Settlement Estate + Jurisprudence

EN BANC
G.R. No. L-48840 December 29, 1943
ERNESTO M. GUEVARA, Petitioner-Appellant, vs. ROSARIO

GUEVARA and her husband PEDRO BUISON, respondent-appellees.
Primacias, Abad, Mencias & Castillo for appellant.

Pedro C. Quinto for appellees.
OZAETA, J.: chanrobles virtual law library
Ernesto M. Guevarra and Rosario Guevara, ligitimate son and natural

daughter, respectively, of the deceased Victorino L. Guevara, are
litigating here over their inheritance from the latter. The action was
commenced on November 12, 1937, by Rosario Guevara to recover
from Ernesto Guevara what she claims to be her strict ligitime as an
acknowledged natural daughter of the deceased - to wit, a portion of
423,492 square meters of a large parcel of land described in original
certificate of title No. 51691 of the province of Pangasinan, issued in the
name of Ernesto M. Guervara - and to order the latter to pay her
P6,000 plus P2,000 a year as damages for withholding such legitime
from her. The defendant answered the complaint contending that
whatever right or rights the plaintiff might have had, had been barred
by the operation of law.chanroblesvirtualawlibrary chanrobles virtual
law library
It appears that on August 26, 1931, Victorino L. Guevara executed a

will (exhibit A), apparently with all the formalities of the law, wherein
he made the following bequests: To his stepdaughter Candida Guevara,
a pair of earrings worth P150 and a gold chain worth P40; to his son
Ernesto M. Guevara, a gold ring worth P180 and all the furniture,
pictures, statues, and other religious objects found in the residence of
the testator in Poblacion Sur, Bayambang, Pangasinan; "a mi hija
Rosario Guevara," a pair of earrings worth P120; to his stepson Piuo
Guevara, a ring worth P120; and to his wife by second marriage,
Angustia Posadas, various pieces of jewelry worth
P1,020.chanroblesvirtualawlibrary chanrobles virtual law library
He also made the following devises: "A mis hijos Rosario Guevara y
Ernesto M. Guevara y a mis hijastros, Vivencio, Eduviges, Dionisia,
Candida y Pio, apellidados Guevara," a residential lot with its
improvements situate in the town of Bayambang, Pangasinan, having
an area of 960 square meters and assessed at P540; to his wife
Angustia Posadas he confirmed the donation propter nuptias theretofore
made by him to her of a portion of 25 hectares of the large parcel of
land of 259-odd hectares described in plan Psu-66618. He also devised
to her a portion of 5 hectares of the same parcel of land by way of
complete settlement of her usufructurary
right.chanroblesvirtualawlibrary chanrobles virtual law library
He set aside 100 hectares of the same parcel of land to be disposed of

either by him during his lifetime or by his attorney-in-fact Ernesto M.
Guevara in order to pay all his pending debts and to degray his
expenses and those of his family us to the time of his
death.chanroblesvirtualawlibrary chanrobles virtual law library
The remainder of said parcel of land his disposed of in the following

manner:
(d). - Toda la porcion restante de mi terreno arriba descrito, de la

extension superficial aproximada de ciento veintinueve (129) hectareas
setenta (70) areas, y veiticinco (25) centiares, con todas sus mejoras
existentes en la misma, dejo y distribuyo, pro-indiviso, a mis siguientes
herederos como sigue:chanrobles virtual law library
A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas,

ocho (8) areas y cincuenta y cuatro (54) centiareas, hacia la parte que
colinda al Oeste de las cien (100) hectareas referidas en el inciso ( a)
de este parrafo del testamento, como su propiedad absoluta y
exclusiva, en la cual extension superficial estan incluidas cuarenta y
tres (43) hectareas, veintitres (23) areas y cuarenta y dos (42)
centiareas que le doy en concepto de
mejora.chanroblesvirtualawlibrary chanrobles virtual law library
A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas,

sesenta y un (61) areas y setenta y un (71) centiareas, que es la parte
restante.chanroblesvirtualawlibrary chanrobles virtual law library
Duodecimo. - Nombro por la presente como Albacea Testamentario a mi

hijo Ernesto M. Guevara, con relevacion de fianza. Y una vez legalizado
este testamento, y en cuanto sea posible, es mi deseo, que los
herederos y legatarios aqui nombrados se repartan extrajudicialmente
mis bienes de conformidad con mis disposiciones arriba consignadas.
Subsequently, and on July 12, 1933, Victorino L. Guevarra executed

whereby he conveyed to him the southern half of the large parcel of
land of which he had theretofore disposed by the will above mentioned,
inconsideration of the sum of P1 and other valuable considerations,
among which were the payment of all his debts and obligations
amounting to not less than P16,500, his maintenance up to his death,
and the expenses of his last illness and funeral expenses. As to the
northern half of the same parcel of land, he declared: "Hago constar
tambien que reconozco a mi referido hijo Ernesto M. guevara como
dueño de la mitad norte de la totalidad y conjunto de los referidos
terrenos por haberlos comprado de su propio peculio del Sr. Rafael T.
Puzon a quien habia vendido con anterioridad."chanrobles virtual law
library
On September 27, 1933, final decree of registration was issued in land

registration case No. 15174 of the Court of First Instance of
Pangasinan, and pursuant thereto original certificate of title No. 51691
of the same province was issued on October 12 of the same year in
favor of Ernesto M. Guevara over the whole parcel of land described in
the deed of sale above referred to. The registration proceeding had
been commenced on November 1, 1932, by Victorino L. Guevara and
Ernesto M. Guevara as applicants, with Rosario, among others, as
oppositor; but before the trial of the case Victorino L. Guevara withdrew
as applicant and Rosario Guevara and her co-oppositors also withdrew
their opposition, thereby facilitating the issuance of the title in the name
of Ernesto M. Guevara alone.chanroblesvirtualawlibrary chanrobles
virtual law library
On September 27, 1933, Victorino L. Guevarra died. His last will and
testament, however, was never presented to the court for probate, nor
has any administration proceeding ever been instituted for the
settlement of his estate. Whether the various legatees mentioned in the
will have received their respective legacies or have even been given due
notice of the execution of said will and of the dispositions therein made
in their favor, does not affirmatively appear from the record of this
case. Ever since the death of Victorino L. Guevara, his only legitimate
son Ernesto M. Guevara appears to have possessed the land
adjudicated to him in the registration proceeding and to have disposed
of various portions thereof for the purpose of paying the debts left by
his father.chanroblesvirtualawlibrary chanrobles virtual law library
In the meantime Rosario Guevara, who appears to have had her

father's last will and testament in her custody, did nothing judicially to
invoke the testamentary dispositions made therein in her favor,
whereby the testator acknowledged her as his natural daughter and,
aside from certain legacies and bequests, devised to her a portion of
21.6171 hectares of the large parcel of land described in the will. But a
little over four years after the testor's demise, she (assisted by her
husband) commenced the present action against Ernesto M. Guevara
alone for the purpose hereinbefore indicated; and it was only during the
trial of this case that she presented the will to the court, not for the
purpose of having it probated but only to prove that the deceased
Victirino L. Guevara had acknowledged her as his natural daughter.
Upon that proof of acknowledgment she claimed her share of the
inheritance from him, but on the theory or assumption that he died
intestate, because the will had not been probated, for which reason, she
asserted, the betterment therein made by the testator in favor of his
legitimate son Ernesto M. Guevara should be disregarded. Both the trial
court and the Court of appeals sustained that
theory.chanroblesvirtualawlibrary chanrobles virtual law library
Two principal questions are before us for determination: (1) the legality
of the procedure adopted by the plaintiff (respondent herein) Rosario
Guevara; and (2) the efficacy of the deed of sale exhibit 2 and the
effect of the certificate of title issued to the defendant (petitioner
herein) Ernesto M. Guevara.
Ichanrobles virtual law library
We cannot sanction the procedure adopted by the respondent Rosario

Guevara, it being in our opinion in violation of procedural law and an
attempt to circumvent and disregard the last will and testament of the
decedent. The Code of Civil Procedure, which was in force up to the
time this case was decided by the trial court, contains the following
pertinent provisions:
Sec. 625. Allowance Necessary, and Conclusive as to Execution. - No

will shall pass either the real or personal estate, unless it is proved and
allowed in the Court of First Instance, or by appeal to the Supreme
Court; and the allowance by the court of a will of real and personal
estate shall be conclusive as to its due
execution.chanroblesvirtualawlibrary chanrobles virtual law library
Sec. 626. Custodian of Will to Deliver. - The person who has the
custody of a will shall, within thirty days after he knows of the death of
the testator, deliver the will into the court which has jurisdiction, or to
the executor named in the will.chanroblesvirtualawlibrary chanrobles
virtual law library
Sec. 627. Executor to Present Will and Accept or Refuse Trust. - A

person named as executor in a will, shall within thirty days after he
knows of the death of the testor, or within thirty days after he knows
that he is named executor, if he obtained such knowledge after knowing
of the death of the testor, present such will to the court which has
jurisdiction, unless the will has been otherwise returned to said court,
and shall, within such period, signify to the court his acceptance of the
trust, or make known in writing his refusal to accept
it.chanroblesvirtualawlibrary chanrobles virtual law library
Sec. 628. Penalty. - A person who neglects any of the duties required in
the two proceeding sections, unless he gives a satisfactory excuse to
the court, shall be subject to a fine not exceeding one thousand
dollars.chanroblesvirtualawlibrary chanrobles virtual law library
Sec. 629. Person Retaining Will may be Committed. - If a person having

custody of a will after the death of the testator neglects without
reasonable cause to deliver the same to the court having jurisdiction,
after notice by the court so to do, he may be committed to the prison of
the province by a warrant issued by the court, and there kept in close
confinement until he delivers the will.
The foregoing provisions are now embodied in Rule 76 of the new Rules
of Court, which took effect on July 1,
1940.chanroblesvirtualawlibrary chanrobles virtual law library
The proceeding for the probate of a will is one in rem, with notice by
publication to the whole world and with personal notice to each of the
known heirs, legatees, and devisees of the testator (section 630, C. c.
P., and sections 3 and 4, Rule 77). Altho not contested (section 5, Rule
77), the due execution of the will and the fact that the testator at the
time of its execution was of sound and disposing mind and not acting
under duress, menace, and undue influence or fraud, must be proved to
the satisfaction of the court, and only then may the will be legalized and
given effect by means of a certificate of its allowance, signed by the
judge and attested by the seal of the court; and when the will devises
real property, attested copies thereof and of the certificate of allowance
must be recorded in the register of deeds of the province in which the
land lies. (Section 12, Rule 77, and section 624, C. C. P.)chanrobles
virtual law library
It will readily be seen from the above provisions of the law that the
presentation of a will to the court for probate is mandatory and its
allowance by the court is essential and indispensable to its efficacy. To
assure and compel the probate of will, the law punishes a person who
neglects his duty to present it to the court with a fine not exceeding
P2,000, and if he should persist in not presenting it, he may be
committed to prision and kept there until he delivers the
will.chanroblesvirtualawlibrary chanrobles virtual law library
The Court of Appeals took express notice of these requirements of the

law and held that a will, unless probated, is ineffective. Nevertheless it
sanctioned the procedure adopted by the respondent for the following
reasons:
The majority of the Court is of the opinion that if this case is dismissed
ordering the filing of testate proceedings, it would cause injustice,
incovenience, delay, and much expense to the parties, and that
therefore, it is preferable to leave them in the very status which they
themselves have chosen, and to decide their controversy once and for
all, since, in a similar case, the Supreme Court applied that same
criterion (Leaño vs. Leaño, supra), which is now sanctioned by section 1
of Rule 74 of the Rules of Court. Besides, section 6 of Rule 124 provides
that, if the procedure which the court ought to follow in the exercise of
its jurisdiction is not specifically pointed out by the Rules of Court, any
suitable process or mode of procedure may be adopted which appears
most consistent to the spirit of the said Rules. Hence, we declare the
action instituted by the plaintiff to be in accordance with law.
Let us look into the validity of these considerations. Section 1 of Rule

74 provides as follows:
Section 1. Extrajudicial settlement by agreement between heirs. - If the

decedent left no debts and the heirs and legatees are all of age, or the
minors are represented by their judicial guardians, the parties may,
without securing letters of administration, divide the estate among
themselves as they see fit by means of a public instrument filed in the
office of the register of deeds, and should they disagree, they may do
so in an ordinary action of partition. If there is only one heir or one
legatee, he may adjudicate to himself the entire estate by means of an
affidavit filed in the office of the register of deeds. It shall be presumed
that the decedent left no debts if no creditor files a petition for letters of
administration within two years after the death of the decedent.
That is a modification of section 596 of the Code of Civil Procedure,

which reads as follows:
Sec. 596. Settlement of Certain Intestates Without Legal Proceedings. -

