Spec Pro Rule 73

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SPECIAL PROCEEDINGS CASES – RULE 73 RULE 74 Summary Settlement of Estate EXTRAJUDICIAL SETTLEMENT Section 1. Extrajudicial settlement by agreement between heirs . — 1. If the decedent left no will and no debts and 2. the heirs are all of age, or 3. the minors are represented by their judicial or legal representatives duly authorized for the purpose, 4. the parties may without securing letters of administration, a. divide the estate among themselves as they see fit i. by means of a public instrument ii. filed in the office of the register of deeds, and b. should they disagree, they may do so in i. an ordinary action of partition. c. If there is only one heir, he may adjudicate to himself the entire estate i. by means of an affidavit ii. filed in the office of the register of deeds. d. The parties to an extrajudicial settlement, whether by public instrument or by stipulation in a pending action for partition, or the sole heir who adjudicates the entire estate to himself by means of an affidavit i. shall file, simultaneously with and as a condition precedent 1. to the filing of the public instrument, or 2. stipulation in the action for partition, or 3. of the affidavit in the office of the register of deeds, ii. a bond with the said register of deeds, iii. in an amount equivalent to the value of the personal property involved as certified to under oath by the parties concerned and iv. conditioned upon the payment of any just claim that may be filed under section 4 of this rule. 5. 6.

It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two (2) years after the death of the decedent. The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the nest succeeding section; but no extrajudicial settlement shall be binding upon any person a. who has not participated therein or b. had no notice thereof.

JUDICIAL SETTLEMENT Section 2. Summary settlement of estate of small value. — Whenever 1. the gross value of the estate of a deceased person, 2. whether he died testate or intestate, 3. does not exceed 10,000 pesos, and 4.

that fact is made to appear to the CFI having jurisdiction of the estate

5.

by the petition of an interested person and

6.

upon hearing, which shall be held

7.

a.

not less than one (1) month nor more than three (3) months

b.

from the date of the last publication of a notice i.

which shall be published once a week for three (3) consecutive weeks

ii.

in a newspaper of general circulation in the province, and

after such other notice to interest persons as the court may direct, the court may a.

proceed summarily,

b.

without the appointment of an executor or administrator, and without delay, i.

to grant, if proper, allowance of the will, if any there be,

ii.

to determine who are the persons legally entitled to participate in the estate, and

iii.

to apportion and divide it among them after the payment of such debts of the estate as the court shall then find to be due; and such persons, in their own right, if they are of lawful age and legal capacity, or by their guardians or trustees legally appointed and qualified, if otherwise, shall thereupon be entitled to receive and enter into the possession of the portions of the estate so awarded to them respectively.

iv.

The court shall make such order as may be just respecting the costs of the proceedings, and

v.

all orders and judgments made or rendered in the course thereof shall be recorded in the office of the clerk, and

vi.

the order of partition or award, if it involves real estate, shall be recorded in the proper register's office.

Section 3. Bond to be filed by distributees. — 1. The court, before allowing a partition in accordance with the provisions of the preceding section, 2. may require the distributees, 3. if property other than real is to be distributed, 4. to file a bond in an amount to be fixed by court, 5. conditioned for the payment of any just claim 6. which may be filed under the next succeeding section. Section 4. Liability of distributees and estate. — 1. If it shall appear at any time within two (2) years after the settlement and distribution of an estate in accordance with the provisions of either of the first two sections of this rule, 2. that an heir or other person has been unduly deprived of his lawful participation in the estate, such heir or such other person may compel the settlement of the estate in the courts in the manner hereinafter provided for the purpose of satisfying such lawful participation. 3. that there are debts outstanding against the estate which have not been paid, or 4. that an heir or other person has been unduly deprived of his lawful participation payable in money, the court having jurisdiction of the estate may, a. by order for that purpose, b. after hearing, i. settle the amount of such debts or lawful participation and ii. order how much and in what manner each distributee shall contribute in the payment thereof, and iii. may issue execution, if circumstances require, 1. against the bond provided in the preceding section or 2. against the real estate belonging to the deceased, or both. 3. Such bond and such real estate shall remain charged with a liability to creditors, heirs, or other persons for the full period of two (2) years after such distribution, notwithstanding any transfers of real estate that may have been made. Section 5. Period for claim of minor or incapacitated person . — If on the date of the expiration of the period of two (2) years prescribed in the preceding section the person authorized to file a claim is any of the ff, he may present his claim within one (1) year after such disability is removed: 1. a minor or 2. mentally incapacitated, or is 3. in prison or 4. outside the Philippines,

NARTATEZ, CARELL RYZA

SPECIAL PROCEEDINGS CASES – RULE 73

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8.

I.

EXTRAJUDICIAL SETTLEMENT OF ESTATE 1. Gerilla vs de Figuracion - requisites 2. Pereira vs CA – What constitutes good reasons to warrant a judicial administration of the estate of a deceased person when the heirs are all of legal age and there are no creditors 3. Avelino vs CA – can a special proceeding be converted to a Special Civil action for partition 4. Teves vs CA – quantum of proof required to question the validity of EJS 5. Hernandez vs Andal – Purpose of registration; protection of creditors and the heirs vs tardy claims. 6. Cua vs Vargas – purpose of the publication requirement ; publication does not constitute constructive notice to the heirs who did not participate or was not notified of the execution of the EJS; procedure outlined is an exparte proceeding. 7. Sampilo vs CA – remedies of an excluded heir 8. Alcala vs Pabalan – Effect of EJS G.R. No. L-6463 August 12, 1911 DAMASA ALCALA vs. MODESTA PABALAN, PROCOPIO PABALAN, BASILIO SALGADO and JUAN BANAY- BANAY FACTs: 23rd day of April, 1897, Juan Banatin died, leaving a widow (Damasa Alcala), the plaintiff herein, and seventeen nieces and nephews, whose names are set out in the petition; that on the 13th day of June, 1897, the said widow and all of the seventeen nieces and nephews, except Tranquilina Banatin, entered into a voluntary agreement among themselves for the division "entre ellos," of all of the property left by the said Juan Banatin, deceased. On the 11th day of June, 1910, the plaintiff and appellee presented a petition in the Court of First Instance of the Province of La Laguna, praying that she be appointed administratrix of the property described in paragraph 4 of her petition. After hearing the respective parties, the lower court appointed the plaintiff as administratrix of said property. ISSUE: The first assignment of error made by the plaintiff is that "El juzgado erro al estimar que la testamentaria del finado Juan Banatin no ha finalizada." HELD: With reference to this assignment of error, the heirs of Juan Banatin were at perfect liberty to divide the estate among themselves, assuming the responsibility of any debts which might exist. There is no proof that any debts existed. AFTER THE ACTUAL DIVISION OF THE ESTATE AMONG THEMSELVES THEY BECAME THE ABSOLUTE OWNERS OF THEIR RESPECTIVE ALLOTMENTS AND WERE TENANTS IN COMMON OF THAT PORTION OF THE PROPERTY WHICH REMAINED PRO INDIVISO . After the mutual agreement among themselves for the division of the estate, either actually distributing their respective shares or leaving the same undivided, the property in question was no longer the property of the estate of Juan Banatin, but the undivided property of the heirs. They were tenant in common of that portion of the property which remained undivided. As such tenants in common the majority of them had a right to agree upon the appointment of an administrator of their property. (Art. 398, Civil Code.) The property belonged to them. They had a right to administer it. The lower court in appointing the plaintiff and appellee as administratrix of the property in question, evidently did so upon the theory that the said property was still the property of the estate of Juan Banatin. In this theory the lower court was mistaken. There was nothing left of the estate of Juan Banatin to be administered. The heirs by mutual agreement had divided the property among themselves. There was no occasion and no reason for the appointment of an administrator by the probate court, and, therefore, the judgment of the lower court appointing Damasa Alcala as administratrix of the estate of Juan Banatin for the purpose of administering the property mentioned in paragraph 4 of the petition, is hereby revoked. Section 4. Liability of distributees and estate. — 5. If it shall appear at any time within two (2) years after the settlement and distribution of an estate in accordance with the provisions of either of the first two sections of this rule, 6. that an heir or other person has been unduly deprived of his lawful participation in the estate, such heir or such other person may compel the settlement of the estate in the courts in the manner hereinafter provided for the purpose of satisfying such lawful participation. 7. that there are debts outstanding against the estate which have not been paid, or

that an heir or other person has been unduly deprived of his lawful participation payable in money, the court having jurisdiction of the estate may, a. by order for that purpose, b. after hearing, i. settle the amount of such debts or lawful participation and ii. order how much and in what manner each distributee shall contribute in the payment thereof, and iii. may issue execution, if circumstances require, 1. against the bond provided in the preceding section or 2. against the real estate belonging to the deceased, or both. 3. Such bond and such real estate shall remain charged with a liability to creditors, heirs, or other persons for the full period of two (2) years after such distribution, notwithstanding any transfers of real estate that may have been made. Section 5. Period for claim of minor or incapacitated person . — If on the date of the expiration of the period of two (2) years prescribed in the preceding section the person authorized to file a claim is any of the ff, he may present his claim within one (1) year after such disability is removed: 5. a minor or 6. mentally incapacitated, or is 7. in prison or 8. outside the Philippines,

Excluded Heirs - an heir or other person has been unduly deprived of his lawful participation in the estate may compel the settlement of the estate in the courts in the manner hereinafter provided for the purpose of satisfying such lawful participation. Remedies: 1. file a judicial settlement, after which there will be an appointment of administrator 2. Recover property based on fraud – 4 years after discovery of fraud 3. Demand Partition – imprescriptible 4. Reconveyance of Property 1. Sampilo vs CA G.R. No. L-10474 February 28, 1958 BENNY SAMPILO and HONORATO SALACUP, petitioners, vs. THE COURT OF APPEALS and FELISA SINOPERA respondent. FACTS: Felisa Sinopera, administrative of the estate of Teodoro Tolete, filed an action to recover from defendants one-half share of the aforesaid parcels of land, which, it is alleged belong to the deceased Teodoro Tolete. The latter died intestate in 1945 with 4 parcels of land and as heirs his widow, Leoncia de Leon, and several nephews and nieces. However, his widow, on July 25, 1946, executed the ff documents without any judicial proceedings, 1. an affidavit of self-adjudication registered in the ROD of Pangasinan. 2. deed of sale of all 4 parcels of land in favor of Benny Sampilo for the sum of P10,000. This sale was also registered . Benny Sampilo, in turn, sold the said parcels of land to Honorato Salacup In March, 1950, Felisa Sinopera instituted proceedings for the administration of the estate of Teodoro Tolete, and having secured her appointment as administratrix, brought the present action on June 20, 1950. Sinopera: the widow Leoncia de Leon, had no right to execute the affidavit of adjudication Sampilo and Salacup: barred by the statute of limitations; CFI: the affidavit of adjudication, the deed of sale are all null and void; CA: reserved to Honorato Salacup the right to claim and secure adjudication in his favor of whatever portion of said properties may correspond to Leoncia de Leon and also his right to bring an action for the damages that he may have suffered against Leoncia de Leon and Benny Sampilo. ISSUE: The Court of Appeals erred in affirming that respondent Felisa Sinopera's right of action to recover her and her co-heirs' participation to the lands in question had not prescribed at the time the action to recover was filed.

NARTATEZ, CARELL RYZA

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SPECIAL PROCEEDINGS CASES – RULE 73 (2) HELD: It is argued that as the action was instituted almost four years after the affidavit of adjudication. It was registered in the Office of the Register of Deeds Of Pangasinan, the right of action of the administratrix has prescribed and lapsed because the same was not brought within the period of two years as Prescribed in Section 4 of Rule 74 of the Rules of Court, SEC. 4. Liability of distributees and estate. — If it shall appear at any time within two years after the settlement and distribution of an estate in accordance with the provisions of either of the first two sections of this rule, that an heir or other has been unduly deprived of his lawful participation of the such heir or such other person may compel the settlement estate in the courts in the manner hereinafter provided for the purpose of satisfying such lawful participation. . . . Section 1, which is mentioned in Section 4, reads as follows: xxx It will be noted that the provision next above-quoted contains two parts, the first referring to a case in which there are two or more heirs interested in the estate of a deceased person, and the second in which there is only one heir. The section was taken from Section 596 of the old Code of Civil Procedure (Act No. 190, as amended by Act No. 2331). Said Section 596 as amended, was 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. We notice two significant provisions in Sections 1 and 4 of Rule 74. In Section 1, it is required that if there are two or more heirs, both or all of them should take part in the extrajudicial settlement. This requirement is made more imperative in the old law (Section 596, Act No. 190) by the addition of the clause "and not otherwise." By the title of Section 4, the "distributees and estate" indicates the persons to answer for rights violated by the extrajudicial settlement. On the other hand, it is also significant that no mention is made expressly of the effect of the extrajudicial settlement on persons who did not take part therein or had no notice or knowledge thereof. There cannot be any doubt that those who took part or had knowledge of the extrajudicial settlement are bound thereby. As to them the law is clear that if they claim to have been in any manner deprived of their lawful right or share in the estate by the extrajudicial settlement, they may demand their rights or interest within the period of two years, and both the distributes and estate would be liable to them for such rights or interest. Evidently, they are the persons in accordance with the provision, may seek to remedy, the prejudice to their rights within the two-year period. But as to those who did not take part in the settlement or had no notice of the death of the decedent or of the settlement, there is no direct or express provision is unreasonable and unjust that they also be required to assert their claims within the period of two years. To extend the effects of the settlement to them, to those who did not take part or had no knowledge thereof, without any express legal provision to that effect, would be violative of the fundamental right to due process of law. In the case of Ramirez vs. Gmur, supra, cited by the appellants in this case, we held: It will be noted that while the law (see. 754) provides that the order of distribution may be had upon the application of the executor or administrator, or of a person interested in the estate, no provision is made for notice, by publication or otherwise, of such application. The proceeding, therefore, is to all intents and purposes ex parte. As will be seen our law is very vague and incomplete; and certainly it cannot be held that a purely ex parte proceeding, had without notice by personal service or by publication, by which the court undertakes to distribute the property of deceased persons, can be conclusive upon minor heirs who are not represented therein. The procedure outlined in Section 1 of Rule 74 of extrajudicial settlement, or by affidavit, is an ex parte proceeding. It cannot by any reason or logic be contended that such settlement or distribution would affect third persons who had no knowledge either of the death of the decedent or of the extrajudicial settlement or affidavit, especially as no mention of such effect is made, either directly or by implication. We have examined the two cases cited by appellants and there is no similarity at all between the circumstances on which the ruling therein had been predicated and those of the case at bar. APPLICABILITY OF THE PRESCRIPTIVE PERIOD. the provisions of Section 4 of Rule 74, barring distributees or heirs from objecting to an extrajudicial partition after the expiration of two years from such extrajudicial partition, is applicable only (1) to persons who have participated or taken part or had notice of the extrajudicial partition, and, in addition,

when the provisions of Section 1 of Rule 74 have been strictly complied with, i.e., that all the persons or heirs of the decedent have taken part in the extrajudicial settlement or are represented by themselves or through guardians. The case at bar fails to comply with both requirements because not all the heirs interested have participated in the extrajudicial settlement, the Court of Appeals having found that the decedent left aside from his widow, nephews and nieces living at the time of his death.

BUT EVEN IF SECTION 4 OF RULE 74 IS A STATUTE OF LIMITATIONS, IT IS STILL UNAVAILING TO THE DEFENDANTS. The action is one based on fraud, as the widow of the deceased owner of the lands had declared in her affidavit of partition that the deceased left no nephews or niece, or other heirs except herself. Plaintiff's right which is based on fraud and which has a period of four years (Section 43, par. 3, Act no. 190; Article 1146, Civil Code), does not appear to have lapsed the action was instituted. Judicial proceedings where instituted in March, 1950 and these proceedings must have been instituted soon after the discovery of fraud. In any case, the defendants have the burden of proof as to their claim of the statute of limitations, which is their defense, and they have not proved that when the action was instituted, four years had already elapsed from the date that the interested parties had actual knowledge of the fraud. NOT INNOCENT PURCHASERS FOR VALUE Benny Sampilo, is a nephew of Leoncia de Leon and he had been living with the latter. Both Benny Sampilo and the heirs of the deceased who are claiming the property are residents of San Manuel, Pangasinan. It is hard, therefore, to believe that Benny Sampilo did not know the existence of said heirs, and that he was not aware that they were nephews and nieces, children of the deceased brothers, of the deceased Teodoro Tolete. 2. Llanera vs Lopos ELIGIO LLANERA vs. ANA LOPOS, ET AL., FACTS: Gorgonio Llanera died single and intestate on October 13, 1942. He left an estate consisting of the proceeds of an insurance policy amounting to $5,150.00. Upon the request of Remedios Ayque Altavano who claimed to be a relative of the deceased, a petition for settlement of his estate was filed in the Court of First Instance of Albayon January 22, 1948, wherein one Elias Ayque was appointed administrator of the estate. After hearing, the Court found that the deceased died without parents, brothers, sisters, nephews or nieces, but left distant relatives. It was later found out however, that he had a brother named Zacarias (died 1935) who left a son named Eligio (born 1921). On May 28, 1949, the Court ordered the closure and termination of the proceedings. It developed later the however that the deceased had a brother by the name of Zacarias who died on June 19,1935 leaving a son, Eligio, who then filed a motion on September 30, 1954 in said proceedings in order to assert his claim over the property as the sole heir of the deceased, which motion however he later withdrew because he intended to file a separate civil action for the vindication of his right in the proper court which he did on February 21, 1955. The complaint was dismissed on the ground that the venue was improperly laid and plaintiff's cause of action had already prescribed RTC: VENUE Considering that Gorgonio Llanera, at the time of his death was a resident of Daraga, Albay, it follows that the Court of First Instance of that province should have exclusive jurisdiction to settle his estate. Any question, therefore, as to who are the persons who should be presented to and decided by the Court of First Instance of Albay.". PRESCRIPTION "The claim of the plaintiff, in the opinion of the Court, was filed out of time. In summary settlement of the estate of a deceased person, any heir deprived of his lawful participation therein should file the corresponding petition in the court having jurisdiction of the estate within two years after the settlement and distribution thereof (sec. 4, Rule 74, Rules of Court).While the Rules of the Court do not prescribed any time limit during which an heir deprived of his lawful participation in the state of a person which was settled in a regular testate or intestate proceeding, Article 1100 of the Civil Code, however, provides that action for rescission on account of "lesion" shall prescribe after four years from the time the partition was made. Considering that judicial partition of the estate of Gorgonio Llanera was made on May 17, 1949, hence plaintiff's action was commenced beyond the prescriptive period provided by law." HELD: RTC presuposes that the instant action is for the settlement of the estate of the deceased Gorgonio Llanera. Such is not the case for his estate has already been settled by the Court of First Instance of Albay so much so that the proceedings were declared closed and terminated on May 28, 1949.

NARTATEZ, CARELL RYZA

SPECIAL PROCEEDINGS CASES – RULE 73

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THE PRESENT ACTION IS TO RECOVER THE PROPERTY ILLEGALLY ADJUDICATED TO THE DEFENDANTS ON THE GROUND OF FRAUD and being an action in personam the same can be filed either at the residence of any of the defendants or at the residence of the plaintiff, at the election of the latter(sec. 1, Rule 5). Plaintiff chose to institute the action in the Court of First Instance of Laguna, where he is a resident, and so it is incorrect to say that the venue of the present case has been improperly laid.

THE PRESENT ACTION IS NOT FOR RESCISSION OF A CONTRACT BASED ON "LESION" BUT AN ACTION TO RECOVER PROPERTY BASED ON FRAUD which under our law may be filed within a period of four years from the discovery of the fraud. (sec. 43 par. 3, Act 190). Since, as alleged in the complaint, fraud was discovered only in 1953 and the action was brought in 1955, it is clear that plaintiff's action has not yet prescribed. It is therefore an error to dismiss the complaint based on prescription. 3. G.R. No. L-14676

deceased by the heirs who make such partition among themselves in good faith, believing that they are the only heirs with the right succeed . In the case at bar, however, the surviving sisters could not have ignored that they had co-heirs, the children of the 3 brothers who predeceased their mother. Considering that Maria Rocabo died during the regime of the Spanish Civil Code, the distribution of her properties should be governed by said Code, wherein it is provided that between co-heirs, the act to demand the partition of the inheritance does not prescribe. (Art 1965 [Old Civ. Code]; Baysa, et al. v. Baysa, 53 Off. Gaz., 7282). Verily the 3 living sisters were possessing the property as administratrices or trustees for and in behalf of the other co-heirs, plaintiffs-appellants herein, who have the right to vindicate their inheritance, regardless of the lapse of time (Sevilla v. De los Angeles, L-7745; 51 Off. Gaz., 5590, and case cited therein). Moreover, the acquisition of the land in question is governed by the Public Land Act No. 141 and the Land Registration Law Act No. 496. And considering that the deed of sale had not been registered in accordance with the said laws, the same did not constitute a conveyance which would bind or affect the land, because the registration of a voluntary sale of land is the operative act that transmits or transfers title (Tuason v. Raymundo, 28 Phil.635).

Villaluz vs Neme January 31, 1963 4.

CANDIDA VILLALUZ, ET AL., plaintiffs-appellants, vs. JUAN NEME and FELICISIMA VILLAFRANCA, defendants-appellees. FACTS: Maria Rocabo died intestate on February 17, 1937, leaving a parcel of land granted her under Homestead Patent issued on May 20, 1930, covered by an OCT. She left three (3) daughters, named Sinforosa, Patricia and Maria Villaluz and Grandchildren from deceased children Maria, Patricia and Sinforosa, on September 1, 1939, executed a deed of extrajudicial partition (Exh. 2) among themselves, to the exclusion and without the knowledge and consent of their nephews and nieces, the herein plaintiffs-appellants, had new titles issued in their names after having made representations that they were the only heirs of their mother. It took multiple sale transactions before plaintiffs-appellants came to know that the land in the administration of their aunts, Sinforosa, Patricia and Maria, was already in the possession of the defendants. After attempts of amicable settlement had failed, the plaintiffs on June 3, 1954, filed a complaint for partition of said land and recovery of their respective shares on the property and accounting of the fruits thereof. RTC dismissed the complaint, declaring the defendants the owners of the land described in the complaint and in the T.C.T. No. 269. ISSUE: WON the extrajudicial partition only affected the partition of Sinforosa, Patricia and Maria, surnamed Villaluz, on the land in question and not the participation of the plaintiffs-appellants, as compulsory heirs of Maria Rocabo? YES HELD: The contention of the plaintiffs-appellants is meritorious. The decision found to be an incontrovertible fact that the land in question should be divided among the heirs of the decedent Sinforosa, Patricia and Maria Villaluz and her grandchildren. Thus, the trial Court said:

... The settlement of the estate of Maria Rocabo was summarily effected by the extrajudicial partition executed September 1, 1939, by the three surviving children to the exclusion of the plaintiffs who were entitled to inherit by representation. By virtue of the extrajudicial partition, Exhibit 1, the Original Certificate of Title No. 217 in the name of Maria Rocabo was cancelled and Transfer Certificate of Title No. 269 was issued in lieu thereof in favor of Sinforosa Villaluz, Patricia Villaluz and Maria Villaluz on September 6, 1939, to the prejudice of the plaintiffs. . . . Furthermore, Maria having left no testament or last will, her heirs succeeded to the possession and ownership of the land in question from the time of her death (Art. 440, Old Civil Code, Art. 533, New Civil Code; Lubrico v. Arbado, 12 Phil. 391). The deed of extrajudicial partition (Exh. 2), was fraudulent and vicious, the same having been executed among the 3 sisters, without including their co-heirs, who had no knowledge of and consent to the same. The partition, therefore, did not and could not prejudice the interest and participation of the herein plaintiffs-appellants, and the sale of the land to the defendants did not and could not also prejudice and effect plaintiffs-appellants' interest and participation thereon. The cancellation of O.C.T. No. 217 and the issuance of T.C.T. No. 269, did not likewise prejudice the interest and the participation of the plaintiffsappellants. The three sisters could not have sold what did not belong to them. Nemo dat quod non habet. NO PRESCRIPTION. The trial court held that under Sec. 4, Rule 73 of the Rules, the plaintiffs' cause of action had already prescribed. This section, however, refers only to the settlement and distribution of the estate of the

Ancog vs CA – what happens to the share of a minor who took no part in the partition? [G.R. No. 112260. June 30, 1997] JOVITA YAP ANCOG, and GREGORIO YAP, JR., vs. CA, ROSARIO DIEZ, and CARIDAD YAP, FACTS: Review for the dismissal of an action for partition of a parcel of land which petitioners had filed. The land, with improvements thereon, was formerly the conjugal property of the spouses Gregorio Yap and Rosario Diez. In 1946, Gregorio Yap died, leaving his wife, private respondent Rosario Diez, and children, petitioners Jovita Yap Ancog and Gregorio Yap, Jr., and private respondent Caridad Yap as his heirs. Rosario Diez submitted an extrajudicial settlement covering the disputed land as a means of facilitating the approval of her loan application. However, petitioner Gregorio Yap, Jr., then only 15 years old did not sign the same. Petitioner Ancog informed her younger brother, petitioner Gregorio Yap, Jr., who was living in Davao, of their mothers plan to sell the land. On June 6, 1985, they filed this action for partition. Petitioners alleged that the extrajudicial instrument was simulated and therefore void. They claimed that in signing the instrument they did not really intend to convey their interests in the property to their mother, but only to enable her to obtain a loan on the security of the land to cover expenses for Caridads school fees and for household repairs. RTC found that the action for partition had already prescribed. The registration of the land under private respondent Rosario Diezs name amounted to a repudiation of the coownership. Therefore, petitioners had ten (10) years from April 13, 1961 within which to bring an action to recover their share in the property. While it is true that petitioner Gregorio Yap, Jr. was a minor at the time the extrajudicial settlement was executed, his claim, according to the court, was barred by laches. ISSUE: won petitioner gregorio yap, jr., one of the co-owners of the litigated property, had lost his rights to the property through prescription or laches. HELD: EJS UPHELD, BUT PETITIONER GREGORIO YAP, JR. NOT BARRED BY LACHES FROM RECOVERING HIS SHARE IN THE PROPERTY IN QUESTION; IMPLIED TRUST CREATED IN HIS FAVOR In accordance with Rule 74, 1[9] of the Rules of Court, as he did not take part in the partition, he is not bound by the settlement.[10] It is uncontroverted that, at the time the extrajudicial settlement was executed, Gregorio Yap, Jr. was a minor. For this reason, he was not included or even informed of the partition. Instead, the registration of the land in Rosario Diezs name created an implied trust in his favor by analogy to Art. 1451 of the Civil Code, which provides: When land passes by succession to any person and he causes the legal title to be put in the name of another, a trust is established by implication of law for the benefit of the true owner. This Court has ruled that for prescription to run in favor of the trustee, the trust must be repudiated by unequivocal acts made known to the cestui que trust and proved by clear and conclusive evidence. Furthermore, the rule that the prescriptive period should be counted from the date of issuance of the Torrens certificate of title applies only to the remedy of reconveyance under the Property Registration Decree.[17] Since the action brought by petitioner Yap to claim his share was brought shortly after he was informed by Jovita Ancog of their mothers effort to sell the property, Gregorio Yap, Jr.s claim cannot be considered barred either by prescription or by laches.

NARTATEZ, CARELL RYZA

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SPECIAL PROCEEDINGS CASES – RULE 73 thereof.[26] Purchasers of registered land are bound by the annotations found at the back of the certificate of title.[27] 5. Arenas vs Roces – remedy vs purchasers FIRST DIVISION [G.R. No. 147468. April 9, 2003]

Hence, petitioners cannot be considered buyers in good faith and cannot now avoid the consequences brought about by the application of Rule 74, Section 4 of the Rules of Court.

SPOUSES EDUARDO ARENAS DOMINGO & JOSEFINA CHAVEZ DOMINGO, petitioners, vs. LILIA MONTINOLA ROCES, CESAR ROBERTO M. ROCES, ANA INES MAGDALENA ROCES TOLENTINO, LUIS MIGUEL M. ROCES, JOSE ANTONIO M. ROCES and MARIA VIDA PRESENTACION ROCES, respondents. DECISION YNARES-SANTIAGO, J.: FACTS: The spouses Cesar and Lilia Roces were the owners of two contiguous parcels of land. On 1962 (GSIS), caused the annotation of an affidavit of adverse claim on the titles alleging that the spouses have mortgaged the same to it. Subsequently, GSIS wrote a letter to Cesar Roces demanding the surrender of the owners duplicates of titles. Titles were subsequently issued in the name of GSIS by a court order. Cesar Roces died intestate on January 26, 1980. He was survived by his widow, Lilia Roces, and their children respondents in this case. On July 22, 1992, Reynaldo L. Montinola, a nephew of Lilia Roces, executed an affidavit of self-adjudication over the Arayat properties. He alleged that the properties were owned by the spouses Cesar and Lilia Roces, both of whom died intestate, on September 13, 1987 and June 27, 1989, respectively; that the properties were acquired during the existence of their marriage; that the spouses left no heirs except the brother of Lilia Roces, who was his father; that neither of the spouses left any will nor any debts; and that he was the sole heir of the Roces spouses.[9] On January 5, 1993, Montinola filed a petition against GSIS praying for the cancellation of its title. GSIS failed to produce any document evidencing the alleged real estate mortgage by Roces of the properties. Hence, the trial court rendered judgment in favor of Montinola, the latter sold the property to Sps Domingo, herein petitioners. TCT Nos. 7299 and 7673 contained the following annotation: Subject to the provision of Section 4, Rule 74 of the Rules of Court with respect to the inheritance left by the deceased SPS. CESAR ROCES & LILIA MONTINOLA.[14] When respondents learned of the sale of the property to petitioners, they filed a complaint against Montinola and petitioners with the RTC of Pasig. They argued that the affidavit of self-adjudication was fraudulent because Montinola was not an heir of the Roces spouses and it was not true that Lilia Roces was dead. Therefore, the affidavit of self-adjudication, as well as the deed of absolute sale, TCT No. 7299, and TCT No. 7673, all covering the subject property, were null and void.[15] Petitioners alleged that they were buyers in good faith and that their action was barred by estoppel and laches. ISSUE: WON THE ANNOTATION IN THE TITLE REGARDING SEC. 4, RULE 74 IS AN ENCUMBRANCE WHICH DISQUALIFIES PETITIONERS FROM BEING INNOCENT PURCHASERS FOR VALUE? YES HELD: As stated above, the titles, namely, TCT Nos. 7299 and 7673, contained annotations which made reference to the provisions of Rule 74, Section 4 of the Rules of Court, viz: The foregoing rule clearly covers transfers of real property to any person, as long as the deprived heir or creditor vindicates his rights within two years from the date of the settlement and distribution of estate. CONTRARY TO PETITIONERS CONTENTION, THE EFFECTS OF THIS PROVISION ARE NOT LIMITED TO THE HEIRS OR ORIGINAL DISTRIBUTEES OF THE ESTATE PROPERTIES, BUT SHALL AFFECT ANY TRANSFEREE OF THE PROPERTIES. In David v. Malay,[25] it was held that the buyer of real property the title of which contain an annotation pursuant to Rule 74, Section 4 of the Rules of Court cannot be considered innocent purchasers for value. In the same vein, the annotation at the back of TCT No. 7299 in this case referring to Rule 74, Section 4 of the Rules of Court was sufficient notice to petitioners of the limitation on Montinolas right to dispose of the property. The presence of an irregularity which excites or arouses suspicion should prompt the vendee to look beyond the certificate and investigate the title of the vendor appearing on the face

NOT BARRED BY ESTOPPEL/LACHES. In the case at bar, only four months elapsed from the time respondents discovered Montinolas fraudulent acts, sometime in May 1993, to the time they filed their complaint on September 6, 1993. This relatively short span of time can hardly be called unreasonable, especially considering that respondents used this period of time to investigate the transfers of the property.[30] Delay is an indispensable requisite for a finding of estoppel by laches, but to be barred from bringing suit on grounds of estoppel and laches, the delay must be lengthy and unreasonable.[31] No unreasonable delay can be attributed to respondents in this case.

Participating Heir; Remedy  File a partition case in court within the 2 year period under sec. 4  Nullify EJS on the ground of vitiated consent/mistake  Reconveyance based on Fraud Unpaid /Defrauded Creditor  Go after the Bond  If insufficient, Settlement Proceeding Liability under R74 S1, 4  ARENAS VS ROCES - The effects of this provision are not limited to the heirs or original distributees of the estate properties, but shall affect any transferee of the properties  TAN VS BENOLIRAO - annotation made pursuant to Section 4, Rule 74 of the Rules of Court (Rules) on a certificate of title covering real property considered an encumbrance on the property DELFIN TAN, vs ERLINDA C. BENOLIRAO et al G.R. No. 153820 October 16, 2009 ISSUE: Is an annotation made pursuant to Section 4, Rule 74 of the Rules of Court (Rules) on a certificate of title covering real property considered an encumbrance on the property? YES. HELD: While Tan admits that he refused to pay the balance of the purchase price, he claims that he had valid reason to do so the sudden appearance of an annotation on the title pursuant to Section 4, Rule 74 of the Rules, which Tan considered an encumbrance on the property. We find Tans argument meritorious. The annotation placed on TCT No. 27335, the new title issued to reflect the extrajudicial partition of Lamberto Benoliraos estate among his heirs, states: x x x any liability to credirots (sic), excluded heirs and other persons having right to the property, for a period of two (2) years, with respect only to the share of Erlinda, Andrew, Romano and Dion, all surnamed Benolirao [Emphasis supplied.] The provision of Section 4, Rule 74 prescribes the procedure to be followed 1. if within two years after an extrajudicial partition or summary distribution is made, 2. an heir or other person appears to have been deprived of his lawful participation in the estate, or 3. some outstanding debts which have not been paid are discovered. a. When the lawful participation of the heir is NOT payable in money, because, for instance, he is entitled to a part of the real property that has been partitioned, there can be no other procedure than to cancel the partition so made and make a new division, unless, of course, the heir agrees to be paid the value of his participation with interest. b. But in case the lawful participation of the heir consists in his share in personal property of money left by the decedent , or in case unpaid debts are discovered within the said period of two years, the procedure is not to cancel the partition, nor to appoint an

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6

administrator to re-assemble the assets, as was allowed under the old Code, but the court, after hearing, shall fix the amount of such debts or lawful participation in proportion to or to the extent of the assets they have respectively received and, if circumstances require, it may issue execution against the real estate belonging to the decedent, or both. The present procedure is more expedient and less expensive in that it dispenses with the appointment of an administrator and does not disturb the possession enjoyed by the distributees.[14] [Emphasis supplied.] AN ANNOTATION IS PLACED ON NEW CERTIFICATES OF TITLE ISSUED PURSUANT TO THE DISTRIBUTION AND PARTITION OF A DECEDENTS REAL PROPERTIES TO WARN THIRD PERSONS ON THE POSSIBLE INTERESTS OF EXCLUDED HEIRS OR UNPAID CREDITORS IN THESE PROPERTIES. The annotation, therefore, creates a legal encumbrance or lien on the real property in favor of the excluded heirs or creditors. Where a buyer purchases the real property despite the annotation, he must be ready for the possibility that the title could be subject to the rights of excluded parties. The CANCELLATION OF THE SALE would be the logical consequence where: (a) the annotation clearly appears on the title, warning all would-be buyers; (b) the sale unlawfully interferes with the rights of heirs; and (c) the rightful heirs bring an action to question the transfer within the two-year period provided by law.

b. c. d.

COMMON CONCEPTS and PRINCIPLES  Jurisdiction is based on the gross value of the ESTATE  MTC – GV of the estate 300k below  RTC – above  Value is determined by 1. Real Property – FMV at the time of death 2. Personal Property – add them all up to get the jurisdictional amount  The value is determined by the allegations of the petitioner, not the court;  It is jurisdictional because failure to pay the filing fees deprives the court of acquiring jurisdiction over the petition Limited Jurisdiction [see 2014, page 10] 1. Extrinsic validity of a will and testamentary capacity of the testator 2. If there is no will, and there is a petition for letters of administration, the court can determine if the petitioner is viable to be an administrator 3. As a general rule, questions of ownership cannot be passed upon. They are limited to the inventory of the estate – what are to be included and what are to be excluded. Only provisionally. 4. However, an exception to the provisional nature of such ruling as to ownership in probate proceedings is found in Hernando vs CA where the court considered the agreement of the parties as binding upon them. [see also Garcia vs Belen ] 5. Thus, court cannot also determine whether properties are conjugal or separate property but as an exception to the general rule, it may pass upon and decide provisionally. 6. The court can touch upon the issue of filiation for the purpose of determining the shares of the heirs 7. The issue of the validity of contracts is extraneous to the settlement proceedings because it happened prior to the death of the decedent, except in Baretto vs Inc. 8.

As we held in Vda. de Francisco v. Carreon:[15] And Section 4, Rule 74 xxx expressly authorizes the court to give to every heir his lawful participation in the real estate notwithstanding any transfers of such real estate and to issue execution thereon. All this implies that, when within the amendatory period the realty has been alienated, the court in re-dividing it among the heirs has the authority to direct cancellation of such alienation in the same estate proceedings, whenever it becomes necessary to do so. To require the institution of a separate action for such annulment would run counter to the letter of the above rule and the spirit of these summary settlements. [Emphasis supplied.] Similarly, in Sps. Domingo v. Roces,[16] we said: The foregoing rule clearly covers transfers of real property to any person, as long as the deprived heir or creditor vindicates his rights within two years from the date of the settlement and distribution of estate. Contrary to petitioners contention, the effects of this provision are not limited to the heirs or original distributees of the estate properties, but shall affect any transferee of the properties. [Emphasis supplied.] Indeed, in David v. Malay,[17] although the title of the property had already been registered in the name of the third party buyers, we cancelled the sale and ordered the reconveyance of the property to the estate of the deceased for proper disposal among his rightful heirs. By the time Tans obligation to pay the balance of the purchase price arose on May 21, 1993 (on account of the extensions granted by the respondents), a new certificate of title covering the property had already been issued on March 26, 1993, which contained the encumbrance on the property; the encumbrance would remain so attached until the expiration of the two-year period. Clearly, at this time, the vendors could no longer compel Tan to pay the balance of the purchase since considering they themselves could not fulfill their obligation to transfer a clean title over the property to Tan. CONTRACT TO SELL IS NOT RESCINDED BUT TERMINATED the remedy of rescission under Article 1191 cannot apply to mere contracts to sell. We, therefore, hold that the contract to sell was terminated when the vendors could no longer legally compel Tan to pay the balance of the purchase price as a result of the legal encumbrance which attached to the title of the property. Since Tans refusal to pay was due to the supervening event of a legal encumbrance on the property and not through his own fault or negligence, we find and so hold that the forfeiture of Tans down payment was clearly unwarranted.

II.

JUDICIAL SETTLEMENT OF ESTATE

Judicial settlement – where proceedings in court is necessary, and includes the following: a. Summary settlement of estate of small value – Whenever the gross value of the estate of a deceased person, whether he died testate or intestate, does not exceed P10,000.00, the court may proceed summarily, without the appointment of an executor or administrator (Sec. 2, Rule 74).

Testate proceedings – When the decedent left a last will and testament (Rules 75-79). Intestate proceedings – When the decedent died without a will, or died with a will but was found invalid and thereafter disallowed (Rule 79). Partition – When there is no will and the parties entitled to the estate would agree on the project of partition (Rule 69).

1.

BERNARDO VS CA – G.R. No. L-18148 February 28, 1963 Settlement court can determine the properties as conjugal or separate by way of exception. ISSUE: WON the probate court in Special Proceeding 1101 had jurisdiction to determine the validity of the deed of donation in question and to pass upon the question of title or ownership of the properties mentioned therein. HELD: In the case now before us, THE MATTER IN CONTROVERSY IS THE QUESTION OF OWNERSHIP OF CERTAIN OF THE PROPERTIES INVOLVED — WHETHER THEY BELONG TO THE CONJUGAL PARTNERSHIP OR TO THE HUSBAND EXCLUSIVELY. This is a matter properly within the jurisdiction of the probate court which necessarily has to liquidate the conjugal partnership in order to determine the estate of the decedent which is to be distributed among his heirs who are all parties to the proceedings, including, of course, the widow, now represented because of her death, by her heirs who have been substituted upon petition of the executor himself and who have appeared voluntarily. There are no third parties whose rights may be affected. It is true that the heirs of the deceased widow are not heirs of the testatorhusband, but the widow is, in addition to her own right to the conjugal property. And it is this right that is being sought to be enforced by her substitutes. Therefore, the claim that is being asserted is one belonging to an heir to the testator and, consequently, it complies with the requirement of the exception that the parties interested (the petitioners and the widow, represented by dents) are all heirs claiming title under the testator. Petitioners contend additionally that they have never submitted themselves to the jurisdiction of the probate court, for the purpose of the determination of the question of ownership of the disputed properties. This is not borne by the admitted facts. On the contrary, it is undisputed that they were the ones who presented the project of partition claiming the questioned properties as part of the testator's asset. The respondents, as representatives or substitutes of the deceased widow opposed the project of partition and submitted another. As the Court of Appeals said, "In doing so all of them must be deemed

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SPECIAL PROCEEDINGS CASES – RULE 73 to have submitted the issue for resolution in the same proceeding. Certainly, the petitioners can not be heard to insist, as they do, on the approval of their project of partition and, thus, have the court take it for granted that their theory as to the character of the properties is correct, entirely without regard to the opposition of the respondents". In other words, by presenting their project of partition including therein the disputed lands (upon the claim that they were donated by the wife to her husband), petitioners themselves put in issue the question of ownership of the properties — which is well within the competence of the probate court — and just because of an opposition thereto, they can not thereafter withdraw either their appearance or the issue from the jurisdiction of the court. Certainly, there is here a waiver where the parties who raise the objection are the ones who set the court in motion.5 They can not be permitted to complain if the court, after due hearing, adjudges question against them.6

2.

LEDESMA VS INTESTATE ESTAE OF PEDROSA – declaration of nullity and the issue of the character of property is already been laid. G.R. No. 102126 March 12, 1993 FACTS: This is a special civil action for certiorari under Rule 65 assailing an order dated 24 January 1991 issued by herein respondent presiding judge-designate Bethel Katalbas-Moscardon of the Regional Trial Court of Bacolod City, Branch 51 which considered the supplemental action for partition (after annulment of the marriage) as terminated due to the death of one of the spouses (husband) and the pendency of intestate proceedings over his estate. Petitioner Angelica Ledesma's marriage to Cipriano Pedrosa was declared a nullity by the Regional Trial Court of Negros Occidental, Branch 51 on 8 February 1984 in Civil Case No. 1446.1 The dispositive portion of the order annulling the marriage also provided thus: . . . that the properties acquired by plaintiff Cipriano Pedrosa and defendant Angelica Ledesma at the time they were living together as common-law husband and wife is (sic) owned by them as co-owners to be governed by the provisions on co-ownership of the civil code; that the properties acquired by plaintiff and defendant after their marriage was solemnized on March 25, 1965, which was annulled by this Court in the above-entitled proceeding, forms (sic) part of the conjugal partnership and upon dissolution of the marriage, to be liquidated in accordance with the provision of the civil code.2 Surprisingly it took some time before the next order implementing the above disposition was issued on 4 May 1989, the pertinent part of which reads: . . . . It appearing from the records that the court has to verify and determine the correct inventory of the properties of Cipriano Pedrosa and Angelica Ledesma, the parties, including the receiver, through their respective attorneys, are ordered to submit their respective inventory, if one has not been submitted yet, before June 1, 1989. . . . .3 Pending receipt by the court of the ordered inventory, Cipriano Pedrosa died. A separate petition for the probate of his last will and testament was filed.4 Nelson Jimena was named executor and substituted Pedrosa in the partition proceedings (Civil Case No. 1446). Due to disagreement of the parties on the characterization of the properties, the court in the partition proceedings ordered (30 March 1990) the submission of comments, objections and manifestations on the project of partition submitted by the parties. During a lull in the proceedings, the presiding judge also passed away. On 24 January 1991 the following now-questioned order was issued by the herein respondent presiding-judge designate who took over: It is informed by Atty. Pio Villoso that insofar as the status of this case is concerned, the plaintiff who has long been dead, was substituted by the administrator, now the plaintiff Nelson Jimena, and Atty. Vicente Sabornay, as the receiver. Furthermore, the judgment as to the annulment of the marriage had already been rendered partially by then Presiding Judge Quirino Abad Santos, Jr., on February 8, 1984. What is being litigated here by the parties affects the property division to dissolve the partnership. However, the plaintiff died and an intestate proceeding is now pending before Branch 43 whereby the said Nelson Jimena was actually the appointed administrator, and who was substituted as plaintiff in this case.

With all these informations, and considering the nature of the action, the Court finds the substitution of the original plaintiff improper, as the defendant herein can pursue her claim over the properties before the intestate proceedings being instituted. Action for intervention in order that the judgment in this particular proceeding can be implemented, can be raised in the intestate Court. Likewise, the appointment of the receiver conflicts with that of the judicial administrator considering that with the filing of the intestate case, the properties of the deceased plaintiff are in custodia legis and this Court losses jurisdiction in determining further the distribution of the properties. In view of the above, without prejudice to the defendant's right to file as intervenor in the intestate proceedings with the judgment annulling the marriage, the proceedings becomes moot and academic with the pendency of the intestate proceeding before Branch 43. This case is therefore deemed TERMINATED.5 With the denial of petitioner's motion for reconsideration by the respondent court, this special civil action was initiated. Petitioner argues that respondent judge reneged in the performance of a lawful duty when she refrained from rendering a decision in the partition case (Civil Case No. 1446) and considered the same closed and terminated, due to the pendency of intestate proceedings over the deceased husband's estate (Sp. Proc. No. 4159).6 It is likewise erroneous, petitioner contends, to rule that petitioner's remedy is a motion for intervention in said intestate proceedings to implement judgment in the marriageannulment case, since petitioner has already presented all her evidence in the annulment case to prove which properties acquired during the marriage pertain to her. The case of Macadangdang vs. Court of Appeals,7 where a similar issue was involved — the husband having died after the legal separation of the spouses had been finally decreed but before the actual liquidation of their community of properties — is on point. The Court therein said: WE do not find merit in petitioner's submission that the questioned decision had not become final and executory since the law explicitly and clearly provides for the dissolution and liquidation of the conjugal partnership of gains or the absolute community of property as among the effects of the final decree of legal separation. Article 106 of the Civil Code thus reads: Art. 106.

The decree of legal separation shall have the following effects:

1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed; 2) The conjugal partnership of gains or the absolute conjugal community of property shall be dissolved and liquidated, but the offending spouse shall have no right to any share of the profits earned by the partnership or community, without prejudice to the provisions of Article 176; xxx

xxx

xxx

The aforequoted provision mandates the dissolution and liquidation of the property regime of the spouses upon finality of the decree of legal separation. Such dissolution and liquidation are necessary consequences of the final decree. This legal effect of the decree of legal separation ipso facto or automatically follows, as an inevitable incident of, the judgment decreeing legal separation for the purpose of determining the share of each spouse in the conjugal assets. xxx

xxx

xxx

. . . the decision of the trial court dated January 4, 1973 decreeing the legal separation between then spouses Antonio Macadangdang and Filomena Gaviana Macadangdang had long become final and executory and the division of the conjugal property in a "supplemental decision" is a mere incident of the decree of legal separation. Since We have ruled on the finality of the judgment decreeing the spouses' legal separation as of January 4, 1973, the remaining issue for Our resolution is the final disposition of their conjugal partnership of gains which partnership, by reason of the final decree, had been automatically dissolved. The law (Article 106, 107 of the Civil Code) clearly spells out the effects of a final decree of legal separation on the conjugal property. The death on November 30, 1979 of herein petitioner who was declared the guilty spouse by the trial court, before the liquidation of the conjugal property is effected, poses a new problem which can be resolved simply by the application

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SPECIAL PROCEEDINGS CASES – RULE 73

of the rules on intestate succession with respect to the properties of the deceased petitioner. Thus, the rules on dissolution and liquidation of the conjugal partnership of gains under the aforecited provisions of the Civil Code would be applied effective January 4, 1973 when the decree of legal separation became final. Upon the liquidation and distribution conformably with the law governing the effects of the final decree of legal separation, the law on intestate succession should take over in the disposition of whatever remaining properties heave been allocated to petitioner. This procedure involves details which properly pertain to the lower court. The properties that may be allocated to the deceased petitioner by virtue of the liquidation of the conjugal assets, shall be distributed in accordance with the laws of intestate succession in Special Proceedings No. 134. The Macadangdang decision involved legal separation but, with equal reason, the doctrine enunciated therein should be applied to a marriage annulment which is the situation at bar. The respondent presiding judge is directed to decide the partition (liquidation) case (Civil Case No. 1446) within thirty (30) days from receipt of notice of this decision to determine which of the properties of the conjugal partnership should be adjudicated to the husband and the wife. This is but a consequence or incident of its decision rendered in the same case annulling the marriage. Petitioner's letters to the Court indicate that she is seventy (70) years of age and the prolonged action for partition (liquidation) has taken a toll on her resources. Justice and equity demand the disposition of her case with dispatch. Any properties that may be adjudicated to the deceased husband Pedrosa can then be distributed in accordance with his last will and testament in the special proceedings involving his estate (Sp. Proc. No. 4159). ACCORDINGLY, the respondent Judge's order dated 24 January 1991 considering Civil Case No. 1446 closed and terminated for being moot and academic is REVERSED and SET ASIDE. Respondent Judge or whoever may have succeeded her is ordered to decide said action for partition (liquidation) within thirty (30) days from receipt of this decision. SO ORDERED.

3. PEREIRA VS CA – no need for appointment of an administratrix as their claims may be properly ventilated in simple partition proceedings G.R. No. L-81147 June 20, 1989 Is a judicial administration proceeding necessary when the decedent dies intestate without leaving any debts? May the probate court appoint the surviving sister of the deceased as the administratrix of the estate of the deceased instead of the surviving spouse? These are the main questions which need to be resolved in this case. Andres de Guzman Pereira, an employee of the Philippine Air Lines, passed away on January 3, 1983 at Bacoor, Cavite without a will. He was survived by his legitimate spouse of ten months, the herein petitioner Victoria Bringas Pereira, and his sister Rita Pereira Nagac, the herein private respondent. On March 1, 1983, private respondent instituted before Branch 19 of the Regional Trial Court of Bacoor, Cavite, Special Proceeding No. RTC-BSP-83-4 for the issuance of letters of administration in her favor pertaining to the estate of the deceased Andres de Guzman Pereira. 1 In her verified petition, private respondent alleged the following: that she and Victoria Bringas Pereira are the only surviving heirs of the deceased; that the deceased left no will; that there are no creditors of the deceased; that the deceased left several properties, namely: death benefits from the Philippine Air Lines (PAL), the PAL Employees Association (PALEA), the PAL Employees Savings and Loan Association, Inc. (PESALA) and the Social Security System (SSS), as well as savings deposits with the Philippine National Bank (PNB) and the Philippine Commercial and Industrial Bank (PCIB), and a 300 square meter lot located at Barangay Pamplona, Las Pinas, Rizal and finally, that the spouse of the deceased (herein petitioner) had been working in London as an auxiliary nurse and as such one-half of her salary forms part of the estate of the deceased. On March 23,1983, petitioner filed her opposition and motion to dismiss the petition of private respondent 2 alleging that there exists no estate of the deceased for purposes of administration and praying in the alternative, that if an estate does exist, the letters of administration relating to the said estate be issued in her favor as the surviving spouse.

