Spec Proc Cases Full Texts.docx

G.R. No. L-24742 October 26, 1973 ROSA CAYETANO CUENCO, petitioners, vs. THE HONORABLE COURT OF APPEALS, THIRD DIVISION, MANUEL CUENCO, LOURDES CUENCO, CONCEPCION CUENCO MANGUERRA, CARMEN CUENCO, CONSUELO CUENCO REYES, and TERESITA CUENCO GONZALEZ, respondents. Ambrosio Padilla Law Office for petitioner. Jalandoni and Jamir for respondents.

TEEHANKEE, J.: Petition for certiorari to review the decision of respondent Court of Appeals in CA-G.R. No. 34104-R, promulgated 21 November 1964, and its subsequent Resolution promulgated 8 July 1964 denying petitioner's Motion for Reconsideration. The pertinent facts which gave rise to the herein petition follow: On 25 February 1964 Senator Mariano Jesus Cuenco died at the Manila Doctors' Hospital, Manila. He was survived by his widow, the herein petitioner, and their two (2) minor sons, Mariano Jesus, Jr. and Jesus Salvador, both surnamed Cuenco, all residing at 69 Pi y Margal St., Sta. Mesa Heights, Quezon City, and by his children of the first marriage, respondents herein, namely, Manuel Cuenco, Lourdes Cuenco, Concepcion Cuenco Manguera, Carmen Cuenco, Consuelo Cuenco Reyes and Teresita Cuenco Gonzales, all of legal age and residing in Cebu. On 5 March 1964, (the 9th day after the death of the late Senator)1 respondent Lourdes Cuenco filed a Petition for Letters of Administration with the court of first instance of Cebu (Sp. Proc. No. 2433-R), alleging among other things, that the late senator died intestate in Manila on 25 February 1964; that he was a resident of Cebu at the time of his death; and that he left real and personal properties in Cebu and Quezon City. On the same date, the Cebu court issued an order setting the petition for hearing on 10 April 1964, directing that due notice be given to all the heirs and interested persons, and ordering the requisite publication thereof at LA PRENSA, a newspaper of general circulation in the City and Province of Cebu. The aforesaid order, however, was later suspended and cancelled and a new and modified one released on 13 March 1964, in view of the fact that the petition was to be heard at Branch II instead of Branch I of the said Cebu court. On the same date, a third order was further issued stating that respondent Lourdes Cuenco's petition for the appointment of a special administrator dated 4 March 1964 was not yet ready for the consideration of the said court, giving as reasons the following: It will be premature for this Court to act thereon, it not having yet regularly acquired jurisdiction to try this proceeding, the requisite publication of the notice of hearing not yet having been complied with. Moreover, copies of the petition have not been served on all of the heirs specified in the basic petition for the issuance of letters of administration.2 In the meantime, or specifically on 12 March 1964, (a week after the filing of the Cebu petition) herein petitioner Rosa Cayetano Cuenco filed a petition with the court of first instance of Rizal (Quezon City) for the probate of the deceased's last will and testament and for the issuance of letters testamentary in her favor, as the surviving widow and executrix in the said last will and testament. The said proceeding was docketed as Special Proceeding No. Q-7898. Having learned of the intestate proceeding in the Cebu court, petitioner Rosa Cayetano Cuenco filed in said Cebu court an Opposition and Motion to Dismiss, dated 30 March 1964, as well as an Opposition to Petition for Appointment of Special Administrator, dated 8 April 1964. On 10 April 1964, the Cebu court issued an order holding in abeyance its resolution on petitioner's motion to dismiss "until after the Court of First Instance of Quezon City shall have acted on the petition for probate of that document purporting to be the last will and testament of the deceased Don Mariano Jesus Cuenco."3 Such order of the Cebu court deferring to the probate proceedings in the Quezon City court was neither excepted to nor sought by respondents to be reconsidered or set aside by the Cebu court nor did they challenge the same by certiorari or prohibition proceedings in the appellate courts. Instead, respondents filed in the Quezon City court an Opposition and Motion to Dismiss, dated 10 April 1964, opposing probate of the will and assailing the jurisdiction of the said Quezon City court to entertain petitioner's petition for probate and for appointment as executrix in Sp. Proc. No. Q-7898 in view of the alleged exclusive jurisdiction vested by her petition in the Cebu court in Sp. Proc. No. 2433-R. Said respondent prayed that Sp. Proc. No. Q7898 be dismissed for lack of jurisdiction and/or improper venue. In its order of 11 April 1964, the Quezon City court denied the motion to dismiss, giving as a principal reason the "precedence of probate proceeding over an intestate proceeding."4 The said court further found in said order that the residence of the late senator at the time of his death was at No. 69 Pi y Margal, Sta. Mesa Heights, Quezon City. The pertinent portion of said order follows: On the question of residence of the decedent, paragraph 5 of the opposition and motion to dismiss reads as follows: "that since the decedent Don Mariano Jesus Cuenco was a resident of the City of Cebu at the time of his death, the aforesaid petition filed by