Whenever all the heirs of a person who died intestate are of lawful age
and legal capacity and there are no debts due from the estate, or all the
debts have been paid the heirs may, by agreement duly executed in
writing by all of them, and not otherwise, apportion and divide the
estate among themselves, as they may see fit, without proceedings in
court.
The implication is that by the omission of the word "intestate" and the
use of the word "legatees" in section 1 of Rule 74, a summary
extrajudicial settlement of a deceased person's estate, whether he died
testate or intestate, may be made under the conditions specified. Even
if we give retroactive effect to section 1 of Rule 74 and apply it here, as
the Court of Appeals did, we do not believe it sanctions the
nonpresentation of a will for probate and much less the nullification of
such will thru the failure of its custodian to present it to the court for
probate; for such a result is precisely what Rule 76 sedulously provides
against. Section 1 of Rule 74 merely authorizes the extrajudicial or
judicial partition of the estate of a decedent "without securing letter of
administration." It does not say that in case the decedent left a will the
heirs and legatees may divide the estate among themselves without the
necessity of presenting the will to the court for probate. The petition to
probate a will and the petition to issue letters of administration are two
different things, altho both may be made in the same case. the
allowance of a will precedes the issuance of letters testamentary or of
administration (section 4, Rule 78). One can have a will probated
without necessarily securing letters testamentary or of administration.
We hold that under section 1 of Rule 74, in relation to Rule 76, if the
decedent left a will and no debts and the heirs and legatees desire to
make an extrajudicial partition of the estate, they must first present
that will to the court for probate and divide the estate in accordance
with the will. They may not disregard the provisions of the will unless
those provisions are contrary to law. Neither may they so away with the
presentation of the will to the court for probate, because such
suppression of the will is contrary to law and public policy. The law
enjoins the probate of the will and public policy requires it, because
unless the will is probated and notice thereof given to the whole world,
the right of a person to dispose of his property by will may be rendered
nugatory, as is attempted to be done in the instant case. Absent
legatees and devisees, or such of them as may have no knowledge of
the will, could be cheated of their inheritance thru the collusion of some
of the heirs who might agree to the partition of the estate among
themselves to the exclusion of
others.chanroblesvirtualawlibrary chanrobles virtual law library
In the instant case there is no showing that the various legatees other
than the present litigants had received their respective legacies or that
they had knowledge of the existence and of the provisions of the will.
Their right under the will cannot be disregarded, nor may those rights
be obliterated on account of the failure or refusal of the custodian of the
will to present it to the court for
probate.chanroblesvirtualawlibrary chanrobles virtual law library
Even if the decedent left no debts and nobdy raises any question as to
the authenticity and due execution of the will, none of the heirs may
sue for the partition of the estate in accordance with that will without
first securing its allowance or probate by the court, first, because the
law expressly provides that "no will shall pass either real or personal
estate unless it is proved and allowed in the proper court"; and, second,
because the probate of a will, which is a proceeding in rem, cannot be
dispensed with the substituted by any other proceeding, judicial or
extrajudicial, without offending against public policy designed to
effectuate the testator's right to dispose of his property by will in
accordance with law and to protect the rights of the heirs and legatees
under the will thru the means provided by law, among which are the
publication and the personal notices to each and all of said heirs and
legatees. Nor may the court approve and allow the will presented in
evidence in such an action for partition, which is one in personam, any
more than it could decree the registration under the Torrens system of
the land involved in an ordinary action for reinvindicacion or
partition.chanroblesvirtualawlibrary chanrobles virtual law library
We therefore believe and so hold that section 1 of Rule 74, relied upon
by the Court of Appeals, does not sanction the procedure adopted by
the respondent.chanroblesvirtualawlibrary chanrobles virtual law library
The case of Leaño vs. Leaño (25 Phil., 180), cited by the Court of
Appeals, like section 1 of Rule 74, sanctions the extrajudicial partition
by the heirs of the properties left by a decedent, but not the
nonpresentation of a will for probate. In that case one Paulina Ver
executed a will on October 11, 1902, and died on November 1, 1902.
Her will was presented for probate on November 10, 1902, and was
approved and allowed by the Court on August 16, 1904. In the
meantime, and on November 10, 1902, the heirs went ahead and
divided the properties among themselves and some of them
subsequently sold and disposed of their shares to third persons. It does
not affirmatively appear in the decision in that case that the partition
made by the heirs was not in accordance with the will or that they in
any way disregarded the will. In closing the case by its order dated
September 1, 1911, the trial court validated the partition, and one of
the heirs, Cunegunda Leaño, appealed. In deciding the appeal this
Court said:
The principal assignment of error is that the lower court committed an

error in deciding that the heirs and legatees of the estate of Dña.
Paulina Ver had voluntarily divided the estate among themselves.
In resolving that question this Court said:
In view of the positive finding of the judge of the lower court that there
had been a voluntary partition of the estate among the heirs and
legatees, and in the absence of positive proof to the contrary, we must
conclude that the lower court had some evidence to support its
conclusion.
Thus it will be seen that as a matter of fact no question of law was

raised and decided in that case. That decision cannot be relied upon as
an authority for the unprecedented and unheard of procedure adopted
by the respondent whereby she seeks to prove her status as an
acknowledged natural child of the decedent by his will and attempts to
nullify and circumvent the testamentary dispositions made by him by
not presenting the will to the court for probate and by claiming her
legitime as an acknowledged natural child on the basis of intestacy; and
that in the face of express mandatory provisions of the law requiring
her to present the will to the court for
probate.chanroblesvirtualawlibrary chanrobles virtual law library
In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this
Court departed from the procedure sanctioned by the trial court and
impliedly approved by this Court in the Leaño case, by holding that an
extrajudicial partition is not proper in testate succession. In the Riosa
case the Court, speaking thru Chief Justice Avanceña, held:
1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION.

- Section 596 of the Code of Civil Procedure, authorizing the heirs of a
person who dies intestate to make extrajudicial partition of the property
of the deceased, without going into any court of justice, makes express
reference to intestate succession, and therefore excludes testate
succession.chanroblesvirtualawlibrary chanrobles virtual law library
2. ID.; EFFECTS OF; TESTATE SUCCESSION. - In the instant case,

which is a testate succession, the heirs made an extrajudicial partition
of the estate and at the same time instituted proceeding for the probate
of the will and the administration of the estate. When the time came for
making the partition, they submitted to the court the extrajudicial
partition previously made by them, which the court approved. Held:
That for the purposes of the reservation and the rights and obligations
created thereby, in connection with the relatives benefited, the property
must not be deemed transmitted to the heirs from the time the
extrajudicial partition was made, but from the time said partition was
approved by the court. (Syllabus.)
The Court of Appeals also cites section 6 of Rule 124, which provides
that if the procedure which the court ought to follow in the exercise of
its jurisdiction is not specifically pointed out by the Rules of Court, any
suitable process for mode of proceeding may be adopted which appears
most conformable to the spirit of the said Rules. That provision is not
applicable here for the simple reason that the procedure which the court
ought to follow in the exercise of its jurisdiction is specifically pointed
out and prescribed in detail by Rules 74, 76, and 77 of the Rules of
Court.chanroblesvirtualawlibrary chanrobles virtual law library
The Court of Appeals also said "that if this case is dismissed, ordering
the filing of testate proceedings, it would cause injustice,
inconvenience, delay, and much expense to the parties." We see no
injustice in requiring the plaintiff not to violate but to comply with the
law. On the contrary, an injustice might be committed against the other
heirs and legatees mentioned in the will if the attempt of the plaintiff to
nullify said will by not presenting it to the court for probate should be
sanctioned. As to the inconvenience, delay, and expense, the plaintiff
herself is to blame because she was the custodian of the will and she
violated the duty imposed upon her by sections 2, 4, and 5 of Rule 76,
which command her to deliver said will to the court on pain of a fine not
exceeding P2,000 and of imprisonment for contempt of court. As for the
defendant, he is not complaining of inconvenience, delay, and expense,
but on the contrary he is insisting that the procedure prescribed by law
be followed by the plaintiff.chanroblesvirtualawlibrary chanrobles virtual
law library
Our conclusion is that the Court of Appeals erred in declaring the action
instituted by the plaintiff to be in accordance with law. It also erred in
awarding relief to the plaintiff in this action on the basis of intestacy of
the decedent notwithstanding the proven existence of a will left by him
and solely because said will has not been probated due to the failure of
the plaintiff as custodian thereof to comply with the duty imposed upon
her by the law.chanroblesvirtualawlibrary chanrobles virtual law library
It is apparent that the defendant Ernesto M. Guevara, who was named

executor in said will, did not take any step to have it presented to the
court for probate and did not signify his acceptance of the trust or
refusal to accept it as required by section 3 of Rule 76 (formerly section
627 of the Code of Civil Procedure), because his contention is that said
will, insofar as the large parcel of land in litigation is concerned, has
been superseded by the deed of sale exhibit 2 and by the subsequent
issuance of the Torrens certificate of title in his favor.
IIchanrobles virtual law library
This brings us to the consideration of the second question, referring to

the efficacy of the deed of sale exhibit 2 and the effect of the certificate
of titled issued to the defendant Ernesto M. Guevara. So that the parties
may not have litigated here in vain insofar as that question is
concerned, we deem it proper to decide it now and obviate the
necessity of a new action.chanroblesvirtualawlibrary chanrobles virtual
law library
The deed of sale exhibit 2 executed by and between Victorino L.

Guevara and Ernesto M. Guevara before a notary public on July 12,
1933, may be divided into two parts: ( a) insofar as it disposes of and
conveys to Ernesto M. Guevara the southern half of Victorino L.
Guevara's hacienda of 259-odd hectares in consideration of P1 and
other valuable considerations therein mentioned; and ( b) insofar as it
declares that Ernesto M. Guevara became the owner of the northern
half of the same hacienda by repurchasing it with his own money from
Rafael T. Puzon.chanroblesvirtualawlibrary chanrobles virtual law library
A. As to the conveyance of the southern half of the hacienda to Ernesto

M. Guevara in consideration of the latter's assumption of the obligation
to pay all the debts of the deceased, the Court of Appeals found it to be
valid and efficacious because: "( a) it has not been proven that the
charges imposed as a condition is [are] less than the value of the
property; and ( b) neither has it been proven that the defendant did not
comply with the conditions imposed upon him in the deed of transfer."
As a matter of fact the Court of Appeals found" "It appears that the
defendant has been paying the debts left by his father. To accomplish
this, he had to alienate considerable portions of the above-mentioned
land. And we cannot brand such alienation as anomalous unless it is
proven that they have exceeded the value of what he has acquired by
virtue of the deed of July 12, 1933, and that of his corresponding share
in the inheritance." The finding of the Court of Appeals on this aspect of
the case is final and conclusive upon the respondent, who did not
appeal therefrom.chanroblesvirtualawlibrary chanrobles virtual law
library
B. With regard to the northern half of the hacienda, the findings of fact
and of law made by the Court of Appeals are as follows:
The defendant has tried to prove that with his own money, he bought
from Rafael Puzon one-half of the land in question, but the Court a quo,
after considering the evidence, found it not proven; we hold that such
conclusion is well founded. The acknowledgment by the deceased,
Victorino L. Guevara, of the said transactions, which was inserted
incidentally in the document of July 12, 1933, is clearly belied by the
fact that the money paid to Rafael Puzon came from Silvestre P. Coquia,
to whom Victorino L. Guevara had sold a parcel of land with the right of
repurchase. The defendant, acting for his father, received the money
and delivered it to Rafael Puzon to redeem the land in question, and
instead of executing a deed of redemption in favor of Victorino L.
Guevara, the latter executed a deed of sale in favor of the
defendant.chanroblesvirtualawlibrary chanrobles virtual law library
The plaintiff avers that she withdrew her opposition to the registration
of the land in the name of the defendant, because of the latter's
promise that after paying all the debt of their father, he would deliver to
her and to the widow their corresponding shares. As their father then
was still alive, there was no reason to require the delivery of her share
and that was why she did not insist on her opposition, trusting on the
reliability and sincerity of her brother's promise. The evidence shows
that such promise was really made. The registration of land under the
Torrens system does not have the effect of altering the laws of
succession, or the rights of partition between coparceners, joint
tenants, and other cotenants nor does it change or affect in any other
way any other rights and liabilities created by law and applicable to
unregistered land (sec. 70, Land Registration Law). The plaintiff is not,
then, in estoppel, nor can the doctrine of res judicata be invoked
against her claim. Under these circumstances, she has the right to
compel the defendant to deliver her corresponding share in the estate
left by the deceased, Victorino L. Guevara.
In his tenth to fourteenth assignments of error the petitioner assails the

foregoing findings of the Court of Appeals. But the findings of fact made
by said court are final and not reviewable by us on certiorari. The Court
of Appeals found that the money with which the petitioner repurchased
the northern half of the land in question from Rafael Puzon was not his
own but his father's, it being the proceeds of the sale of a parcel of land
made by the latter to Silvestre P. Coquia. Said court also found that the
respondent withdrew her opposition to the registration of the land in the
name of the petitioner upon the latter's promise that after paying all the
debts of their father he would deliver to her and to the widow their
corresponding shares. From these facts, it results that the interested
parties consented to the registration of the land in question in the name
of Ernesto M. Guevara alone subject to the implied trust on account of
which he is under obligation to deliver and convey to them their
corresponding shares after all the debts of the original owner of said
land had been paid. Such finding does not constitute a reversal of the
decision and decree of registration, which merely confirmed the
petitioner's title; and in the absence of any intervening innocent third
party, the petitioner may be compelled to fulfill the promise by virtue of
which he acquired his title. That is authorized by section 70 of the Land
Registration Act, cited by the Court of Appeals, and by the decision of
this Court in Severino vs. Severino, 44 Phil., 343, and the cases therein
cited.chanroblesvirtualawlibrary chanrobles virtual law library
Upon this phase of the litigation, we affirm the finding of the Court of
Appeals that the northern half of the land described in the will exhibit A
and in original certificate of title No. 51691 still belongs to the estate of
the deceased Victorino L. Guevara. In the event the petitioner Ernesto
M. Guevara has alienated any portion thereof, he is under obligation to
compensate the estate with an equivalent portion from the southern
half of said land that has not yet been sold. In other words, to the
estate of Victorino L. Guevara still belongs one half of the total area of
the land described in said original certificate of title, to be taken from
such portions as have not yet been sold by the petitioner, the other half
having been lawfully acquired by the latter in consideration of his
assuming the obligation to pay all the debts of the
deceased.chanroblesvirtualawlibrary chanrobles virtual law library
Wherefore, that part of the decision of the Court of Appeals which