In its resolution dated March 28, 1985, the Regional Trial Court, appointed private respondent Rita Pereira Nagac administratrix of the intestate estate of Andres de Guzman Pereira upon a bond posted by her in the amount of Pl,000.00. The trial court ordered her to take custody of all the real and personal properties of the deceased and to file an inventory thereof within three months after receipt of the order. 3 Not satisfied with the resolution of the lower court, petitioner brought the case to the Court of Appeals. The appellate court affirmed the appointment of private respondent as administratrix in its decision dated December 15, 1987. 4 ISSUES: (1) Whether or not there exists an estate of the deceased Andres de Guzman Pereira for purposes of administration; (2) Whether or not a judicial administration proceeding is necessary where there are no debts left by the decedent; and, (3) Who has the better right to be appointed as administratrix of the estate of the deceased, the surviving spouse Victoria Bringas Pereira or the surviving sister Rita Pereira Nagac? HELD: Anent the first issue, petitioner contends that there exists no estate of the deceased for purposes of administration for the following reasons: firstly, the death benefits from PAL, PALEA, PESALA and the SSS belong exclusively to her, being the sole beneficiary and in support of this claim she submitted letter-replies from these institutions showing that she is the exclusive beneficiary of said death benefits; secondly, the savings deposits in the name of her deceased husband with the PNB and the PCIB had been used to defray the funeral expenses as supported by several receipts; and, finally, the only real property of the deceased has been extrajudicially settled between the petitioner and the private respondent as the only surviving heirs of the deceased. Private respondent, on the other hand, argues that it is not for petitioner to decide what properties form part of the estate of the deceased and to appropriate them for herself. She points out that this function is vested in the court in charge of the intestate proceedings. Petitioner asks this Court to declare that the properties specified do not belong to the estate of the deceased on the basis of her bare allegations as aforestated and a handful of documents. Inasmuch as this Court is not a trier of facts, We cannot order an unqualified and final exclusion or non-exclusion of the property involved from the estate of the deceased. 5 The resolution of this issue is better left to the probate court before which the administration proceedings are pending. The trial court is in the best position to receive evidence on the discordant contentions of the parties as to the assets of the decedent's estate, the valuations thereof and the rights of the transferees of some of the assets, if any. 6 The function of resolving whether or not a certain property should be included in the inventory or list of properties to be administered by the administrator is one clearly within the competence of the probate court. However, the court's determination is only provisional in character, not conclusive, and is subject to the final decision in a separate action which may be instituted by the parties.7 Assuming, however, that there exist assets of the deceased Andres de Guzman Pereira for purposes of administration, We nonetheless find the administration proceedings instituted by private respondent to be unnecessary as contended by petitioner for the reasons herein below discussed. The general rule is that when a person dies leaving property, the same should be judicially administered and the competent court should appoint a qualified administrator, in the order established in Section 6, Rule 78, in case the deceased left no will, or in case he had left one, should he fail to name an executor therein. 8 An exception to this rule is established in Section 1 of Rule 74. 9 Under this exception, when all the heirs are of lawful age and there are no debts due from the estate, they may agree in writing to partition the property without instituting the judicial administration or applying for the appointment of an administrator. Section 1, Rule 74 of the Revised Rules of Court, however, does not preclude the heirs from instituting administration proceedings, even if the estate has no debts or obligations, if they do not desire to resort for good reasons to an ordinary action for partition. While Section 1 allows the heirs to divide the estate among themselves as they may see fit, or to resort to an ordinary action for partition, the said provision does not compel them to do so if they have good reasons to take a different course of action. 10 It should be noted that recourse to an administration proceeding even if the estate has no debts is sanctioned only if the heirs have good reasons for not resorting to an action for partition. Where partition is possible, either in or out of court, the estate should not be burdened with an administration proceeding without good and compelling reasons. 11 Thus, it has been repeatedly held that when a person dies without leaving pending obligations to be paid, his heirs, whether of age or not, are not bound to submit the property to a judicial administration, which is always long and costly, or to apply for the

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SPECIAL PROCEEDINGS CASES – RULE 73 appointment of an administrator by the Court. It has been uniformly held that in such case the judicial administration and the appointment of an administrator are superfluous and unnecessary proceedings . 12 Now, what constitutes "good reason" to warrant a judicial administration of the estate of a deceased when the heirs are all of legal age and there are no creditors will depend on the circumstances of each case. In one case, 13 We said: Again the petitioner argues that only when the heirs do not have any dispute as to the bulk of the hereditary estate but only in the manner of partition does section 1, Rule 74 of the Rules of Court apply and that in this case the parties are at loggerheads as to the corpus of the hereditary estate because respondents succeeded in sequestering some assets of the intestate. The argument is unconvincing, because, as the respondent judge has indicated, questions as to what property belonged to the deceased (and therefore to the heirs) may properly be ventilated in the partition proceedings, especially where such property is in the hands of one heir. In another case, We held that if the reason for seeking an appointment as administrator is merely to avoid a multiplicity of suits since the heir seeking such appointment wants to ask for the annulment of certain transfers of property, that same objective could be achieved in an action for partition and the trial court is not justified in issuing letters of administration. 14 In still another case, We did not find so powerful a reason the argument that the appointment of the husband, a usufructuary forced heir of his deceased wife, as judicial administrator is necessary in order for him to have legal capacity to appear in the intestate proceedings of his wife's deceased mother, since he may just adduce proof of his being a forced heir in the intestate proceedings of the latter.15 We see no reason not to apply this doctrine to the case at bar. There are only two surviving heirs, a wife of ten months and a sister, both of age. The parties admit that there are no debts of the deceased to be paid. What is at once apparent is that these two heirs are not in good terms. The only conceivable reason why private respondent seeks appointment as administratrix is for her to obtain possession of the alleged properties of the deceased for her own purposes, since these properties are presently in the hands of petitioner who supposedly disposed of them fraudulently. We are of the opinion that this is not a compelling reason which will necessitate a judicial administration of the estate of the deceased. To subject the estate of Andres de Guzman Pereira, which does not appear to be substantial especially since the only real property left has been extrajudicially settled, to an administration proceeding for no useful purpose would only unnecessarily expose it to the risk of being wasted or squandered. In most instances of a similar nature, 16 the claims of both parties as to the properties left by the deceased may be properly ventilated in simple partition proceedings where the creditors, should there be any, are protected in any event. We, therefore, hold that the court below before which the administration proceedings are pending was not justified in issuing letters of administration, there being no good reason for burdening the estate of the deceased Andres de Guzman Pereira with the costs and expenses of an administration proceeding. With the foregoing ruling, it is unnecessary for us to delve into the issue of who, as between the surviving spouse Victoria Bringas Pereira and the sister Rita Pereira Nagac, should be preferred to be appointed as administratrix. WHEREFORE, the letters of administration issued by the Regional Trial Court of Bacoor to Rita Pereira Nagac are hereby revoked and the administration proceeding dismissed without prejudice to the right of private respondent to commence a new action for partition of the property left by Andres de Guzman Pereira. No costs. SO ORDERED. Narvasa, Cruz, Griño-Aquino and Medialdea, JJ., concur.

4.

JIMENEZ VS IAC A probate court can only pass upon questions of title provisionally G.R. No. 75773 April 17, 1990

FACTS: The marriage of Leonardo (Lino) Jimenez and Consolacion Ungson produced four (4) children, namely: Alberto, Leonardo, Sr., Alejandra and Angeles. During the

existence of the marriage, Lino Jimenez acquired five (5) parcels of land in Salomague, Bugallon, Pangasinan. After the death of Consolacion Ungson, Lino married Genoveva Caolboy with whom he begot the seven petitioners herein: Tomas, Visitacion, Digno, Antonio, Amadeo, Modesto and Virginia, all surnamed Jimenez. Lino Jimenez died on August 11, 1951 while Genoveva Caolboy died on November 21, 1978. Thereafter, in April 1979, Virginia Jimenez filed a petition before the Court of First Instance of Pangasinan, Branch V, docketed as Special Proceedings No. 5346, praying to be appointed as administratrix of the properties of the deceased spouses Lino and Genoveva. Enumerated in her petition were the supposed heirs of the deceased spouses which included herein co-petitioners and the four children of Lino Jimenez by Consolacion Ungson, his previous wife.2 In October, 1979, herein private respondent Leonardo Jimenez, Jr., son of Leonardo Jimenez, Sr., filed a motion for the exclusion of his father's name and those of Alberto, Alejandra, and Angeles from the petition, inasmuch as they are children of the union of Lino Jimenez and Consolacion Ungson and not of Lino Jimenez and Genoveva Caolboy and because they have already received their inheritance consisting of five (5) parcels of lands in Salomague, Bugallon, Pangasinan.3 On March 23, 1981, petitioner Virginia Jimenez was appointed administrator of the Intestate Estate of Lino Jimenez and Genoveva Caolboy.4 On May 21, 1981, she filed an inventory of the estate of the spouses Lino Jimenez and Genoveva Caolboy wherein she included the five (5) parcels of land in Salomague, Bugallon, Pangasinan. As a consequence, Leonardo Jimenez, Jr. moved for the exclusion of these properties from the inventory on the ground that these had already been adjudicated to Leonardo Sr., Alberto, Alejandra and Angeles by their deceased father Lino Jimenez. Private respondent Leonardo Jimenez, Jr. presented testimonial and documentary evidence in support of his motion while petitioner Virginia Jimenez, other than cross-examining the witnesses of Leonardo, presented no evidence of her own, oral or documentary. PROBATE COURT ordered the exclusion of the five (5) parcels of land from the inventory on the basis of the evidence of private respondent Leonardo Jimenez, Jr. which consisted among others of: (1) Tax Declaration showing that the subject properties were acquired during the conjugal partnership of Lino Jimenez and Consolacion Ungson; and, (2) a Deed of Sale dated May 12, 1964 wherein Genoveva Caolboy stated, that the subject properties had been adjudicated by Lino Jimenez to his children by a previous marriage, namely: Alberto, Leonardo, Alejandra and Angeles.5 The motion for reconsideration of said order was denied on January 26, 1982.6 Petitioner Virginia Jimenez then went to the Court of Appeals on a petition for certiorari and prohibition, docketed thereat as CA-G.R. No. SP-13916, seeking the annulment of the order dated September 29, 1981 as well as the order of January 26, 1982. On November 18, 1982, the Court of Appeals dismissed the petition because (1) Genoveva Caolboy, petitioners' mother, had admitted that the subject parcels of land had been adjudicated to the children of the previous nuptial; (2) the subject properties could not have been acquired during the marriage of Lino Jimenez to Genoveva Caolboy because they were already titled in the name of Lino Jimenez even prior to 1921, long before Lino's marriage to Genoveva in 1940; (3) the claim of Virginia Jimenez was barred by prescription because it was only in 1981 when they questioned the adjudication of the subject properties, more than ten (10) years after Genoveva had admitted such adjudication in a public document in 1964; and, (4) petitioner Virginia Jimenez was guilty of laches. This decision became final and executory.7 Two (2) years after, petitioners filed an amended complaint dated December 10, 1984 before the Regional Trial Court of Pangasinan, Branch XXXVII, docketed thereat as Civil Case No. 16111, to recover possession/ownership of the subject five (5) parcels of land as part of the estate of Lino Jimenez and Genoveva Caolboy and to order private respondents to render an accounting of the produce therefrom. Private respondents moved for the dismissal of the complaint on the grounds that the action was barred by prior judgment in CA-G.R. No. SP-13916 dated November 18, 1982 and by prescription and laches. However, petitioners opposed the motion to dismiss contending that (1) the action was not barred by prior judgment because the probate court had no jurisdiction to determine with finality the question of ownership of the lots which must be ventilated in a separate action; and, (2) the action instituted in 1981 was not barred by prescription or laches because private respondents' forcible acquisition of the subject properties occurred only after the death of petitioners' mother, Genoveva Caolboy in 1978.

NARTATEZ, CARELL RYZA

SPECIAL PROCEEDINGS CASES – RULE 73

10

ISSUE: whether in a settlement proceeding (testate or intestate) the lower court has jurisdiction to settle questions of ownership and whether res judicata exists as to bar petitioners' present action for the recovery of possession and ownership of the five (5) parcels of land. In the negative, is the present action for reconveyance barred by prescription and/or laches?

wanted also to adopt her but because, by his first marriage, he had two children named Flora Valero Vda. de Rodriguez and Rosie Valero Gutierrez. he was disqualified to adopt Carmen. Jose manifested in the adoption proceeding that he consented to the use by Carmen of his surname Valero. (See Civil Case No. 12475, Manila CFI; Art. 338[1], Civil Code and art. 28, Child and Youth Welfare Code.)

HELD: Petitioners' present action for recovery of possession and ownership is appropriately filed because as a general rule, a probate court can only pass upon questions of title provisionally. Since the probate, court's findings are not conclusive being prima facie, 10 a separate proceeding is necessary to establish the ownership of the five (5) parcels of land. 11

On September 18, 1964, Jose M. Valero donated to Carmen B. Valero (who was already married to Doctor Sergio Rustia) his one-half proindiviso share (apparently his inchoate share) in two conjugal lots, with the improvements thereon, located at San Lorenzo Village, Makati, Rizal, with an area of 1,500 square meters. His wife, Beatriz, consented to the donation. However, the deed of donation was not registered. On January 13, 1966, Jose M. Valero, who was then seventy-three years old, executed his last will and testament wherein he enumerated the conjugal properties of himself and his wife, including the two San Lorenzo Village lots. In that will, he did not mention the donation. He devised to his wife properties sufficient to constitute her legitime and bequeathed the remainder to his two children, Mrs. Rodriguez and Mrs. Gutierrez. About a month later, or on February 15, 1966, the Valero spouses, by means of a deed of absolute sale, conveyed the San Lorenzo Village lots and the improvements thereon to Carmen B. Valero-Rustia for the sum of one hundred twenty thousand pesos. The sale was registered on the following day. Transfer Certificates of Title Nos. 163270 and 163271 were issued to the vendee, Mrs. Rustia. On December 4, 1967 she mortgaged the two lots to the Quezon City Development Bank as security for a loan of fifty thousand pesos (page 204, Rollo). Beatriz B. Valero died intestate on September 12, 1972, survived by her husband and her adopted child. Her estate is pending settlement in Special Proceeding No. 88896 of the Court of First Instance of Manila. Mrs. Rustia was named administratrix of her adopted mother's estate. More than a month later, or on October 18, 1972, Jose M. Valero died testate, survived by his two children, Mrs. Rodriguez and Mrs. Gutierrez. His will was duly probated in Special Proceeding No. 88677, also of the Court of First Instance of Manila. Lawyer Celso F. Unson, the executor, submitted an inventory wherein, following the list of conjugal assets in the testator's will, the two San Lorenzo Village lots were included as part of the testate estate. That inclusion provoked Mrs. Rustia, the adopted child of Mrs. Valero, and Mrs. Rodriguez and Mrs. Gutierrez, the legitimate children of the testator, Jose M. Valero, to file (through Mrs. Rustia's lawyer) in the testate proceeding a motion for the exclusion of the two San Lorenzo Village lots from the testator's inventoried estate. Adduced as reason for the exclusion is the fact that since February 16, 1966 Mrs. Rustia has been the registered owner of the lots as shown by two Torrens titles, copies of which were attached to the motion. The executor opposed the motion on the ground that the two lots were donated to Mrs. Rustia and the donation would allegedly involve collation and the donee's title to the lots. The executor revealed that he was informed by Mrs. Gutierrez and Mrs. Rodriguez (supposed movants) that the two lots should be included in the inventory. Thus, the issue of collation was prematurely raised.

The patent reason is the probate court's limited jurisdiction and the principle that questions of title or ownership, which result in inclusion or exclusion from the inventory of the property, can only be settled in a separate action. 12 All that the said court could do as regards said properties is determine whether they should or should not be included in the inventory or list of properties to be administered by the administrator. If there is a dispute as to the ownership, then the opposing parties and the administrator have to resort to an ordinary action for a final determination of the conflicting claims of title because the probate court cannot do so. 13 It has also been held that in a special proceeding for the probate of a will, the question of ownership is an extraneous matter which the probate court cannot resolve with finality. 18 This pronouncement no doubt applies with equal force to an intestate proceeding as in the case at bar. RES JUDICATA 19 DOES NOT EXIST BECAUSE OF THE DIFFERENCE IN THE CAUSES OF ACTIONS. Specifically in S.P. No. 5346, the action was for the settlement of the intestate estate of Lino Jimenez and Genoveva Caolboy while Civil Case No. 16111 was an action for the recovery of possession and ownership of the five (5) parcels of land. Moreover, while admittedly, the Court of First Instance of Pangasinan, Branch V in S.P. No. 5346 had jurisdiction, the same was merely limited jurisdiction. Any pronouncement by said court as to title is not conclusive and could still be attacked in a separate proceeding. Civil Case No. 16111, on the other hand. was lodged before the Regional Trial Court of Pangasinan, Branch XXXVII in the exercise of the court's general jurisdiction. It was, in fact, such "separate or ordinary proceedings" contemplated by the rules for a final determination of the issue of ownership of the disputed properties. To repeat, since the determination of the question of title to the subject properties in S.P. 5346 was merely provisional, petitioners are not barred from instituting the appropriate action in Civil Case No. 16111. Indeed, the grounds relied upon by private respondents in their motion to dismiss do not appear to be indubitable.1âwphi1 Res judicata has been shown here to be unavailable and the other grounds of prescription and laches pleaded by private respondents are seriously disputed. The allegation in the complaint is that the heirs of Leonardo Jimenez, Sr. (referring to private respondents,) forcibly intruded into and took possession of the disputed properties only in 1978, after the death of Genoveva Caolboy. Since the action for reconveyance was instituted in 1984, it would appear that the same has not yet prescribed or otherwise barred by laches. There are a number of factual issues raised by petitioners before the lower court which cannot be resolved without the presentation of evidence at a full-blown trial and which make the grounds for dismissal dubitable. Among others, the alleged admission made by petitioners' mother in the deed of sale is vehemently denied, as well as the fact itself of adjudication, there being no showing that the conjugal partnership of Lino Jimenez and Consolacion Ungson had been liquidated nor that a judicial or extra-judicial settlement of the estate of Lino Jimenez was undertaken whereby such adjudication could have been effected. The grounds stated in the motion to dismiss not being indubitable, the trial court committed grave abuse of discretion in dismissing the complaint in Civil Case No. 16111. WHEREFORE, the questioned decision of the respondent appellate court is hereby REVERSED. Civil Case No. 16111 is reinstated and the Regional Trial Court of Pangasinan, Branch XXXVII is directed to proceed in said case with dispatch. SO ORDERED. 5.

VALERO VS CA G.R. No. L-39532 July 20, 1979

This is supposedly a case about collation. FACTS: the spouses, Beatriz Bautista and Jose M. Valero, did not beget any child during their marriage In 1951 Beatriz adopted Carmen (Carmencita) Bautista. Jose

The probate court in its order of August 9, 1973 excluded the two lots from the inventory of the testator's estate but with the understanding "that the same are subject to collation". On December 4, 1973 or one hundred twelve days after Mrs. Rustia was served with a copy of that order, she filed a motion for its reconsideration. She insisted that she is the owner of the two San Lorenzo Village lots as indicated in the Torrens titles. No one opposed that motion. At the hearing of that motion, Mrs. Rustia's lawyer apprised the court that the executor informed him over the phone that he was not opposing the motion. The probate court in its order of December 14, 1973 ruled that the two lots were unconditionally excluded from the inventory of Jose M. Valero's estate, meaning "that they are not subject to collation". That order is the bone of contention in this case. Mrs. Rodriguez (without being joined by her sister, Mrs. Gutierrez) filed a motion for the reconsideration of the order of December 14, 1973. She alleged that the two San Lorenzo Village lots were really conveyed to Mrs. Rustia by way of donation because the consideration for the sale was allegedly only one-fifth of the true value of the lots. Mrs. Rodriguez further contended that the order of August 9, 1973 was final in character. In reply, Mrs. Rustia countered that the prior order was interlocutory and that in 1966 the true value of the two lots was around P120,000 and that their value increased considerably in 1973 or 1974. Moreover, the relatively low price of the sale could be attributed to the fact that Mrs. Rustia and her husband lived with the Valeros and were taking care of them. The probate court denied the motion for reconsideration. Mrs. Rodriguez and Mrs. Gutierrez, in their petition for certiorari in the Court of Appeals, assailed the probate court's order declaring that the two lots were not subject to collation. The Court of Appeals held that the order of exclusion dated August 9, 1973 was interlocutory and that it could be changed or Modified at anytime during the course of the administration proceedings.

NARTATEZ, CARELL RYZA

11

SPECIAL PROCEEDINGS CASES – RULE 73 It further held that it was immaterial whether the two lots were donated or sold to Mrs. Rustia as "a mere subterfuge to avoid payment of the donor's and donee's taxes". According to the Appellate Court, it was immaterial because under article 1061 of the Civil Code, only compulsory heirs are required to make collation for the determination of their legitimes and, under section 2, Rule 90 of the Rules of Court, only heirs are involved in questions as to advancement and Mrs. Rustia is not an heir of the testator, Jose M. Valero (Vda. de Rodriguez vs. Valero Rustia, CA-G. R. No. SP- 02944, August 28, 1974, per G. S. Santos, Gaviola, Jr. and De Castro, JJ.). From that decision, an appeal was made to this Court. The appeal was not given due course. However, upon motion for reconsideration and over Mrs. Rustia's opposition, the appeal was later allowed. The appellants' only assignment of error is that the Court of Appeals should have held that the probate court's order of exclusion dated August 9, 1973 was not interlocutory but was a final and appealable order valid that the order of December 14, 1973 modifying the order of August 3 is void.

On 2 October 1984 respondent Honor P. Moslares instituted an action for annulment of sale with damages before the Regional Trial Court of Manila against the Testate Estate of Nicolai Drepin represented by its Judicial Administrator Atty. Tomas Trinidad and petitioner Pio Barretto Realty Development Corporation. Moslares alleged that the Deed of Sale over four (4) parcels of land of the Drepin Estate executed in favor of the Barretto Realty was null and void on the ground that the same parcels of land had already been sold to him by the deceased Nicolai Drepin. The case was docketed as Civil Case No. 84-27008 and raffled to respondent Judge Perfecto A. S. Laguio, Jr., RTC-Br. 18, Manila. On 2 May 1986 the parties, to settle the case, executed a Compromise Agreement pertinent portions of which are quoted hereunder 1. The Parties agree to sell the Estate, subject matter of the instant case, which is composed of the following real estate properties, to wit:

HELD: We hold that the order of exclusion dated August 9, 1973 was not a final order. It was interlocutory in the sense that it did not settle once and for all the title to the San Lorenzo Village lots. The probate court in the exclusion incident could not determine the question of title. The prevailing rule is that for the purpose of determining whether a certain property should or should not be included in the inventory, the probate court may pass upon the title thereto but such determination is not conclusive and is subject to the final decision in a separate action regarding ownership which may be instituted by the parties

a. Three (3) titled properties covered by TCT Nos. 50539, 50540 and 50541[1] of the Registry of Deeds for the Province of Rizal, with a total area of 80 hectares, more or less, and

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

a. If plaintiff Honor P. Moslares x x x buys the property, he is under obligation, as follows:

Whether collation may exist with respect to the two lots and whether Mrs. Rustia's Torrens titles thereto are indefeasible are matters that may be raised later or may not be raised at all. How those issues should be resolved, if and when they are raised, need not be touched upon in the adjudication of this appeal. The intestate and testate proceedings for the settlement of the estates of the deceased Valero spouses were consolidated, as ordered by the lower court on November 21, 1974, so that the conjugal estate of the deceased spouses may be properly liquidated, as contemplated in section 2, Rule 73 of the Rules of Court and Act No. 3176 (Pages 223 and 235-6, Rollo). We have examined the expedientes of the two cases. We found that the proceedings have not yet reached the stage when the question of collation or advancement to an heir may be raised and decided. The numerous debts of the decedents are still being paid. The net remainder (remanente liquido) of their conjugal estate has not yet been determined. On the other hand, up to this time, no separate action has been brought by the appellants to nullify Mrs. Rustia's Torrens titles to the disputed lots or to show that the sale was in reality a donation. In this appeal, it is not proper to pass upon the question of collation and to decide whether Mrs. Rustia's titles to the disputed lots are questionable. The proceedings below have not reached the stage of partition and distribution when the legitimes of the compulsory heirs have to be determined. WHEREFORE, we affirm the decision of the Court of Appeals and the orders of the, lower court dated August 9 and December 14, 1973, excluding from the inventory of Jose M. Valeros estate the two San Lorenzo Village lots now registered in the name of Carmen B. Valero-Rustia, but we delete from that decision and the two orders any ruling regarding collation which is a matter that may be passed upon by the probate court at the time when it is seasonably raised by the interested parties, if it is ever raised at all. No costs. SO ORDERED.

b. Untitled Property, subject matter of (a) Land Registration Case No. 1602 of the Regional Trial Court, Pasig, Metro Manila, with an area of 81 hectares, more or less, subject to the following situations and conditions, to wit:

1. To reimburse and pay Defendant Pio Barretto Realty Development Corporation, represented by Anthony Que, its capital investment of Three Million Pesos (P3,000,000.00), Philippine Currency, and 2. To pay the Estate of Nicolai Drepin, represented by the Judicial Administrator, Atty. Tomas Trinidad, the sum of One Million Three Hundred Fifty Thousand (P1,350,000.00) Pesos, Philippine Currency b. If defendant Pio Barretto Realty Development Corporation, represented by Mr. Anthony Que x x x continue[s] to buy the property, it shall pay for the interests of plaintiff Honor P. Moslares: 1. The sum of One Million (P1,000.000.00) Pesos, Philippine Currency to plaintiff Honor P. Moslares personally and 2. Pay to the Estate of Nicolai Drepin, through the Judicial Administrator, Atty. Tomas Trinidad, the balance of the agreed purchase price subject to negotiation and verification of payments already made. 2. In the event that plaintiff Honor P. Moslares buys the Estate and pays in full the amount of Three Million (P3,000,000.00) Philippine Currency to defendant Pio Barretto Realty Development Corporation, and the full sum of One Million Three Hundred Fifty Thousand (P1,350,000.00) Pesos, Philippine Currency, to the Estate of Nicolai Drepin, through Atty. Tomas Trinidad, defendant Pio Barretto shall execute the corresponding Deed of Conveyance in favor of plaintiff Honor P. Moslares and deliver to him all the titles and pertinent papers to the Estate. IN WITNESS WHEREOF, the parties hereto hereby sign this Compromise Agreement at Manila, Philippines, this 2nd day of May 1986 x x x x x x x x x x x x On 24 July 1986 the trial court rendered a decision approving the Compromise Agreement.[2] However, subsequent disagreements arose on the question of who bought the properties first.

PIO BARRETTO VS CA – contract executed with the administrator with the imprimatur of the probate court may be rescinded and the probate court may pass upon the contract entered into by administrator and a 3rd person

It must be noted that the Compromise Agreement merely gave Moslares and Barretto Realty options to buy the disputed lots thus implicitly recognizing that the one who paid first had priority in right. Moslares claimed that he bought the lots first on 15 January 1990 by delivering to Atty. Tomas Trinidad two (2) PBCom checks, one (1) in favor of Barretto Realty for P3 million, and the other, in favor of the Drepin Estate for P1.35 million.

This petition for review on certiorari assails the Decision dated 30 June 1997 of the Court of Appeals in CA-G.R. SP No. 33982, "Pio Barretto Realty Development Corporation v. Hon. Perfecto A. Laguio, et al.," which dismissed the special civil action for certiorari filed by petitioner, as well as its Resolution dated 14 January 1998 denying reconsideration.

But petitioner Barretto Realty denied receiving the check. Instead, it claimed that it bought the properties on 7 March 1990 by tendering a Traders Royal Bank Manager's Check for P1million to Moslares, and a Far East Bank and Trust Company Cashier's Check for P1 million and a Traders Royal Bank Manager's Check for P350,000.00 to Atty.

6.

NARTATEZ, CARELL RYZA

12

SPECIAL PROCEEDINGS CASES – RULE 73

Tomas Trinidad as Judicial Administrator of the Estate. However, Moslares and Atty. Trinidad refused to accept the checks.

same date against Defendant Pio Barretto Realty Corporation Inc. is ordered quashed (underscoring ours).[6]

Consequently, Barretto Realty filed a motion before the trial court alleging that it complied with its monetary obligations under the Compromise Agreement but that its offers of payment were refused, and prayed that a writ of execution be issued to compel Moslares and Atty. Trinidad to comply with the Compromise Agreement and that the latter be directed to turn over the owner's duplicate certificates of title over the lots.

Within a reglementary period Moslares moved to reconsider insisting that Barretto Realty's payment by check was not valid because (a) the check was not delivered personally to him but to his counsel Atty. Pedro Ravelo, (b) the check was not encashed hence did not produce the effect of payment; and, (c) the check was not legal tender per judicial pronouncements. Barretto Realty opposed the motion, but to no avail. On 11 February 1994 respondent Judge granted the motion for reconsideration and set aside his Order of 7 December 1993. Judge Laguio ruled that Barretto Realty's payment through checks was not valid because "a check is not legal tender and it cannot produce the effect of payment until it is encashed x x x x the check in question has neither been negotiated nor encashed by the plaintiff."[7] At the same time, however, Moslares' alleged payment of P3,000,000.00 on 15 January 1990 intended for Barretto Realty but delivered to Atty. Tomas Trinidad was likewise decreed as not valid because the latter was not authorized to accept payment for Barretto Realty.

On 10 May 1990[3] Judge Laguio, Jr. ordered that "a writ of execution be issued for the enforcement of the decision of this Court for the parties to deposit with this Court, thru the City Treasurer's Office of Manila, their respective monetary obligations under the compromise agreement that had been executed by them x x x x" Reacting to the order, Atty. Trinidad for the Estate filed an urgent motion to hold the execution in abeyance on the ground that there was another case involving the issue of ownership over subject lots pending before the Regional Trial Court of Antipolo City. Moslares in turn filed a motion for reconsideration while Barretto Realty moved to amend the order since the lower court did not exactly grant what it prayed for. On 14 June 1990, ruling on the three (3) motions, Judge Laguio, Jr., issued his Order Considering Defendant Judicial Administrator's urgent motion to hold in abeyance x x x the plaintiff's motion for reconsideration, and the Defendant Pio Barretto Realty Development, Inc.'s opposition to both motions x x x this Court finds the two motions without merit and are accordingly, denied. As regards Pio Barretto Realty Development, Inc.'s ex-parte motion to amend order x x x the same is hereby granted and the deputy sheriff of this Court is allowed to deliver to the parties concerned thru their counsels the bank certified checks mentioned in par. 2 of the motion (underscoring ours).[4] On 20 June 1990 Deputy Sheriff Apolonio L. Golfo of the RTC-Br. 18, Manila, implemented the order by personally delivering the checks issued by Barretto Realty in favor of Moslares and the Estate to Atty. Pedro S. Ravelo, counsel for Moslares, and to Atty. Tomas Trinidad, respectively, as recorded in a Sheriff's Return dated 25 June 1990. [5] However, on 17 September 1993, or more than three (3) years later, Moslares filed a Motion for Execution alleging that he bought the lots subject of the Compromise Agreement on 15 January 1990 and that he paid the amounts specified as payment therefor. He asked that Barretto Realty be directed to execute a deed of conveyance over subject lots in his favor. In a Supplement to his motion Moslares contended that the previous tender of the checks by Barretto Realty did not produce the effect of payment because checks, according to jurisprudence, were not legal tender. Respondent Judge granted Moslares' Motion for Execution. Consequently, on 8 November 1993 Barretto Realty was ordered to execute a deed of conveyance over the subject lots in favor of Moslares. Aggrieved, Barretto Realty moved for reconsideration alleging that respondent Judge could no longer grant Moslares' motion since the prior sale of subject lots in its favor had already been recognized when the court sheriff was directed to deliver, and did in fact deliver, the checks it issued in payment therefor to Moslares and Atty. Trinidad. On 7 December 1993 respondent Judge granted the motion of Barretto Realty for reconsideration and ruled Considering the motion for reconsideration and to quash writ of execution filed by defendant Pio Barretto Realty Corporation, Inc., dated 16 November 1993, together with the plaintiff's comment and/or opposition thereto, dated 18 November 1993, and the movant's reply to the opposition etc., dated 20 November 1993, this Court finds the motion well taken. The record shows that on 10 May 1990, a writ of execution was issued by this Court for the parties to deposit with the Court, thru the City Treasurer's Office of Manila, their respective monetary obligations under the compromise agreement that they had executed, and that it was only defendant Pio Barretto Realty Corporation Inc. that had complied therewith, per the return of this Court's deputy sheriff, Apolonio L. Golfo, dated June 25, 1990. Such being the case, Defendant Pio Barretto Realty Corporation Inc., is the absolute owner of the real properties in question and the issue on such ownership is now a closed matter. WHEREFORE, Defendant Pio Barretto Realty Corporation Inc.'s motion for reconsideration etc., dated November 16, 1993, is hereby granted; this Court's order, dated November 8, 1993, is reconsidered and set aside, and the writ of execution of the

Invoking interest of justice and equity, respondent Judge resolved to: (a) set aside its ruling contained in its order of 7 December 1993 that "(d)efendant Pio Barretto Realty Corporation, Inc., is the absolute owner of the property in question and the issue on such ownership is now a closed matter;" (b) order the plaintiff (should he desire to exercise his option to buy the real property in question) to pay defendant Pio Barretto Realty Corporation, Inc., the sum of P3,000,000.00 within five (5) days from notice thereof by way of reimbursement of the latter's capital investment; and, (c) order defendant Pio Barretto Realty Development Corporation, Inc., to pay the plaintiff (in the event the latter should fail to exercise his said option and the former would want to buy the real property in question) the sum of P1,000,000.00. But Moslares failed to exercise his option and pay the amount within the five (5)-day period granted him. Instead, he filed a Supplemental Motion to Pay praying that he be given additional seven (7) days within which to do so. Barretto Realty opposed and invoked par. 3 of the Order of 11 February 1994 granting it the option to buy the lots in the event that Moslares should fail to pay within the period given him. Barretto Realty prayed that the P1 million cashier's check still in Moslares' possession be considered as sufficient compliance with the pertinent provision of the court's order. Later, Barretto Realty offered to exchange the check with cash. When Moslares did not appear however at the designated time for payment on 10 March 1994 before the Branch Clerk of Court, Barretto Realty filed a motion for consignation praying that it be allowed to deposit the P1,000,000.00 payment with the cashier of the Office of the Clerk of Court. Respondent Judge however failed to act on the motion as he went on vacation leave. For reasons which do not clearly appear in the record, Judge Rosalio G. dela Rosa, Executive Judge of the RTC, Manila, acted on the motion and granted the prayer of Barretto Realty.[8] Upon the return of respondent Judge Laguio from his vacation, petitioner Barretto Realty immediately filed a motion for his inhibition on the ground that he had already lost the cold neutrality of an impartial judge as evident from his "seesaw" orders in the case. On 28 March 1994 respondent Judge denied the motion for his inhibition. Moslares for his part moved for reconsideration of Executive Judge dela Rosa's Order of 10 March 1994. On 15 April 1994, in a Consolidated Order, respondent Judge Laguio set aside the questioned order of Executive Judge dela Rosa on the ground that the motion for consignation should have been referred to the pairing judge of Branch 18, Judge Zenaida Daguna of Branch 19. Respondent Judge further ruled that the questioned order was premature since there were pending motions, namely, Moslares' Supplemental Motion to Pay dated 1 March 1994, and Motion to Deposit dated 9 March 1994 which were both filed earlier than Barretto Realty's Motion for Consignation which however remained unresolved. Respondent Judge Laguio found Moslares' motions meritorious and granted them. Moslares was thus given a non-extendible grace period of three (3) days within which to pay the P3,000,000.00 to Barretto Realty. Moslares then deposited the amount with the Branch Clerk of Court of Br. 18 within two (2) days from receipt of the order of respondent Judge, and on 25 April 1994 filed a motion for the Clerk of Court to be authorized to execute the necessary deed of conveyance in his favor. On 2 May 1994 Barretto Realty filed a petition for certiorari and prohibition with prayer for a temporary restraining order and/or preliminary injunction with the Court of Appeals assailing the Orders of respondent Judge dated 28 March 1994 and 15 April 1994 on the ground that they were issued with grave abuse of discretion. Meanwhile, on 12 October 1994 or during the pendency of the petition, respondent Judge granted Moslares' motion and authorized the Clerk of Court to execute the deed of conveyance in his favor. The implementation of the order however was enjoined by the

NARTATEZ, CARELL RYZA

13

SPECIAL PROCEEDINGS CASES – RULE 73 Court of Appeals on 9 December 1994 when it issued a writ of preliminary injunction barring the issuance of the writ until further orders from the court. In its Petition and Memorandum petitioner specifically alleged that respondent Judge's Orders of 8 November 1993,[9] 11 February 1994,[10] 15 April 1994,[11] and 12 October 1994[12] were all issued with grave abuse of discretion as the trial court had no more jurisdiction to issue such orders since the Compromise Agreement of 2 May 1986 which was the basis of the decision of 24 July 1986 had already been executed and implemented in its favor way back on 20 June 1990. Petitioner likewise contended that the Order of 28 March 1994[13] denying petitioner's motion for inhibition was void because it did not state the legal basis thereof; that respondent Judge displayed obvious bias and prejudice when he issued "seesaw" orders in the case; and, that the bias in favor of Moslares was apparent when respondent Judge granted the former another three (3)-day period within which to pay the P3 million notwithstanding the fact that Moslares failed to comply with the original five (5)-day period given him. With respect to Executive Judge dela Rosa's Order of 10 March 1994, petitioner contended that there was no rule of procedure prohibiting the Executive Judge from acting on an urgent motion even if the pairing judge of the judge to whom the case was raffled was present. The Court of Appeals dismissed the petition. It ruled that the denial by respondent Judge of the motion for his inhibition was not tainted with grave abuse of discretion correctible by certiorari. Aside from the fact that judges are given a wide latitude of discretion in determining whether to voluntarily recuse themselves from a case, which is not lightly interfered with, the appellate court however observed that the orders and resolutions issued by respondent Judge in the five (5) years he had been presiding over Civil Case No. 84-27008 indicated that they were not uniformly issued in favor of one or the other party. As petitioner itself aptly described, respondent Judge's actuations in the case "seesawed" between the parties. On the matter of the validity of Judge dela Rosa's Order of 10 March 1994 granting petitioner's motion for consignation, the Court of Appeals ruled that the order was precipitate and unauthorized not only because the motion did not comply with the requisites for litigated motions but also because Judge dela Rosa had no judicial authority to act on the case. His duties as Executive Judge were purely administrative and did not include acting on a case assigned to another judge. With respect to the two (2) writs of execution, one dated 10 May 1990 in favor of petitioner, and the other dated 11 February 1994 in favor of respondent, the Court of Appeals ruled Lastly, anent the existence of two writs of execution, first one for petitioner and the second for Moslares which the former has repeatedly cited as capricious and whimsical exercise of judicial discretion by respondent Judge, the records reveal that on 10 May 1990 a writ of execution was issued in favor of the petitioner upon its motion. For reasons of its own, petitioner did not pursue its effective and fruitful implementation in accordance with the decision based on a compromise agreement, spelling out the respective monetary obligations of petitioner and Moslares. Hence, after the lapse of at least one year, Moslares filed a motion for execution of the same decision x x x x [I]t cannot be said that respondent Judge issued two conflicting orders sans any legal basis. What really happened was that the matter of the first order granting execution in favor of petitioner was repeatedly put at issue until the order of the court dated 11 February 1994 x x x x Observedly, the said order was never elevated by petitioner to the appellate courts. Instead, he agreed with it by filing a "Manifestation and Motion on 01 March 1994 praying that the P1 Million Cashier's Check still in the possession of Moslares be considered compliance with paragraph 3 of that order x x x x On 14 January 1998 petitioner's motion for reconsideration was denied; hence, this petition. Petitioner contends that the Court of Appeals erred (a) in concluding that petitioner did not pursue the effective and fruitful implementation of the writ of execution dated 10 May 1990 in its favor, (b) in not setting aside Judge Laguio's Orders dated 11 February 1994, 15 April 1994 and 12 October 1994 as patent nullities, and, (c) in disregarding jurisprudence declaring that cashier's or manager's checks are deemed cash or as good as the money they represent. We grant the petition. Final and executory decisions, more so with those already executed, may no longer be amended except only to correct errors which are clerical in nature. They become the law of the case and are immutable and unalterable regardless of any claim of error or incorrectness.[14] Amendments or alterations which substantially

affect such judgments as well as the entire proceedings held for that purpose are null and void for lack of jurisdiction.[15] The reason lies in the fact that public policy dictates that litigations must be terminated at some definite time and that the prevailing party should not be denied the fruits of his victory by some subterfuge devised by the losing party.[16] It is not disputed, and in fact borne by the records, that petitioner bought the disputed lots of the Drepin Estate subject matter of the Compromise Agreement ahead of Moslares and that the checks issued in payment thereof were even personally delivered by the Deputy Sheriff of the RTC-Br. 18, Manila, upon Order of respondent Judge dated 14 June 1990 after tender was refused by Moslares and the Drepin Estate. Respondent Moslares never raised the invalidity of the payment through checks either through a motion for reconsideration or a timely appeal. Hence, with the complete execution and satisfaction of the Decision dated 24 July 1986 which approved the Compromise Agreement, Civil Case No. 84-27008 became closed and terminated leaving nothing else to be done by the trial court with respect thereto.[17] As petitioner correctly contended, the Court of Appeals erred when it concluded that petitioner did not pursue the fruitful and effective implementation of the writ of execution in its favor. As already stated petitioner paid for the lots through the court-sanctioned procedure outlined above. There was no more need for the Drepin Estate, owner of the lots, to execute a deed of conveyance in petitioner's favor because it had already done so on 10 October 1980. In fact the disputed lots were already registered in petitioner's name under TCT Nos. 50539, 50540 and 50541 as a consequence thereof. That was also why in the penultimate paragraph of the Compromise Agreement it was provided that in the event respondent Moslares bought the lots ahead of petitioner Barretto Realty the latter, not the Drepin Estate, was to execute the corresponding deed of conveyance and deliver all the titles and pertinent papers to respondent Moslares. There was therefore nothing more to be done by way of fruitful and effective implementation. Clearly then respondent Judge Laguio no longer had any jurisdiction whatsoever to act on, much less grant, the motion for execution and supplement thereto filed by Moslares on 17 September 1993 or more than three (3) years later, claiming that he had already bought the lots. The fact that the check paid to him by Barretto Realty was never encashed should not be invoked against the latter. As already stated, Moslares never questioned the tender done three (3) years earlier. Besides, while delivery of a check produces the effect of payment only when it is encashed, the rule is otherwise if the debtor was prejudiced by the creditor's unreasonable delay in presentment. Acceptance of a check implies an undertaking of due diligence in presenting it for payment. If no such presentment was made, the drawer cannot be held liable irrespective of loss or injury sustained by the payee. Payment will be deemed effected and the obligation for which the check was given as conditional payment will be discharged.[18] Considering the foregoing, respondent Judge Laguio's Order dated 8 November 1993 which granted private respondent's motion for execution thus nullifying the 1990 sale in favor of petitioner after he had in effect approved such sale in his Order of 14 June 1990 and after such order had already become final and executory, amounted to an oppressive exercise of judicial authority, a grave abuse of discretion amounting to lack of jurisdiction, for which reason, all further orders stemming therefrom are also null and void and without effect.[19] The principle of laches does not attach when the judgment is null and void for want of jurisdiction.[20] The fact that petitioner invoked par. 3 of the Order of 11 February 1994 praying that its P1,000,000.00 check still in Moslares' possession be considered sufficient payment of the disputed lots, could not be cited against it. For one thing, petitioner from the very start had always consistently questioned and assailed the jurisdiction of the trial court to entertain respondent's motion for execution filed three (3) years after the case had in fact been executed. Secondly, estoppel being an equitable doctrine cannot be invoked to perpetuate an injustice.[21] WHEREFORE, the questioned Decision and Resolution of the Court of Appeals dated 30 June 1997 and 14 January 1998, respectively, are REVERSED and SET ASIDE. The Order of respondent Judge Perfecto A. S. Laguio Jr. dated 11 February 1994 in Civil Case No. 84-27008, setting aside his earlier ruling of 7 December 1993 which had declared petitioner Pio Barretto Realty Development Corporation as the absolute owner of the real properties in question, and all subsequent proceedings culminating in the Order of 12 October 1994 authorizing the Clerk of Court, RTC-Manila, to execute a deed of conveyance over subject properties in favor of respondent Honor P. Moslares, are declared NULL and VOID for want of jurisdiction. Consequently, petitioner Pio Barretto Realty Development Corporation is declared the absolute owner of the disputed properties subject matter of the Compromise Agreement dated 2 May 1986 as fully implemented by the Deputy Sheriff, RTC-Br. 18, Manila,

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14

SPECIAL PROCEEDINGS CASES – RULE 73

pursuant to the final and executory Order dated 14 June 1990 of its Presiding Judge Perfecto A. S. Laguio, Jr. SO ORDERED. 7. DOROTHEO VS CA – [G.R. No. 108581. December 8, 1999] LOURDES L. DOROTHEO, petitioner, vs. COURT OF APPEALS, NILDA D. QUINTANA, for Herself and as Attorney-in-Fact of VICENTE DOROTHEO and JOSE DOROTHEO, respondents. May a last will and testament admitted to probate but declared intrinsically void in an order that has become final and executory still be given effect? This is the issue that arose from the following antecedents: Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta Reyes. The latter died in 1969 without her estate being settled. Alejandro died thereafter. Sometime in 1977, after Alejandros death, petitioner, who claims to have taken care of Alejandro before he died, filed a special proceeding for the probate of the latters last will and testament. In 1981, the court issued an order admitting Alejandros will to probate. Private respondents did not appeal from said order. In 1983, they filed a Motion To Declare The Will Intrinsically Void. The trial court granted the motion and issued an order, the dispositive portion of which reads: WHEREFORE, in view of the foregoing, Order is hereby issued declaring Lourdes Legaspi not the wife of the late Alejandro Dorotheo, the provisions of the last will and testament of Alejandro Dorotheo as intrinsically void, and declaring the oppositors Vicente Dorotheo, Jose Dorotheo and Nilda Dorotheo Quintana as the only heirs of the late spouses Alejandro Dorotheo and Aniceta Reyes, whose respective estates shall be liquidated and distributed according to the laws on intestacy upon payment of estate and other taxes due to the government.[1] Petitioner moved for reconsideration arguing that she is entitled to some compensation since she took care of Alejandro prior to his death although she admitted that they were not married to each other. Upon denial of her motion for reconsideration, petitioner appealed to the Court of Appeals, but the same was dismissed for failure to file appellants brief within the extended period granted.[2] This dismissal became final and executory on February 3, 1989 and a corresponding entry of judgment was forthwith issued by the Court of Appeals on May 16, 1989. A writ of execution was issued by the lower court to implement the final and executory Order. Consequently, private respondents filed several motions including a motion to compel petitioner to surrender to them the Transfer Certificates of Titles (TCT) covering the properties of the late Alejandro. When petitioner refused to surrender the TCTs, private respondents filed a motion for cancellation of said titles and for issuance of new titles in their names. Petitioner opposed the motion. An Order was issued on November 29, 1990 by Judge Zain B. Angas setting aside the final and executory Order dated January 30, 1986, as well as the Order directing the issuance of the writ of execution, on the ground that the order was merely interlocutory, hence not final in character. The court added that the dispositive portion of the said Order even directs the distribution of the estate of the deceased spouses. Private respondents filed a motion for reconsideration which was denied in an Order dated February 1, 1991. Thus, private respondents filed a petition before the Court of Appeals, which nullified the two assailed Orders dated November 29, 1990 and February 1, 1991. Aggrieved, petitioner instituted a petition for review arguing that the case filed by private respondents before the Court of Appeals was a petition under Rule 65 on the ground of grave abuse of discretion or lack of jurisdiction. Petitioner contends that in issuing the two assailed orders, Judge Angas cannot be said to have no jurisdiction because he was particularly designated to hear the case. Petitioner likewise assails the Order of the Court of Appeals upholding the validity of the January 30, 1986 Order which declared the intrinsic invalidity of Alejandros will that was earlier admitted to probate. Petitioner also filed a motion to reinstate her as executrix of the estate of the late Alejandro and to maintain the status quo or lease of the premises thereon to third parties. [3] Private respondents opposed the motion on the ground that petitioner has no interest in the estate since she is not the lawful wife of the late Alejandro. HELD: The petition is without merit. A final and executory decision or order can no longer be disturbed or reopened no matter how erroneous it may be. In setting aside the January 30, 1986 Order that has attained finality, the trial court in effect nullified the entry of judgment made by the Court of Appeals. It is well settled that a lower court cannot reverse or set aside decisions or orders of a superior court, for to do so would be to negate the hierarchy of courts and nullify the essence of review. It has been ruled that a final judgment on probated will, albeit erroneous, is binding on the whole world.[4]

It has been consistently held that if no appeal is taken in due time from a judgment or order of the trial court, the same attains finality by mere lapse of time. Thus, the order allowing the will became final and the question determined by the court in such order can no longer be raised anew, either in the same proceedings or in a different motion. The matters of due execution of the will and the capacity of the testator acquired the character of res judicata and cannot again be brought into question, all juridical questions in connection therewith being for once and forever closed.[5] Such final order makes the will conclusive against the whole world as to its extrinsic validity and due execution.[6] It should be noted that probate proceedings deals generally with the extrinsic validity of the will sought to be probated,[7] particularly on three aspects: 1.

whether the will submitted is indeed, the decedents last will and testament;

2.

compliance with the prescribed formalities for the execution of wills;

3.

the testamentary capacity of the testator;[8]

4.

and the due execution of the last will and testament.[9]

Under the Civil Code, due execution includes a determination of whether the testator was of sound and disposing mind at the time of its execution, that he had freely executed the will and was not acting under duress, fraud, menace or undue influence and that the will is genuine and not a forgery,[10] that he was of the proper testamentary age and that he is a person not expressly prohibited by law from making a will.[11] The intrinsic validity is another matter and questions regarding the same may still be raised even after the will has been authenticated.[12] Thus, it does not necessarily follow that an extrinsically valid last will and testament is always intrinsically valid. Even if the will was validly executed, if the testator provides for dispositions that deprives or impairs the lawful heirs of their legitime or rightful inheritance according to the laws on succession,[13] the unlawful provisions/dispositions thereof cannot be given effect. This is specially so when the courts had already determined in a final and executory decision that the will is intrinsically void. Such determination having attained that character of finality is binding on this Court which will no longer be disturbed. Not that this Court finds the will to be intrinsically valid, but that a final and executory decision of which the party had the opportunity to challenge before the higher tribunals must stand and should no longer be reevaluated. Failure to avail of the remedies provided by law constitutes waiver. And if the party does not avail of other remedies despite its belief that it was aggrieved by a decision or court action, then it is deemed to have fully agreed and is satisfied with the decision or order. As early as 1918, it has been declared that public policy and sound practice demand that, at the risk of occasional errors, judgments of courts must at some point of time fixed by law[14] become final otherwise there will be no end to litigation. Interes rei publicae ut finis sit litium - the very object of which the courts were constituted was to put an end to controversies.[15] To fulfill this purpose and to do so speedily, certain time limits, more or less arbitrary, have to be set up to spur on the slothful.[16] The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence,[17] which circumstances do not concur herein. Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity of the will, as she precisely appealed from an unfavorable order therefrom. Although the final and executory Order of January 30, 1986 wherein private respondents were declared as the only heirs do not bind those who are not parties thereto such as the alleged illegitimate son of the testator, the same constitutes res judicata with respect to those who were parties to the probate proceedings. Petitioner cannot again raise those matters anew for relitigation otherwise that would amount to forum-shopping. It should be remembered that forum shopping also occurs when the same issue had already been resolved adversely by some other court.[18] It is clear from the executory order that the estates of Alejandro and his spouse should be distributed according to the laws of intestate succession. Petitioner posits that the January 30, 1986 Order is merely interlocutory, hence it can still be set aside by the trial court. In support thereof, petitioner argues that an order merely declaring who are heirs and the shares to which set of heirs is entitled cannot be the basis of execution to require delivery of shares from one person to another particularly when no project of partition has been filed.[19] The trial court declared in the January 30, 1986 Order that petitioner is not the legal wife of Alejandro, whose only heirs are his three legitimate children (petitioners herein), and at the same time it nullified the will. But it should be noted that in the same Order, the trial court also said that the estate of the late spouses be distributed according to the laws of intestacy. Accordingly, it has no option but to implement that order of intestate distribution and not to reopen and again re-examine the intrinsic provisions of the same will.

NARTATEZ, CARELL RYZA

15

SPECIAL PROCEEDINGS CASES – RULE 73 It can be clearly inferred from Article 960 of the Civil Code, on the law of successional rights that testacy is preferred to intestacy.[20] But before there could be testate distribution, the will must pass the scrutinizing test and safeguards provided by law considering that the deceased testator is no longer available to prove the voluntariness of his actions, aside from the fact that the transfer of the estate is usually onerous in nature and that no one is presumed to give - Nemo praesumitur donare.[21] No intestate distribution of the estate can be done until and unless the will had failed to pass both its extrinsic and intrinsic validity. If the will is extrinsically void, the rules of intestacy apply regardless of the intrinsic validity thereof. If it is extrinsically valid, the next test is to determine its intrinsic validity that is whether the provisions of the will are valid according to the laws of succession. In this case, the court had ruled that the will of Alejandro was extrinsically valid but the intrinsic provisions thereof were void. Thus, the rules of intestacy apply as correctly held by the trial court. Furthermore, Alejandros disposition in his will of the alleged share in the conjugal properties of his late spouse, whom he described as his only beloved wife, is not a valid reason to reverse a final and executory order. Testamentary dispositions of properties not belonging exclusively to the testator or properties which are part of the conjugal regime cannot be given effect. Matters with respect to who owns the properties that were disposed of by Alejandro in the void will may still be properly ventilated and determined in the intestate proceedings for the settlement of his and that of his late spouses estate. Petitioners motion for appointment as administratrix is rendered moot considering that she was not married to the late Alejandro and, therefore, is not an heir. WHEREFORE, the petition is DENIED and the decision appealed from is AFFIRMED. SO ORDERED. 8. LACHENAL VS SALAS – the court did NOT entertain the issue of ownership. The probate court could not rule upon the validity of the contract. His son in law is considered as a stranger. [G.R. No. L-42257. June 14, 1976.] ILDEFONSO LACHENAL, ELIAS LACHENAL, IRENEA L. SANTOS, FLORA L. SANCHEZ and NATIVIDAD D. LACHENAL, Petitioners, v. HON. EMILIO V. SALAS, Presiding Judge of the Court of First Instance of Pasig, Rizal, Branch I, and FLAVIANA L. LEONIO, Respondents. SYNOPSIS In the probate court, the executor asked that private respondent, who is one of the compulsory heirs, and her husband, be required to pay the rentals on a fishing boat, which was among the properties included in the inventory, and to return the same for drydocking and repair. Respondent opposed the motion and asked for the exclusion of said boat from the estate, claiming that she is the owner thereof having bought the same from, their father. The probate court designated a commissioner to receive evidence relative to ownership of the boat. After respondent completed the presentation of her evidence, the executor together with the other children of the deceased filed in the Court of First Instance a separate action to recover the boat and back rentals with damages. Thereafter, plaintiffs in said civil case asked the probate court to exclude the boat from the decedent’s estate on the ground that the jurisdiction to resolve the question of ownership rests upon the Court of First Instance.

1. COURTS; JURISDICTION; PROBATE COURT LACKS JURISDICTION TO PASS UPON QUESTION OF TITLE TO PROPERTY INVOLVING THIRD PERSONS. — The question of title to a property should be determined in a separate action before the Court of First Instance , where it affects the lessee who is the decedent’s son-in-law, and who although married to his daughter or compulsory heir, is nevertheless a third person with respect to the estate. The administrator may not push him against his will, by motion, into the administrative proceedings. The general rule is that question as to title to property cannot be passed upon in testate or intestate proceeding but should be ventilated in a separate action. 2. ID.; ID.; ID.; PROBATE COURT MAY PROVISIONALLY PASS UPON QUESTION OF TITLE WHERE A PARTY MOVES FOR THE INCLUSION OR EXCLUSION OF PROPERTY FROM THE INVENTORY OF THE ESTATES. — Where a party in a probate proceeding pray for the inclusion in, or exclusion from, the inventory of a piece of property , the probate court may provisionally pass upon the question without prejudice to its final determination in a separate action. 3. ID.; ID.; COURT OF FIRST INSTANCE IS A COURT OF GENERAL ORIGINAL JURISDICTION. — The Court of First Instance is a court of general original jurisdiction invested with power to take cognizance of all kinds of cases; civil cases, criminal cases, special proceedings, land registration, guardianship, naturalization , admiralty and insolvency cases. 4. ID.; ID.; ID.; PROCEDURAL QUESTION INVOLVING MODE OF PRACTICE, WAIVABLE. — Whether a particular matter should be resolved by the Court of First Instance in the exercise of its general jurisdiction or of its limited jurisdiction as a special court is in reality not a question of jurisdiction over the subject matter, it is in essence a procedural question involving a mode of practice "which may be waived."cralaw virtua1aw library 5. ID.; ID.; PROBATE JURISDICTION INCLUDES ALL MATTERS RELATIVE TO THE SETTLEMENT OF ESTATES OF DECEASED PERSONS. — Probate jurisdiction includes all matters relating to the settlement of estates and the probate of wills of deceased persons (Sec. 599, Act 190), particularly the administration of the decedent’s estate, the payment of his debts, questions as to collation or advancements to the heirs, the liquidation of the conjugal partnership, and the partition and distribution of the estate. 6. SETTLEMENT OF ESTATE OF DECEASED PERSONS; DUTY OF EXECUTOR OR ADMINISTRATOR; ACTIONS FOR CAUSES WHICH MAY SURVIVE MAY BE COMMENCED AGAINST THE EXECUTOR OR ADMINISTRATOR. — For the recovery or protection of the property of rights of the decedent, an executor or administrator may bring or defend in the right of the decedent, actions for causes which survive. Actions to recover real or personal property, or an interest therein, from the decedent’s estate, or to enforce a lien thereon, and actions to recover damages for an injury in person or property, real or personal, may be commenced against an executor or administrator. 7. ID.; ID.; ID.; RENTALS; RENTALS DUE THE DECEDENT’S ESTATE MUST BE COLLECTED IN A SEPARATE ACTION. — Rentals due to decedent’s estate may not be collected by filing a motion in the testate proceedings because said rentals do not constitute property in the administrator’s hands and are not thus within the effective control of the probate court. The proper procedure in collecting such rentals is to file an independent action so that the right of the estate thereto may be threshed out in a full dress trials on the merits.