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Rosa Cayetano Cuenco on 12 March 1964 was not filed with the proper Court (wrong venue) in view of the provisions of Section 1 of Rule 73 of the New Rules of Court ...". From the aforequoted allegation, the Court is made to understand that the oppositors do not mean to say that the decedent being a resident of Cebu City when he died, the intestate proceedings in Cebu City should prevail over the probate proceedings in Quezon City, because as stated above the probate of the will should take precedence, but that the probate proceedings should be filed in the Cebu City Court of First Instance. If the last proposition is the desire of the oppositors as understood by this Court, that could not also be entertained as proper because paragraph 1 of the petition for the probate of the will indicates that Don Mariano Jesus Cuenco at the time of his death was a resident of Quezon City at 69 Pi y Margal. Annex A (Last Will and Testament of Mariano Jesus Cuenco) of the petition for probate of the will shows that the decedent at the time when he executed his Last Will clearly stated that he is a resident of 69 Pi y Margal, Sta. Mesa Heights, Quezon City, and also of the City of Cebu. He made the former as his first choice and the latter as his second choice of residence." If a party has two residences, the one will be deemed or presumed to his domicile which he himself selects or considers to be his home or which appears to be the center of his affairs. The petitioner, in thus filing the instant petition before this Court, follows the first choice of residence of the decedent and once this court acquires jurisdiction of the probate proceeding it is to the exclusion of all others.5 Respondent Lourdes Cuenco's motion for reconsideration of the Quezon City court's said order of 11 April 1964 asserting its exclusive jurisdiction over the probate proceeding as deferred to by the Cebu court was denied on 27 April 1964 and a second motion for reconsideration dated 20 May 1964 was likewise denied. On 11 May 1964, pursuant to its earlier order of 11 April 1964, the hearing for probate of the last will of the decedent was called three times at half-hour intervals, but notwithstanding due notification none of the oppositors appeared and the Quezon City court proceeded at 9:00 a.m. with the hearing in their absence. As per the order issued by it subsequently on 15 May 1964, the Quezon City court noted that respondents-oppositors had opposed probate under their opposition and motion to dismiss on the following grounds: (a) That the will was not executed and attested as required by law; (b) That the will was procured by undue and improper pressure and influence on the part of the beneficiary or some other persons for his benefit; (c) That the testator's signature was procured by fraud and/or that the testator acted by mistake and did not intend that the instrument he signed should be his will at the time he affixed his signature thereto.6 The Quezon City court further noted that the requisite publication of the notice of the hearing had been duly complied with and that all the heirs had been duly notified of the hearing, and after receiving the testimony of the three instrumental witnesses to the decedent's last will, namely Atty. Florencio Albino, Dr. Guillermo A. Picache and Dr. Jose P. Ojeda, and of the notary public, Atty. Braulio A. Arriola, Jr., who ratified the said last will, and the documentary evidence (such as the decedent's residence certificates, income tax return, diplomatic passport, deed of donation) all indicating that the decedent was a resident of 69 Pi y Margal St., Quezon City, as also affirmed by him in his last will, the Quezon City court in its said order of 15 May 1964 admitted to probate the late senator's last will and testament as having been "freely and voluntarily executed by the testator" and "with all formalities of the law" and appointed petitioner-widow as executrix of his estate without bond "following the desire of the testator" in his will as probated. Instead of appealing from the Quezon City court's said order admitting the will to probate and naming petitioner-widow as executrix thereof, respondents filed a special civil action of certiorari and prohibition with preliminary injunction with respondent Court of Appeals (docketed as case CAG.R. No. 34104-R) to bar the Rizal court from proceeding with case No. Q-7898. On 21 November 1964, the Court of Appeals rendered a decision in favor of respondents (petitioners therein) and against the herein petitioner, holding that: Section 1, Rule 73, which fixes the venue in proceedings for the settlement of the estate of a deceased person, covers both testate and intestate proceedings. Sp. Proc. 2433-R of the Cebu CFI having been filed ahead, it is that court whose jurisdiction was first invoked and which