declares in effect that notwithstanding exhibit 2 and the issuance of
original certificate of title No. 51691 in the name of Ernesto M.
Guevara, one half of the land described in said certificate of title
belongs to the estate of Victorino L. Guevara and the other half to
Ernesto M. Guevara in consideration of the latter's assumption of the
obligation to pay all the debts of the deceased, is hereby affirmed; but
the judgment of said court insofar as it awards any relief to the
respondent Rosario Guevara in this action is hereby reversed and set
aside, and the parties herein are hereby ordered to present the
document exhibit A to the proper court for probate in accordance with
law, without prejudice to such action as the provincial fiscal of
Pangasinan may take against the responsible party or parties under
section 4 of Rule 76. After the said document is approved and allowed
by the court as the last will and testament of the deceased Victorino L.
Guevara, the heirs and legatees therein named may take such action,
judicial or extrajudicial, as may be necessary to partition the estate of
the testator, taking into consideration the pronouncements made in
part II of this opinion. No finding as to costs in any of the three
instances.chanroblesvirtualawlibrary chanrobles virtual law library
Yulo, C.J., and Hontiveros, 1 J., concur.
chanrobles virtual law library
Separate Opinions chanrobles virtual law library
BOCOBO, J., concurring:chanrobles virtual law library
I concur in the result. Extrajudicial settlement by agreement among the

heirs is authorized by section 1 of Rule 74. only "if the decedent left no
debts." In this case, according to the findings of the Court of Appeals,
Ernesto M. Guevara "has been paying the debts left by his father." It is
true that said Ernesto M. Guevara, in consideration of the conveyance
to him of the southern half of the hacienda, assumed all the debts of
the deceased, but this agreement is binding only upon the parties to the
contract but not upon the creditors who did not consent thereto. (Art.
1205, Civil Code.) There being debts when the father died, section 1 of
Rule 74 is not applicable.chanroblesvirtualawlibrary chanrobles virtual
law library
MORAN, J., concurring in part and dissenting in part:chanrobles virtual

law library
I would be agreeable to the majority decision but for a statement

therein made which in my view repeals by an erroneous interpretation
the provisions of Rule 74, section 1, of the Rules of Court, which reads
as follows:
EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS. - If the

decedent left no debts and the heirs and legatees are all of age, or the
minors are represented by their judicial guardians, the parties may,
without securing letters of administration, divide the estate among
themselves as they see fit by means of a public instrument filed in the
office of the register of deeds, and should they disagree, they may do
so in an ordinary action of partition. If there is only one heir or one
legatee, he may adjudicate to himself the entire estate by means of an
affidavit filed in the office of the register of deeds. It shall be presumed
that the decedent left no debts if no creditor files a petition for letters of
administration within two years after the death of the decedent.
The majority holds that under this provision, the heirs and legatees,
even if all of them are of age, and there are no debts to be paid, cannot
make an extrajudicial settlement of the estate left by the decedent
without first submitting in court for probate the will left by the testator.
This erroneous interpretation clearly overlooks not only the letter and
the spirit but more specially the whole background of the
provision.chanroblesvirtualawlibrary chanrobles virtual law library
It is admitted that the provision has been taken from section 596 of Act
No. 190 but with modification consisting in that it is made to apply in
testate succession. Said section 596 reads:
SETTLEMENT OF CERTAIN INTESTATE ESTATES WITHOUT LEGAL

PROCEEDINGS. - Whenever all the heirs of a person who died intestate
are of lawful age and legal capacity, and there are no debts due from
the estate, or all the debts have been paid the heirs may, by agreement
duly executed in writing by all of them, and not otherwise, apportion
and divide the estate among themselves, as they may see fit, without
proceedings in court.
It must be observed that the procedure contemplated in this legal

provision is completely extrajudicial and the same procedure intended
in section 1 of Rule 74 above quoted which is captioned "Extrajudicial
Settlement by Agreement . . .". Justice Laurel, who was one of the
members of this Court when the new Rules were promulgated, in
commenting upon Rule 74, said:
RULE 74. SUMMARY SETTLEMENT OF ESTATES. - The corresponding

provisions in the Code of Civil Procedures are sections 596-598. There
is substantial analogy between the provisions of the Code of Civil
Procedure and those of Rule 74, save that: (1) Under section 1 of Rule
74, there may be extrajudicial settlement whether a person died testate
or intestate, while under section 596 of the Code of Civil Procedure
extrajudicial settlement can be had only when a person dies intestate.
(2) Under Rule 74, section 1, extrajudicial settlement may take place 'if
the decedent left no debts,' while under section 596 of the Code of Civil
Procedure it may take place 'when there are no debts due from the
estate, or all the debts have been paid.' (3) Under section 596 of the
Code of Civil Procedure, extrajudicial settlement may take place when
'the heirs and legatees are of lawful age and legal capacity, while under
section 1 of Rule 74 it may take place when the 'the heirs and legatees
are all of legal age, or the minors are represented by their judicial
guardians' (4) Unlike the Code of Civil Procedure, section 596, section 1
of Rule 74 requires the extrajudicial agreement to be filed in the office
of the register of deeds; provides that should the heirs disagree, 'they
may do so in an ordinary action of partition', and that 'if there is only
one heir or one legatee, he may adjudicate to himself the entire estate
by means of an affidavit filed in the office of the register of deeds', and
that 'it shall be presumed that the decedent left no debts if no creditor
files a petition for letter of administration within two years after the
death of the decedent.' [(Emphasis mine); Laurel, Procedural Reform in
the Philippines, pp. 137-138].
The phrase "extrajudicial settlement" unquestionably means liquidation

and distribution of the estate without judicial proceeding. In other
words, even in cases of testate succession, the heirs and legatees,
when they are all of age or are represented by their judicial guardians,
and there are no debts to be paid, are allowed by section 1 of Rule 74
of the Rules of Court to liquidate and distribute among themselves the
estate left by the decedent and need not go to court even for the
probate of the will. Unless legal terms mean nothing, this is clearly what
it meant in said provision by the words "extrajudicial settlement" and by
the clause " . . . the parties may, without securing letters of
administration, divide the estate among themselves as they see fit" . . .
. When judicial administration is made unnecessary by the provision,
the inevitable implication is that the probate of the will is also
unnecessary, the probate having no other object than administration for
purposes of distribution according to the provisions of the will. That is
why section 4 of rule 78 provides:
ESTATE, HOW ADMINISTERED. - When a will is thus allowed, the court

shall grant letters testamentary, or letters of administration with the
will annexed, such letters testamentary or of administration shall
extend to all the estate of the testator in the Philippines. Such estate,
after the payment of just debts and expenses of administration, shall be
disposed of according to such will, so far as such will may operate upon
it; and the residue, if any, shall be disposed of as is provided by law in
cases of estates in the Philippines belonging to persons who are
inhabitants of another state or country.
If judicial administration and distribution is made unnecessary by

section 1 of Rule 74, then, I repeat, the probate of the will being
purposeless, becomes unnecessary. If the parties have already divided
the estate in accordance with the will, the probate of the will is a
useless ceremony. If they have divided the estate in a different manner,
the probate of the will is worse than useless; it is ridiculous. The
following words of this Court in a previous case may well be here
reiterated:
These sections provide for the voluntary division of the whole property
of the decedent without proceedings in court. The provisions which they
contain are extremely important. The wisdom which underlies them is
apparent. It is the undisputed policy of every people which maintains
the principle of private ownership of property that he who owns a thing
shall not be deprived of its possession or use except for the most
urgent and imperative reasons and then only so long as is necessary to
make the rights which underlie those reasons effective. It is a principle
of universal acceptance which declares that one has the instant right to
occupy and use that which he owns, and it is only in the presence of
reasons of the strongest and most urgent nature that the principle is
prevented from accomplishing the purpose which underlies it. The force
which gave birth to this stern and imperious principle is the same force
which destroyed the feudal despotism and created the democracy of
private owners.chanroblesvirtualawlibrary chanrobles virtual law library
These provisions should, therefore, be given the most liberal

construction so that the intent of the framers may be fully carried out.
They should not be straitened or narrowed but should rather be given
that wideness and fullness of application without which they cannot
produce their most beneficial
effects.chanroblesvirtualawlibrary chanrobles virtual law library
. . . The purpose which underlies them, as we have already intimated, is

to put into one's hands the property which belongs to him not only at
the earliest possible moment but also with the least possible expense.
By permitting the partition and division without proceedings in court no
time is lost and substantially all expense and waste are saved. This is as
it should be. The State fails wretchedly in its duly to its citizens if the
machinery furnished by it for the division and distribution of the
property of a decedent is so cumbersome, unwieldy and expensive that
a considerable portion of the estate is absorbed in the process of such
division. . . . (McMicking vs. Sy Conbieng, 21 Phil., 211; 219-220).
Indeed, there can be no valid reason why the probate of a will may not
be dispensed with by agreement of all the parties interested and the
estate left by the decedent settled extrajudicially among all the heirs
and legatees, as is now provided in section 1 of Rule 74. It is well
recognized that the allowance of a will gives conclusiveness merely to
its provisions which are governed by the substantive law regarding
descent and distribution. If so, why cannot all the parties interested
agree, without going to court, that the will of the decedent is in form
valid (this being the only point to be litigated in a probate proceeding),
and that they will divide the inheritance in the manner acceptable to
them? The procedure would not be against public policy or the law
placing in the hands of the courts the probate of wills, because what the
courts are enjoined to do for the benefit of the parties, the latter have
already done. As long as the extrajudicial partition of the estate does
not affect the rights of third parties and is not rendered invalid by any
provision of the substantive law, no possible objection can be raised
thereto. On practical considerations, it would be useless to force the
parties, at their expense, to go thru the formality of probating a will and
dividing the estate in accordance therewith, because as soon as the
routine is over, they are of course free to make such transfers to one
another as will be necessary to effect a partition which they would have
made if they were allowed to settle the estate extrajudicially. It is true
that there are provisions in the Rules of Court compelling the delivery of
a will to the competent court and punishing omissions to do so, but said
provisions are calculated to protect the interests of the persons entitled
to share in the inheritance. The latter may waive such benefit. This
waiver cannot be said to be withdrawal or diminution of the jurisdiction
of the court, since it only implies a desire of the parties not to litigate.
The fear that "absent legatees and devisees, or such of them as may
have no knowledge of the will, could be cheated of their inheritance
thru the collusion of some of the heirs who might agree to the partition
of the estate among themselves to the exclusion of others", is wisely
provided against in the requirement of the Rule that all the parties
interested and all the beneficiaries under the will should be parties to
the extrajudicial settlement. The participation of all the interested
parties excludes the probability of fraud or collusion and, even in that
eventuality, the aggrieved beneficiaries are not without adequate
remedy for the voidance of the partition under the Civil
Code.chanroblesvirtualawlibrary chanrobles virtual law library
And this is in accordance with the weight of authority in this and other
jurisdictions. In Leaño vs. Leaño (25 Phil., 180), all the heirs and
legatees have made an extrajudicial partition of the estate left by the
decedent and then filed the will in court which was probated. Nine years
of costly probate proceedings have followed after which the extrajudicial
partition was made known to court. such extrajudicial partition was
objected to by one party upon the ground that it was not in conformity
with the provisions of the will. But the trial Court held:
Naturally the partition made by the heirs voluntarily and spontaneously

must produce and has produced a legal status, which cannot be
annulled merely for the caprice of one person. and it cannot be said
that, because the partition was not made in accordance with the will, if
such be the case, the latter has to be annulled, for by voluntarily and
spontaneously concurring therein they implicitly renounced the effects
of said will, of which they were aware. ( See p. 183).
On appeal, this Court affirmed the ruling with the following

pronouncement:
In view of the positive finding of the judge of the lower court that there
had been a voluntary partition of the estate among the heirs and
legatees and in the absence of positive proof to the contrary, we must
conclude that the lower court had some evidence to support his
conclusion. If the heirs and legatees had voluntarily divided the estate
among themselves, then their division is conclusive, unless and until it
is shown that there were debts existing against the estate which had
not been paid. No claim is made whatever by third parties nor
objections of any character are made by others than the heirs against
said partition. We see no reason why their heirs and legatees should not
be bound by their voluntary acts. (Page 183-184).
This case furnishes precisely a valuable experience as to the practical