Questioned order set aside.

8. ID.; REASONS FOR ADJUDICATING QUESTIONS OF TITLE IN A SEPARATE ACTION. — Normally, it is expedient and convenient that the question of title to property, which arises between decedent’s estate and other persons, should be adjudicated in a separate action because such question requires the presentation of appropriate pleadings. A resort to the modes of discovery may be necessary so that the issues may be clearly defined and the trial may be expedited. Those matters can be effectively accomplished in an ordinary action rather that in the testamentary or intestate proceedings. The court may also have to resolve ancillary issues as to damages and counterclaims for money or property. Ultimately, execution has to be issued. The execution of a judgment is usually made by the Court of First instance in an ordinary action and not in a special proceedings.

SYLLABUS

9. ID.; DUTY OF COURT TO ASSIST PARTY LITIGANTS WHO ARE MEMBERS OF THE SAME FAMILY. — Where the controversy over the fishing boat

The probate court denied the motion and held that it has jurisdiction over the issue of ownership because the heirs had agreed to present their evidence on the point before a commissioner. Hence, this petition for prohibition and certiorari. The Supreme Court held that the probate court has no jurisdiction to decide the question of ownership over the fishing boat as it involved the lessee, who, although, married to one of the compulsory heirs, is nevertheless a third person with respect to the estate of the deceased.

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concerns members of the same family, the court should endeavor before trial to persuade the litigants to agree upon some fair compromise.

although married to his daughter or compulsory heir, is nevertheless a third person with respect to estate. "The administrator may not pull him against his will, by motion, into the administration proceedings" (De la Cruz v. Camon, 63 O.G. 8704, 16 SCRA 886; De Paula v. Escay, infra).chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

DECISION This case falls under the general rule that questions as to title to property cannot be passed upon in the testate or intestate proceeding but should be ventilated in a separate action (Ongsingco v. Tan, 97 Phil. 330, 334; Bernardo v. Court. of Appeals, 117 Phil. 385; Magallanes v. Kayanan, L-31048, January 20, 1976: Recto v. Dela Rosa, L-42799, March 16, 1976).

AQUINO, J.: Victorio Lachenal died on November 20, 1969. His testate estate is pending settlement in the Court of First Instance of Rizal, Pasig Branch I (Special Proceeding No. 5836). His son, Ildefonso Lachenal, was named executor of his will. Among the properties included in the inventory of his estate is a fishing boat called Lachenal VII. On April 1, 1971 the executor filed in that proceeding a motion to require the spouses Lope L. Leonio and Flaviana Lachenal Leonio to pay the rentals for the lease of Lachenal VII and return the boat to Navotas, Rizal for drydocking and repair. Mrs. Leonio, who was a daughter of the testator, opposed the executor’s motion. She countered with a motion to exclude fishing boat from the decedent’s estate. She claimed that she is the owner of the boat because she purchased it from her father in 1967. The executor opposed the motion for exclusion. The probate court in its order of January 28, 1972 designated commissioner to receive the evidence of the parties relative the ownership of the motorboat. Mrs. Leonio had already finished the presentation of her evidence before the commissioner. The executor did not present his countervailing evidence. Instead, on July 8, 1975 he and the testator’s other children named Flora, Elias and Irenea, and the children of a deceased child filed in the Caloocan City Branch of the Court of First Instance of Rizal an action against the Leonio spouses and the other three children of the testator named Crispula, Modesto and Esperanza, for the recovery of the motorboat Lachenal VII, allegedly valued at P150,000, together with back rentals and damages (Civil Case No. 3597).chanrobles law library It was alleged in the complaint that Victorio Lachenal in 1964 leased the said motorboat to his son-in-law, Lope L. Leonio, for a monthly rental of P2,000 and that after Victorio’s death, the executor of his estate demanded from Leonio the return of the boat and the payment of the back rentals. On July 20, 1975 the said plaintiffs in Civil Case No. 3597 filed in the probate court their own motion to exclude the said motorboat from the decedent’s estate on the ground that the, probate court has no jurisdiction to decide the question as to its ownership because that matter has to be resolved by the Caloocan court where Civil Case No. 3597 is pending. The probate court denied that motion. It held that it has jurisdiction over the issue of ownership because the heirs had agreed to present their evidence on that point before a commissioner. It invoked the rule that generally "questions of title to property cannot be passed upon in testate or intestate proceedings, except when the parties interested are all heirs of the deceased, in which event it is optional upon them to submit to the probate court the question as to title to property and when so submitted, said probate court may definitely pass judgment thereon. The reason is that questions of collation or advancement are generally inevitably involved therein which are proper matters to be passed upon in the due course of administration. And it has also been held that with the consent of the parties, matters affecting property under administration may be taken cognizance of by the court in the course intestate proceedings provided the interests of third persons are not prejudiced." (3 Moran’s Comments on the Rules of Court, 1970 Edition, page 473, citing Alvarez v. Espiritu, L-18833, August 14, 1965, 14 SCRA 892, 899; Pascual v. Pascual, 73 Phil. 561; Vda. de Mañalac v. Ocampo, 73 Phil. 661; Cunanan v. Amparo, 80 Phil. 227; Dinglasan v. Ang Chia, 88 Phil. 476; Baquial v. Amihan, 92 Phil. 501). On January 5, 1976 the executor and his co-plaintiffs in Civil Case No. 3597 filed these special civil actions of prohibition and certiorari against the probate court. The issue is whether the probate court should be allowed continue the hearing on the ownership of the fishing boat or whether that question should be left to the determination of the Caloocan court where the subsequent separate action (now in the pre-trial stage) for the recovery of the motorboat is pending. We hold that the title to the fishing boat should be determined in Civil Case No. 3597 because it affects the lessee thereof, Lope L. Leonio, the decedent’s son-in-law, who,

Where a party in a probate proceeding prays for the inclusion in, or exclusion from, the inventory of a piece of property, the court may provisionally pass upon the question without prejudice to its final determination in a separate action (Garcia v. Garcia, 67 Phil. 353: Guinguing v. Abuton, 48 Phil. 144, 147; Junquera v. Borromeo, L-18498, March 30, 1967, 19 SCRA 656; Borromeo v. Canonoy, L-25010. March 30, 1967, 19 SCRA 667). The Court of First Instance is a court of general original jurisdiction invested with power to take cognizance of all kinds of cases: civil cases, criminal cases, special proceedings, land registration, guardianship, naturalization, admiralty insolvency cases (Sec. 39, Judiciary Law; De Paula v. Escay, 97 Phil. 617, 619; Manalo v. Mariano, L-33850, January 22, 1976). Whether a particular matter should be resolved by the Court of First Instance in the exercise of its general jurisdiction or of its limited jurisdiction as a special court (probate land registration, etc.) is in reality not a question of jurisdiction over the subject matter. It is in essence a procedural question involving a mode of practice "which may be waived" (Cunanan v. Amparo, supra, page 232; Cf. Reyes v. Diaz, 73 Phil. 484 re jurisdiction over the issue). Probate jurisdiction includes all matters relating to the settlement of estates and the probate of wills of deceased persons (Sec. 599, Act 190), particularly the administration of the decedent’s estate, the payment of his debts, questions as to collation or advancements to the heirs, the liquidation of the conjugal partnership, and the partition and distribution of the estate (De La Cruz v. Camon, supra). For the recovery or protection of the property or rights of the decedent, an executor or administrator may bring or defend in the right of the decedent, actions for causes which survive. Actions to recover real or personal property, or an interest therein, from the decedent’s estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal, may be commenced against an executor or administrator (Secs. 1 and 2, Rule 87, Rules of Court). In the instant case, the executor, by virtue of section 2 of Rule 87, filed a separate action in the Caloocan court for the recovery of the fishing boat and back rentals from the Leonio spouses. In the De la Cruz case. supra. It was held that rentals allegedly due to the decedent’s estate may not be collected by the administrator by filing a motion in the testate proceeding. The said rentals do not constitute property in the administrator’s hands and are not thus within the effective control of the probate court. The proper procedure in collating such rentals is to file an independent action in the Court of First Instance so that the right of the estate thereto may be the threshed out in a full-dress trial on the merits. The ruling in the De la Cruz case applies with stronger force to this case because here the executor seeks to recover not only the rentals but also the leased property itself, as to which the wife of the lessee had asserted adverse title. Normally, it is expedient and convenient that the question of title to property, which arises between the decedent’s estate and other persons, should be adjudicated in a separate action because such a question requires the presentation of appropriate pleadings (complaint, motion to dismiss, answer, counterclaim and reply). A resort to the modes of discovery may be necessary so that the issues may be clearly defined and the trial may be expedited. Those matters can be effectively accomplished in an ordinary action rather than in the testamentary or intestate proceeding (Mangaliman v. Gonzales, L-21033, December 28, 1970, 36 SCRA 462).chanrobles.com:cralaw:red The court may also have to resolve ancillary issues as to damages and counterclaims for money or property. Ultimately execution has to be issued. The execution of a judgment is usually made by the Court of First Instance in an ordinary action and not in a special proceeding (See Magallanes v. Kayanan, supra). In the instant case, inasmuch as the controversy over the fishing boat concerns members of the same family, the Caloocan court should endeavor before trial to persuade the

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SPECIAL PROCEEDINGS CASES – RULE 73 litigants to agree upon some compromise (Arts. 222 and 2029, Civil Code; Sec. 1[j], Rule 16, Rules of Court).

R, inasmuch as it is now the property claimed by him which is covered by Transfer Certificate of Title No. 50269." 8

WHEREFORE, the probate court’s orders of September 17 and October 20, 1975, asserting its jurisdiction to decide the title to the fishing boat, Lachenal VII, are set aside. No costs.

Pursuant thereto, the herein petitioners filed an Omnibus Motion in Civil Case No. 231-R, to which was attached an amended complaint wherein some defendants were dropped. 9 The respondent Judge, however, found that the Amended Complaint did not comply with his order of 30 October 1975 to exclude Lot E and dismissed the case, "without prejudice on the part of the plaintiffs to file a proper complaint for the recovery of ownership or possession of the property in controversy which is Lot B in the relocation plan and formerly covered by Original Certificate of Title No. 23684, now under Transfer Certificate of Title No. 50269." 10

SO ORDERED. 9.

BAYBAYAN VS AQUINO – determination of ownership of the lots is merely provisional must yield to the outcome of the case by the courts of general jurisdiction.

G.R. No. L-42678

April 9, 1987

This is a petition for certiorari to annul and set aside the Order issued by the respondent Judge on 4 December 1975, which dismissed, without prejudice, the petitioners' complaint filed in Civil Case No. 23 1 -R of the then Court of First Instance of Pangasinan, as well as the Order, dated 24 December 1975, which denied petitioners' motion for the reconsideration of said order. The antecedent facts of the case are as follows: On 19 January 1960, herein private respondents Norberto Padua, Paulina Padua, Felisa Padua, Dionisia Orpiano, Laureano Orpiano, Leonardo Orpiano, Josefina Orpiano, Valentina Orpiano, Servillano Delfin, Gertrudes Delfin, Pastors Delfin Lorenzo Delfin, Fausta Delfin, Dionisio Oria, Faustina Oria, Amado Oria, and Benjamin Oria, all claiming to be the nephews and nieces of one Vicente Oria who died intestate sometime in 1945 in Balungao, Pangasinan, filed a petition for the summary settlement of the decedent's estate, the value of which did not exceed P6,000.00. The petition was filed in the then Court of First Instance of Pangasinan, Tayug Branch. The case was docketed therein as Special Proceeding No. T-300. 1 After due publication and hearing, the probate court issued an order adjudicating the estate to the heirs of the decedent, who were ordered to submit a project of partition. 2 Sometime in 1971, the case was transferred to the Resales Branch of the Court of First Instance of Pangasinan where it was docketed as Spec. Proc. No. 24-R. On 18 September 1974, the probate court confirmed the adjudication earlier made and ordered Eulalia Evangelista to deliver the respective shares of her co-heirs; to make an accounting of the produce thereof from 1960; and to deliver said produce to her co-heirs or pay its equivalent. A writ of execution was subsequently issued pursuant thereto. 3 A writ of possession was also issued sometime thereafter, and the private respondents were placed in possession of their respective shares. 4 However, when a representative of the private respondents went to cultivate the portion adjudicated to said private respondents, he was prevented by Jose Diaz and Cipriano Evangelista. In view thereof, the private respondents filed a motion to cite said Jose Diaz and Cipriano Evangelista in contempt of court. 5 As a consequence, herein petitioners Pedro Baybayan, Cipriano Evangelists, and the spouses Bartolome and Consuelo Baybayan, claiming to be the registered owners of the lots involved, filed a complaint in the Court of First Instance of Pangasinan, Rosales Branch docketed therein as Civil Case No. 231-R, against the Deputy Sheriff and the herein private respondents, for the quieting of their title, plus damages, and to restrain said defendants from enforcing the writ of execution issued in Spec. Proc. No. 24-R. 6 Meanwhile, at the hearing of the motion for contempt in Spec. Proc. No. 24-R, the question of the Identity of the lands subject of Spec. Proc. No. 24-R, was brought up, so that the probate court ordered a relocation survey and commissioned a geodetic engineer to undertake said survey. After the survey, the commissioner submitted to the Court a report stating, among others, that the lands which were delivered by the Deputy Sheriff to the heirs of Vicente Oria, pursuant to the writ of possession issued by the probate court, are registered in the names of herein petitioners under TCT No. 50269 and TCT No. 50270 of the Register of Deeds of Pangasinan. 7 By reason thereof, the probate court, in an order dated 30 October 1975, dismissed the contempt charge against Jose Diaz and Cipriano Evangelists. However, the same court ordered the petitioners to amend their complaint filed in Civil Case No. 231-R since "it is necessary that an amended complaint be filed by Pedro Baybayan in order to determine whether or not the property in question is part of the property under Spec. Proc. No. 24-

The petitioners filed a motion for reconsideration of the order, 11 but the motion was denied on 24 December 1975. 12 Thereupon, they filed with this Court a petition for certiorari for the review of the orders of the lower court. The Court treated the petition as a special civil action for certiorari. 13 Counsel for the petitioners, in this petition, contends that the respondent Judge had no authority under the law, both substantive and procedural, to issue the questioned orders because the order to amend the complaint was issued in, and in connection with Spec. Proc. No. 24-R where the herein petitioners are not even parties. The contention, in our opinion, is not meritorious. While it may be true that the order to amend the complaint filed in Civil Case No. 231-R was issued in Spec. Proc. No. 24-R, so that it cannot ordinarily bind the herein petitioners who are not parties in said special proceedings, it appears, however, that the petitioners voluntarily submitted themselves to the jurisdiction of the probate court, when they filed an Omnibus Motion in Civil Case No. 231-R, wherein they prayed for leave to amend their complaint in accordance with the order of the probate court of 30 October 1975. They cannot now be allowed belatedly to adopt an inconsistent posture by attacking the jurisdiction of the respondent trial Judge to whom they submitted their cause voluntarily. 14 We find, however, that the respondent Judge committed a grave abuse of discretion, amounting to lack of jurisdiction, in dismissing the complaint filed by the petitioners, for their alleged failure to amend their complaint to exclude therefrom Lot E which the respondent Judge found, in his order of 30 October 1975, issued in the probate court, to be owned by the petitioners Cipriano Evangelists and Consuelo Baybayan. The findings of the respondent Judge as to the ownership of Lot E after the hearing conducted in Spec. Proc. No. 24-R do not justify the order to amend the complaint since the determination of the ownership of the said lot by the respondent Judge presiding over a court exercising probate jurisdiction is not final or ultimate in nature and is without prejudice to the right of an interested party to raise the question of ownership in a proper action. 15 It is a well-settled rule in this jurisdiction, sanctioned and reiterated in a long fine of decisions, that "when questions arise as to ownership of property alleged to be a part of the estate of a deceased person, but claimed by some other person to be his property, not by virtue of any right of inheritance from the deceased, but by title adverse to that of the deceased and his estate, such questions cannot be determined in the courts of administrative proceedings. The Court of First Instance, acting, as a probate court, has no jurisdiction to adjudicate such contentions, which must be submitted to the Court of First Instance in the exercise of its general jurisdiction as a court of first instance." 16 Besides, the order to amend the complaint is vague and hazy and does not specify what the amendments should be or how the complaint should be amended so that the petitioners should not be faulted if the amended complaint subsequently filed by them in Civil Case No. 231-R does not contain the allegations that the respondent Judge would want to appear therein. WHEREFORE, the petition is GRANTED and a writ issued, setting aside the Orders issued by the respondent Judge on 7 December 1975 and 24 December 1975, in Civil Case No. 231-R of the then Court of First Instance of Pangasinan. Without costs. SO ORDERED. 10.

DE BORJA VS DE BORJA – no cause of action in a settlement case and there is no violation of a right. Moral damages has nothing to do in a settlement. G.R. No. L-6622 July 31, 1957 Intestate Estate of the deceased MARCELO DE BORJA. CRISANTO DE BORJA, administrator-appellant, vs. JUAN DE BORJA, ET AL.,

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The case. — Quintin, Francisco, Crisanta and Juliana, all surnamed de Borja, are legitimate children of Marcelo de Borja who, upon his demise sometime in 1924 or 1925, left a considerable amount of property. Intestate proceedings must have followed, and the pre-war records of the case either burned, lost or destroyed during the last war, because the record shows that in 1930 Quintin de Borja was already the administrator of the Intestate Estate of Marcelo de Borja. In the early part of 1938, Quintin de Borja died and Crisanto de Borja, son of Francisco de Borja, was appointed and took over as administrator of the Estate. Francisco de Borja, on the other hand, assumed his duties as executor of the will of Quintin de Borja, but upon petition of the heirs of said deceased on the ground that his interests were conflicting with that of his brother's estate he was later required by the Court to resign as such executor and was succeeded by Rogelio Limaco, a son-in-law of Quintin de Borja. It also appears that on February 16, 1940, at the hearing set for the approval of the statement of accounts of the late administrator of the Intestate Estate of Marcelo de Borja, then being opposed by Francisco de Borja, the parties submitted an agreement, which was approved by the Court (Exh. A). Said agreement, translated into English, reads as follows: 1. All the accounts submitted and those that are to be submitted corresponding to this year will be considered approved; 2. No heir shall claim anything of the harvests from the lands in Cainta that came from Exequiel Ampil, deceased, nor from the land in Tabuatin, Nueva Ecija; 3. That the amounts of money taken by each heir shall be considered as deposited in conjunction with the other properties of the intestate and shall form part of the mass without drawing any interest; 4. That it shall be understood as included in this mass the sum of twelve thousand pesos (P12,000) that the sisters Crisanta and Juliana de Borja paid of their own money as part of the price the lands and three thousand pesos (P3,000) the price of the machinery for irrigation; 5. The right, interests or participation that the deceased Quintin de Borja has or may have in Civil Case No. 6190 of the Court of First Instance of Nueva Ecija, shall be likewise included in the total mass of the inheritance of the Intestate; 6. Not only the lands in Tabuatin but also those in Cainta coming from the now deceased Exequiel Ampil shall also from part of the total mass of the inheritance of the Intestate of the late Marcelo de Borja; 7. Once the total of the inheritance of the intestate is made up as specified before in this Agreement, partition thereof will be made as follows: From the total mass shall be deducted in case or in kind, Twelve Thousand Pesos (P12,000) that shall be delivered to Da. Juliana de Borja and Da. Crisanta de Borja in equal shares, and the rest shall be divided among the four heirs, i. e., Don Francisco de Borja, the heirs of Quintin de Borja, Da. Juliana de Borja, and Da. Crisanta de Borja, in equal parts. (TRANSLATION) The Intestate remained under the administration of Crisanto de Borja until the then outbreak of the war. From then on and until the termination of the war, there was a lull and state of inaction in Special proceeding No. 2414 of the Court of First Instance of Rizal, Pasig branch (In the Matter of the Intestate Estate of Marcelo de Borja), until upon petition filed by Miguel B. Dayco, as administrator of the estate of his deceased mother, Crisanta de Borja, who is one of heirs, for reconstitution of the records of this case, the Court on December 11, 1945, ordered the reconstitution of the same, requiring the administrator to submit his report and a copy of the project of partition. On January 3, 1946, the administrator, Dr. Crisanto de Borja, filed his accounts for the period ranging from March 1 to December 22, 1945, which according to the heirs of Quintin de Borja were so inadequate and general that on February 28, 1946, they filed a motion for specification. On April 30, 1946, they also filed their opposition to said statement of accounts alleging that the income reported in said statement was very much less than the true and actual income of the estate and that the expenses appearing therein were exaggerated and/or not actually incurred, and prayed that the statement of accounts submitted by the administrator be disapproved. The administrator later filed another report of his administration, dated August 9, 1949, corresponding to the period lapsed from December 23, 1945, to July 31, 1949, showing a cash balance of P71.96, but with pending obligation amounting to P35,415.

On August 22, 1949, Juan de Borja and sisters, heirs of the deceased Quintin de Borja, filed their opposition to the statement of accounts filed by the administrator on the ground that same was not detailed enough to enable the interested parties to verify the same; that they cannot understand why the Intestate could suffer any loss considering that during the administration of the same by Quintin de Borja, the Estate accumulated gains of more than P100,000 in the form of advances to the heirs as well as cash balance; that they desired to examine the accounts of Dr. Crisanto de Borja to verify the loss and therefore prayed that the administrator be ordered to deposit with the Clerk of Court all books, receipts, accounts and other papers pertaining to the Estate of Marcelo de Borja. This motion was answered by the administrator contending that the Report referred to was already clear and enough, the income as well as the expenditures being specified therein; that he had to spend for the repairs of the properties of the Estate damaged during the Japanese occupation; that the allegation that during the administration of Quintin de Boria the Estate realized a profit of P100,000 was not true, because instead of gain there was even a shortage in the funds although said administrator had collected all his fees (honorarios) and commissions corresponding to the entire period of his incumbency; that the obligations mentioned in said report will be liquidated before the termination of the proceedings in the same manner as it is done in any other intestate case; that he was willing to submit all the receipts of the accounts for the examination of the interested parties before the Clerk or before the Court itself; that this Intestate could be terminated, the project of partition having been allowed and confirmed by the Supreme Court and that the Administrator was also desirous of terminating it definitely for the benefit of all the parties. On September 14, 1949, the administrator filed another statement of accounts covering the period of from March 1, 1945, to July 31, 1949, which showed a cash balance of P71.95, with pending obligations in the sum of P35,810. The heirs of Quintin de Borja, Juan de Borja and his sisters, registered their opposition said statement of accounts and prayed the Court to disapprove the same and to appoint an account to go over the books of the administrator and to submit a report thereon as soon as possible. The heir Juliana de Borja also formally offered her objection to the approval of the accounts submitted by the administrator and prayed further that said administrator be required to submit a complete accounting of his administration of the Estate from 1937 to 1949. On the other hand, Francisco de Borja and Miguel B. Dayco, as the only heir of the deceased Crisanta de Borja, submitted to the Court an agreement to relieve the administrator from accounting for the period of the Japanese occupation; that as to the accounting from 1937 to 1941, they affirmed their conformity with the agreement entered into by all the heirs appearing in the Bill of Exceptions of Juliana de Borja; and they have no objection to the approval of the statement of accounts submitted by the administrator covering of the years 1945 to 1949. On December 6, 1949, the administrator, answered the opposition of the heir Juliana de Borja, alleging that the corresponding statement of accounts for the years 1937, 1938, 1939, 1940 and 1941 were presented and approved by the Court before and during the Japanese occupation, but the records of the same were destroyed in the Office of the Clerk of that Court during the liberation of the province of Rizal, and his personal records were also lost during the Japanese occupation, when his house was burned; that Judge Peña who was presiding over the Court in 1945 impliedly denied the petition of heirs to require him to render an accounting for the period from 1942 to the early part of 1945, for the reason that whatever money obtained from the Estate during said period could not be made the subject of any adjudication it having been declared fiat money and without value, and ordered that the statement of accounts be presented only for the period starting from March 1, 1945. The administrator further stated that he was anxious to terminate this administration but some of the heirs had not yet complied with the conditions imposed in the project of partition which was approved by the Supreme Court; that in accordance with said partition agreement, Juliana de Borja must deliver to the administrator all the jewelry, objects of value, utensils and other personal belongings of the deceased spouses Marcelo de Borja and Tircila Quiogue, which said heir had kept and continued to retain in her possession; that the heirs of Quintin de Borja should deliver to the administrator all the lands and a document transferring in favor of the Intestate the two parcels of land with a total area of 71 hectares of cultivated land in Cabanatuan, Nueva Ecija which were in the possession of said heirs, together with the house of Feliciana Mariano Vda. de Sarangaya, which were the objects of Civil Case No. 6190 mentioned in Paragraph 11 of the project of partition; that as consequence of the said dispossession the heirs of Quintin de Borja must deliver to the administrator the products of the 71 hectares of land in Cabanatuan, Nueva Ecija, and the rentals of the house of Feliciana Mariano or else render to the Court an accounting of the products of these properties from the time they took possession of the same in 1937 to the present; that there was a pending obligation amounting to P36,000 as of September 14, 1949, which the heirs should pay before the properties adjudicated to them would be delivered. The Court, however, ordered the administrator on December 10, 1949, to show and prove by evidence why he should not be accounts the proceeds of his administration from 1937.

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SPECIAL PROCEEDINGS CASES – RULE 73 Meantime, Juliana de Borja filed a Constancia denying possession of any jewelry belonging to the deceased spouses Marcelo de Borja and Tarcilla Quiogue or any other personal belonging of said spouses, and signified her willingness to turn over to the administrator the silver wares mentioned in Paragraph III of the project of partition, which were the only property in her care, on the date that she would expect the delivery to her of her share in the inheritance from her deceased parents. On July 6, 1950, Juan de Borja and his sisters Marcela, Saturnina, Eufracia, Jacoba and Olimpia, all surnamed de Borja, as heirs of Quintin de Borja, filed a motion for the delivery to them of their inheritance in the estate, tendering to the administrator a document ceding and transferring to the latter all the rights, interests and participation of Quintin de Borja in Civil Case No. 7190 of the Court of First Instance of Nueva Ecija, pursuant to the provisions of the project of Partition, and expressing their willingness to put up a bond if required to do so by the Court, and on July 18, 1950, the Court ordered the administrator to deliver to Marcela, Juan, Saturniana, Eufracia, Jacoba and Olimpia, all surnamed de Borja, all the properties adjudicated to them in the Project of Partition dated February 8, 1944, upon the latter's filing a bond in the sum of P10,000 conditioned upon the payment of such obligation as may be ordered by the Court after a hearing on the controverted accounts of the administrator. The Court considered the fact that the heirs had complied with the requirement imposed by the Project of Partition when they tendered the document ceding and transferring the rights and interests of Quintin de Borja in the aforementioned lands and expressed the necessity of terminating the proceedings as soon as practicable, observing that the Estate had been under administration for over twenty-five years already. The Court, however, deferred action on the petition filed by the special administratrix of the Intestate Estate of Juliana de Borja until after compliance with the conditions imposed by the project of partition. But on July 20, 1950, apparently before the properties were delivered to the heirs, Francisco de Borja and Miguel B. Dayco filed a motion informing the Court that the two parcels of land located in Cabanatuan, Nueva Ecija, produced some 21,300 cavans of palay, amounting to P213,000 at P10 per cavan, which were enjoyed by some heirs; that the administrator Crisanto de Borja had not taken possession of the same for circumstances beyond his control; and that there also existed the sum of P70,204 which the former administrator, Quintin de Borja, received from properties that were redeemed, but which amount did not come into the hands of the present, administrator because according to reliable information, same was delivered to the heir Juliana de Borja who deposited it in her name at the Philippine National Bank. It was, therefore prayed that the administrator be required to exert the necessary effort to ascertain the identity of the person or persons who were in possession of the same amount and of the value of the products of the lands in Mayapyap, Cabanatuan, Nueva Ecija, and to recover the same for the Intestate Estate. On July 28, 1950, the special administratrix of the estate of Juliana de Borja, then deceased, filed an answer to the motion of these two heirs, denying the allegation that said heir any product of the lands mentioned from Quintin de Borja, and informed the Court that the Mayapyap property had always been in the possession of Francisco de Borja himself and prayed the court that the administrator be instructed to demand all the fruits and products of said property from Francisco de Borja. On July 28, 1950, the heirs of Quintin de Borja also filed their opposition to the said motion of Francisco de Borja and Miguel B. Dayco on the ground that the petition was superfluous because the present proceeding was only for the approval of the statement of accounts filed by the administrator; that said motion was improper because it was asking the Court to order the administrator to perform what he was duty bound to do; and that said heirs were already barred or stopped from raising that question in view of their absolute ratification of and assent to the statement of accounts submitted by the administrator. On August 16, 1950, by order of the Court, the properties adjudicated to Juliana de Borja in the project of Partition were finally delivered to the estate of said heir upon the filing of a bond for P20,000. In that same order, the Court denied the administrator's motion to reconsider the order of July 18, 1950, requiring him to deliver to the heirs of Quintin de Borja the properties corresponding to them, on the ground that there existed no sufficient reason to disturb said order. It also ruled that as the petition of Francisco de Borja and Miguel B. Dayco made mention of certain properties allegedly belonging to the Intestate, said petition should properly be considered to gather with the final accounts of the administrator. The administrator raised the matter by certiorari to this Tribunal, which was, docketed as G.R. No. L-4179, and on May 30, 1951, We rendered decision affirming the order complained of, finding that the Juan de Borja and sisters have complied with the requirement imposed in the Project of Partition upon the tender of the document of cession of rights and quit-claim executed by Marcela de Borja, the administratrix of the

Estate of Quintin de Borja, and holding that the reasons advanced by the administrator in opposing the execution of the order of delivery were trivial. On August 27, 1951, the administrator filed his amended statement of accounts covering the period from March 1, 1945, to July 31, 1949, which showed a cash balance of P36,660. An additional statement of accounts filed on August 31, 1961 for the period of from August 1, 1949, to August 31, 1951, showed a cash balance of P5,851.17 and pending obligations in the amount of P6,165.03. The heirs of Quintin de Borja again opposed the approval of the statements of accounts charging the administrator with having failed to include the fruits which the estate should have accrued from 1941 to 1951 amounting to P479,429.70, but as the other heirs seemed satisfied with the accounts presented by said administrator and as their group was only one of the 4 heirs of Intestate Estate, they prayed that the administrator be held liable for only P119,932.42 which was 1/4 of the amount alleged to have been omitted. On October 4, 1951, the administrator filed a reply to said opposition containing a counterclaim for moral damages against all the heirs of Quintin de Borja in the sum of P30,000 which was admitted by the Court over the objection of the heirs of Quintin de Borja that the said pleading was filed out of time. The oppositors, the heirs of Quintin de Borja, then filed their answer to the counterclaim denying the charges therein, but later served interrogatories on the administrator relative to the averments of said counterclaim. Upon receipt of the answer to said interrogatories specifying the acts upon which the claim for moral damages was based, the oppositors filed an amended answer contending that inasmuch as the acts, manifestations and pleadings referred to therein were admittedly committed and prepared by their lawyer, Atty. Amador E. Gomez, same cannot be made the basis of a counterclaim, said lawyer not being a party to the action, and furthermore, as the acts upon which the claim for moral damages were based had been committed prior to the effectivity of the new Civil Code, the provisions of said Code on moral damages could not be invoked. On January 15, 1952, the administrator filed an amended counterclaim including the counsel for the oppositors as defendant. There followed a momentary respite in the proceedings until another judge was assigned to preside over said court to dispose of the old case pending therein. On August 15, 1952, Judge Encarnacion issued an order denying admission to administrator's amended counterclaim directed against the lawyer, Atty. Amador E. Gomez, holding that a lawyer, not being a party to the action, cannot be made answerable for counterclaims. Another order was also issued on the same date dismissing the administrator's counterclaim for moral damages against the heirs of Quintin de Borja and their counsel for the alleged defamatory acts, manifestation and utterances, and stating that granting the same to be meritorious, yet it was a strictly private controversy between said heirs and the administrator which would not in any way affect the interest of the Intestate, and, therefore, not proper in an intestate proceedings. The Court stressed that to allow the ventilation of such personal controversies would further delay the proceedings in the case which had already lagged for almost 30 years, a situation which the Court would not countenance. Having disposed of these pending incidents which arose out of the principal issue, that is, the disputed statement of accounts submitted by the administrator, the Court rendered judgment on September 5, 1952, ordering the administrator to distribute the funds in his possession to the heirs as follows: P1,395.90 to the heirs of Quintin de Borja; P314.99 to Francisco de Borja; P314.99 to the Estate of Juliana de Borja and P314.99 to Miguel B. Dayco, but as the latter still owed the intestate the sum of P900, said heirs was ordered to pay instead the 3 others the sum of P146.05 each. After considering the testimonies of the witnesses presented by both parties and the available records on hand, the Court found the administrator guilty of maladministration and sentenced Crisanto de Borja to pay to the oppositors, the heirs of Quintin de Borja, the sum of P83,337.31, which was 1/4 of the amount which the state lost, with legal interest from the date of the judgment. On the same day, the Court also issued an order requiring the administrator to deliver to the Clerk of that Court PNB Certificate of Deposit No. 211649 for P978.50 which was issued in the name of Quintin de Borja. The administrator, Dr. Crisanto de Borja, gave notice to appeal from the lower Court's orders of August 15, 1952, the decision of September 5, 1952, and the order of even date, but when the Record on Appeal was finally approved, the Court ordered the exclusion of the appeal from the order of September 5, 1952, requiring the administrator to deposit the PNB Certificate of Deposit No. 2114649 with the Clerk of Court, after the oppositors had shown that during the hearing of that incident, the parties agreed to abide by whatever resolution the Court would make on the ownership of the funds covered by that deposit.

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SPECIAL PROCEEDINGS CASES – RULE 73

The issues. — Reducing the issues to bare essentials, the questions left for our determination are: (1) whether the counsel for a party in a case may be included as a defendant in a counterclaim; (2) whether a claim for moral damages may be entertained in a proceeding for the settlement of an estate; (3) what may be considered as acts of maladministration and whether an administrator, as the one in the case at bar, may be held accountable for any loss or damage that the estate under his administration may incur by reason of his negligence, bad faith or acts of maladministration; and (4) in the case at bar has the Intestate or any of the heirs suffered any loss or damage by reason of the administrator's negligence, bad faith or maladministration? If so, what is the amount of such loss or damage? I. — Section 1, Rule 10, of the Rules of Court defines a counterclaim as: SECTION 1. Counterclaim Defined. — A counterclaim is any claim, whether for money or otherwise, which a party may have against the opposing party. A counterclaim need not dismiss or defeat the recovery sought by the opposing party, but may claim relief exceeding in amount or different in kind from that sought by the opposing party's claim.

incidental questions entirely foreign in probate proceedings should not be encouraged for to do otherwise would run counter to the clear intention of the law, for it was held that: The speedy settlement of the estate of deceased persons for the benefit of the creditors and those entitled to the residue by way of inheritance or legacy after the debts and expenses of administration have been paid, is the ruling spirit of our probate law (Magabanua vs. Akel, 72 Phil., 567, 40 Off Gaz., 1871). III. and IV. — This appeal arose from the opposition of the heirs of Quintin de Borja to the approval of the statements of accounts rendered by the administrator of the Intestate Estate of Marcelo de Borja, on the ground that certain fruits which should have been accrued to the estate were unaccounted for, which charge the administrator denied. After a protracted and extensive hearing on the matter, the Court, finding the administrator, Dr. Crisanto de Borja, guilty of certain acts of maladministration, held him liable for the payment to the oppositors, the heirs of Quintin de Borja, of 1/4 of the unreported income which the estate should have received. The evidence presented in the court below bear out the following facts:

It is an elementary rule of procedure that a counterclaim is a relief available to a partydefendant against the adverse party which may or may not be independent from the main issue. There is no controversy in the case at bar, that the acts, manifestations and actuations alleged to be defamatory and upon which the counterclaim was based were done or prepared by counsel for oppositors; and the administrator contends that as the very oppositors manifested that whatever civil liability arising from acts, actuations, pleadings and manifestations attributable to their lawyer is enforceable against said lawyer, the amended counterclaim was filed against the latter not in his individual or personal capacity but as counsel for the oppositors. It is his stand, therefore, that the lower erred in denying admission to said pleading. We differ from the view taken by the administrator. The appearance of a lawyer as counsel for a party and his participation in a case as such counsel does not make him a party to the action. The fact that he represents the interests of his client or that he acts in their behalf will not hold him liable for or make him entitled to any award that the Court may adjudicate to the parties, other than his professional fees. The principle that a counterclaim cannot be filed against persons who are acting in representation of another — such as trustees — in their individual capacities (Chambers vs. Cameron, 2 Fed. Rules Service, p. 155; 29 F. Supp. 742) could be applied with more force and effect in the case of a counsel whose participation in the action is merely confined to the preparation of the defense of his client. Appellant, however, asserted that he filed the counterclaim against said lawyer not in his individual capacity but as counsel for the heirs of Quintin de Borja. But as we have already stated that the existence of a lawyer-client relationship does not make the former a party to the action, even this allegation of appellant will not alter the result We have arrived at.

(a) The estate owns a 6-door building, Nos. 1541, 1543, 1545, 1547, 1549 and 1551 in Azcarraga Street, Manila, situated in front of the Arranque market. Of this property, the administrator reported to have received for the estate the following rentals:

Granting that the lawyer really employed intemperate language in the course of the hearings or in the preparation of the pleadings filed in connection with this case, the remedy against said counsel would be to have him cited for contempt of court or take other administrative measures that may be proper in the case, but certainly not a counterclaim for moral damages.

8,330.00

II. — Special Proceedings No. 6414 of the Court of First Instance of Rizal (Pasig branch) was instituted for the purpose of settling the Intestate Estate of Marcelo de Borja. In taking cognizance of the case, the Court was clothed with a limited jurisdiction which cannot expand to collateral matters not arising out of or in any way related to the settlement and adjudication of the properties of the deceased, for it is a settled rule that the jurisdiction of a probate court is limited and special (Guzman vs. Anog, 37 Phil. 361). Although there is a tendency now to relax this rule and extend the jurisdiction of the probate court in respect to matters incidental and collateral to the exercise of its recognized powers (14 Am. Jur. 251-252), this should be understood to comprehend only cases related to those powers specifically allowed by the statutes. For it was even said that:

9,000.00

Probate proceedings are purely statutory and their functions limited to the control of the property upon the death of its owner, and cannot extend to the adjudication of collateral questions (Woesmes, The American Law of Administration, Vol. I, p. 514, 662-663). It was in the acknowledgment of its limited jurisdiction that the lower court dismissed the administrator's counterclaim for moral damages against the oppositors, particularly against Marcela de Borja who allegedly uttered derogatory remarks intended to cast dishonor to said administrator sometime in 1950 or 1951, his Honor's ground being that the court exercising limited jurisdiction cannot entertain claims of this kind which should properly belong to a court general jurisdiction. From what ever angle it may be looked at, a counterclaim for moral damages demanded by an administrator against the heirs for alleged utterances, pleadings and actuations made in the course of the proceeding, is an extraneous matter in a testate or intestate proceedings. The injection into the action of

Period of time Total rentals Annual monthly rental March to December, 1945 P3,085.00 P51.42 January to December, 1946 4,980.00 69.17 January to December, 1947

115.70 January to December, 1948

125.00 January to December, 1949 8,840.00 122.77 January to December, 1950 6,060.00 184.16 Total P40,295.00 The oppositors, in disputing this record income, presented at the witness stand Lauro Aguila, a lawyer who occupied the basement of Door No. 1541 and the whole of Door No. 1543 from 1945 to November 15, 1949, and who testified that he paid rentals on said apartments as follows: 1945

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SPECIAL PROCEEDINGS CASES – RULE 73 Door No. 1541 (basement) February P20.00 Door No. 1543 March

P5,035.00 1948 January-December P1,920.00 January-December

20.00 P5,150.00 For 7 months at P300 April

1949 January-November 15

60.00

P1,680.00

a month

January-December

P2,100.00

P4,315.00

May-December

From the testimony of said witness, it appears that from 1945 to November 15,1949, he paid a total of P28,200 for the lease of Door No. 1543 and the basement of Door No. 1541. These figures were not controverted or disputed by the administrator but claim that said tenant subleased the apartments occupied by Pedro Enriquez and Soledad Sodora and paid the said rentals, not to the administrator, but to said Enriquez. The transcript of the testimony of this witness really bolster this contention — that Lauro Aguila talked with said Pedro Enriquez when he leased the aforementioned apartments and admitted paying the rentals to the latter and not to the administrator. It is interesting to note that Pedro Enriquez is the same person who appeared to be the administrator's collector, duly authorized to receive the rentals from this Azcarraga property and for which services, said Enriquez received 5 per cent of the amount he might be able to collect as commission. If we are to believe appellant's contention, aside from the commission that Pedro Enriquez received he also sublet the apartments he was occupying at a very much higher rate than that he actually paid the estate without the knowledge of the administrator or with his approval. As the administrator also seemed to possess that peculiar habit of giving little importance to bookkeeping methods, for he never kept a ledger or book of entry for amounts received for the estate, We find no record of the rentals the lessees of the other doors were paying. It was, however, brought about at the hearing that the 6 doors of this building are of the same sizes and construction and the lower Court based its computation of the amount this property should have earned for the estate on the rental paid by Atty. Aguila for the 1 1/2 doors that he occupied. We see no excuse why the administrator could not have taken cognizance of these rates and received the same for the benefit of the estate he was administering, considering the fact that he used to make trips to Manila usually once a month and for which he charged to the estate P8 as transportation expenses for every trip.

800.00 Total P900.00 1946 January-December P1,200.00 January-December P4,080.00 1947 January P100.00 January P380.00 February 100.00 February 380.00 March

Basing on the rentals paid by Atty. Aguila for 1 1/2 doors, the estate received P112,800 from February 1, 1945, to November 15, 1949, for the 6 doors, but the lower Court held him accountable not only for the sum of P34,235 reported for the period ranging from March 1, 1945, to December 31, 1949, but also for a deficit of P90,525 or a total of P124,760. The record shows, however that the upper floor of Door No. 1549 was vacant in September, 1949, and as Atty. Aguila used to pay P390 a month for the use of an entire apartment from September to November, 1949, and he also paid P160 for the use of the basement of an apartment (Door No. 1541), the use, therefore, of said upper floor would cost P230 which should be deducted, even if the computation of the lower Court would have to be followed.

180.00 March 1-15 190.00 April-December 1,140.00 March 16-December 4,085.00 P1,820.00

There being no proper evidence to show that the administrator collected more rentals than those reported by him, except in the instance already mentioned, We are reluctant to bold him accountable in the amount for which he was held liable by the lower Court, and We think that under the circumstances it would be more just to add to the sum reported by the administrator as received by him as rents for 1945-1949 only, the difference between the sum reported as paid by Atty. Aguila and the sum actually paid by the latter as rents of 1 1/2 of the apartments during the said period, or P25,457.09 1/4 of which is P6,364.27 which shall be paid to the oppositors. The record also shows that in July, 1950, the administrator delivered to the other heirs Doors Nos. 1545, 1547, 1549 and 1551 although Doors Nos. 1541 and 1543 adjudicated to the oppositors remained under his administration. For the period from January to June, 1950, that the entire property was still administered by him, the administrator reported to have received for the 2 oppositors' apartments for said period of six months at P168.33 a

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SPECIAL PROCEEDINGS CASES – RULE 73

month, the sum of P1,010 which belongs to the oppositors and should be taken from the amount reported by the administrator.

1945........... P625.00

The lower Court computed at P40 a month the pre-war rental admittedly received for every apartment, the income that said property would have earned from 1941 to 1944, or a total of P11,520, but as We have to exclude the period covered by the Japanese occupation, the estate should receive only P2,880 1/4 of which P720 the administrator should pay to the oppositors for the year 1941.

P1,310.42 1946............. 1,800.00

(b) The Intestate estate also owned a parcel of land in Mayapyap, Nueva Ecija, with an area of 71 hectares, 95 ares and 4 centares, acquired by Quintin de Borja the spouses Cornelio Sarangaya and Feliciana Mariano in Civil Case NO. 6190 of the Court of First Instance of said province, In virtue of the agreement entered into by the heirs, this property was turned over by the estate of Quintin de Borja to the intestate and formed part of the general mass of said estate. The report of the administrator failed to disclose any return from this property alleging that he had not taken possession of the same. He does not deny however that he knew of the existence of this land but claimed that when he demanded the delivery of the Certificate of Title covering this property, Rogelio Limaco, then administrator of the estate of Quintin de Borja, refused to surrender the same and he did not take any further action to recover the same.

3,471.00 1947............. 2,550.00 2,912.91 1948............. 1,828.00

To counteract the insinuation that the Estate of Quintin de Borja was in possession of this property from 1940 to 1950, the oppositors presented several witnesses, among them was an old man, Narciso Punzal, who testified that he knew both Quintin and Francisco de Borja; that before the war or sometime in 1937, the former administrator of the Intestate, Quintin de Borja, offered him the position of overseer (encargado) of this land but he was notable to assume the same due to the death of said administrator; that on July 7, 1951, herein appellant invited him to go to his house in Pateros, Rizal, and while in said house, he was instructed by appellant to testify in court next day that he was the overseer of the Mayapyap property for Quintin de Borja from 1937-1944, delivering the yearly proceeds of 1,000 cavanes of Palay to Rogelio Limaco; that he did not need to be afraid because both Quintin de Borja and Rogelio Limaco were already dead. But as he knew that the facts on which he was to testify were false, he went instead to the house of one of the daughters of Quintin de Borja, who, together with her brother, Atty. Juan de Borja, accompanied him to the house of the counsel for said oppositors before whom his sworn declaration was taken (Exh. 3).

3,311.88 1949............. 3,204.50 4,792.09 1950............. 2,082.00 2,940.91 P12,089.50

Other witnesses, i.e., Isidro Benuya, Federico Cojo, Emilio de la Cruz and Ernesto Mangulabnan, testified that they were some of the tenants of the Mayapyap property; that they were paying their shares to the overseers of Francisco de Borja and sometimes to his wife, which the administrator was not able to contradict, and the lower Court found no reason why the administrator would fail to take possession of this property considering that this was even the subject of the agreement of February 16, 1940, executed by the heirs of the Intestate. The lower Court, giving due credence to the testimonies of the witnesses for the oppositors, computed the loss the estate suffered in the form of unreported income from the rice lands for 10 years at P67,000 (6,700 a year)and the amount of P4,000 from the remaining portion of the land not devoted to rice cultivation which was being leased at P20 per hectare. Consequently, the Court held the administrator liable to appellees in the sum of P17,750 which is 1/4 of the total amount which should have accrued to the estate for this item. But if We exclude the 3 years of occupation, the income for 7 years would be P46,900 for the ricelands and P2,800 (at P400 a year) for the remaining portion not developed to rice cultivation or a total of P48,700, 1/4 of which is P12,175 which We hold the administrator liable to the oppositors. (c) The Hacienda Jalajala located in said town of Rizal, was divided into 3 parts: the Punta section belonged to Marcelo de Borja, the Bagombong pertained to Bernardo de Borja and Francisco de Borja got the Jalajala proper. For the purpose of this case, we will just deal with that part called Junta. This property has an area of 1,345, hectares, 29 ares and 2 centares (Exh. 36) of which, according to the surveyor who measured the same, 200 hectares were of cultivated rice fields and 100 hectares dedicated to the planting of upland rice. It has also timberland and forest which produce considerable amount of trees and firewoods. From the said property which has an assessed value of P115,000 and for which the estates pay real estate tax of P1,500 annually, the administrator reported the following:

P18,739.21 This statement was assailed by the oppositors and to substantiate their charge that the administrator did not file the true income of the property, they presented several witnesses who testified that there were about 200 tenants working therein; that these tenants paid to Crisanto de Borja rentals at the rate of 6 cavanes of palay per hectare; that in the years of 1943 and 1944, the Japanese were the ones who collected their rentals, and that the estate could have received no less than 1,000 cavanes of palay yearly. After the administrator had presented witnesses to refute the facts previously testified to by the witnesses for the oppositors, the Court held that the report of the administrator did not contain the real income of the property devoted to rice cultivation, which was fixed at 1,000 cavanes every year — for 1941, 1942, 1945, 1946, 1947, 1948, 1949 and 1950, or a total of 8,000 cavanes valued at P73,000. But as the administrator accounted for the sum of P11,155 collected from rice harvests and if to this amount we add the sum of P8,739.20 for expenses, this will make a total of P19,894.20, thus leaving a deficit of P53,105.80, ¼ of which will be P13,276.45 which the administrator is held liable to pay the heirs of Quintin de Borja. It was also proved during the hearing that the forest land of this property yields considerable amount of marketable firewoods. Taking into consideration the testimonies of witnesses for both parties, the Court arrived at the conclusion that the administrator sold to Gregorio Santos firewoods worth P600 in 1941, P3,500 in 1945 and P4,200 in 1946 or a total of P8,300. As the report included only the amount of P625, there was a balance of P7,675 in favor of the estate. The oppositors were not able to present any proof of sales made after these years, if there were any and the administrator was held accountable to the oppositors for only P1,918.75. (d) The estate also, owned ricefields in Cainta, Rizal, with a total area of 22 hectares, 76 ares and 66 centares. Of this particular item, the administrator reported an income of P12,104 from 1945 to 1951. The oppositors protested against this report and presented witnesses to disprove the same.

Year Income Expenditure (not including administration's fees

Basilio Javier worked as a tenant in the land of Juliana de Borja which is near the land belonging to the Intestate, the 2 properties being separated only by a river. As tenant of Juliana de Borja, he knew the tenants working on the property and also knows that both lands are of the same class, and that an area accommodating one cavan of seedlings yields at most 100 cavanes and 60 cavanes at the least. The administrator failed to

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23

SPECIAL PROCEEDINGS CASES – RULE 73 overcome this testimony. The lower Court considering the facts testified to by this witness made a finding that the property belonging to this Intestate was actually occupied by several persons accommodating 13 ½ cavanes of seedlings; that as for every cavan of seedlings, the land produces 60 cavanes of palay, the whole area under cultivation would have yielded 810 cavanes a year and under the 50-50 sharing system (which was testified by witness Javier), the estate would have received no less than 405 cavanes every year. Now, for the period of 7 years — from 1941 to 1950, excluding the 3 years of war — the corresponding earning of the estate should be 2,835 cavanes, out of which the 405 cavanes from the harvest of 1941 is valued at P1,215 and the rest 2,430 cavanes at P10 is valued at P24,300, or all in all P25,515. If from this amount the reported income of P12,104 is deducted, there will be a balance of P13,411.10 1/4 of which or P3,352.75 the administrator is held liable to pay to the oppositors. (e) The records show that the administrator paid surcharges and penalties with a total of P988.75 for his failure to pay on time the taxes imposed on the properties under his administration. He advanced the reason that he lagged in the payment of those tax obligations because of lack of cash balance for the estate. The oppositors, however, presented evidence that on October 29, 1939, the administrator received from Juliana de Borja the sum of P20,475.17 together with certain papers pertaining to the intestate (Exh. 4),aside from the checks in the name of Quintin de Borja. Likewise, for his failure to pay the taxes on the building at Azcarraga for 1947, 1948 and 1949, said property was sold at public auction and the administrator had to redeem the same at P3,295.48, although the amount that should have been paid was only P2,917.26. The estate therefore suffered a loss of P378.22. Attributing these surcharges and penalties to the negligence of the administrator, the lower Court adjudged him liable to pay the oppositors ¼ of P1,366.97, the total loss suffered by the Intestate, or P341.74. (f) Sometime in 1942, a big fire razed numerous houses in Pateros, Rizal, including that of Dr. Crisanto de Borja. Thereafter, he claimed that among the properties burned therein was his safe containing P15,000 belonging to the estate under his administration. The administrator contended that this loss was already proved to the satisfaction of the Court who, approved the same by order of January 8, 1943, purportedly issued by Judge Servillano Platon(Exh. B). The oppositors contested the genuineness of this order and presented on April 21, 1950, an expert witness who conducted several tests to determine the probable age of the questioned document, and arrived at the conclusion that the questioned ink writing "(Fdo)" appearing at the bottom of Exhibit B cannot be more than 4 years old (Exh. 39). However, another expert witness presented by the administrator contradicted this finding and testified that this conclusion arrived at by expert witness Mr. Pedro Manzañares was not supported by authorities and was merely the result of his own theory, as there was no method yet discovered that would determine the age of a document, for every document has its own reaction to different chemicals used in the tests. There is, however, another fact that called the attention of the lower Court: the administrator testified that the money and other papers delivered by Juliana de Borja to him on October 29, 1939, were saved from said fire. The administrator justified the existence of these valuables by asserting that these properties were locked by Juliana de Borja in her drawer in the "casa solariega" in Pateros and hence was not in his safe when his house, together with the safe, was burned. This line of reasoning is really subject to doubt and the lower Court opined, that it runs counter to the ordinary course of human behaviour for an administrator to leave in the drawer of the "aparador" of Juliana de Borja the money and other documents belonging to the estate under his administration, which delivery has receipted for, rather than to keep it in his safe together with the alleged P15,000 also belonging to the Intestate. The subsequent orders of Judge Platon also put the defense of appellant to bad light, for on February 6, 1943, the Court required Crisanto de Borja to appear before the Court of examination of the other heirs in connection with the reported loss, and on March 1, 1943, authorized the lawyers for the other parties to inspect the safe allegedly burned (Exh. 35). It is inconceivable that Judge Platon would still order the inspection of the safe if there was really an order approving the loss of those P15,000. We must not forget, in this connection, that the records of this case were burned and that at the time of the hearing of this incident in 1951, Judge Platon was already dead. The lower Court also found no reason why the administrator should keep in his such amount of money, for ordinary prudence would dictate that as an administration funds that come into his possession in a fiduciary capacity should not be mingled with his personal funds and should have been deposited in the Bank in the name of the intestate. The administrator was held responsible for this loss and ordered to pay ¼ thereof, or the sum of P3,750. (g) Unauthorized expenditures —

court before making these disbursements because it was merely a pure administrative function. The keeping of receipts and retaining in his custody records connected with the management of the properties under administration is a duty that properly belongs to the administrator, necessary to support the statement of accounts that he is obliged to submit to the court for approval. If ever his wife took charge of the safekeeping of these receipts and for which she should be compensated, the same should be taken from his fee. This disbursement was disallowed by the Court for being unauthorized and the administrator required to pay the oppositors ¼, thereof or P532.50. 2. The salaries of Pedro Enriquez, as collector of the Azcarraga property; of Briccio Matienzo and Leoncio Perez, as encargados, and of Vicente Panganiban and Herminigildo Macetas as forest-guards were found justified, although un authorized, as they appear to be reasonable and necessary for the care and preservation of the Intestate. 3. The lower Court disallowed as unjustified and unnecessary the expenses for salaries paid to special policemen amounting to P1,509. Appellant contended that he sought for the services of Macario Kamungol and others to act as special policemen during harvest time because most of the workers tilting the Punta property were not natives of Jalajala but of the neighboring towns and they were likely to run away with the harvest without giving the share of the estate if they were not policed. This kind of reasoning did not appear to be convincing to the trial judge as the cause for such fear seemed to exist only in the imagination. Granting that such kind of situation existed, the proper thing for the administrator to do would have been to secure the previous authorization from the Court if he failed to secure the help of the local police. He should be held liable for this unauthorized expenditure and pay the heirs of Quintin de Borja ¼ thereof or P377.25. 4. From the year 1942 when his house was burned, the administrator and his family took shelter at the house belonging to the Intestate known as "casa solariega" which, in the Project of Partition was adjudicated to his father, Francisco de Borja. This property, however, remained under his administration and for its repairs he spent from 1945-1950, P1465,14, duly receipted. None of these repairs appear to be extraordinary for the receipts were for nipa, for carpenters and thatchers. Although it is true that Rule 85, section 2 provides that: SEC. 2. EXECUTOR OR ADMINISTRATOR TO KEEP BUILDINGS IN REPAIR. — An executor or administrator shall maintain in tenant able repair the houses and other structures and fences belonging to the estate, and deliver the same in such repair to the heirs or devisees when directed so to do by the court. yet considering that during his occupancy of the said "casa solariega" he was not paying any rental at all, it is but reasonable that he should take care of the expenses for the ordinary repair of said house. Appellant asserted that had he and his family not occupied the same, they would have to pay someone to watch and take care of said house. But this will not excuse him from this responsibility for the disbursements he made in connection with the aforementioned repairs because even if he stayed in another house, he would have had to pay rentals or else take charge also of expenses for the repairs of his residence. The administrator should be held liable to the oppositors in the amount of P366.28. 5. Appellant reported to have incurred expenses amounting to P6,304.75 for alleged repairs on the rice mill in Pateros, also belonging to the Intestate. Of the disbursements made therein, the items corresponding, to Exhibits I, I-1, I-21, L-26, L-15, L-64 and L-65, in the total sum of P570.70 were rejected by the lower court on the ground that they were all unsigned although some were dated. The lower Court, however, made an oversight in including the sum of P150 covered by Exhibit L-26 which was duly signed by Claudio Reyes because this does not refer to the repair of the rice-mill but for the roofing of the house and another building and shall be allowed. Consequently, the sum of P570.70 shall be reduced to P420.70 which added to the sum of P3,059 representing expenditures rejected as unauthorized to wit: Exhibit L-59 ............. P500.00

1. The report of the administrator contained certain sums amounting to P2,130 paid to and receipted by Juanita V. Jarencio the administrator's wife, as his private secretary. In explaining this item, the administrator alleged that he needed her services to keep receipts and records for him, and that he did not secure first the authorization from the

Yek Wing Exhibit L-60 .............