first attached. It is that court which can properly and exclusively pass upon the factual issues of (1) whether the decedent left or did not leave a valid will, and (2) whether or not the decedent was a resident of Cebu at the time of his death. Considering therefore that the first proceeding was instituted in the Cebu CFI (Special Proceeding 2433-R), it follows that the said court must exercise jurisdiction to the exclusion of the Rizal CFI, in which the petition for probate was filed by the respondent Rosa Cayetano Cuenco (Special Proceeding Q-7898). The said respondent should assert her rights within the framework of the proceeding in the Cebu CFI, instead of invoking the jurisdiction of another court. The respondents try to make capital of the fact that on March 13, 1964, Judge Amador Gomez of the Cebu CFI, acting in Sp. Proc. 2433-R, stated that the petition for appointment of special administrator was "not yet ready for the consideration of the Court today. It would be premature for this Court to act thereon, it not having yet regularly acquired jurisdiction to try this proceeding ... . " It is sufficient to state in this connection that the said judge was certainly not referring to the court's jurisdiction over

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the res, not to jurisdiction itself which is acquired from the moment a petition is filed, but only to the exercise of jurisdiction in relation to the stage of the proceedings. At all events, jurisdiction is conferred and determined by law and does not depend on the pronouncements of a trial judge. The dispositive part of respondent appellate court's judgment provided as follows: ACCORDINGLY, the writ of prohibition will issue, commanding and directing the respondent Court of First Instance of Rizal, Branch IX, Quezon City, and the respondent Judge Damaso B. Tengco to refrain perpetually from proceeding and taking any action in Special Proceeding Q-7898 pending before the said respondent court. All orders heretofore issued and actions heretofore taken by said respondent court and respondent Judge, therein and connected therewith, are hereby annulled. The writ of injunction heretofore issued is hereby made permanent. No pronouncement as to costs. Petitioner's motion for reconsideration was denied in a resolution of respondent Court of Appeals, dated 8 July 1965; hence the herein petition for review on certiorari. The principal and decisive issue at bar is, theretofore, whether the appellate court erred in law in issuing the writ of prohibition against the Quezon City court ordering it to refrain perpetually from proceeding with the testateproceedings and annulling and setting aside all its orders and actions, particularly its admission to probate of the decedent's last will and testament and appointing petitioner-widow as executrix thereof without bond in compliance with the testator's express wish in his testament. This issue is tied up with the issue submitted to the appellate court, to wit, whether the Quezon City court acted without jurisdiction or with grave abuse of discretion in taking cognizance and assuming exclusive jurisdiction over the probate proceedings filed with it, in pursuance of the Cebu court's order of 10 April 1964 expressly consenting in deference to the precedence of probate over intestate proceedings that it (the Quezon City court) should first act "on the petition for probate of the document purporting to be the last will and testament of the deceased Don Mariano Jesus Cuenco" - which order of the Cebu court respondents never questioned nor challenged by prohibition or certiorari proceedings and thus enabled the Quezon City court to proceed without any impediment or obstruction, once it denied respondent Lourdes Cuenco's motion to dismiss the probate proceeding for alleged lack of jurisdiction or improper venue, to proceed with the hearing of the petition and to admit the will to probate upon having been satisfied as to its due execution and authenticity. The Court finds under the above-cited facts that the appellate court erred in law in issuing the writ of prohibition against the Quezon City court from proceeding with the testate proceedings and annulling and setting aside all its orders and actions, particularly its admission to probate of the deceased's last will and testament and appointing petitioner-widow as executrix thereof without bond pursuant to the deceased testator's express wish, for the following considerations: — 1. The Judiciary Act7 concededly confers original jurisdiction upon all Courts of First Instance over "all matter of probate, both of testate and intestate estates." On the other hand, Rule 73, section of the Rules of Court lays down the rule of venue, as the very caption of the Rule indicates, and in order to prevent conflict among the different courts which otherwise may properly assume jurisdiction from doing so, the Rule specifies that "the court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts." The cited Rule provides: Section 1. Where estate of deceased persons settled. If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the