wisdom underlying the procedure established in section 1 of Rule 74.
After the will was probated and after nine years of costly administration
proceedings, nothing - absolutely nothing - was accomplished by the
court except to make the belated pronouncement that the extrajudicial
partition made by the parties prior to the institution of the proceedings
was proper and binding upon them. Thus, the whole proceedings for
nine years have proved no more than a futile chronicle of wasted time
and money for the parties and the court. This disgraceful experience
could not and did not pass unnoticed to the members of this Court who
drafted the new Rules of Court. The solemn admonition made by this
Court in a previous case (McMicking vs. Sy Conbieng, supra) when it
said that "the State fails wretchedly in its duly to its citizens if the
machinery furnished by it for the division and distribution of the
property of a decedent is so cumbersome, unwieldy and expensive that
a considerable portion of the estate is absorbed in the process of such
division", rang with re-echoing insistence and was heeded to when the
new Rules of Court was drafted and promulgated. The fundamental
policy pervading the whole system of procedure adopted in said Rules is
speed, economy an justice. Thus, features of procedure were done
away with when, without them, the same purpose may be achieved.
The result is brevity and simplicity of procedure with such guarantees
as the necessary to assure due process. And to remedy such evil as is
disclosed in the Leaño case, a completely extrajudicial settlement is
allowed even in testate succession with the probate of the will
dispensed with, when the heirs and legatees who are all of age or
represented by their judicial guardians, so agree, and there are not
debts to be paid. Thus, the scope of section 596 of Act No. 190 was
amplified and with it the ruling of this Court in Riosa vs. Rocha (48 Phil.,
737). The procedure is in consonance with the almost unanimous
weight of authority in other jurisdictions:
The complainant, to which a demurrer was sustained, shows that all the
persons interested in a decedent's estate, as widow, heirs, distributees,
legatees, or devisees, including the person appointed executrix by the
will, and the husbands of femes covert, (all being adults), by agreement
divided among themselves all the property of the estate according to
the direction of the will, paid off all debts against the estate, and
delivered the note described to the plaintiff, as a part of her share; and
all this was done without probate of the will, or administration of the
estate. The effect of such a division was to invest the plaintiff with an
equitable title to the note. In the absence of the will, the decisions of
this court, heretofore made, would meet every argument in favor of an
opposite conclusion. (Anderson vs. Anderson, 37 Ala., 683;
Marshall vs. Crow, 29 Ala., 278; Vanderveer vs. Alston, 16 Ala., 494;
Miller vs.Eatman, 11 feature of this case, take it out of the principle of
those decisions? We can perceive no sufficient reason why it should. All
the parties interested, or to be affected, may as well by agreement
divide property, where there is a will, without employing the agency of
courts, as in case of intestacy. Parties, competent to act, ought to do
that, without the agency of courts, which the courts would ultimately
accomplish. To deny them the privilege of so doing, would manifest a
judicial abhorrence of harmony. By the probate of the will, the claims of
heirs and distributees, and of the widow, would have been subordinated
to the directions of the will. this has been accomplished by the
agreement. There being no debts, the executrix would have had no
other duty to perform, than to divide the property according to the will.
This, too, has been done by agreement of competent parties. All the
ends and objects of judicial proceedings have been accomplished, by
agreement of the parties; and that agreement must be effective.
(Carter vs. Owens, 41 Ala., 215; 216-
217).chanroblesvirtualawlibrary chanrobles virtual law library
The absence of sound objection on this ground to a contract having for

its sole purpose the disposition of property in a manner different from
that proposed by a a testator, even where the contract contemplates
the rejection of the will when offered for probate or its setting aside
when admitted to probate, when it is entirely free from fraud, and is
made by all the parties in interest, may be freely conceded. As has
often been substantially said, the public generally has not interest in the
matter of the probate of a will; and only those interested in the estate
under the will or otherwise are affected by such a contract. If they all
agree upon some course to be followed, and their contract is otherwise
free from contemplated fraud or violation of any law, no one else has
any such interest as warrants complaint. Such was the character of
contract involved in Spangenberg vs. Spangenberg (App.), 126 Pac.,
379, especially relied on by plaintiff here, where the contract purported
to affect only such property of the deceased as should in fact be
received by the parties thereto. In Estate of Garcelon, 104 Cal, 570; 38
Pac., 414; 32 L. R. A.,. 595; 43 Am. St., Rep., 134, another case much
relied on by plaintiff, a contract by an heir to refrain from contesting a
will was involved. It was said that the contract was one that concerned
the parties alone, and one that did not appear to be against public
policy. (Gugolz vs. Gehrkens, 130 Pac, Rep., 8, 10; 164 Cal.,
The question of public policy is introduced. The disposition of one's

property after death is controlled by statute. One of the next of kin has
no vested interest in such property. In cases of intestacy, a next of kin
has such interest as the statute declares. In case there is a will, he has
an interest which gives him a standing and right to contest the will. This
right is his alone; in it the public has no interest; he may refrain from
exercising it, or he may dispose of it as he wishes, by release or
assignment or settlement, and the law of public policy is not offended.
( In re cook's Will, 217 N. Y. S., 176, 180-
Agreement. - "It has been definitely decided by the courts of this state,
and of many other states, that the beneficiaries under a will have a
right to agree among themselves upon any distribution they see proper
of the property bequeathed to them.
. . . That holding is based upon the proposition that the property is
theirs. No one else is interested in its disposition, and they may, with
propriety, make any distribution of it that suits them, so long as they do
not invade the rights of other parties or infringe some rule of public
policy'. (Fore vs.McFadden, 276 N. W., 327;
The first assignment of error presented by appellants complains of the

action of the court in sustaining exceptions to averments asking the
enforcement of the agreement that the will should not be probated, and
that the estate should be divided among the parties as they would be
entitled as heirs at law of the deceased, the proponent of the will
surrendering thereby his rights as principal legatee. This assignment
must be sustained. It cannot be seen that the agreement is contrary to
public policy. Parties may make any contract with reference to their
property rights that is not illegal, may adjust by compromise their
differences and disputes concerning the same and, as they bind
themselves, so shall they be bound. It is difficult to understand why this
cannot be effected by an agreement not to probate a will, or how it
interferes with public policy. The power to litigate and to establish a
right by appeal to the courts is as much the subject of contract as any
other right in property. Such adjustments by contract are favored by
the law and the courts, and are not deemed to be an unwarranted
interference with the jurisdiction of the courts, or against public policy.
On the contrary, public policy favors
them.chanroblesvirtualawlibrary chanrobles virtual law library
Appellants have cited a case in point, - the case of Phillips v. Phillips, 8

Watts, 197, in which it is held competent for devisees and legatees to
bind themselves by a written or parol agreement to destroy a will
before probate, and that a party to the agreement would be estopped
from claiming any interest under the will. The court says: "It cannot
admit of doubt that before probate the parties in interest under a will
would have the right to set aside a will, and such an act would be
favored, when the object was to avert a family controversy". The
agreement that the will should not be probated, and that the parties
would take the property as heirs at law of the deceased, destroyed the
legal effect of the will; and it could not thereafter have legal existence
in conferring rights upon the legatees. (Stringfellow vs. Early, 40 SW.,
871, 873-874; 15 Tex. Civ. App.,
The contention that the complaint does not state a cause of action,
because the contract sued on is against public policy, and therefore
void, is made here for the first time. It is to the interest of the public
generally that the right to make contract should not be unduly
restricted, and no agreement will be pronounced void, as being against
public policy, unless it clearly contravenes that which has been declared
by statutory enactment or by judicial decisions to be public policy, or
unless the agreement manifestly tends in some way to injure the public.
Whether or not a contract in any given case is contrary to public policy
is a question of law, to be determined from the circumstances of each
particular case. Smith vs. Du Bose, 78 Ga., 413; 3 SE., 309-316; 6 Am.
St. Rep., 260; Weber vs. Shay, 56 Ohio St., 116; 46 NE., 377; 37
L.R.A., 230; 60 Am. St. Rep., 743; Pierce vs. Randolph, 12 Tex.,
290; Print Numerical Registering Co. vs. Sampson, 19 L. R. Eq. Cas.,
465.chanroblesvirtualawlibrary chanrobles virtual law library
The contract in controversy is in effect but an agreement whereby the

parties thereto, "because of their love and affection for one another"
and "being desirous of avoiding litigation over the estate" of their father
"in case of his death," agreed to ignore his will in the event that he
made one, and then share his estate equally as if he had died intestate.
In other words, the contract was but an agreement of heirs apparent
not to contest the will of an ancestor. There is nothing to be fond in our
code or statutory law prohibiting the making and enforcement of such a
contract, and it has been held in this state that a contract, made after
the death of the deceased, not to contest his will, is purely personal to
the parties making it, that it is not against public policy, and that, when
fairly made, it will be enforced, (Spangenberg vs. Spangenberg, 126
Pac. Rep., 379, 382; 19 Cal. App.,
Probate Dispensed With. - Probate of a will may be dispensed with by

an agreement between the persons interested; or it may be dispensed
with where the testator, before his death, conveyed to the devisees all
the property which he had devised to them, or where the will makes no
other disposition of the testator's property than the law would have
done had he died interstate, and the rights sought to be established are
admitted by all concerned. But where the language of the will expressly
invokes the jurisdiction of the probate court the fact that no
administration is necessary does not affect the power of the court to
probate the will. (68 C. J., pp. 877-878).
Agreement between Persons Interested: a. Requisites and

Validity. (1) In General. - It has been held that, since the nature of a
probate proceeding is one in rem, the parties cannot submit a
controversy arising therein to arbitration. The law, however, favors the
settlement, in good faith, of will contests, by a so-called "family
settlement", although it changes the mode of disposition of the estate;
and, therefore, subject to the limitation that a contestant cannot
compromise anything beyond his own personal interest in the contest,
persons, such as devisees, legatee, heirs, or next of kin, having interest
in the will or estate, sufficient to entitle them to opposed probate or
contest the will, may enter into an agreement which, in the absence of
fraud or misrepresentation, is valid and binding on all the parties
thereto, whereby they waive probate of the will and bind themselves to
abide by its provisions, or whereby they agree that the will is not to be
probated or is to be superseded or destroyed; or whereby any
controversy relative to the probate or contest of the will is compromised
or settled, and a contest is avoided, whether or not there were, in fact,
valid grounds for the contest. Such an agreement, in order to be valid,
must not exclude anyone entitled under the will, must be entered into
by all the persons affected thereby, and all the parties thereto must be
competent to make the agreement, and either they or their
representative must fully execute it, and, under some statutes, it must
be properly approved by the court." ([Emphasis supplied] 68 C. J., pp.
909-910).
As to Probate. - The operation and effect of the agreement may not to

supersede the provisions of the will, but to carry out its provisions
without a probate, and under such agreement the parties are precluded
from denying the probate, or insisting on the invalidating of the will for
want of probate. So, also, a person who agrees not to contest the will is
precluded from opposing probate; or the probate of a will may be
dispensed with, and the persons interested in the estate under the will
given at least an equitable interest in the property, where they, being
under no disability, divide the estate, pursuant to an agreement among
themselves. Where the effect of the agreement of all interested parties
is to repudiate or renounce the will, it will not be probated, especially
where the agreement expressly so provides; but it has been held that,
where the executor, defending a torn will, agrees, for a consideration,
not to probate it, the court should not refuse probate without notifying
other beneficiaries and requiring testimony as to the tearing of the will
by the testator. Probate, however, is not prevented by an agreement
executed by a part only of the beneficiaries, and the parties to such
agreement are not prevented thereby from taking under the will which
is probated by another interested person. ([Emphasis supplied] 68 C. J.,
pp. 914-915).chanroblesvirtualawlibrary chanrobles virtual law library
Thus, where the parties, being in doubt as to the instrument being construed as a
will, and for the purpose of saving a family controversy and for the
purpose of dividing the estate, enter into a compromise and settlement
agreement, under the terms of which the entire estate is to be, and has in
part been, divided, and agree that the instrument shall not be offered for
probate, it is sufficient to prevent a probate. (Brown vs. Burk, 26 NW [2d
ed.], 415.chanroblesvirtualawlibrary chanrobles virtual law library
Validity of Agreements of Dispense with Probate or to Modify or Set