NARTATEZ, CARELL RYZA

SPECIAL PROCEEDINGS CASES – RULE 73

24 616.00

P64.00 Yek Wing To Jalajala ............... Exhibit L-61 ............. 5 x P35.00 600.00 = Yek Wing P175.00 Exhibit L-62 ............. = 840.00 P399.00 Yek Wing (Exhibit W-54). Exhibit L-63 ............. 180.00 Yek Wing Exhibit Q-2 ............. 323.00 scale "Howe" Total ...................... P3,059.00 will give a total of P3,479 1/4 of which is P869.92 that belongs to the oppositors. 6. On the expenses for planting in the Cainta ricefields: — In his statement of accounts, appellant reported to have incurred a total expense of P5,977 for the planting of the ricefields in Cainta, Rizal, from the agricultural year 1945-46 to 1950-51. It was proved that the prevailing sharing system in this part of the country was on 50-50 basis. Appellant admitted that expenses for planting were advanced by the estate and liquidated after each harvest. But the report, except for the agricultural year 1950 contained nothing of the payments that the tenants should have made. If the total expenses for said planting amounted to P5,977, ½ thereof or P2,988.50 should have been paid by the tenants as their share of such expenditures, and as P965 was reported by the administrator as paid back in 1950, there still remains a balance of P2,023.50 unaccounted for. For this shortage, the administrator is responsible and should pay the oppositors ¼ thereof or P505.87. 7. On the transportation expenses of the administrator: — It appears that from the year 1945 to 1951, the administrator charged the estate with a total of P5,170 for transportation expenses. The un receipted disbursements were correspondingly itemized, a typical example of which is as follows: 1950 Gastos de viaje del administrador From Pateros To Pasig ................ 50 x P4.00 = P200.00 To Manila ............... 50 x P10.00

From the report of the administrator, We are being made to believe that the Intestate estate is a losing proposition and assuming arguendo that this is true, that precarious financial condition which he, as administrator, should know, did not deter Crisanto de Borja from charging to the depleted funds of the estate comparatively big amounts for his transportation expenses. Appellant tried to justify these charges by contending that he used his own car in making those trips to Manila, Pasig and Cainta and a launch in visiting the properties in Jalajala, and they were for the gasoline consumed. This rather unreasonable spending of the estate's fund prompted the Court to observe that one will have to spend only P0.40 for transportation in making a trip from Pateros to Manila and practically the same amount in going to Pasig. From his report for 1949 alone, appellant made a total of 97 trips to these places or an average of one trip for every 3 1/2 days. Yet We must not forget that it was during this period that the administrator failed or refused to take cognizance of the prevailing rentals of commercial places in Manila that caused certain loss to the estate and for which he was accordingly held responsible. For the reason that the alleged disbursements made for transportation expenses cannot be said to be economical, the lower Court held that the administrator should be held liable to the oppositors for ¼ thereof or the sum of P1,292.50, though We think that this sum should still be reduced to P500. 8. Other expenses: The administrator also ordered 40 booklets of printed contracts of lease in the name of the Hacienda Jalajala which cost P150. As the said hacienda was divided into 3 parts one belonging to this Intestate and the other two parts to Francisco de Boria and Bernardo de Borja, ordinarily the Intestate should only shoulder ¹/3 of the said expense, but as the tenants who testified during the hearing of the matter testified that those printed forms were not being used, the Court adjudged the administrator personally responsible for this amount. The records reveal, that this printed form was not utilized because the tenants refused to sign any, and We can presume that when the administrator ordered for the printing of the same, he did not foresee this situation. As there is no showing that said printed contracts were used by another and that they are still in the possession of the administrator which could be utilized anytime, this disbursement may be allowed. The report also contains a receipt of payment made to Mr. Severo Abellera in the sum of P375 for his transportation expenses as one of the two commissioners who prepared the Project of Partition. The oppositors were able to prove that on May 24, 1941, the Court authorized the administrator to withdraw from the funds of the intestate the sum of P300 to defray the transportation expenses of the commissioners. The administrator, however, alleged that he used this amount for the payment of certain fees necessary in connection with the approval of the proposed plan of the Azcarraga property which was then being processed in the City Engineer's Office. From that testimony, it would seem that appellant could even go to the extent of disobeying the order of the Court specifying for what purpose that amount should be appropriated and took upon himself the task of judging for what it will serve best. Since he was not able to show or prove that the money intended and ordered by the Court to be paid for the transportation expenses of the commissioners was spent for the benefit of the estate as claimed, the administrator should be held responsible therefor and pay to the oppositors ¼ of P375 or the sum of P93.75.

= P500.00 To Cainta ................ 8 x P8.00

The records reveal that for the service of summons to the defendants in Civil Case No. 84 of the Court of First Instance of Rizal, P104 was paid to the Provincial Sheriff of the same province (Exhibit H-7). However, an item for P40 appeared to have been paid to the Chief of Police on Jalajala allegedly for the service of the same summons. Appellant claimed that as the defendants in said civil case lived in remote barrios, the services of the Chief of Police as delegate or agent of the Provincial Sheriff were necessary. He forgot probably the fact that the local chiefs of police are deputy sheriffs ex-officio. The

=

NARTATEZ, CARELL RYZA

25

SPECIAL PROCEEDINGS CASES – RULE 73 administrator was therefore ordered by the lower Court to pay ¼ of said amount or P10 to the oppositors. The administrator included in his Report the sum of P550 paid to Atty. Filamor for his professional services rendered for the defense of the administrator in G.R. No. L-4179, which was decided against him, with costs. The lower Court disallowed this disbursement on the ground that this Court provided that the costs of that litigation should not be borne by the estate but by the administrator himself, personally. Costs of a litigation in the Supreme Court taxed by the Clerk of Court, after a verified petition has been filed by the prevailing party, shall be awarded to said party and will only include his fee and that of his attorney for their appearance which shall not be more than P40; expenses for the printing and the copies of the record on appeal; all lawful charges imposed by the Clerk of Court; fees for the taking of depositions and other expenses connected with the appearance of witnesses or for lawful fees of a commissioner (De la Cruz, Philippine Supreme Court Practice, p. 70-71). If the costs provided for in that case, which this Court ordered to be chargeable personally against the administrator are not recoverable by the latter, with more reason this item could not be charged against the Intestate. Consequently, the administrator should pay the oppositors ¼ of the sum of P550 or P137.50. (e) The lower Court in its decision required appellant to pay the oppositors the sum of P1,395 out of the funds still in the possession of the administrator. In the statement of accounts submitted by the administrator, there appeared a cash balance of P5,851.17 as of August 31, 1961. From this amount, the sum of P1,002.96 representing the Certificate of Deposit No. 21619 and Check No. 57338, both of the Philippine National Bank and in the name of Quintin de Borja, was deducted leaving a balance of P4,848. As Judge Zulueta ordered the delivery to the oppositors of the amount of P1,890 in his order of October 8, 1951; the delivery of the amount of P810 to the estate of Juliana de Borja in his order of October 23, 1951, and the sum of P932.32 to the same estate of Juliana de Borja by order of the Court of February 29, 1952, or a total of P3,632.32 after deducting the same from the cash in the possession of the administrator, there will only be a remainder of P134.98. The Intestate is also the creditor of Miguel B. Dayco, heir and administrator of the estate of Crisanta de Borja, in the sum of P900 (Exhibits S and S-1). Adding this credit to the actual cash on hand, there will be a total of P1,034.98, ¼, of which or P258.74 properly belongs to the oppositors. However, as there is only a residue of P134.98 in the hands of the administrator and dividing it among the 3 groups of heirs who are not indebted to the Intestate, each group will receive P44.99, and Miguel B. Dayco is under obligation to reimburse P213.76 to each of them. The lower Court ordered the administrator to deliver to the oppositors the amount of P1,395.90 and P314.99 each to Francisco de Borja and the estate of Juliana de Borja, but as We have arrived at the computation that the three heirs not idebted to the Intestate ought to receive P44.99 each out of the amount of P134.98, the oppositors are entitled to the sum of P1,080.91 — the amount deducted from them as taxes but which the Court ordered to be returned to them — plus P44.99 or a total of P1,125.90. It appearing however, that ina Joint Motion dated November 27, 1952, duly approved by the Court, the parties agreed to fix the amount at P1,125.58, as the amount due and said heirs have already received this amount in satisfaction of this item, no other sum can be chargeable against the administrator.

Juanita V. Jarencio, his wife, with a balance of P36,750.35 in Japanese military notes and admittedly belonging to the Intestate and We do not believe that the oppositors or any of the heirs would be interested in an accounting for the purpose of dividing or distributing this deposit. (g) On the sum of P13,294 for administrator's fees: It is not disputed that the administrator set aside for himself and collected from the estate the sum of P13,294 as his fees from 1945 to 1951 at the rate of P2,400 a year. There is no controversy as to the fact that this appropriated amount was taken without the order or previous approval by the probate Court. Neither is there any doubt that the administration of the Intestate estate by Crisanto de Borja is far from satisfactory. Yet it is a fact that Crisanto de Borja exercised the functions of an administrator and is entitled also to a certain amount as compensation for the work and services he has rendered as such. Now, considering the extent and size of the estate, the amount involved and the nature of the properties under administration, the amount collected by the administrator for his compensation at P200 a month is not unreasonable and should therefore be allowed. It might be argued against this disbursement that the records are replete with instances of highly irregular practices of the administrator, such as the pretended ignorance of the necessity of a book or ledger or at least a list of chronological and dated entries of money or produce the Intestate acquired and the amount of disbursements made for the same properties; that admittedly he did not have even a list of the names of the lessees to the properties under his administration, nor even a list of those who owed back rentals, and although We certainly agree with the probate Court in finding appellant guilty of acts of maladministration, specifically in mixing the funds of the estate under his administration with his personal funds instead of keeping a current account for the Intestate in his capacity as administrator, We are of the opinion that despite these irregular practices for which he was held already liable and made in some instances to reimburse the Intestate for amounts that were not properly accounted for, his claim for compensation as administrator's fees shall be as they are hereby allowed. Recapitulation. — Taking all the matters threshed herein together, the administrator is held liable to pay to the heirs of Quintin de Borja the following: Under Paragraphs III and IV: (a) ............................................................................... P7,084.27 (b) ............................................................................... 12,175.00 (c) ............................................................................... 16,113.95 (d) ............................................................................... 3,352.75

(f) The probate Court also ordered the administrator to render an accounting of his administration during the Japanese occupation on the ground that although appellant maintained that whatever money he received during that period is worthless, same having been declared without any value, yet during the early years of the war, or during 1942-43, the Philippine peso was still in circulation, and articles of prime necessity as rice and firewood commanded high prices and were paid with jewels or other valuables. But We must not forget that in his order of December 11, 1945, Judge Peña required the administrator to render an accounting of his administration only from March 1, 1945, to December of the same year without ordering said administrator to include therein the occupation period. Although the Court below mentioned the condition then prevailing during the war-years, We cannot simply presume, in the absence of proof to that effect, that the administrator received such valuables or properties for the use or in exchange of any asset or produce of the Intestate, and in view of the aforementioned order of Judge Peña, which We find no reason to disturb, We see no practical reason for requiring appellant to account for those occupation years when everything was affected by the abnormal conditions created by the war. The records of the Philippine National Bank show that there was a current account jointly in the names of Crisanto de Borja and

(e) ............................................................................... 341.74 (f) ................................................................................ 3,750.00 (g) 1 ..................................................................... 532.50 2 ..................................................................... 377.25 3 .....................................................................

NARTATEZ, CARELL RYZA

SPECIAL PROCEEDINGS CASES – RULE 73

26

When Spouses Fernandez, tried to register their share in the subject land, they discovered that certain documents prevent them from doing so: (1) Affidavit by Anacleto Cabrera dated March 16, 1957 stating that his share in Lot No. 1851, the subject property, is approximately 369 sq. m.; (2) Affidavit by Dionisia Reyes dated July 13, 1929 stating that Anacleto only owned of Lot No. 1851, while 302.55 sq. m. belongs to Dionisia and the rest of the property is co-owned by Nicolasa Bacalso, Juan Reyes, Florentino Reyes and Maximiano Dico; (3) Extra-Judicial Settlement with Sale of the Estate of Dionisia Reyes dated April 17, 1996; (4) certificates of title in the name of the herein petitioners; and (5) Deed of Segregation of Real Estate and Confirmation of Sale dated March 21, 1997 executed by the alleged heirs of Dionisia Reyes and Anacleto Cabrera. Alleging that the foregoing documents are fraudulent and fictitious, the respondents filed a complaint for annulment or nullification of the aforementioned documents and for damages. [5] They likewise prayed for the repartition and resubdivision of the subject property.[6]

366.28 4 ..................................................................... 869.92 5 ..................................................................... 505.87 6 ..................................................................... 500.00 7-a

The RTC, upon motion of the herein petitioners, dismissed the case on the ground that the respondents-plaintiffs were actually seeking first and foremost to be declared heirs of Anacleto Cabrera since they can not demand the partition of the real property without first being declared as legal heirs and such may not be done in an ordinary civil action, as in this case, but through a special proceeding specifically instituted for the purpose.[7]

b .................................................................. 93.75 c ..................................................................

ISSUE: whether or not the respondents have to institute a special proceeding to determine their status as heirs of Anacleto Cabrera before they can file an ordinary civil action to nullify the affidavits of Anacleto Cabrera and Dionisia Reyes, the Extra-Judicial Settlement with the Sale of Estate of Dionisia Reyes, and the Deed of Segregation of Real Estate and Confirmation of Sale executed by the heirs of Dionisia Reyes and the heirs of Anacleto Cabrera, as well as to cancel the new transfer certificates of title issued by virtue of the above-questioned documents.

10.00 d ................................................................... 137.50 P46,210.00 In view of the foregoing, the decision appealed from is modified by reducing the amount that the administrator was sentenced to pay the oppositors to the sum of P46,210.78 (instead of P83,337.31), plus legal interests on this amount from the date of the decision appealed from, which is hereby affirmed in all other respects. Without pronouncement as to costs. It is so ordered. 11.

REYES VS ENRIQUEZ

FACTS: The subject matter of the present case is a parcel of land known as Lot No. 1851 Flr-133 with an aggregate area of 2,017 square meters located in Talisay, Cebu.[2] According to petitioners Faustino Reyes, Esperidion Reyes, Julieta C. Rivera, and Eutiquio Dico, Jr., they are the lawful heirs of Dionisia Reyes who co-owned the subject parcel of land with Anacleto Cabrera as evidenced by Transfer Certificate of Title (TCT) No. RT-3551 (T-8070). On April 17, 1996, petitioners executed an Extrajudicial Settlement with Sale of the Estate of Dionisia Reyes (the Extra Judicial Settlement) involving a portion of the subject parcel of land. On March 21, 1997, the petitioners and the known heirs of Anacleto Cabrera executed a Segregation of Real Estate and Confirmation of Sale (the Segregation and Confirmation) over the same property. By virtue of the aforestated documents, TCT No. RT-35551 (T-8070) was cancelled and new TCTs were issued: (1) TCT No. T-98576 in the name of Anacleto Cabrera covering Lot 1851-A; (2) TCT No. T-98577 covering Lot 1851-B in the name of petitioner Eutiquio Dico, Jr.; (3) TCT No. T-98578 covering Lot 1851-C in the name of petitioner Faustino Reyes; (4) TCT No. T-98579 covering Lot 1851-D in the name of petitioner Esperidion Reyes; (5) TCT No. T-98580 covering Lot 1851-E in the name of petitioner Julieta G. Rivera; (6) TCT No. T-98581 covering Lot 1851-F in the name of Felipe Dico; and (7) TCT No. T-98582 covering Lot 1851-G in the name of Archimedes C. Villaluz.[3] Respondents Peter B. Enriquez (Peter) for himself and on behalf of his minor daughter Deborah Ann C. Enriquez (Deborah Ann), also known as Dina Abdullah Enriquez Alsagoff, on the other hand, alleges that their predecessor-in-interest Anacleto Cabrera and his wife Patricia Seguera Cabrera (collectively the Spouses Cabrera) owned proindiviso share in the subject parcel of land or 1051 sq. m. They further allege that Spouses Cabrera were survived by two daughters Graciana, who died single and without issue, and Etta, the wife of respondent Peter and mother of respondent Deborah Ann who succeeded their parents rights and took possession of the 1051 sq. m. of the subject parcel of land. During her lifetime, Graciana sold her share over the land to Etta. Thus, making the latter the sole owner of the one-half share of the subject parcel of land. Subsequently, Etta died and the property passed on to petitioners Peter and Deborah Ann by virtue of an Extra-Judicial Settlement of Estate. On June 19, 1999, petitioners Peter and Deborah Ann sold 200 sq. m. out of the 1051 sq. m. for P200,000.00 to Spouses Dionisio and Catalina Fernandez (Spouses Fernandez), also their corespondents in the case at bar. After the sale, Spouses Fernandez took possession of the said area in the subject parcel of land.[4]

HELD: We answer in the affirmative. An ordinary civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong.[10] A special proceeding, on the other hand, is a remedy by which a party seeks to establish a status, a right or a particular fact.[11] The Rules of Court provide that only a real party in interest is allowed to prosecute and defend an action in court.[12] A real party in interest is the one who stands to be benefited or injured by the judgment in the suit or the one entitled to the avails thereof. [13] Such interest, to be considered a real interest, must be one which is present and substantial, as distinguished from a mere expectancy, or a future, contingent, subordinate or consequential interest.[14] A plaintiff is a real party in interest when he is the one who has a legal right to enforce or protect, while a defendant is a real party in interest when he is the one who has a correlative legal obligation to redress a wrong done to the plaintiff by reason of the defendants act or omission which had violated the legal right of the former.[15] The purpose of the rule is to protect persons against undue and unnecessary litigation.[16] It likewise ensures that the court will have the benefit of having before it the real adverse parties in the consideration of a case.[17] Thus, a plaintiffs right to institute an ordinary civil action should be based on his own right to the relief sought. In cases wherein alleged heirs of a decedent in whose name a property was registered sue to recover the said property through the institution of an ordinary civil action, such as a complaint for reconveyance and partition,[18] or nullification of transfer certificate of titles and other deeds or documents related thereto,[19] this Court has consistently ruled that a declaration of heirship is improper in an ordinary civil action since the matter is within the exclusive competence of the court in a special proceeding. [20] In the recent case of Portugal v. Portugal-Beltran,[21] the Court had the occasion to clarify its ruling on the issue at hand, to wit: The common doctrine in Litam, Solivio and Guilas in which the adverse parties are putative heirs to the estate of a decedent or parties to the special proceedings for its settlement is that  if the special proceedings are pending, or if there are no special proceedings filed but there is, under the circumstances of the case, a need to file one, then the determination of, among other issues, heirship should be raised and settled in said special proceedings.  Where special proceedings had been instituted but had been finally closed and terminated, however, or if a putative heir has lost the right to have himself declared in the special proceedings as co-heir and he can no longer ask for its re-opening, then an ordinary civil action can be filed for his declaration as heir in order to bring about the annulment of the partition or distribution or adjudication of a property or properties belonging to the estate of the deceased.[22]

In the instant case , while the complaint was denominated as an action for the Declaration of Non-Existency[sic], Nullity of Deeds, and Cancellation of Certificates of

NARTATEZ, CARELL RYZA

27

SPECIAL PROCEEDINGS CASES – RULE 73 Title, etc., a review of the allegations therein reveals that the right being asserted by the respondents are their right as heirs of Anacleto Cabrera who they claim co-owned onehalf of the subject property and not merely one-fourth as stated in the documents the respondents sought to annul. As correctly pointed out by the trial court, the ruling in the case of Heirs of Guido Yaptinchay v. Hon. Roy del Rosario[23] is applicable in the case at bar. In the said case, the petitioners therein, claiming to be the legal heirs of the late Guido and Isabel Yaptinchay filed for annulment of the transfer certificates of title issued in the name of Golden Bay Realty Corporation on the ground that the subject properties rightfully belong to the petitioners predecessor and by virtue of succession have passed on to them. In affirming the trial court therein, this Court ruled: ...(T)he plaintiffs who claimed to be the legal heirs of the said Guido and Isabel Yaptinchay have not shown any proof or even a semblance of it except the allegations that they are the legal heirs of the aforementioned Yaptinchays that they have been declared the legal heirs of the deceased couple. Now, the determination of who are the legal heirs of the deceased couple must be made in the proper special proceedings in court, and not in an ordinary suit for reconveyance of property. This must take precedence over the action for reconveyance.[24] In the same manner, the respondents herein, except for their allegations, have yet to substantiate their claim as the legal heirs of Anacleto Cabrera who are, thus, entitled to the subject property. Neither is there anything in the records of this case which would show that a special proceeding to have themselves declared as heirs of Anacleto Cabrera had been instituted. As such, the trial court correctly dismissed the case for there is a lack of cause of action when a case is instituted by parties who are not real parties in interest. While a declaration of heirship was not prayed for in the complaint, it is clear from the allegations therein that the right the respondents sought to protect or enforce is that of an heir of one of the registered co-owners of the property prior to the issuance of the new transfer certificates of title that they seek to cancel. Thus, there is a need to establish their status as such heirs in the proper forum. Furthermore, in Portugal,[25] the Court held that it would be superfluous to still subject the estate to administration proceedings since a determination of the parties' status as heirs could be achieved in the ordinary civil case filed because it appeared from the records of the case that the only property left by the decedent was the subject matter of the case and that the parties have already presented evidence to establish their right as heirs of the decedent. In the present case, however, nothing in the records of this case shows that the only property left by the deceased Anacleto Cabrera is the subject lot, and neither had respondents Peter and Deborah Ann presented any evidence to establish their rights as heirs, considering especially that it appears that there are other heirs of Anacleto Cabrera who are not parties in this case that had signed one of the questioned documents. Hence, under the circumstances in this case, this Court finds that a determination of the rights of respondents Peter and Deborah Ann as heirs of Anacleto Cabrera in a special proceeding is necessary. IN VIEW WHEREOF, the petition is GRANTED. The decision of the Court of Appeals is hereby REVERSED and the decision of the Regional Trial Court dated June 29, 2000 DISMISSING the complaint is REINSTATED. No costs. SO ORDERED.

On April 11, 1950, Paz gave birth to a girl, Aleli,[6] later baptized as Leonila Perpetua Aleli Portugal, herein respondent.[7] On May 16, 1968, Portugal and his four (4) siblings executed a Deed of Extra-Judicial Partition and Waiver of Rights[8] over the estate of their father, Mariano Portugal, who died intestate on November 2, 1964.[9] In the deed, Portugals siblings waived their rights, interests, and participation over a 155 sq. m. parcel of land located in Caloocan in his favor.[10] On January 2, 1970, the Registry of Deeds for Caloocan City issued Transfer Certificate of Title (TCT) No. 34292 covering the Caloocan parcel of land in the name of Jose Q. Portugal, married to Paz C. Lazo.[11] On February 18, 1984, Paz died. On April 21, 1985, Portugal died intestate. On February 15, 1988, respondent executed an Affidavit of Adjudication by Sole Heir of Estate of Deceased Person[12] adjudicating to herself the Caloocan parcel of land. TCT No. 34292/T-172[13] in Portugals name was subsequently cancelled and in its stead TCT No. 159813[14] was issued by the Registry of Deeds for Caloocan City on March 9, 1988 in the name of respondent, Leonila Portugal-Beltran, married to Merardo M. Beltran, Jr. Later getting wind of the death in 1985 of Portugal and still later of the 1988 transfer by respondent of the title to the Caloocan property in her name, petitioners filed before the RTC of Caloocan City on July 23, 1996 a complaint[15] against respondent for annulment of the Affidavit of Adjudication executed by her and the transfer certificate of title issued in her name. In their complaint, petitioners alleged that respondent is not related whatsoever to the deceased Portugal, hence, not entitled to inherit the Caloocan parcel of land and that she perjured herself when she made false representations in her Affidavit of Adjudication. Petitioners accordingly prayed that respondents Affidavit of Adjudication and the TCT in her name be declared void and that the Registry of Deeds for Caloocan be ordered to cancel the TCT in respondents name and to issue in its stead a new one in their (petitioners) name, and that actual, moral and exemplary damages and attorneys fees and litigation expenses be awarded to them. Following respondents filing of her answer, the trial court issued a Pre-Trial Order chronicling, among other things, the issues as follows: a. Which of the two (2) marriages contracted by the deceased Jose Q. Portugal Sr., is valid? b. Which of the plaintiff . . . Jose Portugal Jr. and defendant Leonila P. Beltran is the legal heir of the deceased Jose Q. Portugal Sr.? c. Whether or not TCT No. 159813 was issued in due course and can still be contested by plaintiffs.

12. PORTUGAL VS PORTUGAL-BELTRAN [G.R. No. 155555. August 16, 2005]

d. Whether or not plaintiffs are entitled to their claims under the complaint.[16] (Underscoring supplied)

ISABEL P. PORTUGAL and JOSE DOUGLAS PORTUGAL JR., petitioners, vs. LEONILA PORTUGAL-BELTRAN, respondent. DECISION CARPIO MORALES, J.: Petitioners Isabel P. Portugal and her son, Jose Douglas Portugal Jr., assail the September 24, 2002[1] Decision of the Court of Appeals affirming that of the Regional Trial Court (RTC) of Caloocan City, Branch 124[2] which dismissed, after trial, their complaint for annulment of title for failure to state a cause of action and lack of jurisdiction. From the records of the case are gathered the following material allegations  claims of the parties which they sought to prove by testimonial and documentary evidence during the trial of the case: On November 25, 1942, Jose Q. Portugal (Portugal) married Paz Lazo.[3] On May 22, 1948, Portugal married petitioner Isabel de la Puerta.[4] On September 13, 1949, petitioner Isabel gave birth to a boy whom she named Jose Douglas Portugal Jr., her herein co-petitioner.[5]

After trial, the trial court, by Decision of January 18, 2001,[17] after giving an account of the testimonies of the parties and their witnesses and of their documentary evidence, without resolving the issues defined during pre-trial, dismissed the case for lack of cause of action on the ground that petitioners status and right as putative heirs had not been established before a probate (sic) court, and lack of jurisdiction over the case, citing Heirs of Guido and Isabel Yaptinchay v. Del Rosario.[18] In relying on Heirs of Guido and Isabel Yaptinchay, the trial court held: The Heirs of Yaptinchay case arose from facts not dissimilar to the case at bar. xxx In the instant case, plaintiffs presented a Marriage Contract, a Certificate of Live Birth, pictures (sic) and testimonial evidence to establish their right as heirs of the decedent. Thus, the preliminary act of having a status and right to the estate of the decedent, was sought to be determined herein. However, the establishment of a status, a right, or a particular fact is remedied through a special proceeding (Sec. 3(c), Rule 1, 1997 Rules of

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Court), not an ordinary civil action whereby a party sues another for the enforcement or protection of a right, or the protection or redress of a wrong (ibid, a). The operative term in the former is to establish, while in the latter, it is to enforce, a right. Their status and right as putative heirs of the decedent not having been established, as yet, the Complaint failed to state a cause of action. The court, not being a probate (sic) court, is without jurisdiction to rule on plaintiffs cause to establish their status and right herein. Plaintiffs do not have the personality to sue (Secs. 1 and 2, Rule 3, in relation to Secs. 1 and 2, Rule 2, supra).[19] (Italics in the original; emphasis and underscoring supplied). Petitioners thereupon appealed to the Court of Appeals, questioning the trial courts ratio decedendi in dismissing the case as diametrically opposed to this Courts following ruling in Cario v. Cario,[20] viz: Under Article 40 of the Family Code, the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. Meaning, where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law, for said projected marriage to be free from legal infirmity, is a final judgment declaring the previous void. (Domingo v. Court of Appeals, 226 SCRA 572, 579 [1993]) However, for purposes other than remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For other purposes, such as but not limited to the determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even after the death of the parties thereto, and even in a suit not directly instituted to question the validity of said marriage, so long as it is essential to the determination of the case. (Nial, et al. v. Bayadog, GR No. 13378, March 14, 2000). In such cases, evidence must be adduced, testimonial or documentary, to prove the existence of grounds rendering such a previous marriage an absolute nullity. These need not be limited solely to an earlier final judgment of a court declaring such previous marriage void. (Domingo v. Court of Appeals, supra) (Emphasis and underscoring supplied). Conceding that the ruling in Cario was promulgated (in 2001) subsequent to that of Heirs of Guido and Isabel Yaptinchay (in 1999), the appellate court found Cario to be inapplicable, however, to the case in this wise: To be borne in mind is the fact that the main issue in the Cario case was the validity of the two marriages contracted by the deceased SPO4 Santiago Cario, whose death benefits was the bone of contention between the two women both named Susan (viz., Susan Nicdao Cario and Susan Yee Cario) both of whom he married. It is not disputed in said case that SPO4 S. Cario contracted two marriages with said two women during his lifetime, and the only question was: which of these two marriages was validly celebrated? The award of the death benefits of the deceased Cario was thus, merely an incident to the question of which of the two marriages was valid. Upon the other hand, the case at bench is of a different milieu. The main issue here is the annulment of title to property. The only undisputed fact in this case is that the deceased Jose Portugal, during his lifetime, owned a parcel of land covered by Transfer Certificate of Title (TCT) No. T34292. However, here come two contending parties, herein plaintiffs-appellants and defendant-appellee, both now insisting to be the legal heir(s) of the decedent. x x x. The status and rights of the parties herein have not, therefore, been definitively established, as yet. x x x. Necessarily and naturally, such questions as to such status or right must be properly ventilated in an appropriate special proceeding, not in an ordinary civil action, whereunder a party sues another for the enforcement or protection of a right, or the protection or redress of a wrong. The institution of an ordinary civil suit for that purpose in the present case is thus impermissible. For it is axiomatic that what the law prohibits or forbids directly, it cannot permit or allow indirectly. To permit, or allow, a declaration of heirship, or the establishment of the legitimacy or illegitimacy of a child to be determined in an ordinary civil action, not in an appropriate special proceeding brought for that purpose, is thus to impinge upon this axiom. x x x[21] (Emphasis in the original, underscoring supplied). The appellate court, by Decision of September 24, 2002,[22] thus affirmed the trial courts dismissal of the case. Hence, the present Petition for Review on Certiorari,[23] faulting the appellate court to have erred when

. . . (i) it applied the ruling in Heirs of Guido [and Isabel] Yaptingchay despite the existence of a later and contrary ruling in Cario, and (ii) when the Honorable CA and the lower court failed to render judgment based on the evidence presented relative to the issues raised during pre-trial, . . .[24] (Emphasis and underscoring supplied). Petitioners thus prayed as follows: WHEREFORE, it is respectfully prayed of this Honorable Supreme Court that the questioned CA decision be reversed, and a new one entered in accordance with the prayers set forth in the instant complaint based on the above disquisition and evidence adduced by petitioners in the court a quo. IN THE ALTERNATIVE, should the Honorable Supreme Court find that the pronouncements in Cario apply, a decision be entered remanding to the court a quo the determination of the issues of which of the two marriages is valid, and the determination of heirship and legitimacy of Jose Jr. and Leonila preparatory to the determination of the annulment of title issued in the name of Leonila. Other relief and remedy just and equitable in the premises are likewise prayed for.[25] (Underscoring supplied). Petitioners, in the main, argue that the appellate court misapplied Heirs of Guido and Isabel Yaptinchay and in effect encouraged multiplicity of suits which is discouraged by this Court as a reading of Cario shows; that Cario allows courts to pass on the determination of heirship and the legitimacy or illegitimacy of a child so long as it is necessary to the determination of the case; and that contrary to the appellate courts ruling, they had established their status as compulsory heirs. In the main, the issue in the present petition is whether petitioners have to institute a special proceeding to determine their status as heirs before they can pursue the case for annulment of respondents Affidavit of Adjudication and of the TCT issued in her name. In the above-cited case of Heirs of Guido and Isabel Yaptinchay,[26] the therein petitioners executed on March 17, 1994 an extrajudicial settlement of the estate of the deceased Guido and Isabel Yaptinchay, owners-claimants of the two lots mentioned therein. They later discovered on August 26, 1994 that a portion, if not all, of the two lots had been titled in the name of the therein respondent Golden Bay Realty and Development Corporation which in turn sold portions thereof to the therein individual respondents. The therein petitioners Heirs thus filed a complaint for annulment of titles. The therein respondents moved to dismiss the case for failure of the therein petitioners to, inter alia, state a cause of action and prove their status as heirs. The trial court granted the motion to dismiss in this wise: But the plaintiffs who claimed to be the legal heirs of the said Guido and Isabel Yaptinchay have not shown any proof or even a semblance of itexcept the allegations that they are the legal heirs of the aforementioned Yaptinchaysthat they have been declared the legal heirs of the deceased couple. Now, the determination of who are the legal heirs of the deceased couple must be made in the proper special proceedings in court, and not in an ordinary suit for reconveyance of property. This must take precedence over the action for reconveyance . . .[27] (Italics in the original; underscoring supplied). On petition for certiorari by the Heirs, this Court, albeit holding that the petition was an improper recourse, found that the trial court did not commit grave abuse of discretion in dismissing the case. Citing Litam et al. v. Rivera[28] and Solivio v. Court of Appeals,[29] this Court held that the declaration of heirship can be made only in a special proceeding inasmuch as the petitioners here are seeking the establishment of a status or right. In the above-cited case of Litam,[30] Gregorio Dy Tam instituted a special proceeding for issuance of letters of administration before the then Court of First Instance (CFI) of Rizal, alleging in his petition that he is the son of Rafael Litam who died in Manila on January 10, 1951 and is survived by him and his therein named seven (7) siblings who are children of the decedent by his marriage to Sia Khin celebrated in China in 1911; that the decedent contracted in 1922 in the Philippines another marriage with Marcosa Rivera; and that the decedent left neither a will nor debt. Dy Tam thus prayed for the issuance of letters of administration to Marcosa Rivera, the surviving spouse of the decedent. The CFI granted the petition and issued letters of administration to, on Marcosas request, her nephew Arminio Rivera.

I. . . . it affirmed the RTC decision dismissing the initiatory complaint as it failed to state a cause of action.

While the special proceeding was pending, Dy Tam and his purported siblings filed a civil case before the same court, against the estate of Rafael Litam administrator Arminio Rivera and Remedios R. Espiritu, duly appointed guardian of Marcosa. In their complaint, Dy Tam and his purported siblings substantially reproduced the allegations made in his

II.

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SPECIAL PROCEEDINGS CASES – RULE 73 petition in the special proceeding, with the addition of a list of properties allegedly acquired during the marriage of the decedent and Marcosa. Finding the issue raised in the civil case to be identical to some unresolved incidents in the special proceeding, both were jointly heard by the trial court, following which it rendered a decision in the civil case dismissing it, declaring, inter alia, that the plaintiffs Dy Tam et al. are not the children of the decedent whose only surviving heir is Marcosa. On appeal to this Court by Dy Tam et al., one of the two issues raised for determination was whether they are the legitimate children of Rafael Litam. This Court, holding that the issue hinged on whether Rafael Litam and Sia Khin were married in 1911, and whether Rafael Litam is the father of appellants Dy Tam et al., found substantially correct the trial courts findings of fact and its conclusion that, among other things, the birth certificates of Dy Tam et al. do not establish the identity of the deceased Rafael Litam and the persons named therein as father [and] it does not appear in the said certificates of birth that Rafael Litam had in any manner intervened in the preparation and filing thereof; and that [t]he other documentary evidence presented by [them] [is] entirely immaterial and highly insufficient to prove the alleged marriage between the deceased Rafael Litam and Sia Khin and [their] alleged status . . . as children of said decedent. This Court went on to opine in Litam, however, that the lower court should not have declared, in the decision appealed from, that Marcosa is the only heir of the decedent, for such declaration is improper in the [civil case], it being within the exclusive competence of the court in [the] [s]pecial [p]roceeding. In Solivio,[31] also cited in Heirs of Guido and Isabel Yaptinchay, there was a special proceeding for the settlement of the estate of the deceased, who was a soltero, filed before the RTC of Iloilo. In the special proceeding, Branch 23 of said court declared as sole heir Celedonia Solivio, the decedents maternal aunt-half sister of his mother. Concordia Javellana-Villanueva, the decedents paternal aunt-sister of his father, moved to reconsider the courts order declaring Celedonia Solivio as sole heir of the decedent, she claiming that she too was an heir. The court denied the motion on the ground of tardiness. Instead of appealing the denial of her motion, Concordia filed a civil case against Celedonia before the same RTC, for partition, recovery of possession, ownership and damages. The civil case was raffled to Branch 26 of the RTC, which rendered judgment in favor of Concordia. On appeal by Celedonia, the appellate court affirmed the said judgment. On petition for review filed before this Court by Celedonia who posed, among other issues, whether Branch 26 of the RTC of Iloilo had jurisdiction to entertain [the civil action] for partition and recovery of Concordia Villanuevas share of the estate of [the deceased] while the [estate] proceedings . . . were still pending . . . in Branch 23 of the same court, this Court held that [i]n the interest of orderly procedure and to avoid confusing and conflicting dispositions of a decedents estate, a court should not interfere with [estate] proceedings pending in a co-equal court, citing Guilas v. CFI Judge of Pampanga.[32] This Court, however, in Solivio, upon [c]onsidering that the estate proceedings are still pending, but nonetheless [therein private respondent-Concordia Villanueva] had lost her right to have herself declared as co-heir in said proceedings, opted to proceed to discuss the merits of her claim in the interest of justice, and declared her an heir of the decedent. In Guilas[33] cited in Solivio, a project of partition between an adopted daughter, the therein petitioner Juanita Lopez Guilas (Juanita), and her adoptive father was approved in the proceedings for the settlement of the testate estate of the decedent-adoptive mother, following which the probate court directed that the records of the case be archived. Juanita subsequently filed a civil action against her adoptive father to annul the project of partition on the ground of lesion, preterition and fraud, and prayed that her adoptive father immediately deliver to her the two lots allocated to her in the project of partition. She subsequently filed a motion in the testate estate proceedings for her adoptive father to deliver to her, among other things, the same two lots allotted to her. After conducting pre-trial in the civil case, the trial court, noting the parties agreement to suspend action or resolution on Juanitas motion in the testate estate proceedings for the delivery to her of the two lots alloted to her until after her complaint in the civil case had been decided, set said case for trial.

Juanita later filed in the civil case a motion to set aside the order setting it for trial on the ground that in the amended complaint she, in the meantime, filed, she acknowledged the partial legality and validity of the project of partition insofar as she was allotted the two lots, the delivery of which she was seeking. She thus posited in her motion to set aside the April 27, 1966 order setting the civil case for hearing that there was no longer a prejudicial question to her motion in the testate estate proceedings for the delivery to her of the actual possession of the two lots. The trial court, by order of April 27, 1966, denied the motion. Juanita thereupon assailed the April 27, 1966 order before this Court. The probate courts approval of the project of partition and directive that the records of the case be sent to the archives notwithstanding, this Court held that the testate estate proceedings had not been legally terminated as Juanitas share under the project of partition had not been delivered to her. Explained this Court: As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated (Siguiong vs. Tecson, supra.); because a judicial partition is not final and conclusive and does not prevent the heir from bringing an action to obtain his share, provided the prescriptive period therefor has not elapse (Mari vs. Bonilla, 83 Phil., 137). The better practice, however, for the heir who has not received his share, is to demand his share through a proper motion in the same probate or administration proceedings, or for re-opening of the probate or administrative proceedings if it had already been closed, and not through an independent action, which would be tried by another court or Judge which may thus reverse a decision or order of the probate o[r] intestate court already final and executed and reshuffle properties long ago distributed and disposed of (Ramos vs. Ortuzar, 89 Phil. 730, 741-742; Timbol vs. Cano, supra,; Jingco vs. Daluz, L-5107, April 24, 1953, 92 Phil. 1082; Roman Catholic vs. Agustines, L-14710, March 29, 1960, 107 Phil., 455, 460-461). [34] (Emphasis and underscoring supplied). This Court thus set aside the assailed April 27, 1966 order of the trial court setting the civil case for hearing, but allowed the civil case to continue because it involves no longer the two lots adjudicated to Juanita. The common doctrine in Litam, Solivio and Guilas in which the adverse parties are putative heirs to the estate of a decedent or parties to the special proceedings for its settlement is that if the special proceedings are pending, or if there are no special proceedings filed but there is, under the circumstances of the case, a need to file one, then the determination of, among other issues, heirship should be raised and settled in said special proceedings. Where special proceedings had been instituted but had been finally closed and terminated, however, or if a putative heir has lost the right to have himself declared in the special proceedings as co-heir and he can no longer ask for its re-opening, then an ordinary civil action can be filed for his declaration as heir in order to bring about the annulment of the partition or distribution or adjudication of a property or properties belonging to the estate of the deceased. In the case at bar, respondent, believing rightly or wrongly that she was the sole heir to Portugals estate, executed on February 15, 1988[35] the questioned Affidavit of Adjudication under the second sentence of Rule 74, Section 1 of the Revised Rules of Court.[36] Said rule is an exception to the general rule that when a person dies leaving a property, it should be judicially administered and the competent court should appoint a qualified administrator, in the order established in Sec. 6, Rule 78 in case the deceased left no will, or in case he did, he failed to name an executor therein.[37] Petitioners claim, however, to be the exclusive heirs of Portugal. A probate or intestate court, no doubt, has jurisdiction to declare who are the heirs of a deceased. It appearing, however, that in the present case the only property of the intestate estate of Portugal is the Caloocan parcel of land,[38] to still subject it, under the circumstances of the case, to a special proceeding which could be long, hence, not expeditious, just to establish the status of petitioners as heirs is not only impractical; it is burdensome to the estate with the costs and expenses of an administration proceeding. And it is superfluous in light of the fact that the parties to the civil case subject of the present case, could and had already in fact presented evidence before the trial court which assumed jurisdiction over the case upon the issues it defined during pre-trial. In fine, under the circumstances of the present case, there being no compelling reason to still subject Portugals estate to administration proceedings since a determination of petitioners status as heirs could be achieved in the civil case filed by petitioners,[39] the trial court should proceed to evaluate the evidence presented by the parties during the

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trial and render a decision thereon upon the issues it defined during pre-trial, which bear repeating, to wit: 1. Which of the two (2) marriages contracted by the deceased Jose Q. Portugal, is valid; 2. Which of the plaintiff, Jose Portugal Jr. and defendant Leonila P. Beltran is the legal heir of the deceased Jose Q. Portugal (Sr.); 3. Whether or not TCT No. 159813 was issued in due course and can still be contested by plaintiffs;

language of this rule is plain and simple which states that such a petition may be filed solely by the husband or the wife. The rule is clear and unequivocal that only the husband or the wife may file the petition for Declaration of Absolute Nullity of a Void Marriage. The reading of this Court is that the right to bring such petition is exclusive and this right solely belongs to them. Consequently, the heirs of the deceased spouse cannot substitute their late father in bringing the action to declare the marriage null and void.[12] (Emphasis supplied.) The dispositive portion of the Order, thus, reads: WHEREFORE, [the] Motion to Dismiss raised as an affirmative defense in the answer is hereby GRANTED. Accordingly, the Complaint filed by the [respondents] is hereby DISMISSED with costs de officio. [13]

4. Whether or not plaintiffs are entitled to their claim under the complaint.[40] WHEREFORE, the petition is hereby GRANTED. The assailed September 24, 2002 Decision of the Court of Appeals is hereby SET ASIDE. Let the records of the case be REMANDED to the trial court, Branch 124 of the Regional Trial Court of Caloocan City, for it to evaluate the evidence presented by the parties and render a decision on the above-enumerated issues defined during the pre-trial. No costs. SO ORDERED.  Exceptions 1. ENRICO VS HEIRS MEDINACELI G.R. No. 173614 The instant Petition for Certiorari filed under Rule 65 of the 1997 Rules of Civil Procedure assails the Order,[1] dated 3 May 2006 of the Regional Trial Court (RTC) of Aparri, Cagayan, Branch 6, in Civil Case No. II-4057, granting reconsideration of its Order,[2] dated 11 October 2005, and reinstating respondents Complaint for Declaration of Nullity of Marriage. On 17 March 2005, respondents, heirs of Spouses Eulogio B. Medinaceli (Eulogio) and Trinidad Catli-Medinaceli (Trinidad) filed with the RTC, an action for declaration of nullity of marriage of Eulogio and petitioner Lolita D. Enrico. Substantially, the complaint alleged, inter alia, that Eulogio and Trinidad were married on 14 June 1962, in Lal-lo, Cagayan.[3] They begot seven children, herein respondents, namely: Eduardo, Evelyn, Vilma, Mary Jane, Haizel, Michelle and Joseph Lloyd.[4] On 1 May 2004, Trinidad died. [5] On 26 August 2004, Eulogio married petitioner before the Municipal Mayor of Lal-lo, Cagayan.[6] Six months later, or on 10 February 2005, Eulogio passed away.[7] In impugning petitioners marriage to Eulogio, respondents averred that the same was entered into without the requisite marriage license. They argued that Article 34[8] of the Family Code, which exempts a man and a woman who have been living together for at least five years without any legal impediment from securing a marriage license, was not applicable to petitioner and Eulogio because they could not have lived together under the circumstances required by said provision. Respondents posited that the marriage of Eulogio to Trinidad was dissolved only upon the latters death, or on 1 May 2004, which was barely three months from the date of marriage of Eulogio to petitioner. Therefore, petitioner and Eulogio could not have lived together as husband and wife for at least five years. To further their cause, respondents raised the additional ground of lack of marriage ceremony due to Eulogios serious illness which made its performance impossible. In her Answer, petitioner maintained that she and Eulogio lived together as husband and wife under one roof for 21 years openly and publicly; hence, they were exempted from the requirement of a marriage license. From their union were born Elvin Enrico and Marco Enrico, all surnamed Medinaceli, on 28 October 1988 and 30 October 1991, respectively. She further contended that the marriage ceremony was performed in the Municipal Hall of Lal-lo, Cagayan, and solemnized by the Municipal Mayor. As an affirmative defense, she sought the dismissal of the action on the ground that it is only the contracting parties while living who can file an action for declaration of nullity of marriage. On 11 October 2005, the RTC issued an Order,[9] granting the dismissal of the Complaint for lack of cause of action. It cited A.M. No. 02-11-10-SC,[10] dated 7 March 2003, promulgated by the Supreme Court En Banc as basis. The RTC elucidated on its position in the following manner: The Complaint should be dismissed. 1) Administrative Matter No. 02-11-10-SC promulgated by the Supreme Court which took effect on March 15, 2003 provides in Section 2, par. (a)[11] that a petition for Declaration of Absolute Nullity of a Void Marriage may be filed solely by the husband or the wife. The

Respondents filed a Motion for Reconsideration thereof. Following the filing by petitioner of her Comment to the said motion, the RTC rendered an Order[14] dated 3 May 2006, reversing its Order of 11 October 2005. Hence, the RTC reinstated the complaint on the ratiocination that the assailed Order ignored the ruling in Nial v. Bayadog,[15] which was on the authority for holding that the heirs of a deceased spouse have the standing to assail a void marriage even after the death of the latter. It held that Section 2(a) of A.M. No. 02-11-20-SC, which provides that a petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife, applies only where both parties to a void marriage are still living.[16] Where one or both parties are deceased, the RTC held that the heirs may file a petition to declare the marriage void. The RTC expounded on its stance, thus: The questioned Order disregarded the case of Nial vs. Bayadog, 328 SCRA 122 (March 14, 2000) in which the Supreme Court, First Division, held that the heirs of a deceased person may file a petition for the declaration of his marriage after his death. The Order subject of this motion for reconsideration held that the case of Nial vs. Bayadog is now superseded by the new Rule on Declaration of Absolute Nullity of Marriages (hereinafter referred to as the Rule) because the Supreme Court has rejected the case of Nial vs. Bayadog by approving the Rule on Nullity of Void Marriages. The Order further held that it is only the husband or the wife who is (sic) the only parties allowed to file an action for declaration of nullity of their marriage and such right is purely personal and is not transmissible upon the death of the parties. It is admitted that there seems to be a conflict between the case of Nial vs. Bayadog and Section 2(a) of the Rule. In view of this, the Court shall try to reconcile the case of Nial vs. Bayadog and the Rule. To reconcile, the Court will have to determine [the] basic rights of the parties. The rights of the legitimate heirs of a person who entered into a void marriage will be prejudiced particularly with respect to their successional rights. During the lifetime of the parent[,] the heirs have only an inchoate right over the property of the said parents. Hence, during the lifetime of the parent, it would be proper that it should solely be the parent who should be allowed to file a petition to declare his marriage void. However, upon the death of the parent his heirs have already a vested right over whatever property left by the parent. Such vested right should not be frustrated by any rules of procedure such as the Rule. Rules of Procedure cannot repeal rights granted by substantive law. The heirs, then, have a legal standing in Court. If the heirs are prohibited from questioning the void marriage entered by their parent, especially when the marriage is illegal and feloniously entered into, it will give premium to such union because the guilty parties will seldom, if ever at all, ask for the annulment of the marriage. Such void marriage will be given a semblance of validity if the heirs will not be allowed to file the petition after the death of the parent. For these reasons, this Court believes that Sec. 2(a) of the Rules on Declaration of Absolute Nullity of Marriage is applicable only when both parties to a (sic) void marriage are still living. Upon the death of anyone of the guilty party to the void marriage, his heirs may file a petition to declare the the (sic) marriage void, but the Rule is not applicable as it was not filed b the husband or the wife. It shall be the ordinary rule of civil procedure which shall be applicable.[17] Perforce, the decretal portion of the RTC Order of 3 May 2006 states: In view of the foregoing, the Court grants the motion for reconsideration dated October 31, 2005 and reinstate this case.[18] Aggrieved, petitioner filed a Motion for Reconsideration of the foregoing Order; however, on 1 June 2006, the RTC denied the said motion on the ground that no new matter was raised therein.[19]

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SPECIAL PROCEEDINGS CASES – RULE 73 Hence, the instant Petition under Rule 65 of the 1997 Rules of Civil Procedure on the sole question of whether the case law as embodied in Nial, or the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, as specified in A.M. No. 02-11-10-SC of the Supreme Court applies to the case at bar. At the outset, we note that petitioner took an abbreviated route to this Court, countenancing the hierarchy of courts. We have earlier emphasized that while the Supreme Court has the concurrent jurisdiction with the Court of Appeals and the RTCs (for writs enforceable within their respective regions), to issue writs of mandamus, prohibition or certiorari, the litigants are well advised against taking a direct recourse to this Court.[20] Instead, they should initially seek the proper relief from the lower courts. As a court of last resort, this Court should not be burdened with the task of dealing with causes in the first instance. Where the issuance of an extraordinary writ is concurrently within the competence of the Court of Appeals or the RTC, litigants must observe the principle of hierarchy of courts.[21] However, it cannot be gainsaid that this Court has the discretionary power to brush aside procedural lapses if compelling reasons, or the nature and importance of the issues raised, warrant the immediate exercise of its jurisdiction.[22] Moreover, notwithstanding the dismissibility of the instant Petition for its failure to observe the doctrine on the hierarchy of courts, this Court will proceed to entertain the case grounded as it is on a pure question of law. Petitioner maintains that A.M. No. 02-11-10-SC governs the instant case. A contrario, respondents posit that it is Nial which is applicable, whereby the heirs of the deceased person were granted the right to file a petition for the declaration of nullity of his marriage after his death. We grant the Petition. In reinstating respondents Complaint for Declaration of Nullity of Marriage, the RTC acted with grave abuse of discretion. While it is true that Nial in no uncertain terms allowed therein petitioners to file a petition for the declaration of nullity of their fathers marriage to therein respondent after the death of their father, we cannot, however, apply its ruling for the reason that the impugned marriage therein was solemnized prior to the effectivity of the Family Code. The Court in Nial recognized that the applicable law to determine the validity of the two marriages involved therein is the Civil Code, which was the law in effect at the time of their celebration.[23] What we have before us belongs to a different milieu, i.e., the marriage sought to be declared void was entered into during the effectivity of the Family Code. As can be gleaned from the facts, petitioners marriage to Eulogio was celebrated in 2004. The Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages as contained in A.M. No. 02-11-10-SC is explicit in its scope, to wit:

There is no ambiguity in the Rule. Absolute sententil expositore non indiget. When the language of the law is clear, no explanation of it is required. Section 2(a) of A.M. No. 0211-10-SC, makes it the sole right of the husband or the wife to file a petition for declaration of absolute nullity of void marriage. The Rationale of the Rules on Annulment of Voidable Marriages and Declaration of Absolute Nullity of Void Marriages, Legal Separation and Provisional Orders explicates on Section 2(a) in the following manner, viz: 1. Only an aggrieved or injured spouse may file petitions for annulment of voidable marriages and declaration of absolute nullity of void marriages. Such petitions cannot be filed by the compulsory or intestate heirs of the spouses or by the State. [Section 2; Section 3, paragraph a] Only an aggrieved or injured spouse may file a petition for annulment of voidable marriages or declaration of absolute nullity of void marriages. Such petition cannot be filed by compulsory or intestate heirs of the spouses or by the State. The Committee is of the belief that they do not have a legal right to file the petition. Compulsory or intestate heirs have only inchoate rights prior to the death of their predecessor, and hence can only question the validity of the marriage of the spouses upon the death of a spouse in a proceeding for the settlement of the estate of the deceased spouse filed in the regular courts. On the other hand, the concern of the State is to preserve marriage and not to seek its dissolution.[25] (Emphasis supplied.) Respondents clearly have no cause of action before the court a quo. Nonetheless, all is not lost for respondents. While A.M. No. 02-11-10-SC declares that a petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife, it does not mean that the compulsory or intestate heirs are already without any recourse under the law. They can still protect their successional right, for, as stated in the Rationale of the Rules on Annulment of Voidable Marriages and Declaration of Absolute Nullity of Void Marriages, Legal Separation and Provisional Orders, compulsory or intestate heirs can still question the validity of the marriage of the spouses, not in a proceeding for declaration of nullity, but upon the death of a spouse in a proceeding for the settlement of the estate of the deceased spouse filed in the regular courts. WHEREFORE, the Petition is GRANTED. Civil Case No. II-4057 filed before the Regional Trial Court of Aparri, Cagayan, Branch 6, is ORDERED DISMISSED without prejudice to challenging the validity of the marriage of Lolita D. Enrico to Eulogio B. Medinaceli in a proceeding for the settlement of the estate of the latter. No costs. SO ORDERED. 2.