Province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of the province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence, of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record. (Rule 73)8 It is equally conceded that the residence of the deceased or the location of his estate is not an element of jurisdiction over the subject matter but merely of venue. This was lucidly stated by the late Chief Justice Moran in Sy Oa vs. Co Ho9 as follows: We are not unaware of existing decisions to the effect that in probate cases the place of residence of the deceased is regarded as a question of jurisdiction over the subject-matter. But we decline to follow this view because of its mischievous consequences. For instance, a probate case has been submitted in good faith to the Court of First Instance of a province where the deceased had not resided. All the parties, however, including all the creditors, have submitted themselves to the jurisdiction of the court and the case is therein completely finished except for a claim of a creditor who also voluntarily filed it with said court but on appeal from an adverse decision raises for the first time in this Court the question of jurisdiction of the trial court for lack of residence of the deceased in the province. If we consider such question of residence as one affecting the jurisdiction of the trial court over the subject-matter, the effect shall be that the whole proceedings including all decisions on the different incidents which have arisen in court will have to be annulled and the same case will have to be commenced anew before another court of the same rank in another province. That this is of mischievous effect in the prompt administration of justice is too obvious to require comment. (Cf. Tanunchuan vs. Dy Buncio & Co., G.R. No. 48206, December 31, 1942) Furthermore, section 600 of Act No. 190, 10 providing that the estate of a deceased person shall be settled in the province where he had last resided, could not have been intended as defining the jurisdiction of the probate court over the subject-matter, because such legal provision is contained in a law of procedure dealing merely with procedural matters, and, as we have said time and again, procedure is one thing and jurisdiction over the subject matter is another. (Attorney-General vs. Manila Railroad Company, 20 Phil. 523.) The law of jurisdiction — Act No. 136, 11Section 56, No. 5 — confers upon Courts of First Instance jurisdiction over all probate cases independently of the place of residence of the deceased. Since, however, there are many courts of First Instance in the Philippines, the Law of Procedure, Act No. 190, section 600, fixes the venue or the place where each case shall be brought. Thus, the place of residence of

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the deceased is not an element of jurisdiction over the subject-matter but merely of venue. And it is upon this ground that in the new Rules of Court the province where the estate of a deceased person shall be settled is properly called "venue". It should be noted that the Rule on venue does not state that the court with whom the estate or intestate petition is first filed acquires exclusive jurisdiction. The Rule precisely and deliberately provides that "the court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts." A fair reading of the Rule — since it deals with venue and comity between courts of equal and co-ordinate jurisdiction — indicates that the court with whom the petition is first filed, must also first take cognizance of the settlement of the estate in order to exercise jurisdiction over it to the exclusion of all other courts. Conversely, such court, may upon learning that a petition for probate of the decedent's last will has been presented in another court where the decedent obviously had his conjugal domicile and resided with his surviving widow and their minor children, and that the allegation of the intestate petition before it stating that the decedent died intestatemay be actually false, may decline to take cognizance of the petition and hold the petition before it in abeyance, and instead defer to the second court which has before it the petition for probate of the decedent's alleged last will. 2. This exactly what the Cebu court did. Upon petitioner-widow's filing with it a motion to dismiss Lourdes' intestate petition, it issued its order holding in abeyance its action on the dismissal motion and deferred to the Quezon City court, awaiting its action on the petition for probate before that court. Implicit in the Cebu court's order was that if the will was duly admitted to probate, by the Quezon City court, then it would definitely decline to take cognizance of Lourdes' intestate petition which would thereby be shown to be false and improper, and leave the exercise of jurisdiction to the Quezon City court, to the exclusion of all other courts. Likewise by its act of deference, the Cebu court left it to the Quezon City court to resolve the question between the parties whether the decedent's residence at the time of his death was in Quezon City where he had his conjugal domicile rather than in Cebu City as claimed by respondents. The Cebu court thus indicated that it would decline to take cognizance of the intestate petition before it and instead defer to the Quezon City court, unless the latter would make a negative finding as to the probate petition and the residence of the decedent within its territory and venue. 