Aside Will. - Though in some jurisdictions an agreement to dispense
with the probate of a will has been declared to be against public policy
and void, in a majority of the decisions on the point it has been held
that all the persons interested in decedent's estate may by agreement
divide the estate among themselves, without probating such decedent's
will or administering the estate, and the validity of a contract having for
its sole purpose the disposition of property in a manner different from
that proposed by a testator, even where the contract contemplates the
rejection of the will when offered for probate or its setting aside when
admitted to probate, when it is entirely free from fraud, and is made by
all the parties in interest, would seem to be freely concede. Thus it has
been held that all the parties in interest may agree to eliminate from a
will a clause providing for survivorship among them. But an agreement
to resist the probate of a will and procure it to be set aside so as to curt
off the interest of one who is not a party to such agreement is against
public policy. Nor does the right of all the parties in interest to set aside
or disregard a will extend to the case of an active trust, for a definite
term, created by a testator as he deems proper for the protection of his
beneficiaries. A contract between the next of kin of a decedent, that
they will each have a certain portion of the estate, does not amount to
an agreement to divide the estate without probating the will. (28 R.C.L.,
pp. 357-358).
The minority decision pointed out in the last quotation from the Ruling
Case Law (Vol. 28, pp. 357-358) is from the Supreme Court of only one
State - that of Wisconsin, in re Will of Dardis (135 Wis., 457; 115 NW.,
332). All the other States held the contrary doctrine that is now
embodied in section 1 of Rule 74. Commenting upon the Wisconsin rule,
the Editor of the L.R.A. says the following:
No case has been found other than Re Dardis wherein any court passed
upon the validity of a stipulation to secure the denial to probate of a will
theretofore offered for probate, on the ground that the testator was
mentally incompetent to make a will at the time of its execution. The
decision of the court is based upon the doctrine therein enunciated, that
proceedings to probate a will are proceedings in rem, which public
interest demands should be pursued to a final adjudication, regardless
of the wishes of the interested parties. In this connection and with
reference to this broader question, it is of interest to note that courts of
other jurisdictions, although generally recognizing that proceedings to
probate a will are proceedings in rem, hold that the proceeding is inter
partes to the extent that all the parties in interest may control the
probate proceedings, even to the extent of doing away with the
probate. (23 L.R.A. [N.S.], p.783).
For the sake of fixity in judicial policy, this Court in the exercise of its
constitutional powers, has solemnly given a form of a rule - section 1,
Rule 74 - to what was merely the consensus of judicial opinion. We
cannot now repudiate the procedure outlined in said provision unless we
amend it by another rule.chanroblesvirtualawlibrary chanrobles virtual
law library
The majority, however, expresses fear that abuses may easily be committed under the
Rules. Such fears have always been the bugbear set up against all task of procedural
reforms. To be sure, there has never been any provision of law that is not liable to
abuses. If by mere possibility of abuse we are to disregard clear provisions of a procedural
law, the result would not only the abrogation of all laws but also the abolition of all
courts. When a procedural law is calculated to remedy an evil under a specific situation
therein contemplated, it must be deemed good even if other situations may be simulated
or falsified and placed within its purview. And when that law is duly enacted, it is no
concern of the courts to pass upon its wisdom, their duty being to apply its provisions in a
manner which shall not defeat the intention underlying it. Laws are promulgated to be
obeyed and when they are abused there are the courts to check up the abuse. Courts
must deal with the specific circumstances of each case and construe the provisions in
such a manner as to make it impregnable if possible to further abuses. This is
constructive, not destructive, jurisprudence. This explains why laws are more often
worded so broadly as to lay merely general principles - a skeleton - the flesh to be
supplied with judicial decisions. Judicial statemanship requires that courts in deciding
judicial controversies should be careful not to advance opinions which are not necessary
to a proper disposition of the case. Judicial experience has shown that such advanced
opinions may not infrequently place the court in an embarrassing position when a proper
case with the proper factual environment is properly presented with all its angles before
the court. Jurisprudence must be carefully progressive and not impetuously aggressive.
for instance, the majority, impressed by the awful circumstances of the present case, has
found it dangerous to hold that the probate of the will may be dispensed with. While this
conclusion is constructive under the peculiar facts of the case, to generalize it is to make
destructive. If a proper case is presented to the court wherein all the heirs and legatees
who are all of age have agreed to dispense with the probate of a will and have actually
made an extrajudicial partition, and if it appears further that each of the recipients is in
peaceful enjoyment of his share in the estate, I am sure that the majority, with the
practical wisdom they have shown in other cases, would not dare disturb the peace
enjoyed by such heirs and legatees and compel them to go into court and
litigate.chanroblesvirtualawlibrary chanrobles virtual law library
The majority, without the necessity of holding whether the probate of a

will may or may not be dispensed with under Rule 74, section 1, could
have decided this case by stating that said provision is not applicable,
its requirements not being present. And I would be wholly agreeable to
this conclusion because the beneficiaries under the will do not appear to
have made an extrajudicial settlement of the estate left by the
deceased Victorino L. Guevara, nor the action brought by the natural
daughter, Rosario Guevara, is one for partition against all such
beneficiaries founded either on an extrajudicial settlement or on the
provisions of the will as accepted by all parties to be valid and binding.
Upon the contrary, Rosario Guevara appears to be wishing to take
advantage of the will in so far as it is favorable to her, and repudiate it
in so far as it is favorable to others. Apparently, Rosario Guevara was in
possession of the will and the other heirs and legatees were not aware
of its contents. The situation not being the one contemplated by section
1 of Rule 74, plaintiff may not invoke its
provisions.chanroblesvirtualawlibrary chanrobles virtual law library
Endnotes:
1 Justice Hontiveros of the Court of Appeals took part in this case by

special designation
EN BANC
G.R. 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.
Ambrosio Padilla Law Office for petitioner.
Jalandoni and 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.chanroblesvirtualawlibrarychanrobles virtual
law library
The pertinent facts which gave rise to the herein petition

follow:chanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
On 5 March 1964, (the 9th day after the death of the late
Senator) 1respondent 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.chanroblesvirtualawlibrarychanrobles virtual law library
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. 2chanrobles virtual law library
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
theprobate 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.chanroblesvirtualawlibrarychanrobles virtual law library
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 probateproceedings 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.chanroblesvirtualawlibrarychanrobles virtual law library
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. Q-7898 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
jurisdictionand/or improper venue.chanroblesvirtualawlibrarychanrobles
virtual law library
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 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. 5chanrobles virtual law library
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 deniedon 27 April 1964 and a second motion for
reconsideration dated 20 May 1964 was
likewise denied.chanroblesvirtualawlibrarychanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
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;chanrobles virtual law library
(b) That the will was procured by undue and improper pressure and
influence on the part of the beneficiary or some other persons for his
benefit;chanrobles virtual law library
(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. 6chanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law
library
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 bothtestate 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.chanroblesvirtualawlibrarychanrobles
virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
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 ... . " 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.chanroblesvirtualawlibrarychanrobles
virtual law library
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 consentingin 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 certiorariproceedings 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.chanroblesvirtualawlibrarychanrobles virtual law library
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 Act 7 concededly confers original jurisdiction upon all

Courts of First Instance over "all matter 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. 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 exclusionof 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) 8chanrobles virtual law library
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 Ho 9 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 follow 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 same case will have to be commenced
anew before another court of the same rank in another province. That
this is of mischievous effect in theprompt 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 nothave 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 subject-matter
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.chanroblesvirtualawlibrarychanrobles virtual law
library
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."chanrobles virtual law
library
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.chanroblesvirtualawlibrarychanrobles
virtual law library
2. This 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. 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.chanroblesvirtualawlibrarychanrobles virtual law
library
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.chanroblesvirtualawlibrarychanrobles virtual law library
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 jurisdictionto exclude all other courts, which the Cebu
court declined to do. Furthermore, as is undisputed, said rule only lays
down a rule of venueand the Quezon City court indisputably had at least
equal and coordinate jurisdiction over the
estate.chanroblesvirtualawlibrarychanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual
law library
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.chanroblesvirtualawlibrarychanrobles
virtual law library
4. The relatively recent case of Uriarte vs. Court of First Instance of

Negros Occidental 12 with facts analogous to the present case 13 is
authority against respondent appellate court's questioned
decision.chanroblesvirtualawlibrarychanrobles virtual law library
In said case, the Court upheld the doctrine of precedence of probate

proceedings over intestate proceedings in this wise:
It can not 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 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 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 as an intestacy. As already
adverted to, this is a clear indication that proceedings for the probate of
a will enjoy priority over intestate proceedings. 14chanrobles virtual law
library
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:chanrobles
virtual law library
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
venuetherefor.
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. 16chanrobles virtual law library
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 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:
... 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)
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.chanroblesvirtualawlibrarychanrobles virtual law
library
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. Tan 17 that.
... The issue of residence comes within the competence of whichever

court is considered to prevail in the exercise 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 testateproceedings 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.chanroblesvirtualawlibrarychanrobles virtual
law library
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. Crisostomo 18 " 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."chanrobles
virtual law library
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 everybody, even against the State. The
probate of a will by a court having jurisdiction thereof is conclusive as
to its due execution and validity." 19 The Quezon City court acted
regularly within its jurisdiction (even if it were to be conceded that
Quezon City was not the proper venue notwithstanding the Cebu court's
giving way and deferring to it,) in admitting the decedent's last will to
probate and naming petitioner-widow as executrix thereof. Hence, the
Quezon city court's action should not be set aside by a writ of
prohibition for supposed lack of jurisdiction as per the appellate court's
appealed decision, and should instead be sustained in line with Uriarte,
supra, where the Court, in dismissing the certiorari petition challenging
the Manila court's action admitting the decedent's will to probate and
distributing the estate in accordance therewith in
the second proceeding, held that "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." As stressed by Chief Justice Moran in Sy Oa, supra,
"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."chanrobles virtual law
library
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.chanroblesvirtualawlibrarychanrobles virtual law library
9. It would finally be unjust and inequitable that petitioner-widow, 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.chanroblesvirtualawlibrarychanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law
library
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 testateproceeding 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 herown community property and conjugal
estate with the decedent.chanroblesvirtualawlibrarychanrobles virtual
law library
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 deferringto 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.chanroblesvirtualawlibrarychanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
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 civic 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.chanroblesvirtualawlibrarychanrobles virtual law library
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.
Makalintal, C.J., Zaldivar, Makasiar, Antonio and Esguerra, JJ.,

concur.chanroblesvirtualawlibrarychanrobles virtual law library
Fernando and Castro, JJ., took no part.
Separate Opinions
BARREDO, J., concurring:chanrobles virtual law library
I concur in the main opinion of Mr. Justice

Teehankee.chanroblesvirtualawlibrarychanrobles virtual law library
I only want to stress that in my view, the failure of respondents to

question within a reasonable time the laying of the venue in the Quezon
City Court of First Instance and the assumption of jurisdiction by that
court, after the Court of First Instance of Cebu deferred in its favor, in
order to prevent the holding therein of any proceeding and trial, and
their having filed therein a formal opposition to the probate of the will,
makes them guilty of laches, for which reason they are not entitled to
the equitable relief prayed for in the present
petition.chanroblesvirtualawlibrarychanrobles virtual law library
Separate Opinions
BARREDO, J., concurring:
I concur in the main opinion of Mr. Justice Teehankee.
I only want to stress that in my view, the failure of respondents to

question within a reasonable time the laying of the venue in the Quezon
City Court of First Instance and the assumption of jurisdiction by that
court, after the Court of First Instance of Cebu deferred in its favor, in
order to prevent the holding therein of any proceeding and trial, and
their having filed therein a formal opposition to the probate of the will,
makes them guilty of laches, for which reason they are not entitled to
the equitable relief prayed for in the present petition.
Endnotes:
EN BANC
G.R. No. L-34895 March 15, 1932
Estate of the deceased Fruto Santos.

MACARIO SULIT, Petitioner-Appellant, vs. FAUSTA SANTOS,
ET AL.,oppositors-appellees.
Valeriano Amado for appellant.

Leonardo Abola for appellees.
MALCOLM, J.:
This is an appeal from orders of the Court of First Instance of

Rizal, disallowing certain items of the account rendered by the
executor of the estate of the deceased Fruto Santos. A legal
question which has not heretofore been decided in this
jurisdiction is presented, and is whether the expenses incurred
by an executor or administrator to procure a bond is a proper
charge against the estate.chanroble svirtualawl ibra ry chan rob les vi rtual law lib rary
One of the contested items in the account of the administrator

which invites but brief comment has to do with a claim of P500
for attorney's fees, which the trial judge reduced to P250. The
action of the presiding judge was predicated on the failure of
the executor to secure authority from the court for the
incurring of expenses for legal services, and on the fact that
some of the service performed by the attorney should have
been performed by the executor personally. It is well settled
that the Court of First Instance has a discretionary right to fix
attorney's fees in testamentary proceedings pending before it,
and no improper misuse of that discretion is here disclosed.
law libra ry
chanroble svi rtualawl ib rary chan rob les vi rtual
The trial judge further refused to permit the executor of the

estate to secure reimbursement from the estate for money paid
as premium on the bond filed by his as special administrator,
and for the preparation, filing, and substitution of his bond as
such and as executor of the estate, all totalling P173.95. These
are the facts from which arise the question suggested in the
beginning of this decision.
chanrob lesvi rtualaw lib rary cha nrob les vi rtual law lib rary
Our Code of Civil Procedure provides that "Before an executor,

or an administrator, enters upon the execution of his trust, and
letters testamentary or of administration are issued, the person
to whom they are issued shall give a bond in such reasonable
sum as the court directs, with one or more sufficient sureties, .
. ." (sec. 643). In the event an executor neglects to give a
bond, the court may grant letters testamentary to another
(sec. 646). Finally, section 680 of the Code provides that "The
executor or administrator shall be allowed necessary expenses
in the care, management, and settlement of the estate, . . .,"
and for his services certain specified per diems and percentage.
The case of the Testamentaria de la Finada Felipe Alonzo y de
Mesa, trusteeship of the "Instituto Burgos", Luis Lauchengco,
trustee and appellee, vs. Vicente E. Reyes, executor and
appellant, No. 24699, 1 which the trial court refused to follow,
but which the appellant contends is decisive of the appeal, was
a case in division which related to the construction of a will in
determining if the premium for the bonds and attorney's fees
should be allowed, and so is neither in point nor controlling in
this instance. In the case of Lizarraga Hermanos vs.
Abada ([1919], 40 Phil., 124), this court deduced that the
expenses of administration are those necessary for the
management of the property, for protecting it against
destruction on deterioration, and possible for the production of
fruits.
chanroblesvi rtualaw lib rary cha nrob les vi rtual law lib rary
Turning to the authorities, we find the rule relative to the bond