Section 1. Scope. This Rule shall govern petitions for declaration of absolute nullity of void marriages and annulment of voidable marriages under the Family Code of the Philippines. The Rules of Court shall apply suppletorily. (Emphasis supplied.) The categorical language of A.M. No. 02-11-10-SC leaves no room for doubt. The coverage extends only to those marriages entered into during the effectivity of the Family Code which took effect on 3 August 1988.[24] Moreover, A.M. No. 02-11-10-SC took effect on 15 March 2003, following its publication in a newspaper of general circulation. Thus, contrary to the opinion of the RTC, there is no need to reconcile the provisions of A.M. No. 02-11-10-SC with the ruling in Nial, because they vary in scope and application. As has been emphasized, A.M. No. 02-1110-SC covers marriages under the Family Code of the Philippines, and is prospective in its application. The marriage of petitioner to Eulogio was celebrated on 26 August 2004, and it squarely falls within the ambit of A.M. No. 02-11-10-SC. Hence, in resolving the issue before us, we resort to Section 2(a) of A.M. No. 02-11-10SC, which provides: Section 2. Petition for declaration of absolute nullity of void marriages.

GARCIA-QUIANZON VS BELEN G.R. No. 189121 July 31, 2013

FACTS: A Petition for Letters of Administration of the Estate of Eliseo Quiazon (Eliseo), filed by herein respondents who are Eliseo’s common-law wife and daughter . The petition was opposed by herein petitioners Amelia Garcia-Quaizon (Amelia) to whom Eliseo was married. Amelia was joined by her children, Jenneth Quiazon (Jenneth) and Maria Jennifer Quiazon (Jennifer). Eliseo died intestate on 12 December 1992. PETITION FOR LETTERS OF ADMINISTRATION; On 12 September 1994, Maria Lourdes Elise Quiazon (Elise), represented by her mother, Ma. Lourdes Belen (Lourdes), filed a Petition for Letters of Administration before the (RTC) of Las Piñas City. In her Petition, Elise claims that she is the natural child of Eliseo having been conceived and born at the time when her parents were both capacitated to marry each other. Insisting on the legal capacity of Eliseo and Lourdes to marry, Elise impugned the validity of Eliseo’s marriage to Amelia by claiming that it was bigamous for having been contracted during the subsistence of the latter’s marriage with one Filipito Sandico (Filipito). To prove her filiation to the decedent, Elise, among others, attached to the Petition for Letters of Administration her Certificate of Live Birth4 signed by Eliseo as her father. In the same petition, it was alleged that Eliseo left real properties worth ₱2,040,000.00 and personal properties worth ₱2,100,000.00. In order to preserve the estate of Eliseo and to prevent the dissipation of its value, Elise sought her appointment as administratrix of her late father’s estate.

(a) Who may file. A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife. (n) (Emphasis supplied.)

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SPECIAL PROCEEDINGS CASES – RULE 73

OPPOSITION:, opposed the issuance of the letters of administration by filing an Opposition/Motion to Dismiss on the ground that venue of the petition was improperly laid. The petitioners asserted that as shown by his Death Certificate, 6 Eliseo was a resident of Capas, Tarlac and not of Las Piñas City, at the time of his death. Pursuant to Section 1, Rule 73 of the Revised Rules of Court,7 the petition for settlement of decedent’s estate should have been filed in Capas, Tarlac and not in Las Piñas City RTC directed the issuance of Letters of Administration to Elise upon posting the necessary bond. The lower court ruled that the venue of the petition was properly laid in Las Piñas City, thereby discrediting the position taken by the petitioners that Eliseo’s last residence was in Capas, Tarlac, as hearsay. CA For purposes of fixing the venue of the settlement of Eliseo’s estate, the Court of Appeals upheld the conclusion that the decedent was a resident of Las Piñas City. ISSUE: Won Eliseo Quiazon Was A Resident Of Las Piñas And Therefore, The Petition For Letters Of Administration Was Properly Filed With The Rtc Of Las Piñas; HELD: Under Section 1, Rule 73 of the Rules of Court, the petition for letters of administration of the estate of a decedent should be filed in the RTC of the province where the decedent resides at the time of his death: Sec. 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 now Regional Trial Court 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 now Regional Trial Court of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record. (Emphasis supplied). The term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence or domicile." This term "resides," like the terms "residing" and "residence," is elastic and should be interpreted in the light of the object or purpose of the statute or rule in which it is employed. In the application of venue statutes and rules – Section 1, Rule 73 of the Revised Rules of Court is of such nature – residence rather than domicile is the significant factor.13 Even where the statute uses word "domicile" still it is construed as meaning residence and not domicile in the technical sense .14 Some cases make a distinction between the terms "residence" and "domicile" but as generally used in statutes fixing venue, the terms are synonymous, and convey the same meaning as the term "inhabitant."15 In other words, "resides" should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or place of abode. 16 It signifies physical presence in a place and actual stay thereat.17 Venue for ordinary civil actions and that for special proceedings have one and the same meaning.18 As thus defined, "residence," in the context of venue provisions, means nothing more than a person’s actual residence or place of abode, provided he resides therein with continuity and consistency.19 THE VENUE FOR THE SETTLEMENT OF THE ESTATE OF ELISEO WAS PROPERLY LAID IN LAS PIÑAS CITY . It is evident from the records that during his lifetime, Eliseo resided at No. 26 Everlasting Road, Phase 5, Pilar Village, Las Piñas City. For this reason, the venue for the settlement of his estate may be laid in the said city. In opposing the issuance of letters of administration, the petitioners harp on the entry in Eliseo’s Death Certificate that he is a resident of Capas, Tarlac where they insist his estate should be settled. While the recitals in death certificates can be considered proofs of a decedent’s residence at the time of his death, the contents thereof, however, is not binding on the courts. Both the RTC and the Court of Appeals found that Eliseo had been living with Lourdes, deporting themselves as husband and wife, from 1972 up to the time of his death in 1995. This finding is consistent with the fact that in 1985, Eliseo filed an action for judicial partition of properties against Amelia before the RTC of Quezon City, Branch 106, on the ground that their marriage is void for being bigamous.20 That Eliseo went to the extent of taking his marital feud with Amelia before the courts of law renders untenable petitioners’ position that Eliseo spent the final days of his life in Tarlac with Amelia and her children. It disproves rather than supports petitioners’ submission that the lower courts’ findings arose from an erroneous appreciation of the evidence on record. Factual findings of the trial court, when affirmed by the appellate court, must be held to be conclusive and binding upon this Court.21

Likewise unmeritorious is petitioners’ contention that the Court of Appeals erred in declaring Amelia’s marriage to Eliseo as void ab initio. In a void marriage, it was though no marriage has taken place, thus, it cannot be the source of rights. Any interested party may attack the marriage directly or collaterally. A void marriage can be questioned even beyond the lifetime of the parties to the marriage.22 It must be pointed out that at the time of the celebration of the marriage of Eliseo and Amelia, the law in effect was the Civil Code, and not the Family Code, making the ruling in Niñal v. Bayadog23 applicable four-square to the case at hand. In Niñal, the Court, in no uncertain terms, allowed therein petitioners to file a petition for the declaration of nullity of their father’s marriage to therein respondent after the death of their father, by contradistinguishing void from voidable marriages, to wit: Consequently, void marriages can be questioned even after the death of either party but voidable marriages can be assailed only during the lifetime of the parties and not after death of either, in which case the parties and their offspring will be left as if the marriage had been perfectly valid. That is why the action or defense for nullity is imprescriptible, unlike voidable marriages where the action prescribes. Only the parties to a voidable marriage can assail it but any proper interested party may attack a void marriage.24 It was emphasized in Niñal that in a void marriage, no marriage has taken place and it cannot be the source of rights, such that any interested party may attack the marriage directly or collaterally without prescription, which may be filed even beyond the lifetime of the parties to the marriage.25 Relevant to the foregoing, there is no doubt that Elise, whose successional rights would be prejudiced by her father’s marriage to Amelia, may impugn the existence of such marriage even after the death of her father. The said marriage may be questioned directly by filing an action attacking the validity thereof, or collaterally by raising it as an issue in a proceeding for the settlement of the estate of the deceased spouse, such as in the case at bar. Ineluctably, Elise, as a compulsory heir,26 has a cause of action for the declaration of the absolute nullity of the void marriage of Eliseo and Amelia, and the death of either party to the said marriage does not extinguish such cause of action. Having established the right of Elise to impugn Eliseo’s marriage to Amelia, we now proceed to determine whether or not the decedent’s marriage to Amelia is void for being bigamous. Contrary to the position taken by the petitioners, the existence of a previous marriage between Amelia and Filipito was sufficiently established by no less than the Certificate of Marriage issued by the Diocese of Tarlac and signed by the officiating priest of the Parish of San Nicolas de Tolentino in Capas, Tarlac. The said marriage certificate is a competent evidence of marriage and the certification from the National Archive that no information relative to the said marriage exists does not diminish the probative value of the entries therein. We take judicial notice of the fact that the first marriage was celebrated more than 50 years ago, thus, the possibility that a record of marriage can no longer be found in the National Archive, given the interval of time, is not completely remote. Consequently, in the absence of any showing that such marriage had been dissolved at the time Amelia and Eliseo’s marriage was solemnized, the inescapable conclusion is that the latter marriage is bigamous and, therefore, void ab initio.27 Neither are we inclined to lend credence to the petitioners’ contention that Elise has not shown any interest in the Petition for Letters of Administration. Section 6, Rule 78 of the Revised Rules of Court lays down the preferred persons who are entitled to the issuance of letters of administration, thus: Sec. 6. When and to whom letters of administration granted. — If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted: (a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve; (b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve; (c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select. Upon the other hand, Section 2 of Rule 79 provides that a petition for Letters of Administration must be filed by an interested person, thus:

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SPECIAL PROCEEDINGS CASES – RULE 73 Sec. 2. Contents of petition for letters of administration. — A petition for letters of administration must be filed by an interested person and must show, so far as known to the petitioner: (a) The jurisdictional facts; (b) The names, ages, and residences of the heirs, and the names and residences of the creditors, of the decedent; (c) The probable value and character of the property of the estate; (d) The name of the person for whom letters of administration are prayed. But no defect in the petition shall render void the issuance of letters of administration. An "interested party," in estate proceedings, is one who would be benefited in the estate, such as an heir, or one who has a claim against the estate, such as a creditor. Also, in estate proceedings, the phrase "next of kin" refers to those whose relationship with the decedent Is such that they are entitled to share in the estate as distributees.28 In the instant case, Elise, as a compulsory heir who stands to be benefited by the distribution of Eliseo’s estate, is deemed to be an interested party. With the overwhelming evidence on record produced by Elise to prove her filiation to Eliseo, the petitioners’ pounding on her lack of interest in the administration of the decedent’s estate, is just a desperate attempt to sway this Court to reverse the findings of the Court of Appeals. Certainly, the right of Elise to be appointed administratix of the estate of Eliseo is on good grounds. It is founded on her right as a compulsory heir, who, under the law, is entitled to her legitimate after the debts of the estate are satisfied.29 Having a vested right in the distribution of Eliseo’s estate as one of his natural children, Elise can rightfully be considered as an interested party within the purview of the law. WHEREFORE, premises considered, the petition is DENIED for lack of merit. Accordingly, the Court of Appeals assailed 28 November 2008 Decision and 7 August 2009 Resolution, arc AFFIRMED in toto. SO ORDERED.  

Powers of Settlement Court Venue

G.R. No. L-8409 December 28, 1956 In the Matter of the Intestate of the deceased Andres Eusebio. EUGENIO EUSEBIO, petitioner-appellee, vs. AMANDA EUSEBIO, JUAN EUSEBIO, DELFIN EUSEBIO, VICENTE EUSEBIO, and CARLOS EUSEBIO,oppositors-appellants. Francisco M. Ramos and Valeriano Silva for appellee. Filemon Cajator for appellants. CONCEPCION, J.: This case instituted on November 16, 1953, when Eugenio Eusebio filed with the Court of First Instance of Rizal, a petition for his appointment as administrator of the estate of his father, Andres Eusebio, who died on November 28, 1952, residing, according to said petition, in the City of Quezon. On December 4, 1953, Amanda, Virginia, Juan, Delfin, Vicente and Carlos, all surnamed Eusebio, objected to said petition, stating that they are illegitimate children of the deceased and that the latter was domiciled in San Fernando, Pampanga, and praying, therefore, that the case be dismissed upon the ground that venue had been improperly filed. By an order, dated March 10, 1954, said court overruled this objection and granted said petition. Hence, the case is before us on appeal taken, from said order, by Amanda Eusebio, and her aforementioned sister and brothers. The appeal hinges on the situs of the residence of Andres Eusebio on November 28, 1952, for Rule 75, section 1, of the Rules of Court, provides: Where estate of deceased persons settled. — If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizens or an alien, his will shall be proved, or letters of administration granted, and his estate, in the Court of First Instance in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a

court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record. It is not disputed that up to, at least, October 29, 1952, Andres Eusebio was, and had always been, domiciled in San Fernando, Pampanga, where he had his home, as well as some other properties. Inasmuch as his heart was in bad condition and his son, Dr. Jesus Eusebio, who treated him, resided at No. 41 P. Florentino St., Quezon City, on October 29, 1952, Andres Eusebio bought a house and lot at 889-A España Extention, in said City (Exhibit 2). While transferring his belongings to this house, soon thereafter, the decedent suffered a stroke (probably heart failure), for which reason Dr. Eusebio took him to his (Dr. Eusebio's) aforementioned residence, where the decedent remained until he was brought to the UST Hospital, in the City of Manila, sometimes before November 26, 1952. On this date, he contracted marriage in articulo mortis with his common law wife, Concepcion Villanueva, in said hospital. Two (2) days later, he died therein of "acute left ventricular failure secondary to hypertensive heart disease", at the age of seventyfour (74) years (Exhibit A). Consequently, he never stayed or even slept in said house at España Extention. It being apparent from the foregoing that the domicile of origin of the decedent was San Fernando, Pampanga, where he resided for over seventy (70) years, the presumption is that he retained such domicile, and, hence, residence, in the absence of satisfactory proof to the contrary, for it is well-settled that "a domicile once acquired is retained until a new domicile is gained" (Minor, Conflict of Laws, p.70; Restatement of the Law on Conflict of Laws, p. 47; In re Estate of Johnson, 192 Iowa, 78). Under the circumstances surrounding the case at bar, if Andres Eusebio established another domicile, it must have been one of choice, for which the following conditions are essential, namely: (1) capacity to choose and freedom of choice; (2) physical presence at the place chosen; and (3) intention to stay therein permanently (Minor, Conflict of Laws, pp. 109-110; Googrich, Conflict of Laws, p. 169; Velilla vs. Posadas, 62 Phil., 624; Zuellig vs. Republic of the Philippines, 46 Off. Gaz. Suppl. No. 11, p. 220). Admittedly, the decedent was juridically capable of choosing a domicile and had been in Quezon City several days prior to his demise. Thus, the issue narrows down to whether he intended to stay in that place permanently. There is no direct evidence of such intent. Neither does the decedent appears to have manifested his wish to live indefinitely in said city. His son, petitioner-appellee, who took the witness stand, did not testify thereon, despite the allegation, in his answer to the aforemention, opposition of the appellants herein, that "the deceased (had) decided to reside . . . for the rest of his life, in Quezon City". Moreover, said appellee did not introduce the testimony of his legitimate full brother and son of the decedent, Dr. Jesus Eusebio, upon whose advice, presumably, the house and lot at No. 889-A España Extention was purchased, and who, therefore, might have cast some light on his (decedent's) purpose in buying said property. This notwithstanding, the lower court held that the decedent's intent to stay permanently in Quezon City is "manifest" from the acquisition of said property and the transfer of his belonging thereto. This conclusion is untenable.lawphil.net The aforementioned house and lot were bought by the decedent because he had been adviced to do so "due to his illness", in the very words of herein appellee. It is not improbable — in fact, its is very likely — that said advice was given and followed in order that the patient could be near his doctor and have a more effective treatment. It is well settled that "domicile is not commonly changed by presence in a place merely for one's own health", even if coupled with "knowledge that one will never again be able, on account of illness, to return home." (The Conflict of Laws, by Beale, Vol. I, pp. 172-173; see, also, Shenton vs. Abbott, Md., 15., A. 2d. 906; U.S. vs. Knight, D. C. Mont., 291 Fed. 129). Again, the decedent did not part with, or alienate, his house in San Fernando, Pampanga. Moreover, some of his children, who used to live with him in San Fernando, Pampanga, remained in that municipality. Then, again, in the deed Exhibit 2, by virtue of which said property at No. 889-A España Extention, Quezon City, was conveyed to him, on October 29, 1952, or less than a month before his death , the decedent gave San Fernando, Pampanga, as his residence. Similarly, the "A" and "B" residence certificates used by the decedent in aknowledging said Exhibit 2, before a notary public, was issued in San Fernando, Pampanga. Lastly, the marriage contract Exhibit 1, signed by the deceased when he was married, in articulo mortis, to Concepcion Villanueva, at the UST Hospital, on November 26, 1952, or two (2) days prior to his demise, stated that his residence is San Fernando, Pampanga. It is worthy of notice that Alfonso Eusebio, one of the legitimate full brothers of the herein appellee, was a witness to said wedding, thus indicating that the children of the deceased by his first marriage, including said appellee, were represented on that occasion and would have objected to said statement about his residence, if it were false. Consequently, apart from appellee's failure to prove satisfactory that the decedent had decided to establish his home in Quezon City, the acts of the latter, shortly and immediately before his death, prove the contrary. At any rate, the presumption in favor of the retention of the old domicile 1— which is particularly strong

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when the domicile is one of the origin 2as San Fernando, Pampanga, evidently was, as regards said decedent — has not been offset by the evidence of record. The lower court, however, rejected said Exhibits 1 and 2, upon being offered in evidence, and refused to entertain the same in the order appealed from. The reason therefor are deducible from its resolution in rejecting said documents during the hearing of the incident at bar. The court then held: Exihibits "1" and "2" are rejecting but the same may be attached to the records for whatever action oppositors may want to take later on because until now the personality of the oppositors has not been established whether or not they have a right to intervene in this case, and the Court cannot pass upon this question as the oppositors refuse to submit to the jurisdiction of this Court and they maintain that these proceedings should be dismissed. (P. 10, t. s. n.) In short, the lower court believed that said documents should not be admitted in evidence before appellants had established their "personality" to intervene in the case, referring seemingly to their filiation. When appellants, however, sought, during said hearing, to establish their relation with the deceased, as his alleged illegitimate children, His Honor, the trial Judge sustained appellee's objection thereto stating: Your stand until now is to question the jurisdiction of this Court, and it seems that you are now trying to prove the status of your client; you are leading so that. The main point here is your contention that the deceased was never a resident of Quezon City and that is why I allowed you to cross-examine. If you are trying to establish the status of the oppositors, I will sustain the objection, unless you want to submit to the jurisdiction of the Court. This is not yet the time to declare who are persons who should inherit. (p. 1, t. s. n.) Thus, the lower court refused to consider appellant's evidence on the domicile of the decedent, because of their alleged lack of "personality", but, when tried to establish such "personality", they were barred from doing so on account of the question of venue raised by him. We find ourselves unable to sanction either the foregoing procedure adopted by the lower court or the inference it drew from the circumstances surrounding the case. To begin with, His Honor, the trial Judge had taken inconsistent positions. While, on the one hand, he declared that appellants could not be permitted to introduce evidence on the residence of the decedent, for they contestedthe jurisdiction of court , on the other hand, he held, in the order appealed from, that, by cross-examining the appellee, said appellants had submitted themselves to the authority of the court. What is more, this conclusion is refuted by the record. At the beginning of the hearing, in the lower court, appellants' counsel announced that he would take part therein " only to question the jurisdiction, for the purpose of dismissing this proceeding," (p. 2, t.s.n.). During the cross-examination of petitioner herein, said counsel tried to elicit the relation between the decedent and the appellants. As, the appellee objected thereto, the court said, addressing appellants' counsel: " Your stand until now is to question the jurisdiction of the court. . . . It you are trying to establish the status of the oppositors, I will sustain the objection, unless you want to submit to the jurisdiction of the court " (p. 7, t.s.n.). Thereupon, appellants' counsel refused to do so, stating: "I will insist on my stand." Then, too, at the conclusion of the hearing, the court rejected Exhibits 1 and 2, for the reason that appellants "refuse to submit to the jurisdiction of this court and they maintain that these proceedings should bedismissed." Thus, appellants specially made of record that they were not submitting themselves to the jurisdiction of the court, except for the purpose only of assailing the same, and the court felt that appellants were not giving up their stand, which was, and is, a fact. At any rate, appellants were entitled to establish facts tending to prove, not only their right to object to appellee's petition, but, also, that venue had been laid improperly. Such facts were: (a) their alleged relationship with the decedent, 3 which, if true, entitle them to proceed him under the Civil Code of the Philippines; and (b) his alleged residence is Pampanga. In other words, the lower court should have admitted Exhibits 1 and 2 in evidence and given thereto the proper effect, in connection with the issue under consideration. Appellee, however, asks: "What will happen if this case be dismissed in the Court of First Instance of Quezon City on the ground of lack of jurisdiction or improper venue?" In this connection, it appears that on November 14, 1953, the Clerk of the Court of First Instance of Pampanga received a petition of appellants herein, dated November 4, 1953, for the settlement of the "Intestate Estate of the late Don Andres Eusebio". Attached to said petition was petition for the docketing thereof free charge, pursuant to Rule 3, section 22, of the Rules of Court. The latter petition was granted by an order dated November 16, 1953, which was received by the cashier of said court on November 17, 1953, on which date the case was docketed as Special Proceedings No. 957. On December 14, 1953, Jesus, Eugenio, Amando and Alfonso, all surnamed Eusebio (the children of the decedent by first marriage, including petitioner herein), moved for the dismissal of said proceedings, owing to the pendency of the present case, before the Court of First Instance of Rizal, since November 16, 1953. This motion was granted in an order dated December 21, 1953, relying upon the above Rule 75, section 1, of the Rules of Court, pursuant to which "the court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts." Although said order is now final, it cannot affect the outcome of the case at bar. Said order did not pass upon the question of domicile or residence of the decedent. Moreover,

in granting the court first taking cognizance of the case exclusive jurisdiction over the same, said provision of the Rules of Court evidently refers to cases triable before two or more courts with concurrent jurisdiction. It could not possibly have intended to deprive a competent court of the authority vested therein by law, merely because a similar case had been previously filed before a court to which jurisdiction is denied by law, for the same would then be defeated by the will of one of the parties. More specially, said provision refers mainly to non-resident decedents who have properties in several provinces in the Philippines, for the settlement of their respective estates may undertaken before the court of first instance of either one of said provinces, not only because said courts then have concurrent jurisdiction — and, hence, the one first taking cognizance of the case shall exclude the other courts — but, also, because the statement to this effect in said section 1 of Rule 75 of the Rules of the Court immediately follows the last part of the next preceding sentence, which deals with non-resident decedents, whose estate may settled the court of first instance of any province in which they have properties.lawphil.net In view, however, of the last sentence of said section, providing that: . . . 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 proceedings, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record. if proceedings for the settlement of the estate of a deceased resident are instituted in two or more courts, and the question of venue is raised before the same, the court in which the first case was filed shall have exclusive jurisdiction to decide said issue, and we so held in the case of Taciana Vda. De Borja vs. Tan, L-7792 (July 27, 1955). Should it be decided, in the proceedings before the said court, that venue had been improperly laid, the case pending therein should be dismissed and the corresponding proceedings may, thereafter, be initiated in the proper court. In conclusion, we find that the decedent was, at the time of his death, domiciled in San Fernando, Pampanga; that the Court of First Instance of Rizal had no authority, therefore, to appoint an administrator of the estate of the deceased, the venue having been laid improperly; and that it should, accordingly, have sustained appellants' opposition and dismissed appellee's petition. Wherefore, the order appealed from is hereby reversed and appellee's petition is dismissed, with costs against the appellee. It is so ordered. G.R. No. L-40502 November 29, 1976 VIRGINIA GARCIA FULE, and HONORABLE SEVERO A. MALVAR, Presiding Judge, Court of First Instance of Laguna, Branch Vl, petitioners, vs. THE HONORABLE COURT OF APPEALS, * PRECIOSA B. GARCIA and AGUSTINA B. GARCIA, respondents. G.R. No. L-42670 November 29, 1976 VIRGINIA GARCIA FULE, petitioner, vs. HONORABLE ERNANI C. PAÑO, Presiding Judge of Court of First Instance of Rizal, Quezon City, Branch XVIII, and PRECIOSA B. GARCIA, respondents. Francisco Carreon for petitioners. Augusto G. Gatmaytan for private respondents. MARTIN, J.: These two interrelated cases bring to Us the question of what the word "resides" in Section 1, Rule 73 of the Revised Rules Of Court, referring to the situs of the settlement of the estate of deceased persons, means. Additionally, the rule in the appointment of a special administrator is sought to be reviewed. On May 2, 1973, Virginia G. Fule filed with the Court of First Instance of Laguna, at Calamba, presided over by Judge Severo A. Malvar, a petition for letters of administration, docketed as Sp. Proc. No. 27-C, alleging, inter alia, "that on April 26, 1973, Amado G. Garcia, a property owner of Calamba, Laguna , died intestate in the City of Manila, leaving real estate and personal properties in Calamba, Laguna, and in other places, within the jurisdiction of the Honorable Court." At the same time, she moved ex parte for her appointment as special administratrix over the estate. On even date, May 2, 1973, Judge Malvar granted the motion. A motion for reconsideration was filed by Preciosa B. Garcia on May 8, 1973, contending that the order appointing Virginia G. Fule as special administratrix was issued without jurisdiction, since no notice of the petition for letters of administration has been served upon all persons interested in the estate; there has been no delay or cause for delay in the proceedings for the appointment of a regular administrator as the surviving spouse of Amado G. Garcia, she should be preferred in the appointment of a special administratrix; and, Virginia G. Fule is a debtor of the estate of Amado G. Garcia. Preciosa B. Garcia, therefore, prayed that she be appointed special administratrix of the estate, in lieu of Virginia G. Fule, and as regular administratrix after due hearing. While this reconsideration motion was pending resolution before the Court, Preciosa B. Garcia filed on May 29, 1973 a motion to remove Virginia G. Fule as special administratrix alleging, besides the jurisdictional ground raised in the motion for reconsideration of May 8, 1973 that her appointment was obtained through erroneous,

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SPECIAL PROCEEDINGS CASES – RULE 73 misleading and/or incomplete misrepresentations; that Virginia G. Fule has adverse interest against the estate; and that she has shown herself unsuitable as administratrix and as officer of the court. In the meantime, the notice of hearing of the petition for letters of administration filed by Virginia G. Fule with the Court of First Instance of Calamba, Laguna, was published on May 17, 24, and 31, 1973, in the Bayanihan, a weekly publication of general circulation in Southern Luzon. On June 6, 1973, Preciosa B. Garcia received a "Supplemental Petition for the Appointment of Regular Administrator ' filed by Virginia G. Fule. This supplemental petition modified the original petition in four aspects: (1) the allegation that during the lifetime of the deceased Amado G. Garcia, he was elected as Constitutional Delegate for the First District of Laguna and his last place of residence was at Calamba, Laguna; (2) the deletion of the names of Preciosa B. Garcia and Agustina Garcia as legal heirs of Amado G. Garcia; (3) the allegation that Carolina Carpio, who was simply listed as heir in the original petition, is the surviving spouse of Amado G. Garcia and that she has expressly renounced her preferential right to the administration of the estate in favor of Virginia G. Fule; and (4) that Virginia G. Fule be appointed as the regular administratrix. The admission of this supplemental petition was opposed by Preciosa B. Garcia for the reason, among others, that it attempts to confer jurisdiction on the Court of First Instance of Laguna, of which the court was not possessed at the beginning because the original petition was deficient. On July 19, 1973, Preciosa B. Garcia filed an opposition to the original and supplemental petitions for letters of administration, raising the issues of jurisdiction, venue, lack of interest of Virginia G. Fule in the estate of Amado G. Garcia, and disqualification of Virginia G Fule as special administratrix. An omnibus motion was filed by Virginia G. Fule on August 20, 1973, praying for authority to take possession of properties of the decedent allegedly in the hands of third persons as well as to secure cash advances from the Calamba Sugar Planters Cooperative Marketing Association, Inc. Preciosa B. Garcia opposed the motion, calling attention to the limitation made by Judge Malvar on the power of the special administratrix, viz., "to making an inventory of the personal and real properties making up the state of the deceased." However, by July 2, 1973, Judge Malvar and already issued an order, received by Preciosa B. Garcia only on July 31, 1973, denying the motion of Preciosa B. Garcia to reconsider the order of May 2, 1973, appointing Virginia G. Fule as special administratrix, and admitting the supplementation petition of May 18,1973. On August 31, 1973, Preciosa B. Garcia moved to dismiss the petition, because (1) jurisdiction over the petition or over the parties in interest has not been acquired by the court; (2) venue was improperly laid; and (3) Virginia G. Fule is not a party in interest as she is not entitled to inherit from the deceased Amado G. Garcia. On September 28, 1973, Preciosa B. Garcia filed a supplemental motion to substitute Virginia G. Fule as special administratrix, reasoning that the said Virginia G. Fule admitted before before the court that she is a full-blooded sister of Pablo G. Alcalde, an illegitimate son of Andrea Alcalde, with whom the deceased Amado G. Garcia has no relation. Three motions were filed by Preciosa B. Garcia on November 14, 1973, one, to enjoin the special administratrix from taking possession of properties in the hands of third persons which have not been determined as belonging to Amado G. Garcia; another, to remove the special administratrix for acting outside her authority and against the interest of the estate; and still another, filed in behalf of the minor Agustina B. Garcia, to dismiss the petition for want of cause of action, jurisdiction, and improper venue. On November 28, 1973, Judge Malvar resolved the pending omnibus motion of Virgina G. Fule and the motion to dismiss filed by Preciosa B. Garcia. Resolving the motion to dismiss, Judge Malvar ruled that the powers of the special administratrix are those provided for in Section 2, Rule 80 of the Rules of Court, 1 subject only to the previous qualification made by the court that the administration of the properties subject of the marketing agreement with the Canlubang Sugar Planters Cooperative Marketing Association should remain with the latter; and that the special administratrix had already been authorized in a previous order of August 20, 1973 to take custody and possession of all papers and certificates of title and personal effects of the decedent with the Canlubang Sugar Planters Cooperative Marketing Association, Inc. Ramon Mercado, of the Canlubang Sugar Planters Cooperative Marketing Association, Inc., was ordered to deliver to Preciosa B. Garcia all certificates of title in her name without any qualifying words like "married to Amado Garcia" does not appear. Regarding the motion to dismiss, Judge Malvar ruled that the issue of jurisdiction had already been resolved in the order of July 2, 1973, denying Preciosa B. Garcia's motion to reconsider the appointment of Virginia G. Fule and admitting the supplemental petition, the failure of Virginia G. Fule to allege in her original petition for letters of administration in the place of residence of the decedent at the time of his death was cured. Judge Malvar further held that Preciosa B. Garcia had submitted to the jurisdiction of the court and had waived her objections thereto by praying to be appointed as special and regular administratrix of the estate.

An omnibus motion was filed by Preciosa B. Garcia on December 27, 1973 to clarify or reconsider the foregoing order of Judge Malvar, in view of previous court order limiting the authority of the special administratrix to the making of an inventory. Preciosa B. Garcia also asked for the resolution of her motion to dismiss the petitions for lack of cause of action, and also that filed in behalf of Agustina B. Garcia. Resolution of her motions to substitute and remove the special administratrix was likewise prayed for. On December 19, 1973, Judge Malvar issued two separate orders, the first, denying Preciosa B. Garcia's motions to substitute and remove the special administratrix, and the second, holding that the power allowed the special administratrix enables her to conduct and submit an inventory of the assets of the estate. On January 7, 1974, Preciosa B. Garcia moved for reconsideration of the foregoing orders of November 28, 1973 and December 19, 1973, insofar as they sustained or failed to rule on the issues raised by her: (a) legal standing (cause of action) of Virginia G. Fule; (b) venue; (c) jurisdiction; (d) appointment, qualification and removal of special administratrix; and (e) delivery to the special administratrix of checks and papers and effects in the office of the Calamba Sugar Planters Cooperative Marketing Association, Inc. On March 27, 1973, Judge Malvar issued the first questioned order denying Preciosa B. Garcia's motion for reconsideration of January 7, 1974. On July 19, 1974, Judge Malvar issued the other three questioned orders: one, directing Ramon Mercado, of the Calamba Sugar Planters Cooperative Marketing Association, Inc., to furnish Virginia G. Fule, as special administratrix, copy of the statement of accounts and final liquidation of sugar pool, as well as to deliver to her the corresponding amount due the estate; another, directing Preciosa B. Garcia to deliver to Virginia G. Fule two motor vehicles presumably belonging to the estate; and another, directing Ramon Mercado to deliver to the court all certificates of title in his possession in the name of Preciosa B. Garcia, whether qualified with the word "single" or "married to Amado Garcia." During the hearing of the various incidents of this case (Sp. Proc. 27-C) before Judge Malvar, 2Virginia G. Fule presented the death certificate of Amado G. Garcia showing that his residence at the time of his death was Quezon City. On her part, Preciosa B. Garcia presented the residence certificate of the decedent for 1973 showing that three months before his death his residence was in Quezon City. Virginia G. Fule also testified that Amado G. Garcia was residing in Calamba, Laguna at the time of his death, and that he was a delegate to the 1971 Constitutional Convention for the first district of Laguna. On July 26, 1974, Preciosa B. Garcia and Agustina B. Garcia commenced a special action for certiorari and/or prohibition and preliminary injunction before the Court of Appeals, docketed as CA-G.R. No. 03221-SP. primarily to annul the proceedings before Judge Malvar in Sp. Proc. No. 27-C of the Court of First Instance of Laguna, or, in the alternative, to vacate the questioned four orders of that court, viz., one dated March 27, 1974, denying their motion for reconsideration of the order denying their motion to dismiss the criminal and supplemental petitions on the issue, among others, of jurisdiction, and the three others, all dated July 19, 1974, directing the delivery of certain properties to the special administratrix, Virginia G. Fule, and to the court. On January 30, 1975, the Court of Appeals rendered judgment annulling the proceedings before Judge Severo A. Malvar in Sp. Proc. 27-C of the Court of First Instance of Calamba, Laguna, for lack of jurisdiction. Denied of their motion for reconsideration on March 31, 1975, Virginia G. Fule forthwith elevated the matter to Us on appeal by certiorari. The case was docketed as G.R. No. L40502. However, even before Virginia G. Fule could receive the decision of the Court of Appeals, Preciosa B. Garcia had already filed on February 1, 1975 a petition for letters of administration before the Court of First Instance of Rizal, Quezon City Branch, docketed as Sp. Proc. No. Q-19738, over the same intestate estate of Amado G. Garcia. On February 10, 1975, Preciosa B. Garcia urgently moved for her appointment as special administratrix of the estate. Judge Vicente G. Ericta granted the motion and appointed Preciosa B. Garcia as special administratrix upon a bond of P30,000.00. Preciosa B. Garcia qualified and assumed the office. For the first time, on February 14, 1975, Preciosa B. Garcia informed Judge Ericta of the pendency of Sp. Proc. No. 27-C before Judge Malvar of the Court of First Instance of Laguna, and the annulment of the proceedings therein by the Court of Appeals on January 30, 1975. She manifested, however, her willingness to withdraw Sp. Proc. Q19738 should the decision of the Court of Appeals annulling the proceedings before the Court of First Instance of Laguna in Sp. Proc. No. 27-C have not yet become final, it being the subject of a motion for reconsideration. On March 10, 1973, Judge Ericta ordered the suspension of the proceedings before his court until Preciosa B. Garcia inform the court of the final outcome of the case pending before the Court of Appeals. This notwithstanding, Preciosa B. Garcia filed on December 11, 1975, an "Urgent Petition for Authority to Pay Estate Obligations." On December 13, 1975, Virginia G. Fule filed a "Special Appearance to Question Venue and Jurisdiction" reiterating the grounds stated in the previous special appearance of March 3, 1975, and calling attention that the decision of the Court of Appeals and its resolution denying the motion for reconsideration had been appealed to this Court; that

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the parties had already filed their respective briefs; and that the case is still pending before the Court. On December 17, 1975, Judge Ernani Cruz Pano, who succeeded Judge Ericta, issued an order granting Preciosa B. Garcia's "Urgent Petition for Authority to Pay Estate Obligations" in that the payments were for the benefit of the estate and that there hangs a cloud of doubt on the validity of the proceedings in Sp. Proc. No. 27-C of the Court of First Instance of Laguna. A compliance of this Order was filed by Preciosa B. Garcia on January 12,1976. On February 4,1974, VIRGINIA G. FULE instituted G.R. No. L-42670, a petition for certiorari with temporary restraining order, to annul the proceedings in Sp. Proc. No. Q19738 and to restrain Judge Ernani Cruz Paño from further acting in the case. A restraining order was issued on February 9, 1976. We dismiss the appeal in G.R. No. L-40502 and the petition for certiorari in G.R. No. L42670 for the reasons and considerations hereinafter stated. 1. Section 1, Rule 73 of the Revised Rules of Court provides: " If the decedent is an inhabitant of the Philippines at the time of his death , whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate 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 any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record." With particular regard to letters of administration, Section 2, Rule 79 of the Revised Rules of Court demands that the petition therefor should affirmatively show the existence of jurisdiction to make the appointment sought, and should allege all the necessary facts, such as death, the name and last residence of the decedent, the existence, and situs if need be, of assets, intestacy, where this is relied upon, and the right of the person who seeks administration, as next of kin, creditor, or otherwise, to be appointed. The fact of death of the intestate and his last residence within the country are foundation facts upon which all subsequent proceedings in the administration of the estate rest, and that if the intestate was not an inhabitant of the state at the time of his death, and left no assets in the state, no jurisdiction is conferred on the court to grant letters of administration. 3 The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the clause "so far as it depends on the place of residence of the decedent, or of the location of the estate," is in reality a matter of venue, as the caption of the Rule indicates: "Settlement of Estate of Deceased Persons. Venue and Processes. 4 It could not have been intended to define the jurisdiction over the subject matter, because such legal provision is contained in a law of procedure dealing merely with procedural matters. Procedure is one thing; jurisdiction over the subject matter is another. The power or authority of the court over the subject matter "existed and was fixed before procedure in a given cause began." That power or authority is not altered or changed by procedure, which simply directs the manner in which the power or authority shall be fully and justly exercised. There are cases though that if the power is not exercised conformably with the provisions of the procedural law, purely, the court attempting to exercise it loses the power to exercise it legally. However, this does not amount to a loss of jurisdiction over the subject matter. Rather, it means that the court may thereby lose jurisdiction over the person or that the judgment may thereby be rendered defective for lack of something essential to sustain it. The appearance of this provision in the procedural law at once raises a strong presumption that it has nothing to do with the jurisdiction of the court over the subject matter. In plain words, it is just a matter of method, of convenience to the parties. 5 The Judiciary Act of 1948, as amended, confers upon Courts of First Instance jurisdiction over all probate cases independently of the place of residence of the deceased. Because of the existence of numerous Courts of First Instance in the country, the Rules of Court, however, purposedly fixes the venue or the place where each case shall be brought. A fortiori, the place of residence of the deceased in settlement of estates, probate of will, and issuance of letters of administration does not constitute an element of jurisdiction over the subject matter. It is merely constitutive of venue. And it is upon this reason that the Revised Rules of Court properly considers the province where the estate of a deceased person shall be settled as "venue." 6 2. But, the far-ranging question is this: What does the term "resides" mean? Does it refer to the actual residence or domicile of the decedent at the time of his death? We lay down the doctrinal rule that the term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence or domicile." This term "resides," like, the terms "residing" and "residence," is elastic and should be interpreted in the light of the object or purpose of the statute or rule in which it is employed. 7 In the application of venue statutes and rules — Section 1, Rule 73 of the Revised Rules of Court is of such nature — residence rather than domicile is the significant factor. Even where the statute uses the word "domicile" still it is construed as meaning residence and not domicile in the technical sense. Some cases make a distinction between the terms "residence" and "domicile" but as generally used in statutes fixing venue, the terms are synonymous, and convey the same meaning as the term "inhabitant." 8 In other words, "resides" should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence

in a place and actual stay thereat. In this popular sense, the term means merely residence, that is, personal residence, not legal residence or domicile. 9 Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one's domicile. 10 No particular length of time of residence is required though; however, the residence must be more than temporary. 11 3. Divergent claims are maintained by Virginia G. Fule and Preciosa B. Garcia on the residence of the deceased Amado G. Garcia at the time of his death. In her original petition for letters of administration before the Court of First Instance of Calamba, Laguna, Virginia G. Fule measely stated "(t)hat on April 26,1973, Amado G. Garcia, a property owner of Calamba, Laguna, died intestate in the City of Manila, leaving real estate and personal properties in Calamba, Laguna, and in other places within the jurisdiction of this Honorable Court." Preciosa B. Garcia assailed the petition for failure to satisfy the jurisdictional requirement and improper laying of venue. For her, the quoted statement avers no domicile or residence of the deceased Amado G. Garcia. To say that as "property owner of Calamba, Laguna," he also resides in Calamba, Laguna, is, according to her, non sequitur. On the contrary, Preciosa B. Garcia claims that, as appearing in his death certificate presented by Virginia G. Fule herself before the Calamba court and in other papers, the last residence of Amado G. Garcia was at 11 Carmel Avenue, Carmel Subdivision, Quezon City. Parenthetically, in her amended petition, Virginia G. Fule categorically alleged that Amado G. Garcia's "last place of residence was at Calamba, Laguna." On this issue, We rule that the last place of residence of the deceased Amado G. Garcia was at 11 Carmel Avenue, Carmel Subdivision, Quezon City, and not at Calamba, Laguna. A death certificate is admissible to prove the residence of the decedent at the time of his death. 12 As it is, the death certificate of Amado G. Garcia, which was presented in evidence by Virginia G. Fule herself and also by Preciosa B. Garcia, shows that his last place of residence was at 11 Carmel Avenue, Carmel Subdivision, Quezon City. Aside from this, the deceased's residence certificate for 1973 obtained three months before his death; the Marketing Agreement and Power of Attorney dated November 12, 1971 turning over the administration of his two parcels of sugar land to the Calamba Sugar Planters Cooperative Marketing Association, Inc.; the Deed of Donation dated January 8, 1973, transferring part of his interest in certain parcels of land in Calamba, Laguna to Agustina B. Garcia; and certificates of titles covering parcels of land in Calamba, Laguna, show in bold documents that Amado G. Garcia's last place of residence was at Quezon City. Withal, the conclusion becomes imperative that the venue for Virginia C. Fule's petition for letters of administration was improperly laid in the Court of First Instance of Calamba, Laguna. Nevertheless, the long-settled rule is that objection to improper venue is subject to waiver. Section 4, Rule 4 of the Revised Rules of Court states: "When improper venue is not objected to in a motion to dismiss, it is deemed waived." In the case before Us the Court of Appeals had reason to hold that in asking to substitute Virginia G. Fule as special administratrix, Preciosa B. Garcia did not necessarily waive her objection to the jurisdiction or venue assumed by the Court of First Instance of Calamba, Laguna, but availed of a mere practical resort to alternative remedy to assert her rights as surviving spouse, while insisting on the enforcement of the Rule fixing the proper venue of the proceedings at the last residence of the decedent. 4. Preciosa B. Garcia's challenge to Virginia G. Fule's appointment as special administratrix is another issue of perplexity. Preciosa B. Garcia claims preference to the appointment as surviving spouse. Section 1 of Rule 80 provides that "(w)hen there is delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or disallowance of a will, the court may appoint a special administrator to take possession and charge of the estate of the deceased until the questions causing the delay are decided and executors or administrators appointed. 13 Formerly, the appointment of a special administrator was only proper when the allowance or disallowance of a will is under appeal. The new Rules, however, broadened the basis for appointment and such appointment is now allowed when there is delay in granting letters testamentary or administration by any cause e.g., parties cannot agree among themselves. 14 Nevertheless, the discretion to appoint a special administrator or not lies in the probate court. 15 That, however, is no authority for the judge to become partial, or to make his personal likes and dislikes prevail over, or his passions to rule, his judgment. Exercise of that discretion must be based on reason, equity, justice and legal principle. There is no reason why the same fundamental and legal principles governing the choice of a regular administrator should not be taken into account in the appointment of a special administrator. 16Nothing is wrong for the judge to consider the order of preference in the appointment of a regular administrator in appointing a special administrator. After all, the consideration that overrides all others in this respect is the beneficial interest of the appointee in the estate of the decedent. 17 Under the law, the widow would have the right of succession over a portion of the exclusive property of the decedent, besides her share in the conjugal partnership. For such reason, she would have as such, if not more, interest in administering the entire estate correctly than any other next of kin. The good or bad administration of a property may affect rather the fruits than the naked ownership of a property. 18 Virginia G. Fule, however, disputes the status of Preciosa B. Garcia as the widow of the late Amado G. Garcia. With equal force, Preciosa B. Garcia maintains that Virginia G. Fule has no relation whatsoever with Amado G. Garcia, or that, she is a mere illegitimate

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SPECIAL PROCEEDINGS CASES – RULE 73 sister of the latter, incapable of any successional rights. 19 On this point, We rule that Preciosa B. Garcia is prima facie entitled to the appointment of special administratrix. It needs be emphasized that in the issuance of such appointment, which is but temporary and subsists only until a regular administrator is appointed, 20 the appointing court does not determine who are entitled to share in the estate of the decedent but who is entitled to the administration. The issue of heirship is one to be determined in the decree of distribution, and the findings of the court on the relationship of the parties in the administration as to be the basis of distribution. 21 The preference of Preciosa B. Garcia is with sufficient reason. In a Donation Inter Vivos executed by the deceased Amado G. Garcia on January 8, 1973 in favor of Agustina B. Garcia, he indicated therein that he is married to Preciosa B. Garcia. 22 In his certificate of candidacy for the office of Delegate to the Constitutional Convention for the First District of Laguna filed on September 1, 1970, he wrote therein the name of Preciosa B. Banaticla as his spouse. 23 Faced with these documents and the presumption that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage, Preciosa B. Garcia can be reasonably believed to be the surviving spouse of the late Amado G. Garcia. Semper praesumitur pro matrimonio.24 5. Under these circumstances and the doctrine laid down in Cuenco vs. Court of Appeals, 25 this Court under its supervisory authority over all inferior courts may properly decree that venue in the instant case was properly assumed by and transferred to Quezon City and that it is in the interest of justice and avoidance of needless delay that the Quezon City court's exercise of jurisdiction over the settlement of the estate of the deceased Amado G. Garcia and the appointment of special administratrix over the latter's estate be approved and authorized and the Court of First Instance of Laguna be disauthorized from continuing with the case and instead be required to transfer all the records thereof to the Court of First Instance of Quezon City for the continuation of the proceedings. 6. Accordingly, the Order of Judge Ernani Cruz Pano of December 17, 1975, granting the "Urgent Petition for Authority to Pay Estate Obligations" filed by Preciosa B. Garcia in Sp. Proc. No. Q-19738, subject matter of G.R. No. L-42670, and ordering the Canlubang Sugar Estate to deliver to her as special administratrix the sum of P48,874.70 for payment of the sum of estate obligations is hereby upheld. IN VIEW OF THE FOREGOING, the petitions of petitioner Virginia Garcia Fule in G.R. No. L-40502 and in G.R. No. L42670 are hereby denied, with costs against petitioner. SO ORDERED. G.R. No. 128314 May 29, 2002 RODOLFO V. JAO, petitioner, vs. COURT OF APPEALS and PERICO V. JAO, respondents. YNARES-SANTIAGO, J.: Rodolfo and Perico Jao were the only sons of the spouses Ignacio Jao Tayag and Andrea V. Jao, who died intestate in 1988 and 1989, respectively. The decedents left real estate, cash, shares of stock and other personal properties. On April 17, 1991, Perico instituted a petition for issuance of letters of administration before the Regional Trial Court of Quezon City, Branch 99, over the estate of his parents, docketed as Special Proceedings No. Q-91-8507.1 Pending the appointment of a regular administrator, Perico moved that he be appointed as special administrator. He alleged that his brother, Rodolfo, was gradually dissipating the assets of the estate. More particularly, Rodolfo was receiving rentals from real properties without rendering any accounting, and forcibly opening vaults belonging to their deceased parents and disposing of the cash and valuables therein. Rodolfo moved for the dismissal of the petition on the ground of improper venue.2 He argued that the deceased spouses did not reside in Quezon City either during their lifetime or at the time of their deaths. The decedent’s actual residence was in Angeles City, Pampanga, where his late mother used to run and operate a bakery. As the health of his parents deteriorated due to old age, they stayed in Rodolfo’s residence at 61 Scout Gandia Street, Quezon City, solely for the purpose of obtaining medical treatment and hospitalization. Rodolfo submitted documentary evidence previously executed by the decedents, consisting of income tax returns, voter’s affidavits, statements of assets and liabilities, real estate tax payments, motor vehicle registration and passports, all indicating that their permanent residence was in Angeles City, Pampanga. 1âwphi1.nêt In his opposition,3 Perico countered that their deceased parents actually resided in Rodolfo’s house in Quezon City at the time of their deaths. As a matter of fact, it was conclusively declared in their death certificates that their last residence before they died was at 61 Scout Gandia Street, Quezon City.4 Rodolfo himself even supplied the entry appearing on the death certificate of their mother, Andrea, and affixed his own signature on the said document. Rodolfo filed a rejoinder, stating that he gave the information regarding the decedents’ residence on the death certificates in good faith and through honest mistake. He gave his residence only as reference, considering that their parents were treated in their late years

at the Medical City General Hospital in Mandaluyong, Metro Manila. Their stay in his house was merely transitory, in the same way that they were taken at different times for the same purpose to Perico’s residence at Legaspi Towers in Roxas Boulevard. The death certificates could not, therefore, be deemed conclusive evidence of the decedents’ residence in light of the other documents showing otherwise.5 The court required the parties to submit their respective nominees for the position.6 Both failed to comply, whereupon the trial court ordered that the petition be archived.7 Subsequently, Perico moved that the intestate proceedings be revived.8 After the parties submitted the names of their respective nominees, the trial court designated Justice Carlos L. Sundiam as special administrator of the estate of Ignacio Jao Tayag and Andrea Jao.9 On April 6, 1994, the motion to dismiss filed by petitioner Rodolfo was denied, to wit: A mere perusal of the death certificates of the spouses issued separately in 1988 and 1989, respectively, confirm the fact that Quezon City was the last place of residence of the decedents. Surprisingly, the entries appearing on the death certificate of Andrea V. Jao were supplied by movant, Rodolfo V. Jao, whose signature appears in said document. Movant, therefore, cannot disown his own representation by taking an inconsistent position other than his own admission. xxx xxx xxx. WHEREFORE, in view of the foregoing consideration, this court DENIES for lack of merit movant’s motion to dismiss. SO ORDERED.10 Rodolfo filed a petition for certiorari with the Court of Appeals, which was docketed as CA-G.R. SP No. 35908. On December 11, 1996, the Court of Appeals rendered the assailed decision, the dispositive portion of which reads: WHEREFORE, no error, much less any grave abuse of discretion of the court a quo having been shown, the petition for certiorari is hereby DISMISSED. The questioned order of the respondent Judge is affirmed in toto. SO ORDERED.11 Rodolfo’s motion for reconsideration was denied by the Court of Appeals in the assailed resolution dated February 17, 1997.12 Hence, this petition for review, anchored on the following grounds: I RESPONDENT COURT HAD DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH THE LAW AND IS DIRECTLY CONTRADICTORY TO THE APPLICABLE DECISION ALREADY RENDERED BY THIS HONORABLE COURT. II RESPONDENT COURT ERRED IN DISREGARDING THE RULING OF THIS HONORABLE COURT IN THE CASE OF EUSEBIO VS. EUSEBIO, 100 PHILS. 593, WHICH CLEARLY INTERPRETED WHAT IS MEANT BY RESIDENCE IN SEC. 1 OF RULE 73 OF THE RULES OF COURT. III RESPONDENT COURT ERRED IN HOLDING THAT PHYSICAL PRESENCE IN A PLACE AT THE TIME OF DEATH IS DETERMINATIVE OF DECEDENT’S RESIDENCE RATHER THAN THE INTENTION OF THE DECEDENTS TO ESTABLISH THEIR PERMANENT RESIDENCE IN ANOTHER PLACE. IV RESPONDENT COURT ERRED IN APPLYING BY ANALOGY THE RESIDENCE CONTEMPLATED IN SEC. 2 OF RULE 4 FOR THE PURPOSE OF SERVING SUMMONS TO A DEFENDANT IN A PERSONAL ACTION TO THE RESIDENCE CONTEMPLATED IN SEC. 1 OF RULE 73 FOR THE PURPOSE OF DETERMINING VENUE IN THE SETTLEMENT OF THE ESTATE OF A DECEASED. V RESPONDENT COURT ERRED IN GIVING MORE WEIGHT TO THE ENTRY OF PETITIONER AND PRIVATE RESPONDENT IN THE RESPECTIVE DEATH CERTIFICATES OF THE DECEDENTS RATHER THAN THE OVERWHELMING EVIDENCE SHOWING THE CLEAR INTENTION OF THE DECEDENTS TO ESTABLISH THEIR PERMANENT RESIDENCE IN ANGELES CITY. VI RESPONDENT COURT ERRED IN APPLYING THE PRINCIPLE OF ESTOPPEL AS AGAINST PETITIONER WHICH CAN NOT BE MORE PERSUASIVE THAN THE CLEAR INTENTION OF THE DECEDENTS THEMSELVES TO ESTABLISH PERMANENT RESIDENCE IN ANGELES CITY. VII RESPONDENT COURT ERRED IN DISMISSING THE PETITION FOR CERTIORARI DESPITE THE CLEAR ABUSE OF DISCRETION ON THE