3. Under these facts, the Cebu court could not be held to have acted without jurisdiction or with grave abuse of jurisdiction in declining to take cognizance of the intestate petition and deferring to the Quezon City court. Necessarily, neither could the Quezon City court be deemed to have acted without jurisdiction in taking cognizance of and acting on the probate petition since under Rule 73, section 1, the Cebu court must first take cognizance over the estate of the decedent and must exercise jurisdiction to exclude all other courts, which the Cebu court declined to do. Furthermore, as is undisputed, said rule only lays down a rule of venue and the Quezon City court indisputably had at least equal and coordinate jurisdiction over the estate. Since the Quezon City court took cognizance over the probate petition before it and assumed jurisdiction over the estate, with the consent and deference of the Cebu court, the Quezon City court should be left now, by the same rule of venue of said Rule 73, to exercise jurisdiction to the exclusion of all other courts. Under the facts of the case and where respondents submitted to the Quezon City court their opposition to probate of the will, but failed to appear at the scheduled hearing despite due notice, the Quezon City court cannot be declared, as the appellate court did, to have acted without jurisdiction in admitting to probate the decedent's will and appointing petitioner-widow as executrix thereof in accordance with the testator's testamentary disposition. 4. The relatively recent case of Uriarte vs. Court of First Instance of Negros Occidental 12 with facts analogous to the present case 13 is authority against respondent appellate court's questioned decision. In said case, the Court upheld the doctrine of precedence of probate proceedings over intestate proceedings in this wise: It can not be denied that a special proceeding intended to effect the distribution of the estate of a deceased person, whether in accordance with the law on intestate succession or in accordance with his will, is a "probate matter" or a proceeding for the settlement of his estate. It is equally true, however, that in accordance with settled jurisprudence in this jurisdiction, testate proceedings for the settlement of the estate of a deceased person take precedence over intestate proceedings for the same purpose. Thus it has been held repeatedly that, if in the course of intestate proceedings pending before a court of first instance it is found that the decedent had left a last will, proceedings for the probate of the latter should replace the intestate proceedings even if at that state an administrator had already been appointed, the latter being required to render final account and turn over the estate in his possession to the executor subsequently appointed. This however, is understood to be without prejudice that should the alleged last will be rejected or is disapproved, the proceeding shall continue as an intestacy. As already adverted to, this is a clear indication that proceedings for the probate of a will enjoy priority over intestate proceedings. 14 The Court likewise therein upheld the jurisdiction of the second court, (in this case, the Quezon City court) although opining that certain considerations therein "would seem to support the view that [therein respondent] should have submitted said will for probate to the Negros Court, [in this case, the

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Cebu court] either in a separate special proceeding or in an appropriate motion for said purpose filed in the already pending Special Proceeding No. 6344," 15 thus: But the fact is that instead of the aforesaid will being presented for probate to the Negros Court, Juan Uriarte Zamacona filed the petition for the purpose with the Manila Court. We can not accept petitioner's contention in this regard that the latter court had no jurisdiction to consider said petition, albeit we say that it was not the proper venuetherefor. It is well settled in this jurisdiction that wrong venue is merely a waivable procedural defect, and, in the light of the circumstances obtaining in the instant case, we are of the opinion, and so hold, that petitioner has waived the right to raise such objection or is precluded from doing so by laches. It is enough to consider in this connection that petitioner knew of the existence of a will executed by Juan Uriarte y Goite since December 19, 1961 when Higinio Uriarte filed his opposition to the initial petition filed in Special Proceeding No. 6344; that petitioner likewise was served with notice of the existence (presence) of the alleged last will in the Philippines and of the