of the executor or administrator announced in Corpus Juris in
the following language:
In some states the statutes allow the expense of procuring a

bond for the representative to be charged against the estate;
but in the absence of such a statute it is well settled as a
general rule that the amount paid by the personal
representative to a guaranty or indemnity company or to
individual bondsmen, in order to procure sureties on his official
bond is not chargeable against the estate, in addition to his
usual recompense, although a contrary view has been
expressed. (24 C. J., 112.)
Woerner in his treatise on the American Law of Administration

states the rule even more tersely as follows:
Unless the statute in terms so provides, (and such is now the

case in a number of States) an administrator or executor will
not be entitled to charge the estate with money which he paid
a surety corporation or trust company for becoming surety on
his bond. (Vol. 3, p. 1775.)
We are shown no good reason for not accepting in this

jurisdiction the general rule, but out of caution will examine
some of the authorities more closely. chan roble svirtualawl ibra ry chan roble s vi rtual law lib rary
The State of California, as an example, in 1905 adopted a

statute reading: "Any . . . executor required by law or by order
of court to give a bond as such, shall be allowed as part of the
lawful expense of executing his trust, the sum paid for such
bond, not exceeding, however, one-half (�) of the (1) per
cent, of the amount of such bond, for each year that the same
shall remain in force." The question arose if this law should be
given a retrospective effect, but the appellate court held that it
should not be thus construed, and that before the act was
enacted the expenditure could not have been legally allowed.
( In re Richmond's Estate [1908], 99 Pac., 554.) In Missouri,
likewise, it was the holding of the Court of Appeals of that
State that the law of 1917, allowing administrator a reasonable
costs for a surety company bond, does not apply where the
bond was secured and the account approved by the probate
court before the act was adopted. ( In re Buck's Estate [1920],
220 S. W., 714.) chanro bles virtual law lib rary
In the State of Texas, the law provided that before the

issuance of letters testamentary or of administration the person
to whom such letters are granted must enter into bond with at
least two good and sufficient sureties. The law further provided
for commission to executors and administrators. Article 3623 of
the Civil Statutes specifically provided this: "Executors and
administrators shall also be allowed all reasonable expenses
necessarily incurred by them in the preservation, safe keeping
and management of the estate, and all reasonable attorney's
fees that may be necessarily incurred by them in the course of
the administration:" The Court of Appeals observed "that it is
under the last-cited article, if at all, that statutory authority
must be found for charging the estate" with the premium paid
for the making of the administrator's bond. The court ruled (1)
That in the absence of some statutory authority, a premium
paid for the making of an administrator's bond is not a proper
charge against the estate, but should be borne by the
administrator, and (2) that the Civil Status, including article
3623, do not authorize the administrator to charge against the
estate a premium paid for the making of his bond.
(Jarvis vs. Drew [1919], 215 S. W., 970.) The close analogy
between the Texas statute and the Philippine statute will not
escape attention. chanroble svirt ualawli bra ry chan robles v irt ual law l ibra ry
The aforementioned cases, in reality, seem superfluous in

ascertaining the true principle. The position of an executor or
administrator is one of trust. In fact, the Philippine Code of Civil
Procedure so mentions it. It is proper for the law to safeguard
the estates of deceased persons by requiring the executor or
administrator to give a suitable bond. The ability to give this
bond is in the nature of a qualification for the office. The
execution and approval of the bond constitute a condition
precedent to acceptable of the responsibilities of the trust. If an
individual does not desire to assume the position of executor or
administrator, he may refuse to do so. On the other hand,
when the individual profers an adequate bond and has it
approved by the probate court, he thereby admits the
adequacy of the compensation which is permitted his pursuant
to law. It would be a very far fetched construction to deduce
that the given of a bond in order to qualify for the office of
executor or administrator is a necessary expense in the care,
management, and settlement of the estate within the meaning
of section 680 of the Code of Civil Procedure, for these are
expenses incurred after the executor or administrator has met
the requirements of the law and has entered upon the
performance of his duties. (See In re Eby's Estate [1894], 30
Atl., 124.)
chanrobles v irt ual law l ibra ry
We feel that the orders of Judge Mapa in this case rested on a

fine sense of official duty, sometimes lacking in cases of this
character, to protect the residue of the estate of a deceased
person from unjustifiable inroads by an executor, and that as
these order conform to the facts and the law, they are entitled
to be fortified by an explicit pronouncement from this court. We
rule that the expense incurred by an executor or administrator
to procure a bond is not a proper charge against the estate,
and that section 680 of the Code of Civil Procedure does not
authorize the executor of administrator to charge against the
estate the money spent for the presentation, filing, and
substitution of a bond. Accordingly, the orders appealed from
will be affirmed in all particulars, with the costs of this instance
against the appellant.
Avance�a, C.J., Johnson, Street, Ostrand and Romualdez, JJ.,

concur.
Separate Opinions
IMPERIAL, J., concurring and dissenting in part: chanrobles v irt ual law l ibrary
We concur with the majority in so far as the attorney's fees are

concerned. But for the reasons hereinafter stated, we are of
opinion that the appellant should be credited with the sum of
P173.95, which he paid for the premium, preparation, and filing
of his bond as administrator and substitution thereof. chanroble svi rtualaw lib rary chan rob les vi rtual law lib rary
We agree that the Code of Civil Procedure does not expressly

authorize the reimbursement, by way of administration
expenses, of the premium the administrator or executor has
had to pay upon the bond; but the same is true of attorney's
fees, and yet we have uniformly held that such fees constitute
legal expenses of administration, for which the administrator is
entitled to reimbursement. Since the same reason exist (in
both cases), we do not see why they should not be decided the
same way. chanroble svirtualawl ibra ry chan roble s virtual law lib rary
The law in this jurisdiction defining and regulating the expenses

of judicial administration is set forth in section 680 of the Code
of Civil Procedure, reading in part as follows:
How Allowed for Services. - The executor or administrator shall

be allowed necessary expenses in the care, management, and
settlement of the estate, . . .
It is evident that by expenses of administration we are to

understand those made for the benefit of an hereditary estate,
its care and preservation, and the prevention of deterioration.
(Lizarraga Hermanos vs. Abada, 40 Phil., 124.) Undoubtedly
the bond upon which the administrator or executor pays the
premium is given for the benefit of the inheritance, answering
as it does directly for the faithful performance of the charge, to
wit, the good care, custody, and preservation of the
inheritance. The nature and purpose of the expenses must
determine whether or not it is an expense of administration.
. . . In some states it is provided by statute that any executor

or administrator required to give bond may include as a part of
the lawful expense of executing his trust the sum paid a
bonding corporation for the premium on the administration
bond. The rule has been laid down in broad terms that
whenever any statute or other law imposes a personal duty
upon an executor or administrator to pay money for the benefit
of the estate in his care, it follows under the general principles
of jurisprudence, without special statutory provision, that the
money so paid will be chargeable to the estate, and that in
equity at least he will be entitled to reimbursement. . . . (11 R.
C. L., par. 263, p. 235.)
In our opinion, the item of expense under discussion should

have been approved as were the attorney's fees.
Villamor and Villa-Real, JJ., concur.

FIRST DIVISION
G.R. No. L-62431-33 August 31, 1984
PIO BARRETTO REALTY DEVELOPMENT, INC., Petitioner,

vs. THE HON. COURT OF APPEALS (SIXTH DIVISION) and
HONOR MOSLARES, Respondents.
Azucena E. Lozada for petitioner. chanrobles vi rtual law lib rary
Estrella Funelas Iral & Associates and Tomas Trinidad for

respondents.
GUTIERREZ, JR., J.:
This petition for certiorari to review the decision of the Court of

Appeals promulgated on June 30, 1982 in CA-G.R. Nos. 12599-R,
12600-R, and 12601-R entitled "Honor P. Moslares, petitioner v.
Honorable Reynaldo P. Honrado, et al., respondents, was filed as
part of the effort to expedite the final settlement of the estate of the
deceased NICOLAI DREPIN. chanroble svirtualawl ibra rycha nro bles vi rtua l law lib ra ry
The dispositive portion of the decision of the respondent Court of

Appeals reads as follows:
WHEREFORE, all the foregoing considered, judgment is hereby

rendered: chanrobles v irt ual law l ibra ry
(a) making permanent the temporary restraining order issued: chanrobles vi rtua l law lib rary
(b) declaring null and void the impugned orders of April 15, 1980,
July 2, 1980, September 30, 1980, and October 20, 1980, for
having been issued in grave abuse of discretion and in excess of
jurisdiction, with the September and October orders having the
additional defect of due process violation; chanrobles v irt ual law li bra ry
(c) declaring null and void the Deed of Undertaking and Deed of
Sale in favor of respondent Pio Barretto Realty Development, Inc.,
for being mere consequences of null orders; chanrobles v irt ual law l ibra ry
(d) ordering the Register of Deeds of Rizal to cancel the transfer

certificates of title issued to Pio Barreto Realty Development, (TCT
Nos. N-50539,
N-50540, N-50541) and to transfer the same to the Estate of Nicolai
Drepin with the annotation that this transfer to the estate is subject
to the final decision in Civil Case No. 41287 of the CFI of Pasig,
Metro Manila; and chanrob les vi rtua l law lib rary
(e) denying the prayer for the exclusion of the three titled lots
involved from Special Proceedings Nos. 7257, 7261, and 7269 of
the CFI of Makati Branch Civil Case No. 41287 abovementioned.
The proceedings for the settlement of the estate of Drepin were

initiated shortly after his death on July 29, 1972 with the filing of a
petition for probate of his holographic will on August 23, 1972. chanroblesv irt ualawli bra ry chan roble s virtual law l ibra ry
In this holographic will the late Drepin listed twenty-two (22)

persons as his alleged creditors, and within the six (6) months after
publication within which to file claims against the estate, twelve
(12) persons filed their respective claims. The total amount of
obligations that may be chargeable against the Drepin Estate is
P1,299,652.66. chanroble svirtualawl ibra ry chanrob les vi rtual law lib rary
The only asset of the testate estate of Drepin consists of three (3)
parcels of titled land with an area of approximately eighty (80)
hectares, and another parcel with an area of eighty-one (81)
hectares still pending registration. The estate is saddled with claims
of creditors named in the Drepin will and creditors who have filed
their claims within the reglementary period. The only way to pay
their claims is to sell the Drepin lots, so that from the proceeds of
the sale, the debts of the estate could be paid, and any remaining
balance distributed to the Drepin heirs. chan roble svi rtualawl ib rary chan rob les vi rtual law lib rary
Since the filing of the petition for probate of the Drepin will, on
August 23, 1972, nine (9) offers had been made for the purchase of
the Drepin lands, among them, that of GM Management Phils.,
dated August 15, 1978, through its President Honor P. Moslares.
Basis for Moslares' letter proposal is a deed of sale with mortgage
executed by the decedent in his favor on October 9, 1970. It
appears that on said date, the deceased sold 80.3980 hectares of
land absolutely and perpetually to Honor P. Moslares for the sum of
P2,600,000.00 with a downpayment of P300,000.00. To secure the
payment of the remaining P2,300,000.00, the latter mortgaged the
land to the former. The parties further agreed not to register the
sale yet until P1,300,000.00 shall have been paid to Drepin and
P1,000.000.00 paid to Drepin's creditors. chanroblesv irtualawli bra rycha nrob les vi rtua l law lib rary
Subsequently, on June 25, 1971, Drepin and Moslares entered into

a "Joint Venture Agreement". Said agreement listed Drepin as the
registered "owner" of the lots and denominated Moslares as
"developer" tasked with converting the lands into a residential
subdivision. The agreement specified:
(h) That the Developer agrees to reserve the right of the registered
Owner of the land to ask for immediate CASH payment against an
"Absolute Deed of Sale " on the said above mentioned properties,
subject of this "Joint Venture Agreement" on the amount of not less
than TWO MILLION THREE HUNDRED THOUSAND
(P2,300,000.00) PESOS, after the big loan is granted to the
Developer in or about thirty (30) days to forty-five (45) days from
the signing of this Joint Venture Agreement and the "Special Power
of Attorney", chanrobles vi rtual law lib rary
(i) However, if the Owner of the property Mr. Nicolai Drepin not
choose to be paid on this said above mentioned property in CASH of
TWO MILLION THREE HUNDRED THOUSAND (P2,300,000.00)
PESOS, this "joint venture agreement is still in full force and effect,
OTHERWISE if full payment of TWO MILLION THREE HUNDRED
THOUSAND (P2,300,000.00) PESOS receipt is acknowledged by the
said Mr. Nicolai Drepin, the "Joint Venture Agreement" is
automatically cancelled and declared no force and effect.
Before the agreement could be implemented, Nicolai Drepin died.

virtua l law lib rary
c hanro blesvi rt ualawlib ra rychan roble s
Upon learning of the existence of Special Proceedings No. 7257,

