs of Pedro Ralla (the private respondents
herein) moved to exclude from the estate of Rosendo Ralla the aforesaid parcels of
land.

In an Omnibus order dated August 3, 1979, 4 respondent Judge Romulo P. Untalan

ruled, inter alia, that the sixty-three parcels of land should be included in the
proceedings for the settlement of the estate of Rosendo Ralla and that said proceedings
(both Special Proceedings No. 564 and Special Proceedings No. 1106, which were
ordered consolidated by this Court) should proceed as probate proceedings.

About two years later, or on June 11, 1981, the private respondents filed a "Petition To
Submit Anew For Consideration Of The Court The Exclusion Of 67 (sic) Parcels of
Land Subject Of The Project Of Partition In Civil Case No. 2023." 5 In his Order of July
16,1981, Judge Untalan reconsidered his earlier Order, to wit:

Premises considered, Order is hereby issued reconsidering the Omnibus Order of this
Court dated August 3,1979, more particularly paragraph 3 of the dispositive portion
thereof. The Project of Partition should, therefore, be respected and upheld. Hence, the
sixty-three (63) parcels referred to therein should be excluded from the probate
proceedings and, likewise from the administration of Special Administrator Teodorico
Almine, Jr.
SO ORDERED. 6

Thereafter, the petitioner filed a motion for reconsideration of the foregoing order but
the same was denied 7 by respondent Judge Domingo Coronel Reyes, to whose sala
Special Proceedings No. 564 and No. 1 1 06 were apparently transferred. Still, a
second motion for reconsideration was filed; the same, however, was also denied. 8

In assailing the aforesaid Order of July 16, 1981, the following arguments are raised
in the present special civil action for certiorari.

The first argument is stated as follows:

... The extrajudicial partition of the 63 parcels made after the filing of the petition for
the probate of the Will, and before said Will was probated, is a NULLITY, considering
that as already decided by this Court in the case of Ernesto M. Guevara, vs. Rosario
Guevara et al., Vol. 74 Phil. Reports, there can be no valid partition among the heirs
till after the Will had been probated. ... 9

The above argument is obviously flawed and misleading for the simple reason that the
aforementioned partition was made in the civil case for partition of the estate of Paz
Escarella, which is distinct from, and independent of, the special proceedings for the
probate of the will of Rosendo Ralla.

Verily, the rule is that there can be no valid partition among the heirs till after the will
has been probated. This, of course, presupposes that the properties to be partitioned
are the same properties embraced in the win. Thus the rule invoked is inapplicable in
this instance where there are two separate cases (Civil Case No. 2023 for partition,
and Special Proceedings No. 564 originally for the probate of a will), each involving the
estate of a different person (Paz Escarella and Rosendo Ralla, respectively) comprising
dissimilar properties.

In his second and third arguments, 10 the petitioner claims that the Order of August
3, 1979 mentioned earlier could no longer be validly reversed by the court two years
after it was issued. Thus, it is alleged that by flip-flopping, Judge Untalan committed a
grave abuse of discretion.

An examination of the August 3, 1979 Order would reveal that the same resolved a
number of divergent issues (ten as enumerated) 11 springing from four separate
special proceedings,12 all of which were pending in Branch I of the then Court of First
Instance of Albay; accordingly, there are at least nine 13 specific directives contained
therein. However, a distinction must be made between those directives that partake of
final orders and the other directives that are in the nature of inter-locutory orders.

Two closely related orders are the following quoted portions of the said August 3, 1979
Order of respondent Judge Untalan:

xxx xxx xxx

2. The 149 parcels referred to in our elucidation on issue No. 2 as well as the 63
lots also mentioned therein all of which may be summed up to 212 parcels, except
those already validly disposed, conveyed, or transferred to third persons, should be
submitted, at least provisionally, to the probate or testate proceedings. Hence, the
Motion to exclusion the 149 parcels filed on June 2, 1979, by petitioner intervenor
Pablo Ralla thru counsel in Special Proceeding 1106 and the motion for exclusion filed
by the heirs of Pedro Ralla thru counsel in Special Proceedings 564 and 1106 are
hereby Denied; (Emphasis supplied.)

3. The Project of partition, for purposes of these proceedings, is hereby stripped of its
judicial recognition; 14

xxx xxx xxx

As regards the abovequoted paragraph 2, this Court finds that the same is
interlocutory in character because it did not decide the action with finality and left
substantial proceedings still to be had.15 The foregoing order of inclusion of the
subject parcels of land was a mere incident that arose in the settlement of the estate of
Rosendo Ralla. It is elementary that interlocutory orders, prior to the rendition of the
final judgment, are, at any time, subject to such corrections or amendments as the
court may deem proper. Thus, in issuing the questioned Order dated July 16,1981,
which reversed the aforementioned interlocutory order and upheld the project of
partition, respondent Judge Untalan acted well within his jurisdiction and without
grave abuse of discretion.

There is, however, a more important reason why we do not find any grave abuse of
discretion in the issuance of the questioned Order dated July 16,1981. Consider the
following undisputed facts: the properties involved in the present petition were the
subject of the project of partition signed by both the petitioner, Pablo Ralla, and Pedro
Ralla in Civil Case No. 2023; the lower court approved the said project of partition on
December 19, 1967; subsequently, Pablo and Pedro Ralla jointly manifested that they
had already received "the ownership and possession of the respective parcels of land
adjudicated to them in the said project of partition," 16 and upon their motion Judge
Ezekiel Grageda declared the partition case closed and terminated in its Order of
December 29, 1967; there was no appeal made from this decision within the
reglementary period to do so, consequently, it attained finality.

Furthermore, the Court had occasion to rule that

Where a partition had not only been approved and thus become a judgment of the
court, but distribution of the estate in pursuance of such partition had fully been
carried out, and the heirs had received the property assigned to them, they are
precluded from subsequently attacking its validity or any part of it. 17

Likewise:
Where a piece of land has been included in a partition, and there is no allegation that
the inclusion was effected through improper means or without the petitioners'
knowledge, the partition barred any further litigation on said title and operated to bring
the property under the control and jurisdiction of the court for proper disposition
according to the tenor of the partition . . . They can not attack the partition collaterally,
as they are trying to do in this case. 18 (Emphasis supplied.)

Based on the foregoing pronouncements, the Order of August 3, 1979 setting aside the
project of Partition was clearly erroneous. Realizing this and the fact that it was not
yet too late for him to correct his mistake, respondent Judge Untalan issued the
questioned Order of July 16, 1981.

In fine, the partition in Civil Case No. 2023 is valid and binding upon the petitioner
and Pedro Ralla, as well as upon their heirs, especially as this was accompanied by
delivery of possession to them of their respective shares in the inheritance from their
mother, the late Paz Escarella. They are duty bound to respect the division agreed
upon by them and embodied in the document of partition.

Thus, the petitioner could no longer question the exclusion of the lands subject of the
partition from the proceedings for the settlement of the estate of Rosendo Ralla. Could
it be that the petitioner's keen interest in including these lands in the estate
proceedings is directly related to the fact that his son-in-law is the administrator of
the said estate of Rosendo Ralla?

WHEREFORE, the petition is hereby DISMISSED.

Costs against the petitioner.

SO ORDERED.