filing of the petition for its probate with the Manila Court since August 28, 1962 when Juan Uriarte Zamacona filed a motion for the dismissal of Special Proceeding No. 6344. All these notwithstanding, it was only on April 15, 1963 that he filed with the Manila Court in Special Proceeding No. 51396 an Omnibus motion asking for leave to intervene and for the dismissal and annulment of all the proceedings had therein up to that date; thus enabling the Manila Court not only to appoint an administrator with the will annexed but also to admit said will to probate more than five months earlier, or more specifically, on October 31, 1962. To allow him now to assail the exercise of jurisdiction over the probate of the will by the Manila Court and the validity of all the proceedings had in Special Proceeding No. 51396 would put a premium on his negligence. Moreover, it must be remembered that this Court is not inclined to annul proceedings regularly had in a lower court even if the latter was not the proper venue therefor, if the net result would be to have the same proceedings repeated in some other court of similar jurisdiction; more so in a case like the present where the objection against said proceedings is raised too late. 16 5. Under Rule 73, section 1 itself, the Quezon City court's assumption of jurisdiction over the decedent's estate on the basis of the will duly presented for probate by petitioner-widow and finding that Quezon City was the first choiceof residence of the decedent, who had his conjugal home and domicile therein — with the deference in comity duly given by the Cebu court — could not be contested except by appeal from said court in the original case. The last paragraph of said Rule expressly provides: ... The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record. (Rule 73) The exception therein given, viz, "when the want of jurisdiction appears on the record" could probably be properly invoked, had such deference in comity of the Cebu court to the Quezon City court not appeared in the record, or had the record otherwise shown that the Cebu court had taken cognizance of the petition before it and assumed jurisdiction. 6. On the question that Quezon City established to be the residence of the late senator, the appellate court while recognizing that "the issue is a legitimate one" held in reliance on Borja vs. Tan 17 that. ... The issue of residence comes within the competence of whichever court is considered to prevail in the exercise jurisdiction - in this case, the Court of First Instance of Cebu as held by this Court. Parenthetically, we note that the question of the residence of the deceased is a serious one, requiring both factual and legal resolution on the basis of ample evidence to be submitted in the ordinary course of procedure in the first instance, particularly in view of the fact that the deceased was better known as the Senator from Cebu and the will purporting to be his also gives Cebu, besides Quezon City, as his residence. We reiterate that this matter requires airing in the proper court, as so indicated in the leading and controlling case of Borja vs. Hon. Bienvenido Tan, et al., G.R. L-7792, July 27, 1955. In the case at bar, however, the Cebu court declined to take cognizance of the intestate petition first filed with it and deferred to the testate proceedings filed with the Quezon City court and in effect asked the Quezon City court to determine the residence of the decedent and whether he did leave a last will and testament upon which would depend the proper venue of the estate proceedings, Cebu or Quezon City. The Quezon City court having thus determined in effect for both courts — at the behest and with the deference and consent of the Cebu court — that Quezon City was the actual residence of the decedent who died testate and therefore the proper venue, the Borja ruling would seem to have no applicability. It would not serve the practical ends of justice to still require the Cebu court, if the Borja ruling is to be held applicable and as indicated in the decision under review, to determine for itself the actual residence of the decedent (when the Quezon City court had already so determined Quezon City as the actual residence at the Cebu court's behest and respondents have not seriously questioned this factual finding based on documentary evidence) and if the Cebu court should likewise determine Quezon City as the actual residence, or its contrary finding reversed on appeal, only then to allow petitioner-widow after years of waiting and inaction to institute the corresponding proceedings in Quezon City. 7. With more reason should the Quezon City proceedings be upheld when it is taken into consideration that Rule 76, section 2 requires that the petition for allowance of a will must show: "(a) the jurisdictional facts." Such "jurisdictional facts" in probate proceedings, as held by the Court in Fernando vs. Crisostomo 18 " are the death of the decedent, his residence at the time of his death in the province where the probate court is sitting, or if he is an inhabitant of a foreign country, his having left his estate in such province." This tallies with the established legal concept as restated by Moran that "(T)he probate of a will is a proceeding in rem. The notice by publication as a prerequisite to the allowance of a will, is a constructive notice to the whole world, and when probate is granted, the judgment of the court is binding upon