7261 and 7269 herein respondent Moslares, on August 15, 1978,
informed the Judicial Administrator
Atty. Tomas Trinidad that he is already the owner of the properties
made subject matter of the Special Proceedings and proposed that
he be permitted to pay the balance on the sale with mortgage in
accordance with the terms of his written proposal. The probate
court, on August 17, 1978 issued an order approving respondent
Moslares' proposal and authorizing administrator Trinidad to enter
into the appropriate agreement. This was reiterated by the court in
its order dated January 9, 1979, with the condition that GM
Management Phils. had only up to February 28, 1979 to comply with
its letter-offer dated August 15, 1978 and "failure on their part to
comply with the same within the period specified, the contract with
the decedent shall be deemed resolved and ineffective." Counsel for
heir claimant Cornelia Tejano was Revise given up to said date to
make and submit a more beneficial offer. Neither GM Management
nor counsel for Tejano was able to perform as required. chan roblesv irt ualawli bra rycha nrob les vi rtual law lib rary
Requests for revision of payment and extension of period within

which to pay the balance of P1,600,000.00 were made by Moslares.
Further, he filed a Manifestation and Urgent Motion proposing
transfer of the certificate of titles over the land subject of the
proceedings so as to enable him to generate funds to liquidate the
payable balance. The same were left unacted upon by the probate
court. chanroble svirtualawl ibra ryc hanro bles vi rtu al law li bra ry
Meanwhile, on September 25,1979, A Deed of Undertaking was

entered into by respondent Moslares and the Administrator to
implement the Contract of Sale with Mortgage. Such deed provided
for the mode of payment which Moslares was to follow as well as
the clearing and transfer of the certificates of title in the name of
Moslares. The latter proviso was to enable Moslares to secure the
loan needed to pay for the balance of the purchase price. Postdated
checks were issued by Moslares to cover the amount embraced in
said undertaking. Approval of the agreement with Moslares was
strongly urged by the Administrator. No action was taken by the
court thereon. At the hearing of October 19, 1979, Moslares
tendered P1,600,000.00 to the Judicial Administrator. This was
opposed by counsel for heir Tejano, Atty. Ramon Encarnacion, on
the ground that respondent Moslares had only until February 28,
1979 within which to pay the same. Attorney Encarnacion thereupon
brought to the attention of the court an offer to buy the properties
for P3,000,000.00 by herein petitioner Pio Barretto Realty
Development, Inc. Because of the differing contentions and the new
offer, the probate court ordered the parties to submit memoranda
and set a conference on November 28, 1979 to discuss the new
offer.
chanroble svirtualawl ibra ryc hanro bles vi rtua l law li bra ry
On November 12, 1979, respondent Moslares submitted his

memorandum containing three points to wit:
l. Actually, Honor P. Moslares is already owner of the Property,

subject matter of this proceedings, and as such, could no longer be
the subject matter of this testate proceedings. The payment made
by Honor P. Moslares to the Judicial Administrator through this
Honorable Court on 19 October, 1979, is in compliance with the
Contract entered into between him and the late Nicolai Drepin, in
1970; chanrobles v irt ual law l ibra ry
2. The Order of this Honorable Court dated 9 January, 1979,

particularly with reference to the period, mentioned in No. 1, page 2
of the Order of this Honorable Court giving Honor P. Moslares up to
28 February, 1979, within which to comply with his letter-offer to
the Court dated 15 August, 1978, is not yet final, said period having
been extended; chanroble s virtual law l ib rary
3. The Order of this Honorable Court dated 9 January, 1979,

particularly No. 2, Page 2 thereof, barred Counsel for Cornelia B.
Tejano from making any further offer, his right to do so having
expired on 28 February, 1979.
Thereupon, the probate court judge directed Moslares through the

administrator Atty. Trinidad, to furnish copies of - (1) Deed of
Absolute Sale; (2) Special Power of Attorney; and (3) Joint Venture
Agreement. The same were promptly submitted. chanroblesvi rt ualawlib ra rychan roble s vi rtual law lib rary
On February 28, 1979, March 6, 1980 and April 15, 1980, letters to
Judicial Administrator Trinidad were sent by respondent Moslares
seeking further extension of time within which to pay the balance of
his obligation to the estate, and for favorable recommendations to
the probate court in his reports saying: "Help me now, this is ours.
We can make money of all this sacrifice we had on the pass (sic)." chanrobles v irt ual law li bra ry
On April 15, 1980, the probate court reiterated its order dated
August 17, 1978 authorizing the Administrator to finalize the sale
with GM Management Phils. and giving respondent Moslares ten
(10) days from date to deposit the necessary amount to cover the
value of the checks as each fallsdue. Failure to do so would result in
the automatic rescission of the authority to sell to GM Management
Phils. and the Administrator would be permitted to accept other
offers in the best interest of the Estate. This order was the probate
court's prompt action on a "Report with Motion for Cancellation of
Order Approving Sale to GM Management, Phils. Honor P. Moslares,
if it fails to make good the April 15, 1980 check "As Token Payment
in Good Faith", filed by administrator Trinidad on the same day,
April 15, 1980. chanroblesvi rt ualawlib ra rychan roble s virt ual law lib rary
GM Management sought reconsideration and amendment of the

Order of April 15, 1980 to conform to the provisions of the Deed of
Undertaking. chanroble svirtualawl ibra rycha nro bles vi rtua l law lib ra ry
On May 23, 1980, administrator Trinidad filed a "Report with Motion

to Authorize Administrator to Screen Offers to Purchase Estate and
Others. chanroblesvi rtua lawlib rary chan roble s virtual law l ibra ry
On May 31, 1980, respondent Moslares filed another manifestation

praying that his pending motions be acted upon and that the motion
of administrator Trinidad be denied for lack of merit. chanrob lesvi rtua l awlibra rycha nrob les vi rtual law lib rary
On June 30, 1980, administrator Trinidad made the following

"Observation and Report on the Motion of Buyer GM Management
Phils. for reconsideration" -
2. Two checks, one for P50,000.00 and one for P250,000.00 were
deposited on April 28, 1980 after the Order of the Probate Court.
BOTH BOUNCED. DAIF (Drawn against insufficient funds). chanroblesvi rt ualawlib ra rychan roble s virtual law lib rary
3. Another check for P300,000.00 is now held by the Administrator,

postdated for today, June 30, 1980 and Administrator just received,
June 29, 1980 a telegram asking to withhold deposit until after 30
days from amendatory order of the Probate Court. chanroblesvi rtua lawlib rary ch anroble s virtual law l ib rary
xxx xxx xxx chanroble s virtual law l ibrary
6. The motion of Administrator is reiterated.
On July 2, 1980, the probate court issued the following order:
Finding the Motion of the Administrator well-taken and in the best

interests of the Estate, the administrator is authorized to enter into
agreement with any other interested parties on a first paid first
served basis without prejudice to G.M. Management Philippines to
continue with its offer and make good the same in as an ordinary
buyer on the same first paid first served basis.
Respondent Moslares filed a motion for reconsideration of said July

2, 1980 order on the ground that:
1. The Honorable Probate Court has no jurisdiction over the three

(3) parcels of land, consisting of 80.3980 hectares subject matter of
the Deed of Sale which the late Nicolai Drepin, conveyed to Movant
Honor P. Moslares. The only right which pertains to the ESTATE, is
the right to demand from Honor P. Moslares, the balance of the
Deed of Sale, which has been fixed by this Honorable Court at ONE
MILLION SIX HUNDRED THOUSAND (P1,600,000.00) PESOS,
Philippine Currency; chanroble s virtual law l ibra ry
2. As of November, 1979, the law that governs between the ESTATE

and MOVANT, Honor P. Moslares, is the DEED OF UNDERTAKING
executed by the Administrator in favor of Movant Honor P. Moslares,
pursuant to the authority given by the Honorable Probate Court to
the Administrator contained in the Order dated August 15, 1978,
reiterated in the Order dated January 9, 1979, and in the Order
dated 15 April 1980; and chanrob les vi rtual law lib rary
3. The Honorable Probate Court has no jurisdiction to decree

rescission of the Contract into (sic) between the decedent and
Movant Honor P. Moslares on the 9th day of October, 1970.
This motion for reconsideration was opposed by administrator

Trinidad as well as the Tejano heirs through counsel, arguing that
the probate court has jurisdiction to issue the questioned orders
because petitioner submitted himself to the court's jurisdiction and
his checks bounced also that the Deed of Undertaking was validly
cancelled as a result of the valid rescission of Trinidad's authority to
sell to petitioner. chanroblesv irt ualawlib rary chan roble s virt ual law l ibra ry
On September 30, 1980, the probate court issued an order denying

respondent Moslares' motion for reconsideration for lack of merit.
And on October 10, 1980 administrator Trinidad executed the Deed
of Sale in favor of Pio Barretto Realty, Inc. transferring the titles to
the properties in question in the name of the latter. The same was
duly registered. On October 20, 1980, the probate court approved
the report of administrator Trinidad dated October 16, 1980, with
xerox copies of the Deed of Sale in favor of Pio Barretto Realty, Inc.
of the estate of Nicolai Drepin pursuant to respondent court's order
authorizing the sale, and of the approved Deed of Undertaking with
the vendee. chanroblesvi rt ualawlib ra rychan rob les vi rtual law lib rary
An urgent Motion and Manifestation was filed by respondent

Moslares on April 8, 1981 praying that his motion for
reconsideration of the orders be already resolved, followed by an
Omnibus Motion on April 27, 1981 to resolve all pending motions
and praying that the Deed of Sale and Deed of Undertaking in favor
of Pio Barretto be cancelled. The same remained unacted upon. chanroble svirtualawl ibra ryc hanro bles vi rtua l law lib ra ry
On May 18, 1981, respondent filed Civil Case No. 41287 before the
Court of First Instance of Rizal in Pasig, Metro Manila to determine
title and ownership over the Drepin lands. chanroblesvi rtua lawlib rary chan roble s virtual law lib rary
On June 23, 1981, a petition for certiorari was filed by respondent

Moslares before the Court of Appeals which issued a temporary
restraining order. Judgment was rendered by respondent court in
favor of respondent Moslares, the dispositive portion of which has
been quoted. chanroblesvi rtua lawlib rary chan roble s virtual law lib rary
Barretto filed a motion for reconsideration which was denied on
November 12, 1982. Hence, this petition. chanroblesvi rtua lawlib rary chan roble s virtual law lib rary
In its decision, the Court of Appeals laid down the two principal
issues involved in the case, as follows: (1) whether or not the
respondent judge (Judge R. Honrado) acted without or in excess of
jurisdiction or with grave abuse of discretion in refusing to exclude
the parcels of land involved from the testate proceedings of the
Drepin estate; and (2) whether or not the respondent judge acted
without or in excess of jurisdiction or with grave abuse of discretion
in issuing the impugned orders dated April 15, 1980, July 2, 1980,
September 30, 1980, and October 20, 1980. chanroblesv irt ualawli bra rycha nrob les vi rtua l law lib rary
We are in full accord with the respondent court's resolution of the

first issue, and we quote:
For continually presuming that the three titled lots were part of the
Drepin estate and for refusing to provisionally pass upon the
question of exclusion, did the respondent court act without or in
excess of jurisdiction or with grave abuse of discretion? chanrobles vi rtual law lib rary
We hold that even with such presumption and refusal, the

respondent court still acted within its jurisdiction and not with grave
abuse of discretion. After all, the jurisprudence and rule are both to
the effect that the probate court "may" provisionally pass upon the
question of exclusion, not "should". The obvious reason is the
probate court's limited jurisdiction and the principle that questions
of title or ownership, which result to inclusion in or exclusion from
the inventory of the property, can only be settled in a separate
action. Hence, even if respondent court presumed an the way that
the properties sold by Drepin to petitioner were part of Drepin's
estate, that would not prevent nor defeat petitioner's remedy in a
separate suit.
chanroblesvi rtua lawlib rary chan roble s virtual law l ibra ry
And We hold that Civil Case No. 41287 is just such a suit instituted
to settle the question of ownership over the lots covered originally
by TCTs Nos. 259060, 259061 and 259062, despite the claim for
damages, because of the composite effect of the prayer in the
complaint thereof ... chanroble svirtualawl ibra ryc hanro bles vi rtua l law lib ra ry
xxx xxx xxx chanroble s virtual law l ibrary
In effect, We are saying that the question of whether the properties

sold by Drepin to Petitioner should be excluded from the probate
proceedings below, can not be determined with finality by Us in this
case, because in this petition We are merely reviewing the acts of
the respondent CFI as a probate court. Any ruling by the probate
court to include those properties "is only provisional in character
and is without prejudice to a judgment in a separate action on the
issue of title or ownership" (Sebial v. Sebial, L-23419, June 27,
1975, 64 SCRA 385). Consequently, in reviewing the exercise of
such limited probate jurisdiction, We cannot order an unqualified
and final exclusion of the properties involved, as prayed for; to do
so would expand the probate court's jurisdiction beyond the
perimeters set by law and jurisprudence. It is fitting and proper that
this issue be ventilated and finally resolved in the already instituted
Civil Case No. 41287, even as We hold that respondent court's act
of not excluding the lots involved did not constitute grave abuse of
discretion. In view of this limitation, We need not resolve the issue
of whether there was novation of the Deed of Sale with Mortgage,
or not.
This same elemental principle, we found occasion to reiterate in the

cases of Junquera v. Borromeo (19 SCRA 656); Borromeo v.
Canonoy (19 SCRA 667); Recto v. dela Rosa (75 SCRA
226); Lachenal v. Salas (71 SCRA 202); Bolisay v. Alcid (85 SCRA
213); Vda. de Rodriguez v. Court of Appeals (91 SCRA 540). chanroble svirtualawl ibra rycha nro bles vi rtua l law lib ra ry
However, from here, the road forks as we disagree with the

respondent court's findings on the second issue. chanroblesvi rtua lawlib rary chan roble s virt ual law l ibra ry
In his petition for certiorari before the Court of Appeals, respondent