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PART OF THE TRIAL COURT IN INSISTING TO TAKE COGNIZANCE OF SP. PROCEEDING NO. Q-91-8507.13 The main issue before us is: where should the settlement proceedings be had --- in Pampanga, where the decedents had their permanent residence, or in Quezon City, where they actually stayed before their demise? Rule 73, Section 1 of the Rules of Court states: Where estate of deceased persons be 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 any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record. (underscoring ours) Clearly, the estate of an inhabitant of the Philippines shall be settled or letters of administration granted in the proper court located in the province where the decedent resides at the time of his death. Petitioner Rodolfo invokes our ruling in the case of Eusebio v. Eusebio, et al., 14 where we held that the situs of settlement proceedings shall be the place where the decedent had his permanent residence or domicile at the time of death. In determining residence at the time of death, the following factors must be considered, namely, the decedent had: (a) capacity to choose and freedom of choice; (b) physical presence at the place chosen; and (c) intention to stay therein permanently.15 While it appears that the decedents in this case chose to be physically present in Quezon City for medical convenience, petitioner avers that they never adopted Quezon City as their permanent residence.1âwphi1.nêt The contention lacks merit. The facts in Eusebio were different from those in the case at bar. The decedent therein, Andres Eusebio, passed away while in the process of transferring his personal belongings to a house in Quezon City. He was then suffering from a heart ailment and was advised by his doctor/son to purchase a Quezon City residence, which was nearer to his doctor. While he was able to acquire a house in Quezon City, Eusebio died even before he could move therein. In said case, we ruled that Eusebio retained his domicile --- and hence, residence --- in San Fernando, Pampanga. It cannot be said that Eusebio changed his residence because, strictly speaking, his physical presence in Quezon City was just temporary. In the case at bar, there is substantial proof that the decedents have transferred to petitioner’s Quezon City residence. Petitioner failed to sufficiently refute respondent’s assertion that their elderly parents stayed in his house for some three to four years before they died in the late 1980s. Furthermore, the decedents’ respective death certificates state that they were both residents of Quezon City at the time of their demise. Significantly, it was petitioner himself who filled up his late mother’s death certificate. To our mind, this unqualifiedly shows that at that time, at least, petitioner recognized his deceased mother’s residence to be Quezon City. Moreover, petitioner failed to contest the entry in Ignacio’s death certificate, accomplished a year earlier by respondent. The recitals in the death certificates, which are admissible in evidence, were thus properly considered and presumed to be correct by the court a quo. We agree with the appellate court’s observation that since the death certificates were accomplished even before petitioner and respondent quarreled over their inheritance, they may be relied upon to reflect the true situation at the time of their parents’ death. The death certificates thus prevailed as proofs of the decedents’ residence at the time of death, over the numerous documentary evidence presented by petitioner. To be sure, the documents presented by petitioner pertained not to residence at the time of death, as required by the Rules of Court, but to permanent residence or domicile. In Garcia-Fule v. Court of Appeals,16 we held: xxx xxx xxx the term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence or domicile." This term "resides", like the terms "residing" and "residence", is elastic and should be interpreted in the light of the object or purpose of the statute or rule in which it is employed. In the application of venue statutes and rules – Section 1, Rule 73 of the Revised Rules of Court is of such nature – residence rather than domicile is the significant factor. Even where the statute uses the word "domicile" still it is construed as meaning residence and not domicile in the technical sense. Some cases make a distinction between the terms "residence" and "domicile" but as generally used in statutes fixing venue, the terms are synonymous, and convey the same meaning as the term "inhabitant." In other words, "resides" should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and

actual stay thereat. In this popular sense, the term means merely residence, that is, personal residence, not legal residence or domicile. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one’s domicile. No particular length of time of residence is required though; however, the residence must be more than temporary.17 Both the settlement court and the Court of Appeals found that the decedents have been living with petitioner at the time of their deaths and for some time prior thereto. We find this conclusion to be substantiated by the evidence on record. A close perusal of the challenged decision shows that, contrary to petitioner’s assertion, the court below considered not only the decedents’ physical presence in Quezon City, but also other factors indicating that the decedents’ stay therein was more than temporary. In the absence of any substantial showing that the lower courts’ factual findings stemmed from an erroneous apprehension of the evidence presented, the same must be held to be conclusive and binding upon this Court. Petitioner strains to differentiate between the venue provisions found in Rule 4, Section 2,18 on ordinary civil actions, and Rule 73, Section 1, which applies specifically to settlement proceedings. He argues that while venue in the former understandably refers to actual physical residence for the purpose of serving summons, it is the permanent residence of the decedent which is significant in Rule 73, Section 1. Petitioner insists that venue for the settlement of estates can only refer to permanent residence or domicile because it is the place where the records of the properties are kept and where most of the decedents’ properties are located. Petitioner’s argument fails to persuade. It does not necessarily follow that the records of a person’s properties are kept in the place where he permanently resides. Neither can it be presumed that a person’s properties can be found mostly in the place where he establishes his domicile. It may be that he has his domicile in a place different from that where he keeps his records, or where he maintains extensive personal and business interests. No generalizations can thus be formulated on the matter, as the question of where to keep records or retain properties is entirely dependent upon an individual’s choice and peculiarities. At any rate, petitioner is obviously splitting straws when he differentiates between venue in ordinary civil actions and venue in special proceedings. In Raymond v. Court of Appeals19 and Bejer v. Court of Appeals,20 we ruled that venue for ordinary civil actions and that for special proceedings have one and the same meaning. As thus defined, "residence", in the context of venue provisions, means nothing more than a person’s actual residence or place of abode, provided he resides therein with continuity and consistency.21 All told, the lower court and the Court of Appeals correctly held that venue for the settlement of the decedents’ intestate estate was properly laid in the Quezon City court. WHEREFORE, in view of the foregoing, the petition is DENIED, and the decision of the Court of Appeals in CA-G.R. SP No. 35908 isAFFIRMED. SO ORDERED. G.R. No. L-6622 July 31, 1957 Intestate Estate of the deceased MARCELO DE BORJA. CRISANTO DE BORJA, administrator-appellant, vs. JUAN DE BORJA, ET AL., oppositors-appellees. E. V. Filamor for appellant. Juan de Borja for himself and co-appellees. FELIX, J. : The case. — Quintin, Francisco, Crisanta and Juliana, all surnamed de Borja, are legitimate children of Marcelo de Borja who, upon his demise sometime in 1924 or 1925, left a considerable amount of property. Intestate proceedings must have followed, and the pre-war records of the case either burned, lost or destroyed during the last war, because the record shows that in 1930 Quintin de Borja was already the administrator of the Intestate Estate of Marcelo de Borja. In the early part of 1938, Quintin de Borja died and Crisanto de Borja, son of Francisco de Borja, was appointed and took over as administrator of the Estate. Francisco de Borja, on the other hand, assumed his duties as executor of the will of Quintin de Borja, but upon petition of the heirs of said deceased on the ground that his interests were conflicting with that of his brother's estate he was later required by the Court to resign as such executor and was succeeded by Rogelio Limaco, a son-in-law of Quintin de Borja. It also appears that on February 16, 1940, at the hearing set for the approval of the statement of accounts of the late administrator of the Intestate Estate of Marcelo de Borja, then being opposed by Francisco de Borja, the parties submitted an agreement, which was approved by the Court (Exh. A). Said agreement, translated into English, reads as follows: 1. All the accounts submitted and those that are to be submitted corresponding to this year will be considered approved; 2. No heir shall claim anything of the harvests from the lands in Cainta that came from Exequiel Ampil, deceased, nor from the land in Tabuatin, Nueva Ecija;

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SPECIAL PROCEEDINGS CASES – RULE 73 3. That the amounts of money taken by each heir shall be considered as deposited in conjunction with the other properties of the intestate and shall form part of the mass without drawing any interest; 4. That it shall be understood as included in this mass the sum of twelve thousand pesos (P12,000) that the sisters Crisanta and Juliana de Borja paid of their own money as part of the price the lands and three thousand pesos (P3,000) the price of the machinery for irrigation; 5. The right, interests or participation that the deceased Quintin de Borja has or may have in Civil Case No. 6190 of the Court of First Instance of Nueva Ecija, shall be likewise included in the total mass of the inheritance of the Intestate; 6. Not only the lands in Tabuatin but also those in Cainta coming from the now deceased Exequiel Ampil shall also from part of the total mass of the inheritance of the Intestate of the late Marcelo de Borja; 7. Once the total of the inheritance of the intestate is made up as specified before in this Agreement, partition thereof will be made as follows: From the total mass shall be deducted in case or in kind, Twelve Thousand Pesos (P12,000) that shall be delivered to Da. Juliana de Borja and Da. Crisanta de Borja in equal shares, and the rest shall be divided among the four heirs, i. e., Don Francisco de Borja, the heirs of Quintin de Borja, Da. Juliana de Borja, and Da. Crisanta de Borja, in equal parts. (TRANSLATION) The Intestate remained under the administration of Crisanto de Borja until the then outbreak of the war. From then on and until the termination of the war, there was a lull and state of inaction in Special proceeding No. 2414 of the Court of First Instance of Rizal, Pasig branch (In the Matter of the Intestate Estate of Marcelo de Borja), until upon petition filed by Miguel B. Dayco, as administrator of the estate of his deceased mother, Crisanta de Borja, who is one of heirs, for reconstitution of the records of this case, the Court on December 11, 1945, ordered the reconstitution of the same, requiring the administrator to submit his report and a copy of the project of partition. On January 3, 1946, the administrator, Dr. Crisanto de Borja, filed his accounts for the period ranging from March 1 to December 22, 1945, which according to the heirs of Quintin de Borja were so inadequate and general that on February 28, 1946, they filed a motion for specification. On April 30, 1946, they also filed their opposition to said statement of accounts alleging that the income reported in said statement was very much less than the true and actual income of the estate and that the expenses appearing therein were exaggerated and/or not actually incurred, and prayed that the statement of accounts submitted by the administrator be disapproved. The administrator later filed another report of his administration, dated August 9, 1949, corresponding to the period lapsed from December 23, 1945, to July 31, 1949, showing a cash balance of P71.96, but with pending obligation amounting to P35,415. On August 22, 1949, Juan de Borja and sisters, heirs of the deceased Quintin de Borja, filed their opposition to the statement of accounts filed by the administrator on the ground that same was not detailed enough to enable the interested parties to verify the same; that they cannot understand why the Intestate could suffer any loss considering that during the administration of the same by Quintin de Borja, the Estate accumulated gains of more than P100,000 in the form of advances to the heirs as well as cash balance; that they desired to examine the accounts of Dr. Crisanto de Borja to verify the loss and therefore prayed that the administrator be ordered to deposit with the Clerk of Court all books, receipts, accounts and other papers pertaining to the Estate of Marcelo de Borja. This motion was answered by the administrator contending that the Report referred to was already clear and enough, the income as well as the expenditures being specified therein; that he had to spend for the repairs of the properties of the Estate damaged during the Japanese occupation; that the allegation that during the administration of Quintin de Boria the Estate realized a profit of P100,000 was not true, because instead of gain there was even a shortage in the funds although said administrator had collected all his fees (honorarios) and commissions corresponding to the entire period of his incumbency; that the obligations mentioned in said report will be liquidated before the termination of the proceedings in the same manner as it is done in any other intestate case; that he was willing to submit all the receipts of the accounts for the examination of the interested parties before the Clerk or before the Court itself; that this Intestate could be terminated, the project of partition having been allowed and confirmed by the Supreme Court and that the Administrator was also desirous of terminating it definitely for the benefit of all the parties. On September 14, 1949, the administrator filed another statement of accounts covering the period of from March 1, 1945, to July 31, 1949, which showed a cash balance of P71.95, with pending obligations in the sum of P35,810. The heirs of Quintin de Borja, Juan de Borja and his sisters, registered their opposition said statement of accounts and prayed the Court to disapprove the same and to appoint an account to go over the books of the administrator and to submit a report thereon as soon as possible. The heir Juliana de Borja also formally offered her objection to the approval of the accounts submitted by the administrator and prayed further that said administrator be required to submit a complete accounting of his administration of the

Estate from 1937 to 1949. On the other hand, Francisco de Borja and Miguel B. Dayco, as the only heir of the deceased Crisanta de Borja, submitted to the Court an agreement to relieve the administrator from accounting for the period of the Japanese occupation; that as to the accounting from 1937 to 1941, they affirmed their conformity with the agreement entered into by all the heirs appearing in the Bill of Exceptions of Juliana de Borja; and they have no objection to the approval of the statement of accounts submitted by the administrator covering of the years 1945 to 1949. On December 6, 1949, the administrator, answered the opposition of the heir Juliana de Borja, alleging that the corresponding statement of accounts for the years 1937, 1938, 1939, 1940 and 1941 were presented and approved by the Court before and during the Japanese occupation, but the records of the same were destroyed in the Office of the Clerk of that Court during the liberation of the province of Rizal, and his personal records were also lost during the Japanese occupation, when his house was burned; that Judge Peña who was presiding over the Court in 1945 impliedly denied the petition of heirs to require him to render an accounting for the period from 1942 to the early part of 1945, for the reason that whatever money obtained from the Estate during said period could not be made the subject of any adjudication it having been declared fiat money and without value, and ordered that the statement of accounts be presented only for the period starting from March 1, 1945. The administrator further stated that he was anxious to terminate this administration but some of the heirs had not yet complied with the conditions imposed in the project of partition which was approved by the Supreme Court; that in accordance with said partition agreement, Juliana de Borja must deliver to the administrator all the jewelry, objects of value, utensils and other personal belongings of the deceased spouses Marcelo de Borja and Tircila Quiogue, which said heir had kept and continued to retain in her possession; that the heirs of Quintin de Borja should deliver to the administrator all the lands and a document transferring in favor of the Intestate the two parcels of land with a total area of 71 hectares of cultivated land in Cabanatuan, Nueva Ecija which were in the possession of said heirs, together with the house of Feliciana Mariano Vda. de Sarangaya, which were the objects of Civil Case No. 6190 mentioned in Paragraph 11 of the project of partition; that as consequence of the said dispossession the heirs of Quintin de Borja must deliver to the administrator the products of the 71 hectares of land in Cabanatuan, Nueva Ecija, and the rentals of the house of Feliciana Mariano or else render to the Court an accounting of the products of these properties from the time they took possession of the same in 1937 to the present; that there was a pending obligation amounting to P36,000 as of September 14, 1949, which the heirs should pay before the properties adjudicated to them would be delivered. The Court, however, ordered the administrator on December 10, 1949, to show and prove by evidence why he should not be accounts the proceeds of his administration from 1937. Meantime, Juliana de Borja filed a Constancia denying possession of any jewelry belonging to the deceased spouses Marcelo de Borja and Tarcilla Quiogue or any other personal belonging of said spouses, and signified her willingness to turn over to the administrator the silver wares mentioned in Paragraph III of the project of partition, which were the only property in her care, on the date that she would expect the delivery to her of her share in the inheritance from her deceased parents. On July 6, 1950, Juan de Borja and his sisters Marcela, Saturnina, Eufracia, Jacoba and Olimpia, all surnamed de Borja, as heirs of Quintin de Borja, filed a motion for the delivery to them of their inheritance in the estate, tendering to the administrator a document ceding and transferring to the latter all the rights, interests and participation of Quintin de Borja in Civil Case No. 7190 of the Court of First Instance of Nueva Ecija, pursuant to the provisions of the project of Partition, and expressing their willingness to put up a bond if required to do so by the Court, and on July 18, 1950, the Court ordered the administrator to deliver to Marcela, Juan, Saturniana, Eufracia, Jacoba and Olimpia, all surnamed de Borja, all the properties adjudicated to them in the Project of Partition dated February 8, 1944, upon the latter's filing a bond in the sum of P10,000 conditioned upon the payment of such obligation as may be ordered by the Court after a hearing on the controverted accounts of the administrator. The Court considered the fact that the heirs had complied with the requirement imposed by the Project of Partition when they tendered the document ceding and transferring the rights and interests of Quintin de Borja in the aforementioned lands and expressed the necessity of terminating the proceedings as soon as practicable, observing that the Estate had been under administration for over twenty-five years already. The Court, however, deferred action on the petition filed by the special administratrix of the Intestate Estate of Juliana de Borja until after compliance with the conditions imposed by the project of partition. But on July 20, 1950, apparently before the properties were delivered to the heirs, Francisco de Borja and Miguel B. Dayco filed a motion informing the Court that the two parcels of land located in Cabanatuan, Nueva Ecija, produced some 21,300 cavans of palay, amounting to P213,000 at P10 per cavan, which were enjoyed by some heirs; that the administrator Crisanto de Borja had not taken possession of the same for circumstances beyond his control; and that there also existed the sum of P70,204 which the former administrator, Quintin de Borja, received from properties that were redeemed, but which amount did not come into the hands of the present, administrator because according to reliable

NARTATEZ, CARELL RYZA

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SPECIAL PROCEEDINGS CASES – RULE 73

information, same was delivered to the heir Juliana de Borja who deposited it in her name at the Philippine National Bank. It was, therefore prayed that the administrator be required to exert the necessary effort to ascertain the identity of the person or persons who were in possession of the same amount and of the value of the products of the lands in Mayapyap, Cabanatuan, Nueva Ecija, and to recover the same for the Intestate Estate. On July 28, 1950, the special administratrix of the estate of Juliana de Borja, then deceased, filed an answer to the motion of these two heirs, denying the allegation that said heir any product of the lands mentioned from Quintin de Borja, and informed the Court that the Mayapyap property had always been in the possession of Francisco de Borja himself and prayed the court that the administrator be instructed to demand all the fruits and products of said property from Francisco de Borja. On July 28, 1950, the heirs of Quintin de Borja also filed their opposition to the said motion of Francisco de Borja and Miguel B. Dayco on the ground that the petition was superfluous because the present proceeding was only for the approval of the statement of accounts filed by the administrator; that said motion was improper because it was asking the Court to order the administrator to perform what he was duty bound to do; and that said heirs were already barred or stopped from raising that question in view of their absolute ratification of and assent to the statement of accounts submitted by the administrator. On August 16, 1950, by order of the Court, the properties adjudicated to Juliana de Borja in the project of Partition were finally delivered to the estate of said heir upon the filing of a bond for P20,000. In that same order, the Court denied the administrator's motion to reconsider the order of July 18, 1950, requiring him to deliver to the heirs of Quintin de Borja the properties corresponding to them, on the ground that there existed no sufficient reason to disturb said order. It also ruled that as the petition of Francisco de Borja and Miguel B. Dayco made mention of certain properties allegedly belonging to the Intestate, said petition should properly be considered to gather with the final accounts of the administrator. The administrator raised the matter by certiorari to this Tribunal, which was, docketed as G.R. No. L-4179, and on May 30, 1951, We rendered decision affirming the order complained of, finding that the Juan de Borja and sisters have complied with the requirement imposed in the Project of Partition upon the tender of the document of cession of rights and quit-claim executed by Marcela de Borja, the administratrix of the Estate of Quintin de Borja, and holding that the reasons advanced by the administrator in opposing the execution of the order of delivery were trivial. On August 27, 1951, the administrator filed his amended statement of accounts covering the period from March 1, 1945, to July 31, 1949, which showed a cash balance of P36,660. An additional statement of accounts filed on August 31, 1961 for the period of from August 1, 1949, to August 31, 1951, showed a cash balance of P5,851.17 and pending obligations in the amount of P6,165.03. The heirs of Quintin de Borja again opposed the approval of the statements of accounts charging the administrator with having failed to include the fruits which the estate should have accrued from 1941 to 1951 amounting to P479,429.70, but as the other heirs seemed satisfied with the accounts presented by said administrator and as their group was only one of the 4 heirs of Intestate Estate, they prayed that the administrator be held liable for only P119,932.42 which was 1/4 of the amount alleged to have been omitted. On October 4, 1951, the administrator filed a reply to said opposition containing a counterclaim for moral damages against all the heirs of Quintin de Borja in the sum of P30,000 which was admitted by the Court over the objection of the heirs of Quintin de Borja that the said pleading was filed out of time. The oppositors, the heirs of Quintin de Borja, then filed their answer to the counterclaim denying the charges therein, but later served interrogatories on the administrator relative to the averments of said counterclaim. Upon receipt of the answer to said interrogatories specifying the acts upon which the claim for moral damages was based, the oppositors filed an amended answer contending that inasmuch as the acts, manifestations and pleadings referred to therein were admittedly committed and prepared by their lawyer, Atty. Amador E. Gomez, same cannot be made the basis of a counterclaim, said lawyer not being a party to the action, and furthermore, as the acts upon which the claim for moral damages were based had been committed prior to the effectivity of the new Civil Code, the provisions of said Code on moral damages could not be invoked. On January 15, 1952, the administrator filed an amended counterclaim including the counsel for the oppositors as defendant. There followed a momentary respite in the proceedings until another judge was assigned to preside over said court to dispose of the old case pending therein. On August 15, 1952, Judge Encarnacion issued an order denying admission to administrator's amended counterclaim directed against the lawyer, Atty. Amador E. Gomez, holding that a lawyer, not being a party to the action, cannot be made answerable for counterclaims. Another order was also issued on the same date dismissing the administrator's counterclaim for moral damages against the heirs of Quintin de Borja and their counsel for the alleged defamatory acts, manifestation and utterances, and stating that granting the same to be meritorious, yet it was a strictly private controversy between said heirs and the administrator which would not in any way affect the interest of the Intestate, and, therefore, not proper in an intestate proceedings. The Court stressed that to allow the ventilation of such personal controversies would further delay the proceedings in the

case which had already lagged for almost 30 years, a situation which the Court would not countenance. Having disposed of these pending incidents which arose out of the principal issue, that is, the disputed statement of accounts submitted by the administrator, the Court rendered judgment on September 5, 1952, ordering the administrator to distribute the funds in his possession to the heirs as follows: P1,395.90 to the heirs of Quintin de Borja; P314.99 to Francisco de Borja; P314.99 to the Estate of Juliana de Borja and P314.99 to Miguel B. Dayco, but as the latter still owed the intestate the sum of P900, said heirs was ordered to pay instead the 3 others the sum of P146.05 each. After considering the testimonies of the witnesses presented by both parties and the available records on hand, the Court found the administrator guilty of maladministration and sentenced Crisanto de Borja to pay to the oppositors, the heirs of Quintin de Borja, the sum of P83,337.31, which was 1/4 of the amount which the state lost, with legal interest from the date of the judgment. On the same day, the Court also issued an order requiring the administrator to deliver to the Clerk of that Court PNB Certificate of Deposit No. 211649 for P978.50 which was issued in the name of Quintin de Borja. The administrator, Dr. Crisanto de Borja, gave notice to appeal from the lower Court's orders of August 15, 1952, the decision of September 5, 1952, and the order of even date, but when the Record on Appeal was finally approved, the Court ordered the exclusion of the appeal from the order of September 5, 1952, requiring the administrator to deposit the PNB Certificate of Deposit No. 2114649 with the Clerk of Court, after the oppositors had shown that during the hearing of that incident, the parties agreed to abide by whatever resolution the Court would make on the ownership of the funds covered by that deposit. The issues. — Reducing the issues to bare essentials, the questions left for our determination are: (1) whether the counsel for a party in a case may be included as a defendant in a counterclaim; (2) whether a claim for moral damages may be entertained in a proceeding for the settlement of an estate; (3) what may be considered as acts of maladministration and whether an administrator, as the one in the case at bar, may be held accountable for any loss or damage that the estate under his administration may incur by reason of his negligence, bad faith or acts of maladministration; and (4) in the case at bar has the Intestate or any of the heirs suffered any loss or damage by reason of the administrator's negligence, bad faith or maladministration? If so, what is the amount of such loss or damage? I. — Section 1, Rule 10, of the Rules of Court defines a counterclaim as: SECTION 1. Counterclaim Defined. — A counterclaim is any claim, whether for money or otherwise, which a party may have against the opposing party . A counterclaim need not dismiss or defeat the recovery sought by the opposing party, but may claim relief exceeding in amount or different in kind from that sought by the opposing party's claim. It is an elementary rule of procedure that a counterclaim is a relief available to a partydefendant against the adverse party which may or may not be independent from the main issue. There is no controversy in the case at bar, that the acts, manifestations and actuations alleged to be defamatory and upon which the counterclaim was based were done or prepared by counsel for oppositors; and the administrator contends that as the very oppositors manifested that whatever civil liability arising from acts, actuations, pleadings and manifestations attributable to their lawyer is enforceable against said lawyer, the amended counterclaim was filed against the latter not in his individual or personal capacity but as counsel for the oppositors. It is his stand, therefore, that the lower erred in denying admission to said pleading. We differ from the view taken by the administrator. The appearance of a lawyer as counsel for a party and his participation in a case as such counsel does not make him a party to the action. The fact that he represents the interests of his client or that he acts in their behalf will not hold him liable for or make him entitled to any award that the Court may adjudicate to the parties, other than his professional fees. The principle that a counterclaim cannot be filed against persons who are acting in representation of another — such as trustees — in their individual capacities (Chambers vs. Cameron, 2 Fed. Rules Service, p. 155; 29 F. Supp. 742) could be applied with more force and effect in the case of a counsel whose participation in the action is merely confined to the preparation of the defense of his client. Appellant, however, asserted that he filed the counterclaim against said lawyer not in his individual capacity but as counsel for the heirs of Quintin de Borja. But as we have already stated that the existence of a lawyer-client relationship does not make the former a party to the action, even this allegation of appellant will not alter the result We have arrived at. Granting that the lawyer really employed intemperate language in the course of the hearings or in the preparation of the pleadings filed in connection with this case, the remedy against said counsel would be to have him cited for contempt of court or take other administrative measures that may be proper in the case, but certainly not a counterclaim for moral damages. II. — Special Proceedings No. 6414 of the Court of First Instance of Rizal (Pasig branch) was instituted for the purpose of settling the Intestate Estate of Marcelo de Borja. In taking cognizance of the case, the Court was clothed with a limited jurisdiction which cannot expand to collateral matters not arising out of or in any way related to the settlement and adjudication of the properties of the deceased, for it is a settled rule that the jurisdiction of a probate court is limited and special (Guzman vs. Anog, 37 Phil. 361).

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41

SPECIAL PROCEEDINGS CASES – RULE 73 Although there is a tendency now to relax this rule and extend the jurisdiction of the probate court in respect to matters incidental and collateral to the exercise of its recognized powers (14 Am. Jur. 251-252), this should be understood to comprehend only cases related to those powers specifically allowed by the statutes. For it was even said that: Probate proceedings are purely statutory and their functions limited to the control of the property upon the death of its owner, and cannot extend to the adjudication of collateral questions (Woesmes, The American Law of Administration, Vol. I, p. 514, 662-663). It was in the acknowledgment of its limited jurisdiction that the lower court dismissed the administrator's counterclaim for moral damages against the oppositors, particularly against Marcela de Borja who allegedly uttered derogatory remarks intended to cast dishonor to said administrator sometime in 1950 or 1951, his Honor's ground being that the court exercising limited jurisdiction cannot entertain claims of this kind which should properly belong to a court general jurisdiction. From what ever angle it may be looked at, a counterclaim for moral damages demanded by an administrator against the heirs for alleged utterances, pleadings and actuations made in the course of the proceeding, is an extraneous matter in a testate or intestate proceedings. The injection into the action of incidental questions entirely foreign in probate proceedings should not be encouraged for to do otherwise would run counter to the clear intention of the law, for it was held that: The speedy settlement of the estate of deceased persons for the benefit of the creditors and those entitled to the residue by way of inheritance or legacy after the debts and expenses of administration have been paid, is the ruling spirit of our probate law (Magabanua vs. Akel, 72 Phil., 567, 40 Off Gaz., 1871). III. and IV. — This appeal arose from the opposition of the heirs of Quintin de Borja to the approval of the statements of accounts rendered by the administrator of the Intestate Estate of Marcelo de Borja, on the ground that certain fruits which should have been accrued to the estate were unaccounted for, which charge the administrator denied. After a protracted and extensive hearing on the matter, the Court, finding the administrator, Dr. Crisanto de Borja, guilty of certain acts of maladministration, held him liable for the payment to the oppositors, the heirs of Quintin de Borja, of 1/4 of the unreported income which the estate should have received. The evidence presented in the court below bear out the following facts: (a) The estate owns a 6-door building, Nos. 1541, 1543, 1545, 1547, 1549 and 1551 in Azcarraga Street, Manila, situated in front of the Arranque market. Of this property, the administrator reported to have received for the estate the following rentals: Annual Period of time Total rentals monthly rental March to December, 1945

P3,085.00

P51.42

January to December, 1946

4,980.00

69.17

January to December, 1947

8,330.00

115.70

January to December, 1948

9,000.00

125.00

January to December, 1949

8,840.00

122.77

January to December, 1950

6,060.00

184.16

Total P40,295.00 The oppositors, in disputing this record income, presented at the witness stand Lauro Aguila, a lawyer who occupied the basement of Door No. 1541 and the whole of Door No. 1543 from 1945 to November 15, 1949, and who testified that he paid rentals on said apartments as follows: 1945 Door No. 1541 (basement) February

P20.00

Door No. 1543

March

20.00

For 7 months at P300

April

60.00

a month

May-December Total

800.00 P900.00

1946 January-December

P1,200.00

January-December

January

P100.00

January

February

100.00

February

March

180.00

March 1-15

1947

April-December

1,140.00

March 16-December

P1,820.00

4,0

P5

1948 January-December

P1,920.00

January-December

P5

1949 January-November 15 P1,680.00 January-December From the testimony of said witness, it appears that from 1945 to November 15,1949, he paid a total of P28,200 for the lease of Door No. 1543 and the basement of Door No. 1541. These figures were not controverted or disputed by the administrator but claim that said tenant subleased the apartments occupied by Pedro Enriquez and Soledad Sodora and paid the said rentals, not to the administrator, but to said Enriquez. The transcript of the testimony of this witness really bolster this contention — that Lauro Aguila talked with said Pedro Enriquez when he leased the aforementioned apartments and admitted paying the rentals to the latter and not to the administrator. It is interesting to note that Pedro Enriquez is the same person who appeared to be the administrator's collector, duly authorized to receive the rentals from this Azcarraga property and for which services, said Enriquez received 5 per cent of the amount he might be able to collect as commission. If we are to believe appellant's contention, aside from the commission that Pedro Enriquez received he also sublet the apartments he was occupying at a very much higher rate than that he actually paid the estate without the knowledge of the administrator or with his approval. As the administrator also seemed to possess that peculiar habit of giving little importance to bookkeeping methods, for he never kept a ledger or book of entry for amounts received for the estate, We find no record of the rentals the lessees of the other doors were paying. It was, however, brought about at the hearing that the 6 doors of this building are of the same sizes and construction and the lower Court based its computation of the amount this property should have earned for the estate on the rental paid by Atty. Aguila for the 1 1/2 doors that he occupied. We see no excuse why the administrator could not have taken cognizance of these rates and received the same for the benefit of the estate he was administering, considering the fact that he used to make trips to Manila usually once a month and for which he charged to the estate P8 as transportation expenses for every trip. Basing on the rentals paid by Atty. Aguila for 1 1/2 doors, the estate received P112,800 from February 1, 1945, to November 15, 1949, for the 6 doors, but the lower Court held him accountable not only for the sum of P34,235 reported for the period ranging from March 1, 1945, to December 31, 1949, but also for a deficit of P90,525 or a total of P124,760. The record shows, however that the upper floor of Door No. 1549 was vacant in September, 1949, and as Atty. Aguila used to pay P390 a month for the use of an entire apartment from September to November, 1949, and he also paid P160 for the use of the basement of an apartment (Door No. 1541), the use, therefore, of said upper floor would cost P230 which should be deducted, even if the computation of the lower Court would have to be followed. There being no proper evidence to show that the administrator collected more rentals than those reported by him, except in the instance already mentioned, We are reluctant to bold him accountable in the amount for which he was held liable by the lower Court, and We think that under the circumstances it would be more just to add to the sum reported by the administrator as received by him as rents for 1945-1949 only, the difference between the sum reported as paid by Atty. Aguila and the sum actually paid by the latter as rents of 1 1/2 of the apartments during the said period, or P25,457.09 1/4 of which is P6,364.27 which shall be paid to the oppositors. The record also shows that in July, 1950, the administrator delivered to the other heirs Doors Nos. 1545, 1547, 1549 and 1551 although Doors Nos. 1541 and 1543 adjudicated to the oppositors remained under his administration. For the period from January to June, 1950, that the entire property was still administered by him, the administrator reported to have received for the 2 oppositors' apartments for said period of six months at P168.33 a month, the sum of P1,010 which belongs to the oppositors and should be taken from the amount reported by the administrator. The lower Court computed at P40 a month the pre-war rental admittedly received for every apartment, the income that said property would have earned from 1941 to 1944, or a total of P11,520, but as We have to exclude the period covered by the Japanese occupation, the estate should receive only P2,880 1/4 of which P720 the administrator should pay to the oppositors for the year 1941. (b) The Intestate estate also owned a parcel of land in Mayapyap, Nueva Ecija, with an area of 71 hectares, 95 ares and 4 centares, acquired by Quintin de Borja the spouses Cornelio Sarangaya and Feliciana Mariano in Civil Case NO. 6190 of the Court of First Instance of said province, In virtue of the agreement entered into by the heirs, this property was turned over by the estate of Quintin de Borja to the intestate and formed part of the general mass of said estate. The report of the administrator failed to disclose any return from this property alleging that he had not taken possession of the same. He does not deny however that he knew of the existence of this land but claimed that when he demanded the delivery of the Certificate of Title covering this property, Rogelio

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SPECIAL PROCEEDINGS CASES – RULE 73

42

Limaco, then administrator of the estate of Quintin de Borja, refused to surrender the same and he did not take any further action to recover the same. To counteract the insinuation that the Estate of Quintin de Borja was in possession of this property from 1940 to 1950, the oppositors presented several witnesses, among them was an old man, Narciso Punzal, who testified that he knew both Quintin and Francisco de Borja; that before the war or sometime in 1937, the former administrator of the Intestate, Quintin de Borja, offered him the position of overseer (encargado) of this land but he was notable to assume the same due to the death of said administrator; that on July 7, 1951, herein appellant invited him to go to his house in Pateros, Rizal, and while in said house, he was instructed by appellant to testify in court next day that he was the overseer of the Mayapyap property for Quintin de Borja from 1937-1944, delivering the yearly proceeds of 1,000 cavanes of Palay to Rogelio Limaco; that he did not need to be afraid because both Quintin de Borja and Rogelio Limaco were already dead. But as he knew that the facts on which he was to testify were false, he went instead to the house of one of the daughters of Quintin de Borja, who, together with her brother, Atty. Juan de Borja, accompanied him to the house of the counsel for said oppositors before whom his sworn declaration was taken (Exh. 3). Other witnesses, i.e., Isidro Benuya, Federico Cojo, Emilio de la Cruz and Ernesto Mangulabnan, testified that they were some of the tenants of the Mayapyap property; that they were paying their shares to the overseers of Francisco de Borja and sometimes to his wife, which the administrator was not able to contradict, and the lower Court found no reason why the administrator would fail to take possession of this property considering that this was even the subject of the agreement of February 16, 1940, executed by the heirs of the Intestate. The lower Court, giving due credence to the testimonies of the witnesses for the oppositors, computed the loss the estate suffered in the form of unreported income from the rice lands for 10 years at P67,000 (6,700 a year)and the amount of P4,000 from the remaining portion of the land not devoted to rice cultivation which was being leased at P20 per hectare. Consequently, the Court held the administrator liable to appellees in the sum of P17,750 which is 1/4 of the total amount which should have accrued to the estate for this item. But if We exclude the 3 years of occupation, the income for 7 years would be P46,900 for the ricelands and P2,800 (at P400 a year) for the remaining portion not developed to rice cultivation or a total of P48,700, 1/4 of which is P12,175 which We hold the administrator liable to the oppositors. (c) The Hacienda Jalajala located in said town of Rizal, was divided into 3 parts: the Punta section belonged to Marcelo de Borja, the Bagombong pertained to Bernardo de Borja and Francisco de Borja got the Jalajala proper. For the purpose of this case, we will just deal with that part called Junta. This property has an area of 1,345, hectares, 29 ares and 2 centares (Exh. 36) of which, according to the surveyor who measured the same, 200 hectares were of cultivated rice fields and 100 hectares dedicated to the planting of upland rice. It has also timberland and forest which produce considerable amount of trees and firewoods. From the said property which has an assessed value of P115,000 and for which the estates pay real estate tax of P1,500 annually, the administrator reported the following: Expenditure (not including administration's Year Income fees 1945...........

P625.00

P1,310.42

1946.............

1,800.00

3,471.00

1947.............

2,550.00

2,912.91

1948.............

1,828.00

3,311.88

1949.............

3,204.50

4,792.09

1950.............

2,082.00

2,940.91

P12,089.50 P18,739.21 This statement was assailed by the oppositors and to substantiate their charge that the administrator did not file the true income of the property, they presented several witnesses who testified that there were about 200 tenants working therein; that these tenants paid to Crisanto de Borja rentals at the rate of 6 cavanes of palay per hectare; that in the years of 1943 and 1944, the Japanese were the ones who collected their rentals, and that the estate could have received no less than 1,000 cavanes of palay yearly. After the administrator had presented witnesses to refute the facts previously testified to by the witnesses for the oppositors, the Court held that the report of the administrator did not contain the real income of the property devoted to rice cultivation, which was fixed at 1,000 cavanes every year — for 1941, 1942, 1945, 1946, 1947, 1948, 1949 and 1950, or a total of 8,000 cavanes valued at P73,000. But as the administrator accounted for the sum of P11,155 collected from rice harvests and if to this amount we add the sum of P8,739.20 for expenses, this will make a total of P19,894.20, thus leaving a deficit of P53,105.80, ¼ of which will be P13,276.45 which the administrator is held liable to pay the heirs of Quintin de Borja.

It was also proved during the hearing that the forest land of this property yields considerable amount of marketable firewoods. Taking into consideration the testimonies of witnesses for both parties, the Court arrived at the conclusion that the administrator sold to Gregorio Santos firewoods worth P600 in 1941, P3,500 in 1945 and P4,200 in 1946 or a total of P8,300. As the report included only the amount of P625, there was a balance of P7,675 in favor of the estate. The oppositors were not able to present any proof of sales made after these years, if there were any and the administrator was held accountable to the oppositors for only P1,918.75. (d) The estate also, owned ricefields in Cainta, Rizal, with a total area of 22 hectares, 76 ares and 66 centares. Of this particular item, the administrator reported an income of P12,104 from 1945 to 1951. The oppositors protested against this report and presented witnesses to disprove the same. Basilio Javier worked as a tenant in the land of Juliana de Borja which is near the land belonging to the Intestate, the 2 properties being separated only by a river. As tenant of Juliana de Borja, he knew the tenants working on the property and also knows that both lands are of the same class, and that an area accommodating one cavan of seedlings yields at most 100 cavanes and 60 cavanes at the least. The administrator failed to overcome this testimony. The lower Court considering the facts testified to by this witness made a finding that the property belonging to this Intestate was actually occupied by several persons accommodating 13 ½ cavanes of seedlings; that as for every cavan of seedlings, the land produces 60 cavanes of palay, the whole area under cultivation would have yielded 810 cavanes a year and under the 50-50 sharing system (which was testified by witness Javier), the estate would have received no less than 405 cavanes every year. Now, for the period of 7 years — from 1941 to 1950, excluding the 3 years of war — the corresponding earning of the estate should be 2,835 cavanes, out of which the 405 cavanes from the harvest of 1941 is valued at P1,215 and the rest 2,430 cavanes at P10 is valued at P24,300, or all in all P25,515. If from this amount the reported income of P12,104 is deducted, there will be a balance of P13,411.10 1/4 of which or P3,352.75 the administrator is held liable to pay to the oppositors. (e) The records show that the administrator paid surcharges and penalties with a total of P988.75 for his failure to pay on time the taxes imposed on the properties under his administration. He advanced the reason that he lagged in the payment of those tax obligations because of lack of cash balance for the estate. The oppositors, however, presented evidence that on October 29, 1939, the administrator received from Juliana de Borja the sum of P20,475.17 together with certain papers pertaining to the intestate (Exh. 4),aside from the checks in the name of Quintin de Borja. Likewise, for his failure to pay the taxes on the building at Azcarraga for 1947, 1948 and 1949, said property was sold at public auction and the administrator had to redeem the same at P3,295.48, although the amount that should have been paid was only P2,917.26. The estate therefore suffered a loss of P378.22. Attributing these surcharges and penalties to the negligence of the administrator, the lower Court adjudged him liable to pay the oppositors ¼ of P1,366.97, the total loss suffered by the Intestate, or P341.74. (f) Sometime in 1942, a big fire razed numerous houses in Pateros, Rizal, including that of Dr. Crisanto de Borja. Thereafter, he claimed that among the properties burned therein was his safe containing P15,000 belonging to the estate under his administration. The administrator contended that this loss was already proved to the satisfaction of the Court who, approved the same by order of January 8, 1943, purportedly issued by Judge Servillano Platon(Exh. B). The oppositors contested the genuineness of this order and presented on April 21, 1950, an expert witness who conducted several tests to determine the probable age of the questioned document, and arrived at the conclusion that the questioned ink writing "(Fdo)" appearing at the bottom of Exhibit B cannot be more than 4 years old (Exh. 39). However, another expert witness presented by the administrator contradicted this finding and testified that this conclusion arrived at by expert witness Mr. Pedro Manzañares was not supported by authorities and was merely the result of his own theory, as there was no method yet discovered that would determine the age of a document, for every document has its own reaction to different chemicals used in the tests. There is, however, another fact that called the attention of the lower Court: the administrator testified that the money and other papers delivered by Juliana de Borja to him on October 29, 1939, were saved from said fire. The administrator justified the existence of these valuables by asserting that these properties were locked by Juliana de Borja in her drawer in the "casa solariega" in Pateros and hence was not in his safe when his house, together with the safe, was burned. This line of reasoning is really subject to doubt and the lower Court opined, that it runs counter to the ordinary course of human behaviour for an administrator to leave in the drawer of the "aparador" of Juliana de Borja the money and other documents belonging to the estate under his administration, which delivery has receipted for, rather than to keep it in his safe together with the alleged P15,000 also belonging to the Intestate. The subsequent orders of Judge Platon also put the defense of appellant to bad light, for on February 6, 1943, the Court required Crisanto de Borja to appear before the Court of examination of the other heirs in connection with the reported loss, and on March 1, 1943, authorized the lawyers for the other parties to inspect the safe allegedly burned (Exh. 35). It is inconceivable that Judge Platon would still order the inspection of the safe if there was really an order approving the loss of those P15,000. We must not forget, in this connection, that the records of this case were burned and that at the time of the hearing of this incident in 1951, Judge Platon was already dead. The lower Court also found no reason why the

NARTATEZ, CARELL RYZA

43

SPECIAL PROCEEDINGS CASES – RULE 73 administrator should keep in his such amount of money, for ordinary prudence would dictate that as an administration funds that come into his possession in a fiduciary capacity should not be mingled with his personal funds and should have been deposited in the Bank in the name of the intestate. The administrator was held responsible for this loss and ordered to pay ¼ thereof, or the sum of P3,750. (g) Unauthorized expenditures — 1. The report of the administrator contained certain sums amounting to P2,130 paid to and receipted by Juanita V. Jarencio the administrator's wife, as his private secretary. In explaining this item, the administrator alleged that he needed her services to keep receipts and records for him, and that he did not secure first the authorization from the court before making these disbursements because it was merely a pure administrative function. The keeping of receipts and retaining in his custody records connected with the management of the properties under administration is a duty that properly belongs to the administrator, necessary to support the statement of accounts that he is obliged to submit to the court for approval. If ever his wife took charge of the safekeeping of these receipts and for which she should be compensated, the same should be taken from his fee. This disbursement was disallowed by the Court for being unauthorized and the administrator required to pay the oppositors ¼, thereof or P532.50. 2. The salaries of Pedro Enriquez, as collector of the Azcarraga property; of Briccio Matienzo and Leoncio Perez, as encargados, and of Vicente Panganiban and Herminigildo Macetas as forest-guards were found justified, although un authorized, as they appear to be reasonable and necessary for the care and preservation of the Intestate. 3. The lower Court disallowed as unjustified and unnecessary the expenses for salaries paid to special policemen amounting to P1,509. Appellant contended that he sought for the services of Macario Kamungol and others to act as special policemen during harvest time because most of the workers tilting the Punta property were not natives of Jalajala but of the neighboring towns and they were likely to run away with the harvest without giving the share of the estate if they were not policed. This kind of reasoning did not appear to be convincing to the trial judge as the cause for such fear seemed to exist only in the imagination. Granting that such kind of situation existed, the proper thing for the administrator to do would have been to secure the previous authorization from the Court if he failed to secure the help of the local police. He should be held liable for this unauthorized expenditure and pay the heirs of Quintin de Borja ¼ thereof or P377.25. 4. From the year 1942 when his house was burned, the administrator and his family took shelter at the house belonging to the Intestate known as "casa solariega" which, in the Project of Partition was adjudicated to his father, Francisco de Borja. This property, however, remained under his administration and for its repairs he spent from 1945-1950, P1465,14, duly receipted. None of these repairs appear to be extraordinary for the receipts were for nipa, for carpenters and thatchers. Although it is true that Rule 85, section 2 provides that: SEC. 2. EXECUTOR OR ADMINISTRATOR TO KEEP BUILDINGS IN REPAIR. — An executor or administrator shall maintain in tenant able repair the houses and other structures and fences belonging to the estate, and deliver the same in such repair to the heirs or devisees when directed so to do by the court. yet considering that during his occupancy of the said "casa solariega" he was not paying any rental at all, it is but reasonable that he should take care of the expenses for the ordinary repair of said house. Appellant asserted that had he and his family not occupied the same, they would have to pay someone to watch and take care of said house. But this will not excuse him from this responsibility for the disbursements he made in connection with the aforementioned repairs because even if he stayed in another house, he would have had to pay rentals or else take charge also of expenses for the repairs of his residence. The administrator should be held liable to the oppositors in the amount of P366.28. 5. Appellant reported to have incurred expenses amounting to P6,304.75 for alleged repairs on the rice mill in Pateros, also belonging to the Intestate. Of the disbursements made therein, the items corresponding, to Exhibits I, I-1, I-21, L-26, L-15, L-64 and L-65, in the total sum of P570.70 were rejected by the lower court on the ground that they were all unsigned although some were dated. The lower Court, however, made an oversight in including the sum of P150 covered by Exhibit L-26 which was duly signed by Claudio Reyes because this does not refer to the repair of the rice-mill but for the roofing of the house and another building and shall be allowed. Consequently, the sum of P570.70 shall be reduced to P420.70 which added to the sum of P3,059 representing expenditures rejected as unauthorized to wit: Exhibit L-59 ............. P500.00 Yek Wing Exhibit L-60 .............

616.00

Yek Wing

Exhibit L-61 .............

600.00

Yek Wing

Exhibit L-62 .............

840.00

Yek Wing

Exhibit L-63 ............. Exhibit Q-2 .............

180.00 323.00

Yek Wing scale "Howe"

Total ...................... P3,059.00 will give a total of P3,479 1/4 of which is P869.92 that belongs to the oppositors. 6. On the expenses for planting in the Cainta ricefields: — In his statement of accounts, appellant reported to have incurred a total expense of P5,977 for the planting of the ricefields in Cainta, Rizal, from the agricultural year 1945-46 to 1950-51. It was proved that the prevailing sharing system in this part of the country was on 50-50 basis. Appellant admitted that expenses for planting were advanced by the estate and liquidated after each harvest. But the report, except for the agricultural year 1950 contained nothing of the payments that the tenants should have made. If the total expenses for said planting amounted to P5,977, ½ thereof or P2,988.50 should have been paid by the tenants as their share of such expenditures, and as P965 was reported by the administrator as paid back in 1950, there still remains a balance of P2,023.50 unaccounted for. For this shortage, the administrator is responsible and should pay the oppositors ¼ thereof or P505.87. 7. On the transportation expenses of the administrator: — It appears that from the year 1945 to 1951, the administrator charged the estate with a total of P5,170 for transportation expenses. The un receipted disbursements were correspondingly itemized, a typical example of which is as follows: 1950 Gastos de viaje del administrador From Pateros To Pasig ................

50 x P4.00

=

P200.00

To Manila ...............

50 x P10.00

=

P500.00

To Cainta ................

8 x P8.00

=

P64.00

To Jalajala ...............