Moslares assails the issuance of the four impugned orders by the
probate court on the ground that the court had no jurisdiction to
rescind the Deed of Sale with the Mortgage entered into by the
deceased during his lifetime, due to the limited jurisdiction of the
probate court merely to settle and liquidate the estates of a
decedent and not to pass upon questions of title to property. chanroble svirtualawl ibra rycha nro bles vi rtua l law lib ra ry
On the other hand, the petitioner argues that in voiding and

nullifying the four orders of the probate court, the Court of Appeals,
in effect, would have the former court recognize the alleged
ownership of Mr. Moslares over the three titled Drepin lots involved
in this case contrary to its pronouncement in settling the first
issue.
chanroble svirtualawl ibra rycha nro bles vi rtua l law lib ra ry
It is to be noted that the last agreement entered into by the

deceased prior to his death, that is, the Joint Venture Agreement
listing Drepin as owner of the properties in question, and the
surrender to administrator Trinidad of the certificates of title, had
led the probate court to enter or include said properties in its
inventory of the deceased's estate. Thus, provisionally, ownership
thereof was recognized as vested in the estate. Subsequently, in the
course of the probate proceedings, the sale of the properties was
found to be necessary to settle the deceased's obligations. It was
then that herein private respondent Moslares submitted himself to
the jurisdiction of the court in an "Offer to Buy" said properties,
based on his previous agreement with the deceased during the
latter's lifetime. chanroble svi rtualawl ib raryc han robles v irt ual law l ibra ry
It is noteworthy that contrary to Moslares' assertion of ownership,

he had offered to buy the Drepin lands from the probate court.
Surely, this is not conduct ordinarily expected of one who is the
owner of the property. Further, the fact that subsequent to the
Deed of Sale, the deceased as buyer and as absolute owner entered
into an agreement with the respondent merely as developer of the
lands in question evidences a change of cause or object as well as a
change of relation between the parties. Moslares' own acts negate
his claims in this petition that he had acquired ownership of the
properties. Thus, the transparency of respondent's argument
becomes readily apparent. chanroblesvi rtua lawlib rary chan roble s virtual law lib rary
Having submitted his letter-proposal to the court, the same was

approved, allowing Moslares to pay the balance of the purchase
price agreed upon by respondent and the decedent in the amount of
One Million Six Hundred Thousand Pesos (P1,600,000.00) specifying
the time and manner of payment thereof. Thus, he was given
preference and priority over other persons or groups offering to buy
the estate. Having failed to comply with the conditions of payment
of the contract, the same was rescinded by the probate court. Now,
respondent questions this rescission which he maintains to be
beyond the jurisdiction of the court. chanroble svirtualawl ibra ryc hanro bles vi rt ual law li bra ry
Estoppel works to preclude respondent from questioning the

jurisdiction of the court. By offering to buy the properties in
question, respondent has clearly recognized the jurisdiction of the
probate court to which he had effectively submitted himself. It is
well settled that a party is estopped from disputing the jurisdiction
of the court after invoking it himself (Tible v. Aquino, 65 SCRA 207).
After voluntarily submitting a cause and encountering an adverse
decision on the merits, it is too late for the loser to question the
jurisdiction or power of the court (People v. Munar, 53 SCRA 278;
Capilitan v. dela Cruz, 55 SCRA 706; Summit Guaranty and
Insurance Co., Inc., v. Court of Appeals, 110 SCRA 241; Tajonera v.
Lamoroza, 110 SCRA 438). A party will not be allowed to make a
mockery of justice by taking inconsistent positions. Doctrine of
estoppel bars a party from trifling with the courts (Depositario v.
Hervias, 121 SCRA 756). chanroblesv irt ualawli bra rycha nrob les vi rtual law lib rary
The merits of the case likewise lead to similar conclusions. chanroblesvi rtualaw lib raryc han robles v irt ual law li bra ry
It cannot but be conceded that the limited jurisdiction of a probate

court prohibits it from determining rights to property left by a
decedent which depends on the contract (Goodin v. Casselman 200
N.W. 94, 51 N.D. 543). However, actions of the probate court, in
the case at bar, do not refer to the adjudication of rights under the
contract entered into by the deceased during his lifetime. It is to be
noted that the dealings of the respondent with the court arose out
of the latter's bid to sell property under its authority to sell,
mortgage or otherwise encumber property of the estate to pay or
settle against the estate (Rule 89, Revised Rules of Court). Thus,
respondent bound himself under an agreement with the court
separate and distinct from that which he had with the decedent. In
rescinding such contract, the court merely seeks to enforce its right
to put an end to an agreement which had ceased to be a working
proposition. Surely, this is well within the power of the probate
court. Though of limited and special jurisdiction, it cannot be
denied, however, that when the law confers jurisdiction upon a
court, the latter is deemed to have all the necessary powers to
exercise such jurisdicton to make it effective (Zuniga v. Court of
Appeals, 95 SCRA 740). chanroblesv irtualawli bra rycha nrob les vi rtua l law lib rary
We cannot allow an absurd situation to arise where the Drepin

estate will never be settled and liquidated because even if Moslares
cannot pay the agreed purchase price of the Drepin lands, still the
probate court can no longer sell the lands to other prospective
buyers. Under the theory of respondent, it is insisted that the
probate court has no authority to cancel his unfulfilled offer to buy,
notwithstanding the fact that he failed miserably to comply with the
terms of his own offer to buy. It is to be remembered that Moslares
had already been granted undue leniency by the probate court to
meet his obligations to pay. But, the saga of Moslares' bouncing
checks remains. Three reports of Administrator Trinidad had been
submitted as annexes to the petition for certiorari. The report,
dated June 30, 1980 showed that two of Moslares' checks were
dishonored, having been drawn against insufficient funds. The
August 18, 1980 report stated that: "All the checks submitted to the
probate court for payment bounced." And in the report dated April
15, 1981, it was further averred by the administrator that "...
believing that the bouncing checks were not intended to defraud the
Estate," "he refrained from prosecuting Honor P. Moslares criminally
under the law on dishonored checks." chanrobles v irt ual law l ibra ry
It is also to be emphasized that it was not respondent's contract of

sale with decedent that had been invalidated but rather the
administrator's authority to sell to respondent. Although the court
recognized the Deed of Sale with Mortgage, still the same was not
being enforced as such but was used only as basis for the terms and
conditions of respondent's agreement with the court. To enforce the
same is truly beyond the scope of the probate court's jurisdiction.
The court's actions constitute a refusal to pass upon the validity of
the contract to sell.cha nrob lesvi rtua lawlib rary chan roble s virtual law l ibra ry
Further, the probate court has ample discretion in determining

whether conditions of a particular sale would be beneficial to the
estate and this is generally respected by the appellate courts (Court
of First Instance v. Court of Appeals, 106 SCRA 114, Fernandez, et
al., v. Montejo, 109 Phil. 701). To attack the nullity of the order of
the probate court to sell property of the deceased, it must be shown
that the contract of sale is null and void (Rafols v. Barba, 119 SCRA
147). The infirmity of the subject deed of sale is premised on the
alleged nullity of the order of the court authorizing the sale. The
validity of said order may not be attacked in a collateral proceeding,
the supposed ground for declaring it void for lack of jurisdiction not
being apparent on the face thereof (Rafols v. Barba, supra).
Nevertheless, respondent could have prevented the sale of the
Drepin lands. Section 3, Rule 89 of the Revised Rules of Court, to
wit:
Section 3. Persons interested may prevent such sale, etc., by giving

bond. - No such authority to sell mortgage, or otherwise encumber
real or personal estate shall be granted if any person interested in
the estate gives a bond, in a sum to be fixed by the court,
conditioned to pay the debts, expenses of administration, and
legacies within such tune as the court directs; and such bond shall
be for the security of the creditors, as well as of the executor or
administrator, and may be prosecuted for the benefit of either.
provides respondent with the legal means by which he could have

forestalled the sale of the Drepin lands to the petitioner. (Court of
First Instance v. Court of Appeals, supra) If third persons oppose an
application for leave to sell the property of the decedent, claiming
title to the property, the title claim, cannot be adjudicated by the
probate court, but it can hold approval of the sale in abeyance until
the question of ownership shall have been decided in a proper
action (Baquial v. Amihan, 92 Phil. 501). But this, he failed to do.
Ergo, we find no reason to disturb the questioned orders of the
probate court.
chanroble svirtualawl ibra ryc hanro bles vi rtua l law li b rary
Moreover, the respondent is not without remedy if truly his claim of

ownership is proper and meritorious. Since the probate court has no
jurisdiction over the question of title and ownership of the
properties, the respondents may bring a separate action if they wish
to question the petitioner's titles and ownership (Vda. de Rodriguez
v. Court of Appeals, 91 SCRA 540). Though an order of the probate
court approving the sale of the decedent's property is final, the
respondent may file a complaint in the proper court for the
rescission of the sale. (Pizarro v. Court of Appeals, 99 SCRA 72).
Likewise, the initial question of respondent regarding the propriety
of including the properties in question in the inventory of the
probate court as he claims ownership thereof may therein be finally
and conclusively settled (Vda. de Rodriguez v. Court of
Appeals, supra; Lachenal v. Salas, 71 SCRA 202). The respondent
has ample protection of his rights for the province of the probate
court remains merely the settlement of the estate and may not be
extended beyond (Pizarro v. Court of Appeals, supra). chanroblesv irt ualawli bra rychan rob les vi rtual law lib rary
WHEREFORE, in view of the foregoing, the petition for certiorari is

hereby GRANTED. The decision of the Court of Appeals (now
Intermediate Appellate Court), dated June 30, 1982 is REVERSED
and SET ASIDE. The permanent restraining order issued against the
trial court is hereby DISMISSED. The impugned orders of the
probate court dated April 15, 1980, July 2, 1980, September 30,
1980 and October 20, 1980 are accordingly REINSTATED. chanroblesv irt ualawli bra rycha nrob les vi rtua l law lib rary
SO ORDERED.
Teehankee, Actg. C.J., Melencio-Herrera, Plana, Relova and De la

Fuente, JJ., concur.

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EN BANC

G.R. No. L-48840 December 29, 1943

ERNESTO M. GUEVARA, Petitioner-Appellant, vs. ROSARIO

Primacias, Abad, Mencias & Castillo for appellant.

OZAETA, J.: chanrobles virtual law library

Ernesto M. Guevarra and Rosario Guevara, ligitimate son and natural

It appears that on August 26, 1931, Victorino L. Guevara executed a

He set aside 100 hectares of the same parcel of land to be disposed of

The remainder of said parcel of land his disposed of in the following

(d). - Toda la porcion restante de mi terreno arriba descrito, de la

A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas,

A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas,

Duodecimo. - Nombro por la presente como Albacea Testamentario a mi

Subsequently, and on July 12, 1933, Victorino L. Guevarra executed

On September 27, 1933, final decree of registration was issued in land

In the meantime Rosario Guevara, who appears to have had her

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We cannot sanction the procedure adopted by the respondent Rosario

Sec. 625. Allowance Necessary, and Conclusive as to Execution. - No

Sec. 627. Executor to Present Will and Accept or Refuse Trust. - A

Sec. 629. Person Retaining Will may be Committed. - If a person having

The Court of Appeals took express notice of these requirements of the

Let us look into the validity of these considerations. Section 1 of Rule

Section 1. Extrajudicial settlement by agreement between heirs. - If the

That is a modification of section 596 of the Code of Civil Procedure,

Sec. 596. Settlement of Certain Intestates Without Legal Proceedings. -

The principal assignment of error is that the lower court committed an

In resolving that question this Court said:

Thus it will be seen that as a matter of fact no question of law was

1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION.

2. ID.; EFFECTS OF; TESTATE SUCCESSION. - In the instant case,

It is apparent that the defendant Ernesto M. Guevara, who was named

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This brings us to the consideration of the second question, referring to

The deed of sale exhibit 2 executed by and between Victorino L.

A. As to the conveyance of the southern half of the hacienda to Ernesto

In his tenth to fourteenth assignments of error the petitioner assails the

Wherefore, that part of the decision of the Court of Appeals which

Yulo, C.J., and Hontiveros, 1 J., concur.

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Separate Opinions chanrobles virtual law library

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BOCOBO, J., concurring:chanrobles virtual law library

I concur in the result. Extrajudicial settlement by agreement among the

MORAN, J., concurring in part and dissenting in part:chanrobles virtual

I would be agreeable to the majority decision but for a statement

EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS. - If the

SETTLEMENT OF CERTAIN INTESTATE ESTATES WITHOUT LEGAL

It must be observed that the procedure contemplated in this legal

RULE 74. SUMMARY SETTLEMENT OF ESTATES. - The corresponding

The phrase "extrajudicial settlement" unquestionably means liquidation

ESTATE, HOW ADMINISTERED. - When a will is thus allowed, the court

If judicial administration and distribution is made unnecessary by

These provisions should, therefore, be given the most liberal

. . . The purpose which underlies them, as we have already intimated, is

Naturally the partition made by the heirs voluntarily and spontaneously

On appeal, this Court affirmed the ruling with the following

This case furnishes precisely a valuable experience as to the practical

The absence of sound objection on this ground to a contract having for

The question of public policy is introduced. The disposition of one's

The first assignment of error presented by appellants complains of the