5 x P35.00

=

P175.00

P399.00 (Exhibit W-54). From the report of the administrator, We are being made to believe that the Intestate estate is a losing proposition and assuming arguendo that this is true, that precarious financial condition which he, as administrator, should know, did not deter Crisanto de Borja from charging to the depleted funds of the estate comparatively big amounts for his transportation expenses. Appellant tried to justify these charges by contending that he used his own car in making those trips to Manila, Pasig and Cainta and a launch in visiting the properties in Jalajala, and they were for the gasoline consumed. This rather unreasonable spending of the estate's fund prompted the Court to observe that one will have to spend only P0.40 for transportation in making a trip from Pateros to Manila and practically the same amount in going to Pasig. From his report for 1949 alone, appellant made a total of 97 trips to these places or an average of one trip for every 3 1/2 days. Yet We must not forget that it was during this period that the administrator failed or refused to take cognizance of the prevailing rentals of commercial places in Manila that caused certain loss to the estate and for which he was accordingly held responsible. For the reason that the alleged disbursements made for transportation expenses cannot be said to be economical, the lower Court held that the administrator should be held liable to the oppositors for ¼ thereof or the sum of P1,292.50, though We think that this sum should still be reduced to P500. 8. Other expenses: The administrator also ordered 40 booklets of printed contracts of lease in the name of the Hacienda Jalajala which cost P150. As the said hacienda was divided into 3 parts one belonging to this Intestate and the other two parts to Francisco de Boria and Bernardo de Borja, ordinarily the Intestate should only shoulder ¹/3 of the said expense, but as the tenants who testified during the hearing of the matter testified that those printed forms were not being used, the Court adjudged the administrator personally responsible for this amount. The records reveal, that this printed form was not utilized because the tenants refused to sign any, and We can presume that when the administrator ordered for the printing of the same, he did not foresee this situation. As there is no showing that said printed contracts were used by another and that they are still in the possession of the administrator which could be utilized anytime, this disbursement may be allowed. The report also contains a receipt of payment made to Mr. Severo Abellera in the sum of P375 for his transportation expenses as one of the two commissioners who prepared the Project of Partition. The oppositors were able to prove that on May 24, 1941, the Court authorized the administrator to withdraw from the funds of the intestate the sum of P300 to defray the transportation expenses of the commissioners. The administrator, however, alleged that he used this amount for the payment of certain fees necessary in connection with the approval of the proposed plan of the Azcarraga property which was then being processed in the City Engineer's Office. From that testimony, it would seem that appellant could even go to the extent of disobeying the order of the Court specifying for what purpose that amount should be appropriated and took upon himself the task of judging

NARTATEZ, CARELL RYZA

=

44

SPECIAL PROCEEDINGS CASES – RULE 73

for what it will serve best. Since he was not able to show or prove that the money intended and ordered by the Court to be paid for the transportation expenses of the commissioners was spent for the benefit of the estate as claimed, the administrator should be held responsible therefor and pay to the oppositors ¼ of P375 or the sum ofP93.75. The records reveal that for the service of summons to the defendants in Civil Case No. 84 of the Court of First Instance of Rizal, P104 was paid to the Provincial Sheriff of the same province (Exhibit H-7). However, an item for P40 appeared to have been paid to the Chief of Police on Jalajala allegedly for the service of the same summons. Appellant claimed that as the defendants in said civil case lived in remote barrios, the services of the Chief of Police as delegate or agent of the Provincial Sheriff were necessary. He forgot probably the fact that the local chiefs of police are deputy sheriffs ex-officio. The administrator was therefore ordered by the lower Court to pay ¼ of said amount or P10 to the oppositors. The administrator included in his Report the sum of P550 paid to Atty. Filamor for his professional services rendered for the defense of the administrator in G.R. No. L-4179, which was decided against him, with costs. The lower Court disallowed this disbursement on the ground that this Court provided that the costs of that litigation should not be borne by the estate but by the administrator himself, personally. Costs of a litigation in the Supreme Court taxed by the Clerk of Court, after a verified petition has been filed by the prevailing party, shall be awarded to said party and will only include his fee and that of his attorney for their appearance which shall not be more than P40; expenses for the printing and the copies of the record on appeal; all lawful charges imposed by the Clerk of Court; fees for the taking of depositions and other expenses connected with the appearance of witnesses or for lawful fees of a commissioner (De la Cruz, Philippine Supreme Court Practice, p. 70-71). If the costs provided for in that case, which this Court ordered to be chargeable personally against the administrator are not recoverable by the latter, with more reason this item could not be charged against the Intestate. Consequently, the administrator should pay the oppositors ¼ of the sum of P550 or P137.50. (e) The lower Court in its decision required appellant to pay the oppositors the sum of P1,395 out of the funds still in the possession of the administrator. In the statement of accounts submitted by the administrator, there appeared a cash balance of P5,851.17 as of August 31, 1961. From this amount, the sum of P1,002.96 representing the Certificate of Deposit No. 21619 and Check No. 57338, both of the Philippine National Bank and in the name of Quintin de Borja, was deducted leaving a balance of P4,848. As Judge Zulueta ordered the delivery to the oppositors of the amount of P1,890 in his order of October 8, 1951; the delivery of the amount of P810 to the estate of Juliana de Borja in his order of October 23, 1951, and the sum of P932.32 to the same estate of Juliana de Borja by order of the Court of February 29, 1952, or a total of P3,632.32 after deducting the same from the cash in the possession of the administrator, there will only be a remainder of P134.98. The Intestate is also the creditor of Miguel B. Dayco, heir and administrator of the estate of Crisanta de Borja, in the sum of P900 (Exhibits S and S-1). Adding this credit to the actual cash on hand, there will be a total of P1,034.98, ¼, of which or P258.74 properly belongs to the oppositors. However, as there is only a residue of P134.98 in the hands of the administrator and dividing it among the 3 groups of heirs who are not indebted to the Intestate, each group will receive P44.99, and Miguel B. Dayco is under obligation to reimburse P213.76 to each of them. The lower Court ordered the administrator to deliver to the oppositors the amount of P1,395.90 and P314.99 each to Francisco de Borja and the estate of Juliana de Borja, but as We have arrived at the computation that the three heirs not idebted to the Intestate ought to receive P44.99 each out of the amount of P134.98, the oppositors are entitled to the sum of P1,080.91 — the amount deducted from them as taxes but which the Court ordered to be returned to them — plus P44.99 or a total of P1,125.90. It appearing however, that ina Joint Motion dated November 27, 1952, duly approved by the Court, the parties agreed to fix the amount at P1,125.58, as the amount due and said heirs have already received this amount in satisfaction of this item, no other sum can be chargeable against the administrator. (f) The probate Court also ordered the administrator to render an accounting of his administration during the Japanese occupation on the ground that although appellant maintained that whatever money he received during that period is worthless, same having been declared without any value, yet during the early years of the war, or during 1942-43, the Philippine peso was still in circulation, and articles of prime necessity as rice and firewood commanded high prices and were paid with jewels or other valuables. But We must not forget that in his order of December 11, 1945, Judge Peña required the administrator to render an accounting of his administration only from March 1, 1945, to December of the same year without ordering said administrator to include therein the occupation period. Although the Court below mentioned the condition then prevailing during the war-years, We cannot simply presume, in the absence of proof to that effect, that the administrator received such valuables or properties for the use or in exchange of any asset or produce of the Intestate, and in view of the aforementioned order of Judge Peña, which We find no reason to disturb, We see no practical reason for requiring appellant to account for those occupation years when everything was affected by the abnormal conditions created by the war. The records of the Philippine National Bank

show that there was a current account jointly in the names of Crisanto de Borja and Juanita V. Jarencio, his wife, with a balance of P36,750.35 in Japanese military notes and admittedly belonging to the Intestate and We do not believe that the oppositors or any of the heirs would be interested in an accounting for the purpose of dividing or distributing this deposit. (g) On the sum of P13,294 for administrator's fees: It is not disputed that the administrator set aside for himself and collected from the estate the sum of P13,294 as his fees from 1945 to 1951 at the rate of P2,400 a year. There is no controversy as to the fact that this appropriated amount was taken without the order or previous approval by the probate Court. Neither is there any doubt that the administration of the Intestate estate by Crisanto de Borja is far from satisfactory. Yet it is a fact that Crisanto de Borja exercised the functions of an administrator and is entitled also to a certain amount as compensation for the work and services he has rendered as such. Now, considering the extent and size of the estate, the amount involved and the nature of the properties under administration, the amount collected by the administrator for his compensation at P200 a month is not unreasonable and should therefore be allowed. It might be argued against this disbursement that the records are replete with instances of highly irregular practices of the administrator, such as the pretended ignorance of the necessity of a book or ledger or at least a list of chronological and dated entries of money or produce the Intestate acquired and the amount of disbursements made for the same properties; that admittedly he did not have even a list of the names of the lessees to the properties under his administration, nor even a list of those who owed back rentals, and although We certainly agree with the probate Court in finding appellant guilty of acts of maladministration, specifically in mixing the funds of the estate under his administration with his personal funds instead of keeping a current account for the Intestate in his capacity as administrator, We are of the opinion that despite these irregular practices for which he was held already liable and made in some instances to reimburse the Intestate for amounts that were not properly accounted for, his claim for compensation as administrator's fees shall be as they are hereby allowed. Recapitulation. — Taking all the matters threshed herein together, the administrator is held liable to pay to the heirs of Quintin de Borja the following:

Under Paragraphs III and IV: (a) ...............................................................................

P7,084.27

(b) ...............................................................................

12,175.00

(c) ...............................................................................

16,113.95

(d) ...............................................................................

3,352.75

(e) ...............................................................................

341.74

(f) ................................................................................

3,750.00

(g) 1 .....................................................................

532.50

2 .....................................................................

377.25

3 .....................................................................

366.28

4 .....................................................................

869.92

5 .....................................................................

505.87

6 .....................................................................

500.00

7-a b ..................................................................

93.75

c ..................................................................

10.00

d ...................................................................

137.50

P46,210.00 In view of the foregoing, the decision appealed from is modified by reducing the amount that the administrator was sentenced to pay the oppositors to the sum of P46,210.78 (instead of P83,337.31), plus legal interests on this amount from the date of the decision appealed from, which is hereby affirmed in all other respects. Without pronouncement as to costs. It is so ordered.

G.R. No. L-81147 June 20, 1989 VICTORIA BRINGAS PEREIRA, petitioner, vs. THE HONORABLE COURT OF APPEALS and RITA PEREIRA NAGAC, respondents. Benjamin J. Quitoriano for petitioner. Linzag-Arcilla & Associates Law Offices for private respondent. GANCAYCO, J.:

NARTATEZ, CARELL RYZA

45

SPECIAL PROCEEDINGS CASES – RULE 73 Is a judicial administration proceeding necessary when the decedent dies intestate without leaving any debts? May the probate court appoint the surviving sister of the deceased as the administratrix of the estate of the deceased instead of the surviving spouse? These are the main questions which need to be resolved in this case. Andres de Guzman Pereira, an employee of the Philippine Air Lines, passed away on January 3, 1983 at Bacoor, Cavite without a will. He was survived by his legitimate spouse of ten months, the herein petitioner Victoria Bringas Pereira, and his sister Rita Pereira Nagac, the herein private respondent. On March 1, 1983, private respondent instituted before Branch 19 of the Regional Trial Court of Bacoor, Cavite, Special Proceeding No. RTC-BSP-83-4 for the issuance of letters of administration in her favor pertaining to the estate of the deceased Andres de Guzman Pereira. 1 In her verified petition, private respondent alleged the following: that she and Victoria Bringas Pereira are the only surviving heirs of the deceased; that the deceased left no will; that there are no creditors of the deceased; that the deceased left several properties, namely: death benefits from the Philippine Air Lines (PAL), the PAL Employees Association (PALEA), the PAL Employees Savings and Loan Association, Inc. (PESALA) and the Social Security System (SSS), as well as savings deposits with the Philippine National Bank (PNB) and the Philippine Commercial and Industrial Bank (PCIB), and a 300 square meter lot located at Barangay Pamplona, Las Pinas, Rizal and finally, that the spouse of the deceased (herein petitioner) had been working in London as an auxiliary nurse and as such one-half of her salary forms part of the estate of the deceased. On March 23,1983, petitioner filed her opposition and motion to dismiss the petition of private respondent 2alleging that there exists no estate of the deceased for purposes of administration and praying in the alternative, that if an estate does exist, the letters of administration relating to the said estate be issued in her favor as the surviving spouse. In its resolution dated March 28, 1985, the Regional Trial Court, appointed private respondent Rita Pereira Nagac administratrix of the intestate estate of Andres de Guzman Pereira upon a bond posted by her in the amount of Pl,000.00. The trial court ordered her to take custody of all the real and personal properties of the deceased and to file an inventory thereof within three months after receipt of the order. 3 Not satisfied with the resolution of the lower court, petitioner brought the case to the Court of Appeals. The appellate court affirmed the appointment of private respondent as administratrix in its decision dated December 15, 1987. 4 Hence, this petition for review on certiorari where petitioner raises the following issues: (1) Whether or not there exists an estate of the deceased Andres de Guzman Pereira for purposes of administration; (2) Whether or not a judicial administration proceeding is necessary where there are no debts left by the decedent; and, (3) Who has the better right to be appointed as administratrix of the estate of the deceased, the surviving spouse Victoria Bringas Pereira or the surviving sister Rita Pereira Nagac? Anent the first issue, petitioner contends that there exists no estate of the deceased for purposes of administration for the following reasons: firstly, the death benefits from PAL, PALEA, PESALA and the SSS belong exclusively to her, being the sole beneficiary and in support of this claim she submitted letter-replies from these institutions showing that she is the exclusive beneficiary of said death benefits; secondly, the savings deposits in the name of her deceased husband with the PNB and the PCIB had been used to defray the funeral expenses as supported by several receipts; and, finally, the only real property of the deceased has been extrajudicially settled between the petitioner and the private respondent as the only surviving heirs of the deceased. Private respondent, on the other hand, argues that it is not for petitioner to decide what properties form part of the estate of the deceased and to appropriate them for herself. She points out that this function is vested in the court in charge of the intestate proceedings. Petitioner asks this Court to declare that the properties specified do not belong to the estate of the deceased on the basis of her bare allegations as aforestated and a handful of documents. Inasmuch as this Court is not a trier of facts, We cannot order an unqualified and final exclusion or non-exclusion of the property involved from the estate of the deceased. 5 The resolution of this issue is better left to the probate court before which the administration proceedings are pending. The trial court is in the best position to receive evidence on the discordant contentions of the parties as to the assets of the decedent's estate, the valuations thereof and the rights of the transferees of some of the assets, if any. 6 The function of resolving whether or not a certain property should be included in the inventory or list of properties to be administered by the administrator is one clearly within the competence of the probate court. However, the court's determination is only provisional in character, not conclusive, and is subject to the final decision in a separate action which may be instituted by the parties. 7 Assuming, however, that there exist assets of the deceased Andres de Guzman Pereira for purposes of administration, We nonetheless find the administration proceedings instituted by private respondent to be unnecessary as contended by petitioner for the reasons herein below discussed.

The general rule is that when a person dies leaving property, the same should be judicially administered and the competent court should appoint a qualified administrator, in the order established in Section 6, Rule 78, in case the deceased left no will, or in case he had left one, should he fail to name an executor therein. 8 An exception to this rule is established in Section 1 of Rule 74. 9 Under this exception, when all the heirs are of lawful age and there are no debts due from the estate, they may agree in writing to partition the property without instituting the judicial administration or applying for the appointment of an administrator. Section 1, Rule 74 of the Revised Rules of Court, however, does not preclude the heirs from instituting administration proceedings, even if the estate has no debts or obligations, if they do not desire to resort for good reasons to an ordinary action for partition. While Section 1 allows the heirs to divide the estate among themselves as they may see fit, or to resort to an ordinary action for partition, the said provision does not compel them to do so if they have good reasons to take a different course of action. 10 It should be noted that recourse to an administration proceeding even if the estate has no debts is sanctioned only if the heirs have good reasons for not resorting to an action for partition. Where partition is possible, either in or out of court, the estate should not be burdened with an administration proceeding without good and compelling reasons. 11 Thus, it has been repeatedly held that when a person dies without leaving pending obligations to be paid, his heirs, whether of age or not, are not bound to submit the property to a judicial administration, which is always long and costly, or to apply for the appointment of an administrator by the Court. It has been uniformly held that in such case the judicial administration and the appointment of an administrator are superfluous and unnecessary proceedings . 12 Now, what constitutes "good reason" to warrant a judicial administration of the estate of a deceased when the heirs are all of legal age and there are no creditors will depend on the circumstances of each case. In one case, 13 We said: Again the petitioner argues that only when the heirs do not have any dispute as to the bulk of the hereditary estate but only in the manner of partition does section 1, Rule 74 of the Rules of Court apply and that in this case the parties are at loggerheads as to the corpus of the hereditary estate because respondents succeeded in sequestering some assets of the intestate. The argument is unconvincing, because, as the respondent judge has indicated, questions as to what property belonged to the deceased (and therefore to the heirs) may properly be ventilated in the partition proceedings, especially where such property is in the hands of one heir. In another case, We held that if the reason for seeking an appointment as administrator is merely to avoid a multiplicity of suits since the heir seeking such appointment wants to ask for the annulment of certain transfers of property, that same objective could be achieved in an action for partition and the trial court is not justified in issuing letters of administration. 14 In still another case, We did not find so powerful a reason the argument that the appointment of the husband, a usufructuary forced heir of his deceased wife, as judicial administrator is necessary in order for him to have legal capacity to appear in the intestate proceedings of his wife's deceased mother, since he may just adduce proof of his being a forced heir in the intestate proceedings of the latter. 15 We see no reason not to apply this doctrine to the case at bar. There are only two surviving heirs, a wife of ten months and a sister, both of age. The parties admit that there are no debts of the deceased to be paid. What is at once apparent is that these two heirs are not in good terms. The only conceivable reason why private respondent seeks appointment as administratrix is for her to obtain possession of the alleged properties of the deceased for her own purposes, since these properties are presently in the hands of petitioner who supposedly disposed of them fraudulently. We are of the opinion that this is not a compelling reason which will necessitate a judicial administration of the estate of the deceased. To subject the estate of Andres de Guzman Pereira, which does not appear to be substantial especially since the only real property left has been extrajudicially settled, to an administration proceeding for no useful purpose would only unnecessarily expose it to the risk of being wasted or squandered. In most instances of a similar nature, 16 the claims of both parties as to the properties left by the deceased may be properly ventilated in simple partition proceedings where the creditors, should there be any, are protected in any event. We, therefore, hold that the court below before which the administration proceedings are pending was not justified in issuing letters of administration, there being no good reason for burdening the estate of the deceased Andres de Guzman Pereira with the costs and expenses of an administration proceeding. With the foregoing ruling, it is unnecessary for us to delve into the issue of who, as between the surviving spouse Victoria Bringas Pereira and the sister Rita Pereira Nagac, should be preferred to be appointed as administratrix.

NARTATEZ, CARELL RYZA

46

SPECIAL PROCEEDINGS CASES – RULE 73

WHEREFORE, the letters of administration issued by the Regional Trial Court of Bacoor to Rita Pereira Nagac are hereby revoked and the administration proceeding dismissed without prejudice to the right of private respondent to commence a new action for partition of the property left by Andres de Guzman Pereira. No costs. SO ORDERED.

G.R. No. L-21993 June 21, 1966 ANGELA RODRIGUEZ, MARIA RODRIGUEZ, ET AL., petitioners, vs. HON. JUAN DE BORJA, as Judge of the Court of First Instance of Bulacan, Branch III, ANATOLIA PANGILINAN and ADELAIDA JACALAN, respondents. Lorenzo Somulong for petitioners. Torres and Torres for respondents. REYES, J.B.L., J.: Petitioners Angela, Maria, Abelardo and Antonio, surnamed Rodriguez, petition this Court for a writ of certiorariand prohibition to the Court of First Instance of Bulacan, for its refusal to grant their motion to dismiss its Special Proceeding No. 1331, which said Court is alleged to have taken cognizance of without jurisdiction. The facts and issues are succinctly narrated in the order of the respondent court, dated June 13, 1963 (Petition, Annex 0), in this wise: It is alleged in the motion to dismiss filed by Angela, Maria, Abelardo and Antonio Rodriguez, through counsel, that this Court "has no jurisdiction to try the above-entitled case in view of the pendency of another action for the settlement of the estate of the deceased Rev. Fr. Celestino Rodriguez in the Court of First Instance of Rizal, namely, Sp. Proceedings No. 3907 entitled 'In the matter of the Intestate Estate of the deceased Rev. Fr. Celestino Rodriguez which was filed ahead of the instant case". The records show that Fr. Celestino Rodriguez died on February 12, 1963 in the City of Manila; that on March 4, 1963, Apolonia Pangilinan and Adelaida Jacalan delivered to the Clerk of Court of Bulacan a purported last will and testament of Fr. Rodriguez; that on March 8, 1963, Maria Rodriguez and Angela Rodriguez, through counsel filed a petition for leave of court to allow them to examine the alleged will; that on March 11, 1963 before the Court could act on the petition, the same was withdrawn; that on March 12, 1963, aforementioned petitioners filed before the Court of First Instance of Rizal a petition for the settlement of the intestate estate of Fr. Rodriguez alleging, among other things, that Fr. Rodriguez was a resident of Parañaque, Rizal, and died without leaving a will and praying that Maria Rodriguez be appointed as Special Administratrix of the estate; and that on March 12, 1963 Apolonia Pangilinan and Adelaida Jacalan filed a petition in this Court for the probation of the will delivered by them on March 4, 1963. It was stipulated by the parties that Fr. Rodriguez was born in Parañaque, Rizal; that he was Parish priest of the Catholic Church of Hagonoy, Bulacan, from the year 1930 up to the time of his death in 1963; that he was buried in Parañaque, and that he left real properties in Rizal, Cavite, Quezon City and Bulacan. The movants contend that since the intestate proceedings in the Court of First Instance of Rizal was filed at 8:00 A.M. on March 12, 1963 while the petition for probate was filed in the Court of First Instance of Bulacan at 11:00 A.M. on the same date, the latter Court has no jurisdiction to entertain the petition for probate, citing as authority in support thereof the case of Ongsingco Vda. de Borja vs. Tan and De Borja , G.R. No. 7792, July 27, 1955. The petitioners Pangilinan and Jacalan, on the other hand, take the stand that the Court of First Instance of Bulacan acquired jurisdiction over the case upon delivery by them of the will to the Clerk of Court on March 4, 1963, and that the case in this Court therefore has precedence over the case filed in Rizal on March 12, 1963. The Court of First Instance, as previously stated denied the motion to dismiss on the ground that a difference of a few hours did not entitle one proceeding to preference over the other; that, as early as March 7, movants were aware of the existence of the purported will of Father Rodriguez, deposited in the Court of Bulacan, since they filed a petition to examine the same, and that movants clearly filed the intestate proceedings in Rizal "for no other purpose than to prevent this Court (of Bulacan) from exercising jurisdiction over the probate proceedings". Reconsideration having been denied, movants, now petitioners, came to this Court, relying principally on Rule 73, section 1 of the Rules of Court, and invoking our ruling in Ongsingco vs. Tan and De Borja , L-7792, July 27, 1955.

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 any province which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, as 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. We find this recourse to be untenable. The jurisdiction of the Court of First Instance of Bulacan became vested upon the delivery thereto of the will of the late Father Rodriguez on March 4, 1963, even if no petition for its allowance was filed until later, because upon the will being deposited the court could, motu proprio, have taken steps to fix the time and place for proving the will, and issued the corresponding notices conformably to what is prescribed by section 3, Rule 76, of the Revised Rules of Court (Section 3, Rule 77, of the old Rules): SEC. 3. Court to appoint time for proving will . Notice thereof to be published. — When a will is delivered to, or a petition for the allowance of a will is filed in, the Court having jurisdiction, such Court shall fix a time and place for proving the will when all concerned may appear to contest the allowance thereof, and shall cause notice of such time and place to be published three (3) weeks successively, previous to the time appointed, in a newspaper of general circulation in the province. But no newspaper publication shall be made where the petition for probate has been filed by the testator himself. The use of the disjunctive in the words "when a will is delivered to OR a petition for the allowance of a will is filed" plainly indicates that the court may act upon the mere deposit therein of a decedent's testament, even if no petition for its allowance is as yet filed. Where the petition for probate is made after the deposit of the will, the petition is deemed to relate back to the time when the will was delivered. Since the testament of Fr. Rodriguez was submitted and delivered to the Court of Bulacan on March 4, while petitioners initiated intestate proceedings in the Court of First Instance of Rizal only on March 12, eight days later, the precedence and exclusive jurisdiction of the Bulacan court is incontestable.1äwphï1.ñët But, petitioners object, section 3 of revised Rule 76 (old Rule 77) speaks of a will being delivered to "the Court having jurisdiction," and in the case at bar the Bulacan court did not have it because the decedent was domiciled in Rizal province. We can not disregard Fr. Rodriguez's 33 years of residence as parish priest in Hagonoy, Bulacan (1930-1963); but even if we do so, and consider that he retained throughout some animus revertendi to the place of his birth in Parañaque, Rizal, that detail would not imply that the Bulacan court lacked jurisdiction. As ruled in previous decisions, the power to settle decedents' estates is conferred by law upon all courts of first instance, and the domicile of the testator only affects the venue but not the jurisdiction of the Court ( In re Kaw Singco, 74 Phil. 239; Reyes vs. Diaz, 73 Phil. 484; Bernabe vs. Vergara, 73 Phil. 676). Neither party denies that the late Fr. Rodriguez is deceased, or that he left personal property in Hagonoy, province of Bulacan (t.s.n. p. 46, hearing of June 11, 1963, Annex "H", Petition, Rec., p. 48). That is sufficient in the case before us. In the Kaw Singco case (ante) this Court ruled that: "... 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 the prompt administration of justice is too obvious to require comment. (Cf. Tanunchuan vs. Dy Buncio & Co., G.R. No. 48206, December 31, 1942). Furthermore, section 600 of Act No. 190, providing that the estate of a deceased person shall be settled in the province where he had last resided, could not have been intended as defining the jurisdiction of the probate court over the subject matter, because such legal provision is contained in a law of procedure dealing merely with procedural matters, and, as we have said time and again, procedure is one thing and jurisdiction over the subject matter is another. (Attorney General vs. Manila Railroad Company, 20 Phil. 523.) The law of jurisdiction — Act No. 136, Section 56, No. 5 — confers upon Courts of First Instance jurisdiction over all probate cases independently of the place of residence of the deceased.1 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

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SPECIAL PROCEEDINGS CASES – RULE 73 is properly called "venue" (Rule 75, section 1.) Motion for reconsideration is denied. The estate proceedings having been initiated in the Bulacan Court of First Instance ahead of any other, that court is entitled to assume jurisdiction to the exclusion of all other courts, even if it were a case of wrong venue by express provisions of Rule 73 (old Rule 75) of the Rules of Court, since the same enjoins 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. (Sec. 1) This disposition presupposes that two or more courts have been asked to take cognizance of the settlement of the estate. Of them only one could be of proper venue, yet the rule grants precedence to that Court whose jurisdiction is first invoked, without taking venue into account. There are two other reasons that militate against the success of petitioners. One is that their commencing intestate proceedings in Rizal, after they learned of the delivery of the decedent's will to the Court of Bulacan, was in bad faith, patently done with a view to divesting the latter court of the precedence awarded it by the Rules. Certainly the order of priority established in Rule 73 (old Rule 75) was not designed to convert the settlement of decedent's estates into a race between applicants, with the administration of the properties as the price for the fleetest. The other reason is that, in our system of civil law, intestate succession is only subsidiary or subordinate to the testate, since intestacy only takes place in the absence of a valid operative will. Says Article 960 of the Civil Code of the Philippines: ART. 960. Legal or intestate succession takes place: (1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity; (2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property in which the testator has not disposed; (3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place; (4) When the heir instituted is incapable of succeeding, except in cases provided in this Code. Therefore, as ruled in Castro, et al. vs. Martinez, 10 Phil. 307, "only after final decision as to the nullity of testate succession could an intestate succession be instituted in the form of pre-established action". The institution of intestacy proceedings in Rizal may not thus proceed while the probate of the purported will of Father Rodriguez is pending. We rule that the Bulacan Court of First Instance was entitled to priority in the settlement of the estate in question, and that in refusing to dismiss the probate. proceedings, said court did not commit any abuse of discretion. It is the proceedings in the Rizal Court that should be discontinued. Wherefore, the writ of certiorari applied for is denied. Costs against petitioners Rodriguez. G.R. No. L-18148 February 28, 1963 DEOGRACIAS BERNARDO, executor of the testate estate of the deceased EUSEBIO CAPILI; and the instituted heirs, namely: ARMANDO CAPILI and ARTURO BERNARDO, ET AL., petitioners, vs. HON. COURT OF APPEALS and THE HEIRS OF THE LATE HERMOGENA REYES, namely: FRANCISCO REYES, ET AL., and JOSE ISIDORO, ET AL., respondents. Ambrosio Padilla Law Offices for petitioners. Romerico F. Flores for respondents. BARRERA, J.: This is a petition by certiorari for the review of the decision of the Court of Appeals affirming that of the Court of First Instance of Bulacan holding that the probate court in Special Proceeding 1101 had jurisdiction to determine the validity of the deed of donation in question and to pass upon the question of title or ownership of the properties mentioned therein. The facts are briefly stated in the appealed decision of the Court of Appeals as follows: Eusebio Capili and Hermogena Reyes were husband and wife. The first died on July 27, 1958 and a testate proceeding for the settlement of his estate was instituted in the Court of the Fist Instance of Bulacan. His will was admitted to probate on October 9, 1958, disposing of his properties in favor of his widow; his cousins Armando, Ursula, and Buenaventura, all surnamed Capili; and Arturo, Deogracias and Eduardo, all surnamed Bernardo. Hermogena Reyes herself died on April 24, 1959. Upon petition of Deogracias Bernardo, executor of the estate of the deceased Eusebio Capili,

she was substituted by her collateral relatives and intestate heirs, namely, Marcos, Vicente, Francisco and Dominga, all surnamed Reyes; and Jose, Constancia, Raymunda and Elena, all surnamed Isidoro. On June 12, 1959, the executor filed a project of partition in the testate proceeding in accordance with the terms of the will, adjudicating the estate of Eusebio Capili among the testamentary heirs with the exception of Hermogena Reyes, whose share was alloted to her collateral relatives aforementioned. On June 16, 1959 these relatives filed an opposition to the executor's project of partition and submitted a counter-project of partition of their own, claiming 1/2 of the properties mentioned in the will of the deceased Eusebio Capili on the theory that they belonged not to the latter alone but to the conjugal partnership of the spouses. The probate court, in two orders dated June 24, 1959 and February 10, 1960, respectively, set the two projects of partition for hearing, at which evidence was presented by the parties, followed by the submission of memoranda discussing certain legal issues. In the memorandum for the executor and the instituted heirs it was contended: (1) that the properties disposed of in the will of the deceased Eusebio Capili belonged to him exclusively and not to the conjugal partnership, because Hermogena Reyes had donated to him her half share of such partnership; (2) that the collateral heirs of Hermogena Reyes had no lawful standing or grounds to question the validity of the donation; and (3) that even assuming that they could question the validity of the donation, the same must be litigated not in the testate proceeding but in a separate civil action. Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts. 1äwphï1.ñët The oppositors and heirs of Hermogena Reyes, on their part, argued that the deed of donation itself was determinative of the original conjugal character to the properties, aside from the legal presumption laid down in Article 160 of the Civil Code, and that since the donation was null and void the deceased Eusebio Capili did not become owner of the share of his wife and therefore could not validly dispose of it in his will. On September 14, 1960, the probate court, the Honorable M. Mejia presiding, issued an order declaring the donation void without making any specific finding as to its juridical nature, that is, whether it was inter vivos or mortis causa, for the reason that, considered under the first category, it falls under Article 133 of the Civil Code, which prohibits donations between spouses during the marriage; and considered under the second category, it does not comply with the formalities of a will as required by Article 728 in relation to Article 805 of the same Code, there being no attestation clause. In the same order the court disapproved both projects of partition and directed the executor to file another," dividing the property mentioned in the last will and testament of the deceased Eusebio Capili and the properties mentioned in the deed of donation, Exhibit B, between the instituted heirs of the deceased Eusebio Capili and the legal heirs of the deceased Hermogena Reyes, upon the basis that the said properties were conjugal properties of the deceased spouses." On September 27, 1960, the executor filed a motion for new trial, reiterating and emphasizing the contention previously raised in their memorandum that the probate court had no jurisdiction to take cognizance of the claim of the legal heirs of Hermogena Reyes involving title to the properties mentioned in the will of Eusebio Capili and taking exception to the court's declaration of the nullity of the donation "without stating facts or provision of law on which it was based." The motion for new trial was denied in an order dated October 3, 1960. On appeal to the Court of Appeals the order appealed from being affirmed, petitioners filed this present petition for review by certiorari. The petitioners-appellants contend that the appellate court erred in not declaring that the probate court, having limited and special jurisdiction, had generally no power to adjudicate title and erred in applying the exception to the rule. In a line of decisions, this Court consistently held that as a general rule, question as to title to property cannot be passed upon on testate or intestate proceedings,"1 except where one of the parties prays merely for the inclusion or exclusion from the inventory of the property, in which case the probate court may pass provisionally upon the question without prejudice to its final determination in a separate action.2 However, we have also held that when the parties interested are all heirs of the deceased, it is optional to them to submit to the probate court a question as to title to property, and when so submitted, said probate court may definitely pass judgment thereon (Pascual v. Pascual, 73 Phil. 561; Manalac v. Ocampo, et al., 73 Phil. 661); and that with the consent of the parties, matters affecting property under judicial administration may be taken cognizance of by

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SPECIAL PROCEEDINGS CASES – RULE 73

the court in the course of intestate proceeding, provided interests of third persons are not prejudiced (Cunanan v. Amparo, 80 Phil. 229, 232). In the light of this doctrine, may it be said correctly that the trial court as well as the Court of Appeals erred in upholding the power of the probate court in this case to adjudicate in the testate proceedings, the question as to whether the properties herein involved belong to the conjugal partnership of Eusebio Capili and Hermogena Reyes, or to the deceased husband exclusively? At the outset, let it be clarified that the matter at issue is not a question of jurisdiction, in the sense advanced by appellants that the trial court had completely no authority to pass upon the title to the lands in dispute, and that its decision on the subject is null and void and does not bind even those who had invoked its authority and submitted to its decision because, it is contended, jurisdiction is a creature of law and parties to an action can not vest, extend or broaden it. If appellants' contention is correct, then there can be no exception to the no-jurisdiction theory. But as has been stated in the case of Cunanan v. Amparo (supra) the Supreme Court speaking through Mr. Justice Pedro Tuason: "Determination of title to property is within the jurisdiction of Courts of First Instance. The responding Soriano's objection (that the probate court lacked jurisdiction to order the delivery of the possession of the lots to the estate) relates exclusively to the procedure, which is distinct from jurisdiction. It affects only personal rights to a mode of practice (the filing of an independent ordinary action) which may be waived". Strictly speaking, it is more a question of jurisdiction over the person, not over the subject matter, for the jurisdiction to try controversies between heirs of a deceased person regarding the ownership of properties alleged to belong to his estate, has been recognized to be vested in probate courts. This is so because the purpose of an administration proceeding is the liquidation of the estate and distribution of the residue among the heirs and legatees. Liquidation means determination of all the assets of the estate and payment of all the debts and expenses.3 Thereafter, distribution is made of the decedent's liquidated estate among the persons entitled to succeed him. The proceeding is in the nature of an action of partition, in which each party is required to bring into the mass whatever community property he has in his possession. To this end, and as a necessary corollary, the interested parties may introduce proofs relative to the ownership of the properties in dispute. All the heirs who take part in the distribution of the decedent's estate are before the court, and subject to the jurisdiction thereof, in all matters and incidents necessary to the complete settlement of such estate, so long as no interests of third parties are affected.4 In the case now before us, the matter in controversy is the question of ownership of certain of the properties involved — whether they belong to the conjugal partnership or to the husband exclusively. This is a matter properly within the jurisdiction of the probate court which necessarily has to liquidate the conjugal partnership in order to determine the estate of the decedent which is to be distributed among his heirs who are all parties to the proceedings, including, of course, the widow, now represented because of her death, by her heirs who have been substituted upon petition of the executor himself and who have appeared voluntarily. There are no third parties whose rights may be affected. It is true that the heirs of the deceased widow are not heirs of the testator-husband, but the widow is, in addition to her own right to the conjugal property. And it is this right that is being sought to be enforced by her substitutes. Therefore, the claim that is being asserted is one belonging to an heir to the testator and, consequently, it complies with the requirement of the exception that the parties interested (the petitioners and the widow, represented by dents) are all heirs claiming title under the testator. Petitioners contend additionally that they have never submitted themselves to the jurisdiction of the probate court, for the purpose of the determination of the question of ownership of the disputed properties. This is not borne by the admitted facts. On the contrary, it is undisputed that they were the ones who presented the project of partition claiming the questioned properties as part of the testator's asset. The respondents, as representatives or substitutes of the deceased widow opposed the project of partition and submitted another. As the Court of Appeals said, "In doing so all of them must be deemed to have submitted the issue for resolution in the same proceeding. Certainly, the petitioners can not be heard to insist, as they do, on the approval of their project of partition and, thus, have the court take it for granted that their theory as to the character of the properties is correct, entirely without regard to the opposition of the respondents". In other words, by presenting their project of partition including therein the disputed lands (upon the claim that they were donated by the wife to her husband), petitioners themselves put in issue the question of ownership of the properties — which is well within the competence of the probate court — and just because of an opposition thereto, they can not thereafter withdraw either their appearance or the issue from the jurisdiction of the court. Certainly, there is here a waiver where the parties who raise the objection are the ones who set the court in motion.5 They can not be permitted to complain if the court, after due hearing, adjudges question against them.6 Finally, petitioners-appellants claim that appellees are estopped to raise the question of ownership of the properties involved because the widow herself, during her lifetime, not only did not object to the inclusion of these properties in the inventory of the assets of her deceased husband, but also signed an extra-judicial partition of those inventoried properties. But the very authorities cited by appellants require that to constitute estoppel, the actor must have knowledge of the facts and be appraised of his rights at the time he performs the act constituting estoppel, because silence without knowledge works no

estoppel.7 In the present case, the deceased widow acted as she did because of the deed of donation she executed in favor of her husband not knowing that such deed was illegal, if inter-vivos, and ineffectual if mortis-causa, as it has not been executed with the required formalities similar to a will. WHEREFORE, the decision of the Court of Appeals being in accordance with law, the same is hereby affirmed with costs against appellants. So ordered. G.R. No. 108581 December 8, 1999 LOURDES L. DOROTHEO, petitioner, vs. COURT OF APPEALS, NILDA D. QUINTANA, for Herself and as Attorney-in-Fact of VICENTE DOROTHEO and JOSE DOROTHEO, respondents. YNARES-SANTIAGO, J.: May a last will and testament admitted to probate but declared intrinsically void in an order that has become final and executory still be given effect? This is the issue that arose from the following antecedents: Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta Reyes. The latter died in 1969 without her estate being settled. Alejandro died thereafter. Sometime in 1977, after Alejandro's death, petitioner, who claims to have taken care of Alejandro before he died, filed a special proceeding for the probate of the latter's last will and testament. In 1981, the court issued an order admitting Alejandro's will to probate. Private respondents did not appeal from said order. In 1983, they filed a "Motion To Declare The Will Intrinsically Void." The trial court granted the motion and issued an order, the dispositive portion of which reads: WHEREFORE, in view of the foregoing, Order is hereby issued declaring Lourdes Legaspi not the wife of the late Alejandro Dorotheo, the provisions of the last will and testament of Alejandro Dorotheo as intrinsically void, and declaring the oppositors Vicente Dorotheo, Jose Dorotheo and Nilda Dorotheo Quintana as the only heirs of the late spouses Alejandro Dorotheo and Aniceta Reyes, whose respective estates shall be liquidated and distributed according to the laws on intestacy upon payment of estate and other taxes due to the government.1 Petitioner moved for reconsideration arguing that she is entitled to some compensation since she took care of Alejandro prior to his death although she admitted that they were not married to each other. Upon denial of her motion for reconsideration, petitioner appealed to the Court of Appeals, but the same was dismissed for failure to file appellant's brief within the extended period granted. 2 This dismissal became final and executory on February 3, 1989 and a corresponding entry of judgment was forthwith issued by the Court of Appeals on May 16, 1989. A writ of execution was issued by the lower court to implement the final and executory Order. Consequently, private respondents filed several motions including a motion to compel petitioner to surrender to them the Transfer Certificates of Titles (TCT) covering the properties of the late Alejandro. When petitioner refused to surrender the TCT's, private respondents filed a motion for cancellation of said titles and for issuance of new titles in their names. Petitioner opposed the motion. An Order was issued on November 29, 1990 by Judge Zain B. Angas setting aside the final and executory Order dated January 30, 1986, as well as the Order directing the issuance of the writ of execution, on the ground that the order was merely "interlocutory", hence not final in character. The court added that the dispositive portion of the said Order even directs the distribution of the estate of the deceased spouses. Private respondents filed a motion for reconsideration which was denied in an Order dated February 1, 1991. Thus, private respondents filed a petition before the Court of Appeals, which nullified the two assailed Orders dated November 29, 1990 and February 1, 1991. Aggrieved, petitioner instituted a petition for review arguing that the case filed by private respondents before the Court of Appeals was a petition under Rule 65 on the ground of grave abuse of discretion or lack of jurisdiction. Petitioner contends that in issuing the two assailed orders, Judge Angas cannot be said to have no jurisdiction because he was particularly designated to hear the case. Petitioner likewise assails the Order of the Court of Appeals upholding the validity of the January 30, 1986 Order which declared the intrinsic invalidity of Alejandro's will that was earlier admitted to probate. Petitioner also filed a motion to reinstate her as executrix of the estate of the late Alejandro and to maintain the status quo or lease of the premises thereon to third parties. 3 Private respondents opposed the motion on the ground that petitioner has no interest in the estate since she is not the lawful wife of the late Alejandro. The petition is without merit. A final and executory decision or order can no longer be disturbed or reopened no matter how erroneous it may be. In setting aside the January 30, 1986 Order that has attained finality, the trial court in effect nullified the entry of judgment made by the Court of Appeals. It is well settled that a lower court cannot reverse or set aside decisions or orders of a superior court, for to do so would be to negate the hierarchy of courts and nullify the essence of review. It has been ruled that a final judgment on probated will, albeit erroneous, is binding on the whole world. 4

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SPECIAL PROCEEDINGS CASES – RULE 73 It has been consistently held that if no appeal is taken in due time from a judgment or order of the trial court, the same attains finality by mere lapse of time. Thus, the order allowing the will became final and the question determined by the court in such order can no longer be raised anew, either in the same proceedings or in a different motion. The matters of due execution of the will and the capacity of the testator acquired the character ofres judicata and cannot again be brought into question, all juridical questions in connection therewith being for once and forever closed. 5 Such final order makes the will conclusive against the whole world as to its extrinsic validity and due execution. 6 It should be noted that probate proceedings deals generally with the extrinsic validity of the will sought to be probated, 7 particularly on three aspects: n whether the will submitted is indeed, the decedent's last will and testament; n compliance with the prescribed formalities for the execution of wills; n the testamentary capacity of the testator; 8 n and the due execution of the last will and testament. 9 Under the Civil Code, due execution includes a determination of whether the testator was of sound and disposing mind at the time of its execution, that he had freely executed the will and was not acting under duress, fraud, menace or undue influence and that the will is genuine and not a forgery, 10 that he was of the proper testamentary age and that he is a person not expressly prohibited by law from making a will. 11 The intrinsic validity is another matter and questions regarding the same may still be raised even after the will has been authenticated. 12 Thus, it does not necessarily follow that an extrinsically valid last will and testament is always intrinsically valid. Even if the will was validly executed, if the testator provides for dispositions that deprives or impairs the lawful heirs of their legitime or rightful inheritance according to the laws on succession, 13 the unlawful provisions/dispositions thereof cannot be given effect. This is specially so when the courts had already determined in a final and executory decision that the will is intrinsically void. Such determination having attained that character of finality is binding on this Court which will no longer be disturbed. Not that this Court finds the will to be intrinsically valid, but that a final and executory decision of which the party had the opportunity to challenge before the higher tribunals must stand and should no longer be reevaluated. Failure to avail of the remedies provided by law constitutes waiver. And if the party does not avail of other remedies despite its belief that it was aggrieved by a decision or court action, then it is deemed to have fully agreed and is satisfied with the decision or order. As early as 1918, it has been declared that public policy and sound practice demand that, at the risk of occasional errors, judgments of courts must at some point of time fixed by law 14 become final otherwise there will be no end to litigation. Interes rei publicae ut finis sit litium — the very object of which the courts were constituted was to put an end to controversies. 15 To fulfill this purpose and to do so speedily, certain time limits, more or less arbitrary, have to be set up to spur on the slothful. 16 The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence, 17 which circumstances do not concur herein. Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity of the will, as she precisely appealed from an unfavorable order therefrom. Although the final and executory Order of January 30, 1986 wherein private respondents were declared as the only heirs do not bind those who are not parties thereto such as the alleged illegitimate son of the testator, the same constitutes res judicata with respect to those who were parties to the probate proceedings. Petitioner cannot again raise those matters anew for relitigation otherwise that would amount to forum-shopping. It should be remembered that forum shopping also occurs when the same issue had already been resolved adversely by some other court. 18 It is clear from the executory order that the estates of Alejandro and his spouse should be distributed according to the laws of intestate succession. Petitioner posits that the January 30, 1986 Order is merely interlocutory, hence it can still be set aside by the trial court. In support thereof, petitioner argues that "an order merely declaring who are heirs and the shares to which set of heirs is entitled cannot be the basis of execution to require delivery of shares from one person to another particularly when no project of partition has been filed." 19 The trial court declared in the January 30, 1986 Order that petitioner is not the legal wife of Alejandro, whose only heirs are his three legitimate children (petitioners herein), and at the same time it nullified the will. But it should be noted that in the same Order, the trial court also said that the estate of the late spouses be distributed according to the laws of intestacy. Accordingly, it has no option but to implement that order of intestate distribution and not to reopen and again re-examine the intrinsic provisions of the same will. It can be clearly inferred from Article 960 of the Civil Code, on the law of successional rights that testacy is preferred to intestacy. 20 But before there could be testate distribution, the will must pass the scrutinizing test and safeguards provided by law considering that the deceased testator is no longer available to prove the voluntariness of his actions, aside from the fact that the transfer of the estate is usually onerous in nature and that no one is presumed to give — Nemo praesumitur donare. 21 No intestate distribution of the estate can be done until and unless the will had failed to pass both its

extrinsic and intrinsic validity. If the will is extrinsically void, the rules of intestacy apply regardless of the intrinsic validity thereof. If it is extrinsically valid, the next test is to determine its intrinsic validity — that is whether the provisions of the will are valid according to the laws of succession. In this case, the court had ruled that the will of Alejandro was extrinsically valid but the intrinsic provisions thereof were void. Thus, the rules of intestacy apply as correctly held by the trial court. Furthermore, Alejandro's disposition in his will of the alleged share in the conjugal properties of his late spouse, whom he described as his "only beloved wife", is not a valid reason to reverse a final and executory order. Testamentary dispositions of properties not belonging exclusively to the testator or properties which are part of the conjugal regime cannot be given effect. Matters with respect to who owns the properties that were disposed of by Alejandro in the void will may still be properly ventilated and determined in the intestate proceedings for the settlement of his and that of his late spouse's estate. Petitioner's motion for appointment as administratrix is rendered moot considering that she was not married to the late Alejandro and, therefore, is not an heir. WHEREFORE, the petition is DENIED and the decision appealed from is AFFIRMED. SO ORDERED. G.R. No. 75773 April 17, 1990 TOMAS JIMENEZ, VISITACION JIMENEZ, DIGNO JIMENEZ, ANTONIO JIMENEZ, AMADEO JIMENEZ, MODESTO JIMENEZ and VIRGINIA JIMENEZ, petitioners, vs. HONORABLE INTERMEDIATE APPELLATE COURT, HON. AMANDA VALERACABIGAO, in her capacity as Presiding Judge, Regional Trial Court, Branch XXXVII, Lingayen, Pangasinan, LEONARDO JIMENEZ, JR. and CORAZON JIMENEZ, respondents. Simplicio M. Sevilleja for petitioners. Bitty S. Viliran for private respondents. Leonardo B. Jimenez, Jr. for respondents. FERNAN, CJ.: This is a petition for review on certiorari seeking to reverse and set aside the decision 1 of the Court of Appeals dated May 29, 1986 which dismissed the petition for certiorari and mandamus in AC-G.R. No. 06578 entitled "Tomas Jimenez, et. al. vs. Hon. Amanda Valera-Cabigao." The facts are as follows: The marriage of Leonardo (Lino) Jimenez and Consolacion Ungson produced four (4) children, namely: Alberto, Leonardo, Sr., Alejandra and Angeles. During the existence of the marriage, Lino Jimenez acquired five (5) parcels of land in Salomague, Bugallon, Pangasinan. After the death of Consolacion Ungson, Lino married Genoveva Caolboy with whom he begot the seven petitioners herein: Tomas, Visitacion, Digno, Antonio, Amadeo, Modesto and Virginia, all surnamed Jimenez. Lino Jimenez died on August 11, 1951 while Genoveva Caolboy died on November 21, 1978. Thereafter, in April 1979, Virginia Jimenez filed a petition before the Court of First Instance of Pangasinan, Branch V, docketed as Special Proceedings No. 5346, praying to be appointed as administratrix of the properties of the deceased spouses Lino and Genoveva. Enumerated in her petition were the supposed heirs of the deceased spouses which included herein co-petitioners and the four children of Lino Jimenez by Consolacion Ungson, his previous wife. 2 In October, 1979, herein private respondent Leonardo Jimenez, Jr., son of Leonardo Jimenez, Sr., filed a motion for the exclusion of his father's name and those of Alberto, Alejandra, and Angeles from the petition, inasmuch as they are children of the union of Lino Jimenez and Consolacion Ungson and not of Lino Jimenez and Genoveva Caolboy and because they have already received their inheritance consisting of five (5) parcels of lands in Salomague, Bugallon, Pangasinan. 3 On March 23, 1981, petitioner Virginia Jimenez was appointed administrator of the Intestate Estate of Lino Jimenez and Genoveva Caolboy. 4 On May 21, 1981, she filed an inventory of the estate of the spouses Lino Jimenez and Genoveva Caolboy wherein she included the five (5) parcels of land in Salomague, Bugallon, Pangasinan. As a consequence, Leonardo Jimenez, Jr. moved for the exclusion of these properties from the inventory on the ground that these had already been adjudicated to Leonardo Sr., Alberto, Alejandra and Angeles by their deceased father Lino Jimenez. Private respondent Leonardo Jimenez, Jr. presented testimonial and documentary evidence in support of his motion while petitioner Virginia Jimenez, other than cross-examining the witnesses of Leonardo, presented no evidence of her own, oral or documentary. On September 29, 1981, the probate court ordered the exclusion of the five (5) parcels of land from the inventory on the basis of the evidence of private respondent Leonardo Jimenez, Jr. which consisted among others of: (1) Tax Declaration showing that the subject properties were acquired during the conjugal partnership of Lino Jimenez and

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Consolacion Ungson; and, (2) a Deed of Sale dated May 12, 1964 wherein Genoveva Caolboy stated, that the subject properties had been adjudicated by Lino Jimenez to his children by a previous marriage, namely: Alberto, Leonardo, Alejandra and Angeles. 5 The motion for reconsideration of said order was denied on January 26, 1982. 6 Petitioner Virginia Jimenez then went to the Court of Appeals on a petition for certiorari and prohibition, docketed thereat as CA-G.R. No. SP-13916, seeking the annulment of the order dated September 29, 1981 as well as the order of January 26, 1982. On November 18, 1982, the Court of Appeals dismissed the petition because (1) Genoveva Caolboy, petitioners' mother, had admitted that the subject parcels of land had been adjudicated to the children of the previous nuptial; (2) the subject properties could not have been acquired during the marriage of Lino Jimenez to Genoveva Caolboy because they were already titled in the name of Lino Jimenez even prior to 1921, long before Lino's marriage to Genoveva in 1940; (3) the claim of Virginia Jimenez was barred by prescription because it was only in 1981 when they questioned the adjudication of the subject properties, more than ten (10) years after Genoveva had admitted such adjudication in a public document in 1964; and, (4) petitioner Virginia Jimenez was guilty of laches. This decision became final and executory. 7 Two (2) years after, petitioners filed an amended complaint dated December 10, 1984 before the Regional Trial Court of Pangasinan, Branch XXXVII, docketed thereat as Civil Case No. 16111, to recover possession/ownership of the subject five (5) parcels of land as part of the estate of Lino Jimenez and Genoveva Caolboy and to order private respondents to render an accounting of the produce therefrom. Private respondents moved for the dismissal of the complaint on the grounds that the action was barred by prior judgment in CA-G.R. No. SP-13916 dated November 18, 1982 and by prescription and laches. However, petitioners opposed the motion to dismiss contending that (1) the action was not barred by prior judgment because the probate court had no jurisdiction to determine with finality the question of ownership of the lots which must be ventilated in a separate action; and, (2) the action instituted in 1981 was not barred by prescription or laches because private respondents' forcible acquisition of the subject properties occurred only after the death of petitioners' mother, Genoveva Caolboy in 1978. On February 13, 1985, the trial court resolved to dismiss the complaint on the ground of res judicata. 8 On May 31, 1985, petitioners' motion for reconsideration of the resolution was denied. As earlier intimated, the petition for certiorari and mandamus filed by petitioners before the appellate court was likewise denied due course and dismissed in a decision dated May 29, 1986. 9 Hence, this recourse. The issue in this case is whether in a settlement proceeding (testate or intestate) the lower court has jurisdiction to settle questions of ownership and whether res judicata exists as to bar petitioners' present action for the recovery of possession and ownership of the five (5) parcels of land. In the negative, is the present action for reconveyance barred by prescription and/or laches? We reverse. Petitioners' present action for recovery of possession and ownership is appropriately filed because as a general rule, a probate court can only pass upon questions of title provisionally. Since the probate, court's findings are not conclusive being prima facie, 10 a separate proceeding is necessary to establish the ownership of the five (5) parcels of land. 11 The patent reason is the probate court's limited jurisdiction and the principle that questions of title or ownership, which result in inclusion or exclusion from the inventory of the property, can only be settled in a separate action. 12 All that the said court could do as regards said properties is determine whether they should or should not be included in the inventory or list of properties to be administered by the administrator. If there is a dispute as to the ownership, then the opposing parties and the administrator have to resort to an ordinary action for a final determination of the conflicting claims of title because the probate court cannot do so. 13 The provisional character of the inclusion in the inventory of a contested property was again reiterated in the following cases: Pio Barreto Realty Development, Inc. vs. Court of Appeals, 14 Junquera vs. Borromeo, 15Borromeo vs. Canonoy, 16 Recto vs. de la Rosa. 17 It has also been held that in a special proceeding for the probate of a will, the question of ownership is an extraneous matter which the probate court cannot resolve with finality. 18 This pronouncement no doubt applies with equal force to an intestate proceeding as in the case at bar. Res judicata 19 does not exist because of the difference in the causes of actions. Specifically in S.P. No. 5346, the action was for the settlement of the intestate estate of Lino Jimenez and Genoveva Caolboy while Civil Case No. 16111 was an action for the recovery of possession and ownership of the five (5) parcels of land. Moreover, while admittedly, the Court of First Instance of Pangasinan, Branch V in S.P. No. 5346 had jurisdiction, the same was merely limited jurisdiction. Any pronouncement by said court as to title is not conclusive and could still be attacked in a separate proceeding. Civil Case No. 16111, on the other hand. was lodged before the Regional Trial Court of Pangasinan, Branch XXXVII in the exercise of the court's general jurisdiction. It was, in fact, such "separate or ordinary proceedings" contemplated by the rules for a final determination of the issue of ownership of the disputed properties. To repeat, since the determination of the question of title to the subject properties in S.P. 5346 was merely

provisional, petitioners are not barred from instituting the appropriate action in Civil Case No. 16111. Indeed, the grounds relied upon by private respondents in their motion to dismiss do not appear to be indubitable.Res judicata has been shown here to be unavailable and the other grounds of prescription and laches pleaded by private respondents are seriously disputed. The allegation in the complaint is that the heirs of Leonardo Jimenez, Sr. (referring to private respondents,) forcibly intruded into and took possession of the disputed properties only in 1978, after the death of Genoveva Caolboy. Since the action for reconveyance was instituted in 1984, it would appear that the same has not yet prescribed or otherwise barred by laches. There are a number of factual issues raised by petitioners before the lower court which cannot be resolved without the presentation of evidence at a full-blown trial and which make the grounds for dismissal dubitable. Among others, the alleged admission made by petitioners' mother in the deed of sale is vehemently denied, as well as the fact itself of adjudication, there being no showing that the conjugal partnership of Lino Jimenez and Consolacion Ungson had been liquidated nor that a judicial or extra-judicial settlement of the estate of Lino Jimenez was undertaken whereby such adjudication could have been effected. The grounds stated in the motion to dismiss not being indubitable, the trial court committed grave abuse of discretion in dismissing the complaint in Civil Case No. 16111. WHEREFORE, the questioned decision of the respondent appellate court is hereby REVERSED. Civil Case No. 16111 is reinstated and the Regional Trial Court of Pangasinan, Branch XXXVII is directed to proceed in said case with dispatch. SO ORDERED. LACHENAL VS SALAS G.R. No. L-42257 June 14, 1976 SON IN LAW IS A STRANGER TO SETTLEMENT PROCEEDINGS

FACTS: Victorio Lachenal died on November 20, 1969. His testate estate is pending settlement in the Court of First Instance of Rizal, Pasig Branch I (Special Proceeding No. 5836). His son, Ildefonso Lachenal, was named executor of his will. Among the properties included in the inventory of his estate is a fishing boat called Lachenal VII. On April 1, 1971 the executor filed in that proceeding a motion to require the spouses Lope L. Leonio and Flaviana Lachenal-Leonio to pay the rentals for the lease of Lachenal VII and to return the boat to Navotas, Rizal for drydocking and repair. Mrs. Leonio, who was a daughter of the testator, opposed the executor's motion. She countered with a motion to exclude the fishing boat from the decedent's estate. She claimed that she is the owner of the boat because she purchased it from her father in 1967. The executor opposed the motion for exclusion. The probate court in its order of January 28, 1972 designated a commissioner to receive the evidence of the parties relative to the ownership of the motorboat. Mrs. Leonio had already finished the presentation of her evidence before the commissioner. The executor did not present his countervailing evidence. Instead, on July 8, 1975 he and the testator's other children named Flora, Elias and Irenea, and the children of a deceased child filed in the Caloocan City Branch of the Court of First Instance of Rizal an action against the Leonio spouses and the other three children of the testator named Crispula, Modesto and Esperanza, for the recovery of the motorboat Lachenal VII, allegedly valued at P150,000, together with back rentals and damages (Civil Case No. 3597). It was alleged in the complaint that Victorio Lachenal in 1964 leased the said motorboat to his son-in-law, Lope L. Leonio, for a monthly rental of P2,000 and that after Victorio's death, the executor of his estate demanded from Leonio the return of the boat and the payment of the back rentals. PLAINTIFFS IN THE RECOVERY CASE: On July 20, 1975 the said plaintiffs in Civil Case No. 3597 filed in the probate court their own motion to exclude the said motorboat from the decedent's estate on the ground that the, probate court has no jurisdiction to decide the question as to its ownership because that matter has to be resolved by the Caloocan court where Civil Case No. 3597 is pending. THE PROBATE COURT denied that motion. It held that it has jurisdiction over the issue of ownership because the heirs had agreed to present their evidence on that point before a commissioner. It invoked the rule that generally "questions of title to property cannot be passed upon in testate or intestate proceedings, except when the parties interested are all heirs of the deceased in which event it is optional upon them to submit to the probate court the question as to title to property and when so submitted, said probate court may definitely pass judgment thereon. The reason is that questions of collation or of advancement are generally inevitably involved therein which are proper matters to be passed upon in the due course of administration. And it has also been held that with the consent of the parties, matters affecting property under administration may be taken cognizance of by

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SPECIAL PROCEEDINGS CASES – RULE 73 the court in the course of the intestate proceedings provided the interests of third persons are not prejudiced." ISSUE: whether the probate court should be allowed to continue the hearing on the ownership of the fishing boat or whether that question should be left to the determination of the Caloocan court where the subsequent separate action (now in the pre-trial stage) for the recovery of the motorboat is pending. HELD: the title to the fishing boat should be determined in Civil Case No. 3597 because it affects the lessee thereof, Lope L Leonio, the decedent's son-in-law, who, although married to his daughter or compulsory heir, is nevertheless a third person with respect to his estate. "The administrator may not pull him against his will, by motion, into the administration proceeding" THIS CASE FALLS UNDER THE GENERAL RULE THAT QUESTIONS AS TO TITLE TO PROPERTY CANNOT BE PASSED UPON IN THE TESTATE OR INTESTATE PROCEEDING BUT SHOULD BE VENTILATED IN A SEPARATE ACTION Where a party in a probate proceeding prays for the inclusion in, or exclusion from, the inventory of a piece of property, the court may provisionally pass upon the question without prejudice to its final determination in a separate action. The Court of First Instance is a court of general original jurisdiction invested with power to take cognizance of all kinds of cases: civil cases, criminal cases, special proceedings, land registration, guardianship, naturalization, admiralty and insolvency cases Whether a particular matter should be resolved by the Court of First Instance in the exercise of its general jurisdiction or of its limited jurisdiction as a special court (probate, land registration, etc.) is in reality not a question of over the subject matter. It is in essence a procedural question involving a mode of practice "which may be waived" PROBATE JURISDICTION includes all matters relating to the settlement of estates and the probate of wills of persons (Sec. 599, Act 190), particularly the administration of the decedent's estate, the payment of his debts, questions as to collation or advancements to the heirs, the liquidation of the conjugal partnership, and the partition and distribution of the estate (De La Cruz vs. Camon, supra). For the recovery or protection or the property rights of the decedent. an executor or administrator may bring or defend in the right of the decedent, actions for causes which survive. Actions to recover real or personal property, or an interest therein, from the decedent's estate, or to enforce a lien thereon, and actions to recover damages for an injury to or property, real or personal, may be commenced against an executor or administrator (Secs. 1 and 2, Rule 87, Rules of Court).

PIO BARETTO VS CA 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. Estrella Funelas Iral & Associates and Tomas Trinidad for respondents. GUTIERREZ, JR., J.:

FACTS: 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. 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. 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. 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. 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.

In the instant case , the executor, by virtue of section 2 of Rule 87, filed a separate action in the Caloocan court for the recovery of the fishing boat and back rentals from the Leonio spouses.

Before the agreement could be implemented, Nicolai Drepin died. 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.

In the De la Cruz case, supra, it was held that rentals allegedly due to the decedent's estate may not be collected by the administrator by filing a motion in the testate proceeding. The said rentals do not constitute property in the administrator's hands and are not thus within the effective control of the probate court. The proper procedure in collecting such rentals is to file an independent action in the Court of First Instance so that the right of the estate thereto may be threshed out in a full-dress trial on the merits. The ruling in the De la Cruz case applies with stronger force to this case because here the executor seeks to recover not only the rentals but also the leased property itself, as to which the wife of the lessee had asserted adverse title.

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.

Normally, it is expedient and convenient that the question of title to property, which arises between the decedent's estate and other persons, should be adjucated in a separate action because such a question requires the presentation of appropriate pleadings (complaint, motion to dismiss, answer, counterclaim and reply). A resort to the modes of discovery may be necessary so that the issues may be clearly defined and the trial may be expedited. Those matters can be effectively accomplished in an ordinary action rather than in the testamentary or intestate proceeding (Mangaliman vs. Gonzales, L-21033, December 28, 1970, 36 SCRA 462). The court may also have to resolve ancillary issues as to damages and counterclaims for money or property. Ultimately, execution has to be issued. The execution of a judgment is usually made by the Court of First Instance in an ordinary action and not in a special proceeding (See Magallanes vs. Kayanan, supra). .

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. 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

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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. 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; 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; 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. 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)." 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. GM Management sought reconsideration and amendment of the Order of April 15, 1980 to conform to the provisions of the Deed of Undertaking. On May 23, 1980, administrator Trinidad filed a "Report with Motion to Authorize Administrator to Screen Offers to Purchase Estate and Others. 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. 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). 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. xxx xxx xxx 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; 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 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. 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. 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. 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. 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. Barretto filed a motion for reconsideration which was denied on November 12, 1982. Hence, this petition. ISSUES: HELD: 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? 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. 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 ... xxx xxx xx 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

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SPECIAL PROCEEDINGS CASES – RULE 73 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 However, from here, the road forks as we disagree with the respondent court's findings on the second issue. 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. 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. 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. 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. 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. 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). The merits of the case likewise lead to similar conclusions. 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). 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." 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. 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. 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).

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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. SO ORDERED.

G.R. No. L-42678 April 9, 1987 PEDRO E. BAYBAYAN, CIPRIANO EVANGELISTA, and SPOUSES BARTOLOME and CONSUELO BAYBAYAN,petitioners, vs. HON. NARCISO A. AQUINO, as Presiding Judge CFI Pangasinan Branch XIV; Deputy Sheriff CONSTANCIO PAGADUAN; EULALIA EVANGELISTA, NORBERTO, PAULINA, FELIZA, all surnamed PADUA; DIONISIA, LAUREANO, JOSEFINA, LEONARDO, ANASTACIA, VALENTINA, all surnamed ORPIANO; SERVILLANO, GERTRUDES, PASTORA, LORENZO, FAUSTA, all surnamed DELFIN; and DIONISIO, FAUSTINA, AMADO BENJAMIN, all surnamed ORIA, respondents. PADILLA, J.: This is a petition for certiorari to annul and set aside the Order issued by the respondent Judge on 4 December 1975, which dismissed, without prejudice, the petitioners' complaint filed in Civil Case No. 23 1 -R of the then Court of First Instance of Pangasinan, as well as the Order, dated 24 December 1975, which denied petitioners' motion for the reconsideration of said order. The antecedent facts of the case are as follows: On 19 January 1960, herein private respondents Norberto Padua, Paulina Padua, Felisa Padua, Dionisia Orpiano, Laureano Orpiano, Leonardo Orpiano, Josefina Orpiano, Valentina Orpiano, Servillano Delfin, Gertrudes Delfin, Pastors Delfin Lorenzo Delfin, Fausta Delfin, Dionisio Oria, Faustina Oria, Amado Oria, and Benjamin Oria, all claiming to be the nephews and nieces of one Vicente Oria who died intestate sometime in 1945 in Balungao, Pangasinan, filed a petition for the summary settlement of the decedent's estate, the value of which did not exceed P6,000.00. The petition was filed in the then Court of First Instance of Pangasinan, Tayug Branch. The case was docketed therein as Special Proceeding No. T-300. 1 After due publication and hearing, the probate court issued an order adjudicating the estate to the heirs of the decedent, who were ordered to submit a project of partition. 2 Sometime in 1971, the case was transferred to the Resales Branch of the Court of First Instance of Pangasinan where it was docketed as Spec. Proc. No. 24-R. On 18 September 1974, the probate court confirmed the adjudication earlier made and ordered Eulalia Evangelista to deliver the respective shares of her co-heirs; to make an accounting of the produce thereof from 1960; and to deliver said produce to her co-heirs or pay its equivalent. A writ of execution was subsequently issued pursuant thereto. 3 A writ of possession was also issued sometime thereafter, and the private respondents were placed in possession of their respective shares. 4 However, when a representative of the private respondents went to cultivate the portion adjudicated to said private respondents, he was prevented by Jose Diaz and Cipriano Evangelista. In view thereof, the private respondents filed a motion to cite said Jose Diaz and Cipriano Evangelista in contempt of court. 5 As a consequence, herein petitioners Pedro Baybayan, Cipriano Evangelists, and the spouses Bartolome and Consuelo Baybayan, claiming to be the registered owners of the lots involved, filed a complaint in the Court of First Instance of Pangasinan, Rosales Branch docketed therein as Civil Case No. 231-R, against the Deputy Sheriff and the herein private respondents, for the quieting of their title, plus damages, and to restrain said defendants from enforcing the writ of execution issued in Spec. Proc. No. 24-R. 6 Meanwhile, at the hearing of the motion for contempt in Spec. Proc. No. 24-R, the question of the Identity of the lands subject of Spec. Proc. No. 24-R, was brought up, so that the probate court ordered a relocation survey and commissioned a geodetic engineer to undertake said survey. After the survey, the commissioner submitted to the Court a report stating, among others, that the lands which were delivered by the Deputy Sheriff to the heirs of Vicente Oria, pursuant to the writ of possession issued by the probate court, are registered in the names of herein petitioners under TCT No. 50269 and TCT No. 50270 of the Register of Deeds of Pangasinan. 7 By reason thereof, the probate court, in an order dated 30 October 1975, dismissed the contempt charge against Jose Diaz and Cipriano Evangelists. However, the same court ordered the petitioners to amend their complaint filed in Civil Case No. 231-R since "it is necessary that an amended complaint be filed by Pedro Baybayan in order to determine whether or not the property in question is part of the property under Spec. Proc. No. 24R, inasmuch as it is now the property claimed by him which is covered by Transfer Certificate of Title No. 50269." 8 Pursuant thereto, the herein petitioners filed an Omnibus Motion in Civil Case No. 231-R, to which was attached an amended complaint wherein some defendants were

dropped. 9 The respondent Judge, however, found that the Amended Complaint did not comply with his order of 30 October 1975 to exclude Lot E and dismissed the case, "without prejudice on the part of the plaintiffs to file a proper complaint for the recovery of ownership or possession of the property in controversy which is Lot B in the relocation plan and formerly covered by Original Certificate of Title No. 23684, now under Transfer Certificate of Title No. 50269." 10 The petitioners filed a motion for reconsideration of the order, 11 but the motion was denied on 24 December 1975. 12 Thereupon, they filed with this Court a petition for certiorari for the review of the orders of the lower court. The Court treated the petition as a special civil action for certiorari. 13 Counsel for the petitioners, in this petition, contends that the respondent Judge had no authority under the law, both substantive and procedural, to issue the questioned orders because the order to amend the complaint was issued in, and in connection with Spec. Proc. No. 24-R where the herein petitioners are not even parties. The contention, in our opinion, is not meritorious. While it may be true that the order to amend the complaint filed in Civil Case No. 231-R was issued in Spec. Proc. No. 24-R, so that it cannot ordinarily bind the herein petitioners who are not parties in said special proceedings, it appears, however, that the petitioners voluntarily submitted themselves to the jurisdiction of the probate court, when they filed an Omnibus Motion in Civil Case No. 231-R, wherein they prayed for leave to amend their complaint in accordance with the order of the probate court of 30 October 1975. They cannot now be allowed belatedly to adopt an inconsistent posture by attacking the jurisdiction of the respondent trial Judge to whom they submitted their cause voluntarily. 14 We find, however, that the respondent Judge committed a grave abuse of discretion, amounting to lack of jurisdiction, in dismissing the complaint filed by the petitioners, for their alleged failure to amend their complaint to exclude therefrom Lot E which the respondent Judge found, in his order of 30 October 1975, issued in the probate court, to be owned by the petitioners Cipriano Evangelists and Consuelo Baybayan. The findings of the respondent Judge as to the ownership of Lot E after the hearing conducted in Spec. Proc. No. 24-R do not justify the order to amend the complaint since the determination of the ownership of the said lot by the respondent Judge presiding over a court exercising probate jurisdiction is not final or ultimate in nature and is without prejudice to the right of an interested party to raise the question of ownership in a proper action. 15 It is a well-settled rule in this jurisdiction, sanctioned and reiterated in a long fine of decisions, that "when questions arise as to ownership of property alleged to be a part of the estate of a deceased person, but claimed by some other person to be his property, not by virtue of any right of inheritance from the deceased, but by title adverse to that of the deceased and his estate, such questions cannot be determined in the courts of administrative proceedings. The Court of First Instance, acting, as a probate court, has no jurisdiction to adjudicate such contentions, which must be submitted to the Court of First Instance in the exercise of its general jurisdiction as a court of first instance." 16 Besides, the order to amend the complaint is vague and hazy and does not specify what the amendments should be or how the complaint should be amended so that the petitioners should not be faulted if the amended complaint subsequently filed by them in Civil Case No. 231-R does not contain the allegations that the respondent Judge would want to appear therein. WHEREFORE, the petition is GRANTED and a writ issued, setting aside the Orders issued by the respondent Judge on 7 December 1975 and 24 December 1975, in Civil Case No. 231-R of the then Court of First Instance of Pangasinan. Without costs. SO ORDERED. G.R. No. L-770 April 27, 1948 ANGEL T. LIMJOCO, petitioner, vs. INTESTATE ESTATE OF PEDRO O. FRAGRANTE, deceased, respondent. Angel Limjoco, Jr. and Delfin L. Gonzales for petitioner. Bienvenido A. Tan for respondent. HILADO, J. : Under date of May 21, 1946, the Public Service Commission, through Deputy Commissioner Fidel Ibañez, rendered its decision in case No. 4572 of Pedro O. Fragante, as applicant for a certificate of public convenience to install, maintain and operate an ice plant in San Juan, Rizal, whereby said commission held that the evidence therein showed that the public interest and convenience will be promoted in a proper and suitable manner "by authorizing the operation and maintenance of another ice plant of two and one-half (2-½) tons in the municipality of San Juan; that the original applicant Pedro O. Fragante was a Filipino Citizen at the time of his death; and that his intestate estate is financially capable of maintaining the proposed service". The commission, therefore, overruled the opposition filed in the case and ordered "that under the provisions of section 15 of Commonwealth Act No. 146, as amended a certificate of public convenience be issued to the Intestate Estate of the deceased Pedro Fragante, authorizing said Intestate Estate through its Special or Judicial Administrator, appointed by the proper court of competent jurisdiction, to maintain and operate an ice plant with a daily productive capacity of two and one-half (2-1/2) tons in the Municipality of San Juan

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SPECIAL PROCEEDINGS CASES – RULE 73 and to sell the ice produced from said plant in the said Municipality of San Juan and in the Municipality of Mandaluyong, Rizal, and in Quezon City", subject to the conditions therein set forth in detail (petitioner's brief, pp. 33-34). Petitioner makes four assignments of error in his brief as follows: 1. The decision of the Public Service Commission is not in accordance with law. 2. The decision of the Public Service Commission is not reasonably supported by evidence. 3. The Public Service Commission erred in not giving petitioner and the Ice and Cold Storage Industries of the Philippines, Inc., as existing operators, a reasonable opportunity to meet the increased demand. 4. The decision of the Public Service Commission is an unwarranted departure from its announced policy with respect to the establishment and operation of ice plant. (Pp. 1-2, petitioner's brief.) In his argument petitioner contends that it was error on the part of the commission to allow the substitution of the legal representative of the estate of Pedro O. Fragante for the latter as party applicant in the case then pending before the commission, and in subsequently granting to said estate the certificate applied for, which is said to be in contravention of law. If Pedro O. Fragante had not died, there can be no question that he would have had the right to prosecute his application before the commission to its final conclusion. No one would have denied him that right. As declared by the commission in its decision, he had invested in the ice plant in question P 35,000, and from what the commission said regarding his other properties and business, he would certainly have been financially able to maintain and operate said plant had he not died. His transportation business alone was netting him about P1,440 a month. He was a Filipino citizen and continued to be such till his demise. The commission declared in its decision, in view of the evidence before it, that his estate was financially able to maintain and operate the ice plant. The aforesaid right of Pedro O. Fragante to prosecute said application to its conclusion was one which by its nature did not lapse through his death. Hence, it constitutes a part of the assets of his estate, for which a right was property despite the possibility that in the end the commission might have denied application, although under the facts of the case, the commission granted the application in view of the financial ability of the estate to maintain and operate the ice plant. Petitioner, in his memorandum of March 19, 1947, admits (page 3) that the certificate of public convenience once granted "as a rule, should descend to his estate as an asset". Such certificate would certainly be property, and the right to acquire such a certificate, by complying with the requisites of the law, belonged to the decedent in his lifetime, and survived to his estate and judicial administrator after his death. If Pedro O. Fragrante had in his lifetime secured an option to buy a piece of land and during the life of the option he died, if the option had been given him in the ordinary course of business and not out of special consideration for his person, there would be no doubt that said option and the right to exercise it would have survived to his estate and legal representatives. In such a case there would also be the possibility of failure to acquire the property should he or his estate or legal representative fail to comply with the conditions of the option. In the case at bar Pedro O. Fragrante's undoubted right to apply for and acquire the desired certificate of public convenience — the evidence established that the public needed the ice plant — was under the law conditioned only upon the requisite citizenship and economic ability to maintain and operate the service. Of course, such right to acquire or obtain such certificate of public convenience was subject to failure to secure its objective through nonfulfillment of the legal conditions, but the situation here is no different from the legal standpoint from that of the option in the illustration just given. Rule 88, section 2, provides that the executor or administrator may bring or defend actions, among other cases, for the protection of the property or rights of the deceased which survive, and it says that such actions may be brought or defended "in the right of the deceased". Rule 82, section 1, paragraph (a), mentions among the duties of the executor or administrator, the making of an inventory of all goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or knowledge, or to the possession of any other person for him. In his commentaries on the Rules of Court (Volume II, 2nd ed., pages 366, 367) the present chief Justice of this Court draws the following conclusion from the decisions cited by him: Therefore, unless otherwise expressly provided by law, any action affecting the property or rights (emphasis supplied) of a deceased person which may be brought by or against him if he were alive, may likewise be instituted and prosecuted by or against the administrator, unless the action is for recovery of money, debt or interest thereon, or unless, by its very nature, it cannot survive, because death extinguishes the right . . . . It is true that a proceeding upon the application for a certificate of public convenience before the Public Service Commission is not an "action". But the foregoing provisions

and citations go to prove that the decedent's rights which by their nature are not extinguished by death go to make up a part and parcel of the assets of his estate which, being placed under the control and management of the executor or administrator, can not be exercised but by him in representation of the estate for the benefit of the creditors, devisees or legatees, if any, and the heirs of the decedent. And if the right involved happens to consist in the prosecution of an unfinished proceeding upon an application for a certificate of public convenience of the deceased before the Public Service Commission, it is but logical that the legal representative be empowered and entitled in behalf of the estate to make the right effective in that proceeding. Manresa (Vol. III, 6th ed., p. 11) says that No. 10 of article 334 and article 336 of the Civil Code, respectively, consider as immovable and movable things rights which are not material. The same eminent commentator says in the cited volume (p. 45) that article 336 of the Civil Code has been deficiently drafted in that it is not sufficiently expressive of all incorporeal rights which are also property for juridical purposes. Corpus Juris (Vol. 50, p. 737) states that in the broad sense of the term, property includes, among other things, "an option", and "the certificate of the railroad commission permitting the operation of a bus line", and on page 748 of the same volume we read: However, these terms (real property, as estate or interest) have also been declared to include every species of title, inchoate or complete, and embrace rights which lie in contract, whether executory or executed. (Emphasis supplied.) Another important question raised by petitioner is whether the estate of Pedro O. Fragrante is a "person" within the meaning of the Public Service Act. Words and Phrases, First Series, (Vol. 6, p, 5325), states the following doctrine in the jurisdiction of the State of Indiana: As the estate of the decedent is in law regarded as a person, a forgery committed after the death of the man whose name purports to be signed to the instrument may be prosecuted as with the intent to defraud the estate. Billings vs. State, 107 Ind., 54, 55, 6 N. E. 914, 7 N. E. 763, 57 Am. Rep. 77. The Supreme Court of Indiana in the decision cited above had before it a case of forgery committed after the death of one Morgan for the purpose of defrauding his estate. The objection was urged that the information did not aver that the forgery was committed with the intent to defraud any person. The Court, per Elliott, J., disposed of this objection as follows: . . . The reason advanced in support of this proposition is that the law does not regard the estate of a decedent as a person. This intention (contention) cannot prevail. The estate of the decedent is a person in legal contemplation. "The word "person" says Mr. Abbot, "in its legal signification, is a generic term, and includes artificial as well as natural persons," 2 Abb. Dict. 271; Douglas vs. Pacific, etc. Co., 4 Cal. 304; Planters', etc., Bank vs. Andrews, 8 Port. (Ala.) 404. It said in another work that 'persons are of two kinds: natural and artificial. A natural person is a human being. Artificial persons include (1) a collection or succession of natural persons forming a corporation; (2) a collection of property to which the law attributes the capacity of having rights and duties. The latter class of artificial persons is recognized only to a limited extent in our law. "Examples are the estate of a bankrupt or deceased person." 2 Rapalje & L. Law Dict. 954. Our own cases inferentially recognize the correctness of the definition given by the authors from whom we have quoted, for they declare that it is sufficient, in pleading a claim against a decedent's estate, to designate the defendant as the estate of the deceased person, naming him. Ginn vs. Collins, 43 Ind. 271. Unless we accept this definition as correct, there would be a failure of justice in cases where, as here, the forgery is committed after the death of a person whose name is forged; and this is a result to be avoided if it can be done consistent with principle. We perceive no difficulty in avoiding such a result; for, to our minds, it seems reasonable that the estate of a decedent should be regarded as an artificial person. It is the creation of law for the purpose of enabling a disposition of the assets to be properly made, and, although natural persons as heirs, devises, or creditors, have an interest in the property, the artificial creature is a distinct legal entity. The interest which natural persons have in it is not complete until there has been a due administration; and one who forges the name of the decedent to an instrument purporting to be a promissory note must be regarded as having intended to defraud the estate of the decedent, and not the natural persons having diverse interests in it, since ha cannot be presumed to have known who those persons were, or what was the nature of their respective interest. The fraudulent intent is against the artificial person, — the estate — and not the natural persons who have direct or contingent interest in it. (107 Ind. 54, 55, 6 N.E. 914-915.) In the instant case there would also be a failure of justice unless the estate of Pedro O. Fragrante is considered a "person", for quashing of the proceedings for no other reason than his death would entail prejudicial results to his investment amounting to P35,000.00

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as found by the commission, not counting the expenses and disbursements which the proceeding can be presumed to have occasioned him during his lifetime, let alone those defrayed by the estate thereafter. In this jurisdiction there are ample precedents to show that the estate of a deceased person is also considered as having legal personality independent of their heirs. Among the most recent cases may be mentioned that of "Estate of Mota vs. Concepcion, 56 Phil., 712, 717, wherein the principal plaintiff was the estate of the deceased Lazaro Mota, and this Court gave judgment in favor of said estate along with the other plaintiffs in these words: . . . the judgment appealed from must be affirmed so far as it holds that defendants Concepcion and Whitaker are indebted to he plaintiffs in the amount of P245,804.69 . . . . Under the regime of the Civil Code and before the enactment of the Code of Civil Procedure, the heirs of a deceased person were considered in contemplation of law as the continuation of his personality by virtue of the provision of article 661 of the first Code that the heirs succeed to all the rights and obligations of the decedent by the mere fact of his death. It was so held by this Court in Barrios vs. Dolor, 2 Phil., 44, 46. However, after the enactment of the Code of Civil Procedure, article 661 of the Civil Code was abrogated, as held in Suiliong & Co. vs. Chio-Taysan , 12 Phil., 13, 22. In that case, as well as in many others decided by this Court after the innovations introduced by the Code of Civil Procedure in the matter of estates of deceased persons, it has been the constant doctrine that it is the estate or the mass of property, rights and assets left by the decedent, instead of the heirs directly, that becomes vested and charged with his rights and obligations which survive after his demise. The heirs were formerly considered as the continuation of the decedent's personality simply by legal fiction, for they might not have been flesh and blood — the reason was one in the nature of a legal exigency derived from the principle that the heirs succeeded to the rights and obligations of the decedent. Under the present legal system, such rights and obligations as survive after death have to be exercised and fulfilled only by the estate of the deceased. And if the same legal fiction were not indulged, there would be no juridical basis for the estate, represented by the executor or administrator, to exercise those rights and to fulfill those obligations of the deceased. The reason and purpose for indulging the fiction is identical and the same in both cases. This is why according to the Supreme Court of Indiana in Billings vs. State, supra, citing 2 Rapalje & L. Dictionary, 954, among the artificial persons recognized by law figures "a collection of property to which the law attributes the capacity of having rights and duties", as for instance, the estate of a bankrupt or deceased person. Petitioner raises the decisive question of whether or not the estate of Pedro O. Fragrante can be considered a "citizen of the Philippines" within the meaning of section 16 of the Public Service Act, as amended, particularly the proviso thereof expressly and categorically limiting the power of the commission to issue certificates of public convenience or certificates of public convenience and necessity "only to citizens of the Philippines or of the United States or to corporations, copartnerships, associations, or joint-stock companies constituted and organized under the laws of the Philippines", and the further proviso that sixty per centum of the stock or paid-up capital of such entities must belong entirely to citizens of the Philippines or of the United States. Within the Philosophy of the present legal system, the underlying reason for the legal fiction by which, for certain purposes, the estate of the deceased person is considered a "person" is the avoidance of injustice or prejudice resulting from the impossibility of exercising such legal rights and fulfilling such legal obligations of the decedent as survived after his death unless the fiction is indulged. Substantially the same reason is assigned to support the same rule in the jurisdiction of the State of Indiana, as announced in Billings vs. State, supra, when the Supreme Court of said State said: . . . It seems reasonable that the estate of a decedent should be regarded as an artificial person. it is the creation of law for the purpose of enabling a disposition of the assets to be properly made . . . . Within the framework and principles of the constitution itself, to cite just one example, under the bill of rights it seems clear that while the civil rights guaranteed therein in the majority of cases relate to natural persons, the term "person" used in section 1 (1) and (2) must be deemed to include artificial or juridical persons, for otherwise these latter would be without the constitutional guarantee against being deprived of property without due process of law, or the immunity from unreasonable searches and seizures. We take it that it was the intendment of the framers to include artificial or juridical, no less than natural, persons in these constitutional immunities and in others of similar nature. Among these artificial or juridical persons figure estates of deceased persons. Hence, we hold that within the framework of the Constitution, the estate of Pedro O. Fragrante should be considered an artificial or juridical person for the purposes of the settlement and distribution of his estate which, of course, include the exercise during the judicial administration thereof of those rights and the fulfillment of those obligations of his which survived after his death. One of those rights was the one involved in his pending application before the Public Service Commission in the instant case, consisting in the prosecution of said application to its final conclusion. As stated above, an injustice would ensue from the opposite course. How about the point of citizenship? If by legal fiction his personality is considered extended so that any debts or obligations left by, and surviving, him may be paid, and any surviving rights may be exercised for the benefit of his creditors and heirs,

respectively, we find no sound and cogent reason for denying the application of the same fiction to his citizenship, and for not considering it as likewise extended for the purposes of the aforesaid unfinished proceeding before the Public Service Commission. The outcome of said proceeding, if successful, would in the end inure to the benefit of the same creditors and the heirs. Even in that event petitioner could not allege any prejudice in the legal sense, any more than he could have done if Fragrante had lived longer and obtained the desired certificate. The fiction of such extension of his citizenship is grounded upon the same principle, and motivated by the same reason, as the fiction of the extension of personality. The fiction is made necessary to avoid the injustice of subjecting his estate, creditors and heirs, solely by reason of his death to the loss of the investment amounting to P35,000, which he has already made in the ice plant, not counting the other expenses occasioned by the instant proceeding, from the Public Service Commission of this Court. We can perceive no valid reason for holding that within the intent of the constitution (Article IV), its provisions on Philippine citizenship exclude the legal principle of extension above adverted to. If for reasons already stated our law indulges the fiction of extension of personality, if for such reasons the estate of Pedro O. Fragrante should be considered an artificial or juridical person herein, we can find no justification for refusing to declare a like fiction as to the extension of his citizenship for the purposes of this proceeding. Pedro O. Fragrante was a Filipino citizen, and as such, if he had lived, in view of the evidence of record, he would have obtained from the commission the certificate for which he was applying. The situation has suffered but one change, and that is, his death. His estate was that of a Filipino citizen. And its economic ability to appropriately and adequately operate and maintain the service of an ice plant was the same that it received from the decedent himself. In the absence of a contrary showing, which does not exist here, his heirs may be assumed to be also Filipino citizens; and if they are not, there is the simple expedient of revoking the certificate or enjoining them from inheriting it. Upon the whole, we are of the opinion that for the purposes of the prosecution of said case No. 4572 of the Public Service Commission to its final conclusion, both the personality and citizenship of Pedro O. Fragrante must be deemed extended, within the meaning and intent of the Public Service Act, as amended, in harmony with the constitution: it is so adjudged and decreed. Decision affirmed, without costs. So ordered.

G.R. No. 133743 February 6, 2007 EDGAR SAN LUIS, Petitioner, vs. FELICIDAD SAN LUIS, Respondent. x ---------------------------------------------------- x G.R. No. 134029 February 6, 2007 RODOLFO SAN LUIS, Petitioner, vs. FELICIDAD SAGALONGOS alias FELICIDAD SAN LUIS, Respondent. DECISION YNARES-SANTIAGO, J.: Before us are consolidated petitions for review assailing the February 4, 1998 Decision 1 of the Court of Appeals in CA-G.R. CV No. 52647, which reversed and set aside the September 12, 1995 2 and January 31, 1996 3 Resolutions of the Regional Trial Court of Makati City, Branch 134 in SP. Proc. No. M-3708; and its May 15, 1998 Resolution 4 denying petitioners’ motion for reconsideration. The instant case involves the settlement of the estate of Felicisimo T. San Luis (Felicisimo), who was the former governor of the Province of Laguna. During his lifetime, Felicisimo contracted three marriages. His first marriage was with Virginia Sulit on March 17, 1942 out of which were born six children, namely: Rodolfo, Mila, Edgar, Linda, Emilita and Manuel. On August 11, 1963, Virginia predeceased Felicisimo. Five years later, on May 1, 1968, Felicisimo married Merry Lee Corwin, with whom he had a son, Tobias. However, on October 15, 1971, Merry Lee, an American citizen, filed a Complaint for Divorce 5 before the Family Court of the First Circuit, State of Hawaii, United States of America (U.S.A.), which issued a Decree Granting Absolute Divorce and Awarding Child Custody on December 14, 1973. 6 On June 20, 1974, Felicisimo married respondent Felicidad San Luis, then surnamed Sagalongos, before Rev. Fr. William Meyer, Minister of the United Presbyterian at Wilshire Boulevard, Los Angeles, California, U.S.A. 7 He had no children with respondent but lived with her for 18 years from the time of their marriage up to his death on December 18, 1992. Thereafter, respondent sought the dissolution of their conjugal partnership assets and the settlement of Felicisimo’s estate. On December 17, 1993, she filed a petition for letters of administration 8 before the Regional Trial Court of Makati City, docketed as SP. Proc. No. M-3708 which was raffled to Branch 146 thereof. Respondent alleged that she is the widow of Felicisimo; that, at the time of his death, the decedent was residing at 100 San Juanico Street, New Alabang Village, Alabang, Metro

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SPECIAL PROCEEDINGS CASES – RULE 73 Manila; that the decedent’s surviving heirs are respondent as legal spouse, his six children by his first marriage, and son by his second marriage; that the decedent left real properties, both conjugal and exclusive, valued at P30,304,178.00 more or less; that the decedent does not have any unpaid debts. Respondent prayed that the conjugal partnership assets be liquidated and that letters of administration be issued to her. On February 4, 1994, petitioner Rodolfo San Luis, one of the children of Felicisimo by his first marriage, filed a motion to dismiss 9 on the grounds of improper venue and failure to state a cause of action. Rodolfo claimed that the petition for letters of administration should have been filed in the Province of Laguna because this was Felicisimo’s place of residence prior to his death. He further claimed that respondent has no legal personality to file the petition because she was only a mistress of Felicisimo since the latter, at the time of his death, was still legally married to Merry Lee. On February 15, 1994, Linda invoked the same grounds and joined her brother Rodolfo in seeking the dismissal 10 of the petition. On February 28, 1994, the trial court issued an Order 11 denying the two motions to dismiss. Unaware of the denial of the motions to dismiss, respondent filed on March 5, 1994 her opposition 12 thereto. She submitted documentary evidence showing that while Felicisimo exercised the powers of his public office in Laguna, he regularly went home to their house in New Alabang Village, Alabang, Metro Manila which they bought sometime in 1982. Further, she presented the decree of absolute divorce issued by the Family Court of the First Circuit, State of Hawaii to prove that the marriage of Felicisimo to Merry Lee had already been dissolved. Thus, she claimed that Felicisimo had the legal capacity to marry her by virtue of paragraph 2, 13 Article 26 of the Family Code and the doctrine laid down in Van Dorn v. Romillo, Jr. 14 Thereafter, Linda, Rodolfo and herein petitioner Edgar San Luis, separately filed motions for reconsideration from the Order denying their motions to dismiss. 15 They asserted that paragraph 2, Article 26 of the Family Code cannot be given retroactive effect to validate respondent’s bigamous marriage with Felicisimo because this would impair vested rights in derogation of Article 256 16 of the Family Code. On April 21, 1994, Mila, another daughter of Felicisimo from his first marriage, filed a motion to disqualify Acting Presiding Judge Anthony E. Santos from hearing the case. On October 24, 1994, the trial court issued an Order 17 denying the motions for reconsideration. It ruled that respondent, as widow of the decedent, possessed the legal standing to file the petition and that venue was properly laid. Meanwhile, the motion for disqualification was deemed moot and academic 18 because then Acting Presiding Judge Santos was substituted by Judge Salvador S. Tensuan pending the resolution of said motion. Mila filed a motion for inhibition 19 against Judge Tensuan on November 16, 1994. On even date, Edgar also filed a motion for reconsideration 20 from the Order denying their motion for reconsideration arguing that it does not state the facts and law on which it was based. On November 25, 1994, Judge Tensuan issued an Order 21 granting the motion for inhibition. The case was re-raffled to Branch 134 presided by Judge Paul T. Arcangel. On April 24, 1995, 22 the trial court required the parties to submit their respective position papers on the twin issues of venue and legal capacity of respondent to file the petition. On May 5, 1995, Edgar manifested 23 that he is adopting the arguments and evidence set forth in his previous motion for reconsideration as his position paper. Respondent and Rodolfo filed their position papers on June 14, 24 and June 20, 25 1995, respectively. On September 12, 1995, the trial court dismissed the petition for letters of administration. It held that, at the time of his death, Felicisimo was the duly elected governor and a resident of the Province of Laguna. Hence, the petition should have been filed in Sta. Cruz, Laguna and not in Makati City. It also ruled that respondent was without legal capacity to file the petition for letters of administration because her marriage with Felicisimo was bigamous, thus, void ab initio. It found that the decree of absolute divorce dissolving Felicisimo’s marriage to Merry Lee was not valid in the Philippines and did not bind Felicisimo who was a Filipino citizen. It also ruled that paragraph 2, Article 26 of the Family Code cannot be retroactively applied because it would impair the vested rights of Felicisimo’s legitimate children. Respondent moved for reconsideration 26 and for the disqualification 27 of Judge Arcangel but said motions were denied. 28 Respondent appealed to the Court of Appeals which reversed and set aside the orders of the trial court in its assailed Decision dated February 4, 1998, the dispositive portion of which states: WHEREFORE, the Orders dated September 12, 1995 and January 31, 1996 are hereby REVERSED and SET ASIDE; the Orders dated February 28 and October 24, 1994 are REINSTATED; and the records of the case is REMANDED to the trial court for further proceedings.29 The appellante court ruled that under Section 1, Rule 73 of the Rules of Court, the term "place of residence" of the decedent, for purposes of fixing the venue of the settlement of his estate, refers to the personal, actual or physical habitation, or actual residence or place of abode of a person as distinguished from legal residence or domicile. It noted that although Felicisimo discharged his functions as governor in Laguna, he actually

resided in Alabang, Muntinlupa. Thus, the petition for letters of administration was properly filed in Makati City. The Court of Appeals also held that Felicisimo had legal capacity to marry respondent by virtue of paragraph 2, Article 26 of the Family Code and the rulings in Van Dorn v. Romillo, Jr. 30 and Pilapil v. Ibay-Somera. 31 It found that the marriage between Felicisimo and Merry Lee was validly dissolved by virtue of the decree of absolute divorce issued by the Family Court of the First Circuit, State of Hawaii. As a result, under paragraph 2, Article 26, Felicisimo was capacitated to contract a subsequent marriage with respondent. Thus – With the well-known rule – express mandate of paragraph 2, Article 26, of the Family Code of the Philippines, the doctrines in Van Dorn, Pilapil, and the reason and philosophy behind the enactment of E.O. No. 227, — there is no justiciable reason to sustain the individual view — sweeping statement — of Judge Arc[h]angel, that "Article 26, par. 2 of the Family Code, contravenes the basic policy of our state against divorce in any form whatsoever." Indeed, courts cannot deny what the law grants. All that the courts should do is to give force and effect to the express mandate of the law. The foreign divorce having been obtained by the Foreigner on December 14, 1992, 32 the Filipino divorcee, "shall x x x have capacity to remarry under Philippine laws". For this reason, the marriage between the deceased and petitioner should not be denominated as "a bigamous marriage. Therefore, under Article 130 of the Family Code, the petitioner as the surviving spouse can institute the judicial proceeding for the settlement of the estate of the deceased. x x x 33 Edgar, Linda, and Rodolfo filed separate motions for reconsideration 34 which were denied by the Court of Appeals. On July 2, 1998, Edgar appealed to this Court via the instant petition for review on certiorari. 35 Rodolfo later filed a manifestation and motion to adopt the said petition which was granted. 36 In the instant consolidated petitions, Edgar and Rodolfo insist that the venue of the subject petition for letters of administration was improperly laid because at the time of his death, Felicisimo was a resident of Sta. Cruz, Laguna. They contend that pursuant to our rulings in Nuval v. Guray 37 and Romualdez v. RTC, Br. 7, Tacloban City, 38 "residence" is synonymous with "domicile" which denotes a fixed permanent residence to which when absent, one intends to return. They claim that a person can only have one domicile at any given time. Since Felicisimo never changed his domicile, the petition for letters of administration should have been filed in Sta. Cruz, Laguna. Petitioners also contend that respondent’s marriage to Felicisimo was void and bigamous because it was performed during the subsistence of the latter’s marriage to Merry Lee. They argue that paragraph 2, Article 26 cannot be retroactively applied because it would impair vested rights and ratify the void bigamous marriage. As such, respondent cannot be considered the surviving wife of Felicisimo; hence, she has no legal capacity to file the petition for letters of administration. The issues for resolution: (1) whether venue was properly laid, and (2) whether respondent has legal capacity to file the subject petition for letters of administration. The petition lacks merit. Under Section 1, 39 Rule 73 of the Rules of Court, the petition for letters of administration of the estate of Felicisimo should be filed in the Regional Trial Court of the province "in which he resides at the time of his death." In the case of Garcia Fule v. Court of Appeals, 40 we laid down the doctrinal rule for determining the residence – as contradistinguished from domicile – of the decedent for purposes of fixing the venue of the settlement of his estate: [T]he term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence or domicile." This term "resides," like the terms "residing" and "residence," is elastic and should be interpreted in the light of the object or purpose of the statute or rule in which it is employed. In the application of venue statutes and rules – Section 1, Rule 73 of the Revised Rules of Court is of such nature – residence rather than domicile is the significant factor. Even where the statute uses the word "domicile" still it is construed as meaning residence and not domicile in the technical sense. Some cases make a distinction between the terms "residence" and "domicile" but as generally used in statutes fixing venue, the terms are synonymous, and convey the same meaning as the term "inhabitant." In other words, "resides" should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and actual stay thereat. In this popular sense, the term means merely residence, that is, personal residence, not legal residence or domicile. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one’s domicile. No particular length of time of residence is required though; however, the residence must be more than temporary. 41 (Emphasis supplied) It is incorrect for petitioners to argue that "residence," for purposes of fixing the venue of the settlement of the estate of Felicisimo, is synonymous with "domicile." The rulings in Nuval and Romualdez are inapplicable to the instant case because they involve election cases. Needless to say, there is a distinction between "residence" for purposes of

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election laws and "residence" for purposes of fixing the venue of actions. In election cases, "residence" and "domicile" are treated as synonymous terms, that is, the fixed permanent residence to which when absent, one has the intention of returning. 42 However, for purposes of fixing venue under the Rules of Court, the "residence" of a person is his personal, actual or physical habitation, or actual residence or place of abode, which may not necessarily be his legal residence or domicile provided he resides therein with continuity and consistency. 43 Hence, it is possible that a person may have his residence in one place and domicile in another. In the instant case, while petitioners established that Felicisimo was domiciled in Sta. Cruz, Laguna, respondent proved that he also maintained a residence in Alabang, Muntinlupa from 1982 up to the time of his death. Respondent submitted in evidence the Deed of Absolute Sale 44 dated January 5, 1983 showing that the deceased purchased the aforesaid property. She also presented billing statements45 from the Philippine Heart Center and Chinese General Hospital for the period August to December 1992 indicating the address of Felicisimo at "100 San Juanico, Ayala Alabang, Muntinlupa." Respondent also presented proof of membership of the deceased in the Ayala Alabang Village Association 46 and Ayala Country Club, Inc., 47 letter-envelopes 48 from 1988 to 1990 sent by the deceased’s children to him at his Alabang address, and the deceased’s calling cards 49 stating that his home/city address is at "100 San Juanico, Ayala Alabang Village, Muntinlupa" while his office/provincial address is in "Provincial Capitol, Sta. Cruz, Laguna." From the foregoing, we find that Felicisimo was a resident of Alabang, Muntinlupa for purposes of fixing the venue of the settlement of his estate. Consequently, the subject petition for letters of administration was validly filed in the Regional Trial Court 50 which has territorial jurisdiction over Alabang, Muntinlupa. The subject petition was filed on December 17, 1993. At that time, Muntinlupa was still a municipality and the branches of the Regional Trial Court of the National Capital Judicial Region which had territorial jurisdiction over Muntinlupa were then seated in Makati City as per Supreme Court Administrative Order No. 3. 51 Thus, the subject petition was validly filed before the Regional Trial Court of Makati City. Anent the issue of respondent Felicidad’s legal personality to file the petition for letters of administration, we must first resolve the issue of whether a Filipino who is divorced by his alien spouse abroad may validly remarry under the Civil Code, considering that Felicidad’s marriage to Felicisimo was solemnized on June 20, 1974, or before the Family Code took effect on August 3, 1988. In resolving this issue, we need not retroactively apply the provisions of the Family Code, particularly Art. 26, par. (2) considering that there is sufficient jurisprudential basis allowing us to rule in the affirmative. The case of Van Dorn v. Romillo, Jr. 52 involved a marriage between a foreigner and his Filipino wife, which marriage was subsequently dissolved through a divorce obtained abroad by the latter. Claiming that the divorce was not valid under Philippine law, the alien spouse alleged that his interest in the properties from their conjugal partnership should be protected. The Court, however, recognized the validity of the divorce and held that the alien spouse had no interest in the properties acquired by the Filipino wife after the divorce. Thus: In this case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorce dissolves the marriage. As stated by the Federal Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799: "The purpose and effect of a decree of divorce from the bond of matrimony by a competent jurisdiction are to change the existing status or domestic relation of husband and wife, and to free them both from the bond. The marriage tie, when thus severed as to one party, ceases to bind either. A husband without a wife, or a wife without a husband, is unknown to the law. When the law provides, in the nature of a penalty, that the guilty party shall not marry again, that party, as well as the other, is still absolutely freed from the bond of the former marriage." Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner’s husband entitled to exercise control over conjugal assets. As he is bound by the Decision of his own country’s Court, which validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property. 53 As to the effect of the divorce on the Filipino wife, the Court ruled that she should no longer be considered married to the alien spouse. Further, she should not be required to perform her marital duties and obligations. It held: To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and fidelity, and render support to private respondent. The latter should not continue to be one of her heirs with possible rights to conjugal property. She should not be discriminated against in her own country if the ends of justice are to be served. 54 (Emphasis added) This principle was thereafter applied in Pilapil v. Ibay-Somera 55 where the Court recognized the validity of a divorce obtained abroad. In the said case, it was held that the alien spouse is not a proper party in filing the adultery suit against his Filipino wife. The

Court stated that "the severance of the marital bond had the effect of dissociating the former spouses from each other , hence the actuations of one would not affect or cast obloquy on the other." 56 Likewise, in Quita v. Court of Appeals , 57 the Court stated that where a Filipino is divorced by his naturalized foreign spouse, the ruling inVan Dorn applies. 58 Although decided on December 22, 1998, the divorce in the said case was obtained in 1954 when the Civil Code provisions were still in effect. The significance of the Van Dorn case to the development of limited recognition of divorce in the Philippines cannot be denied. The ruling has long been interpreted as severing marital ties between parties in a mixed marriage and capacitating the Filipino spouse to remarry as a necessary consequence of upholding the validity of a divorce obtained abroad by the alien spouse. In his treatise, Dr. Arturo M. Tolentino cited Van Dorn stating that "if the foreigner obtains a valid foreign divorce, the Filipino spouse shall have capacity to remarry under Philippine law." 59 In Garcia v. Recio, 60 the Court likewise cited the aforementioned case in relation to Article 26. 61 In the recent case of Republic v. Orbecido III, 62 the historical background and legislative intent behind paragraph 2, Article 26 of the Family Code were discussed, to wit: Brief Historical Background On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise known as the "Family Code," which took effect on August 3, 1988. Article 26 thereof states: All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35, 37, and 38. On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227 was likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph was added to Article 26. As so amended, it now provides: ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (Emphasis supplied) x x x x Legislative Intent Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse. Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v. Romillo, Jr. The Van Dorn case involved a marriage between a Filipino citizen and a foreigner. The Court held therein that a divorce decree validly obtained by the alien spouse is valid in the Philippines, and consequently, the Filipino spouse is capacitated to remarry under Philippine law .63 (Emphasis added) As such, the Van Dorn case is sufficient basis in resolving a situation where a divorce is validly obtained abroad by the alien spouse. With the enactment of the Family Code and paragraph 2, Article 26 thereof, our lawmakers codified the law already established through judicial precedent.1awphi1.net Indeed, when the object of a marriage is defeated by rendering its continuance intolerable to one of the parties and productive of no possible good to the community, relief in some way should be obtainable. 64 Marriage, being a mutual and shared commitment between two parties, cannot possibly be productive of any good to the society where one is considered released from the marital bond while the other remains bound to it. Such is the state of affairs where the alien spouse obtains a valid divorce abroad against the Filipino spouse, as in this case. Petitioners cite Articles 15 65 and 17 66 of the Civil Code in stating that the divorce is void under Philippine law insofar as Filipinos are concerned. However, in light of this Court’s rulings in the cases discussed above, the Filipino spouse should not be discriminated against in his own country if the ends of justice are to be served. 67 In Alonzo v. Intermediate Appellate Court, 68 the Court stated: But as has also been aptly observed, we test a law by its results; and likewise, we may add, by its purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law should never be interpreted in such a way as to cause injustice as this is never within the legislative intent. An indispensable part of that intent, in fact, for we presume the good motives of the legislature, is to render justice. Thus, we interpret and apply the law not independently of but in consonance with justice. Law and justice are inseparable, and we must keep them so. To be sure, there are some laws that, while generally valid, may seem arbitrary when applied in a particular case because of its peculiar circumstances. In such a situation, we are not bound, because only of our nature and functions, to apply them just the same, in slavish obedience to

NARTATEZ, CARELL RYZA

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SPECIAL PROCEEDINGS CASES – RULE 73 their language. What we do instead is find a balance between the word and the will, that justice may be done even as the law is obeyed. As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded, yielding like robots to the literal command without regard to its cause and consequence. "Courts are apt to err by sticking too closely to the words of a law," so we are warned, by Justice Holmes again, "where these words import a policy that goes beyond them." xxxx More than twenty centuries ago, Justinian defined justice "as the constant and perpetual wish to render every one his due." That wish continues to motivate this Court when it assesses the facts and the law in every case brought to it for decision. Justice is always an essential ingredient of its decisions. Thus when the facts warrants, we interpret the law in a way that will render justice, presuming that it was the intention of the lawmaker, to begin with, that the law be dispensed with justice. 69 Applying the above doctrine in the instant case, the divorce decree allegedly obtained by Merry Lee which absolutely allowed Felicisimo to remarry, would have vested Felicidad with the legal personality to file the present petition as Felicisimo’s surviving spouse. However, the records show that there is insufficient evidence to prove the validity of the divorce obtained by Merry Lee as well as the marriage of respondent and Felicisimo under the laws of the U.S.A. In Garcia v. Recio, 70 the Court laid down the specific guidelines for pleading and proving foreign law and divorce judgments. It held that presentation solely of the divorce decree is insufficient and that proof of its authenticity and due execution must be presented. Under Sections 24 and 25 of Rule 132, a writing or document may be proven as a public or official record of a foreign country by either (1) an official publication or (2) a copy thereof attested by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office. 71 With regard to respondent’s marriage to Felicisimo allegedly solemnized in California, U.S.A., she submitted photocopies of the Marriage Certificate and the annotated text 72 of the Family Law Act of California which purportedly show that their marriage was done in accordance with the said law. As stated in Garcia, however, the Court cannot take judicial notice of foreign laws as they must be alleged and proved. 73 Therefore, this case should be remanded to the trial court for further reception of evidence on the divorce decree obtained by Merry Lee and the marriage of respondent and Felicisimo. Even assuming that Felicisimo was not capacitated to marry respondent in 1974, nevertheless, we find that the latter has the legal personality to file the subject petition for letters of administration, as she may be considered the co-owner of Felicisimo as regards the properties that were acquired through their joint efforts during their cohabitation. Section 6, 74 Rule 78 of the Rules of Court states that letters of administration may be granted to the surviving spouse of the decedent. However, Section 2, Rule 79 thereof also provides in part: SEC. 2. Contents of petition for letters of administration. – A petition for letters of administration must be filed by an interested person and must show, as far as known to the petitioner: x x x. An "interested person" has been defined as one who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor. The interest must be material and direct, and not merely indirect or contingent. 75 In the instant case, respondent would qualify as an interested person who has a direct interest in the estate of Felicisimo by virtue of their cohabitation, the existence of which was not denied by petitioners. If she proves the validity of the divorce and Felicisimo’s capacity to remarry, but fails to prove that her marriage with him was validly performed under the laws of the U.S.A., then she may be considered as a co-owner under Article 144 76 of the Civil Code. This provision governs the property relations between parties who live together as husband and wife without the benefit of marriage, or their marriage is void from the beginning. It provides that the property acquired by either or both of them through their work or industry or their wages and salaries shall be governed by the rules on co-ownership. In a co-ownership, it is not necessary that the property be acquired through their joint labor, efforts and industry. Any property acquired during the union is prima faciepresumed to have been obtained through their joint efforts. Hence, the portions belonging to the co-owners shall be presumed equal, unless the contrary is proven. 77 Meanwhile, if respondent fails to prove the validity of both the divorce and the marriage, the applicable provision would be Article 148 of the Family Code which has filled the hiatus in Article 144 of the Civil Code by expressly regulating the property relations of couples living together as husband and wife but are incapacitated to marry. 78 In Saguid v. Court of Appeals , 79 we held that even if the cohabitation or the acquisition of property occurred before the Family Code took effect, Article 148 governs. 80 The Court described the property regime under this provision as follows:

The regime of limited co-ownership of property governing the union of parties who are not legally capacitated to marry each other, but who nonetheless live together as husband and wife, applies to properties acquired during said cohabitation in proportion to their respective contributions. Co-ownership will only be up to the extent of the proven actual contribution of money, property or industry. Absent proof of the extent thereof, their contributions and corresponding shares shall be presumed to be equal. xxxx In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which involved the issue of co-ownership of properties acquired by the parties to a bigamous marriage and an adulterous relationship, respectively, we ruled that proof of actual contribution in the acquisition of the property is essential. x x x As in other civil cases, the burden of proof rests upon the party who, as determined by the pleadings or the nature of the case, asserts an affirmative issue. Contentions must be proved by competent evidence and reliance must be had on the strength of the party’s own evidence and not upon the weakness of the opponent’s defense. x x x 81 In view of the foregoing, we find that respondent’s legal capacity to file the subject petition for letters of administration may arise from her status as the surviving wife of Felicisimo or as his co-owner under Article 144 of the Civil Code or Article 148 of the Family Code. WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals reinstating and affirming the February 28, 1994 Order of the Regional Trial Court which denied petitioners’ motion to dismiss and its October 24, 1994 Order which dismissed petitioners’ motion for reconsideration is AFFIRMED. Let this case be REMANDED to the trial court for further proceedings.

NARTATEZ, CARELL RYZA