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everybody, even against the State. The probate of a will by a court having jurisdiction thereof is conclusive as to its due execution and validity." 19 The Quezon City court acted regularly within its jurisdiction (even if it were to be conceded that Quezon City was not the proper venue notwithstanding the Cebu court's giving way and deferring to it,) in admitting the decedent's last will to probate and naming petitioner-widow as executrix thereof. Hence, the Quezon city court's action should not be set aside by a writ of prohibition for supposed lack of jurisdiction as per the appellate court's appealed decision, and should instead be sustained in line with Uriarte, supra, where the Court, in dismissing the certiorari petition challenging the Manila court's action admitting the decedent's will to probate and distributing the estate in accordance therewith in the second proceeding, held that "it must be remembered that this Court is not inclined to annul proceedings regularly had in a lower court even if the latter was not the proper venue therefor, if the net result would be to have the same proceedings repeated in some other court of similar jurisdiction." As stressed by Chief Justice Moran in Sy Oa, supra, "the mischievous effect in the administration of justice" of considering the question of residence as affecting the jurisdiction of the trial court and annulling the whole proceedings only to start all over again the same proceedings before another court of the same rank in another province "is too obvious to require comment." 8. If the question of jurisdiction were to be made to depend only on who of the decedent's relatives gets first to file a petition for settlement of the decedent's estate, then the established jurisprudence of the Court that Rule 73, section 1 provides only a rule of venue in order to preclude different courts which may properly assume jurisdiction from doing so and creating conflicts between them to the detriment of the administration of justice, and that venue is waivable, would be set at naught. As between relatives who unfortunately do not see eye to eye, it would be converted into a race as to who can file the petition faster in the court of his/her choice regardless of whether the decedent is still in cuerpo presente and in disregard of the decedent's actual last domicile, the fact that he left a last will and testament and the right of his surviving widow named as executrix thereof. Such dire consequences were certainly not intended by the Rule nor would they be in consonance with public policy and the orderly administration of justice. 9. It would finally be unjust and inequitable that petitioner-widow, who under all the applicable rules of venue, and despite the fact that the Cebu court (where respondent Lourdes Cuenco had filed an intestate petition in the Cebu court earlier by a week's time on 5 March 1964) deferred to the Quezon City court where petitioner had within fifteen days (on March 12, 1964) after the decedent's death (on February 25, 1964) timely filed the decedent's last will and petitioned for letters testamentary and is admittedly entitled to preference in the administration of her husband's estate, 20 would be compelled under the appealed decision to have to go all the way to Cebu and submit anew the decedent's will there for probate either in a new proceeding or by asking that the intestate proceedings be convertedinto a testate proceeding — when under the Rules, the proper venue for the testate proceedings, as per the facts of record and as already affirmed by the Quezon City court is Quezon City, where the decedent and petitioner-widow had their conjugal domicile. It would be an unfair imposition upon petitioner as the one named and entitled to be executrix of the decedent's last will and settle his estate in accordance therewith, and a disregard of her rights under the rule on venue and the law on jurisdiction to require her to spend much more time, money and effort to have to go from Quezon City to the Cebu court everytime she has an important matter of the estate to take up with the probate court. It would doubly be an unfair imposition when it is considered that under Rule 73, section 2, 21 since petitioner's marriage has been dissolved with the death of her husband, their community property and conjugal estate have to be administered and liquidated in the estate proceedings of the deceased spouse. Under the appealed decision, notwithstanding that petitioner resides in Quezon City, and the proper venue of the testate proceeding was in Quezon City and the Quezon City court properly took cognizance and exercised exclusive jurisdiction with the deference in comity and consent of the Cebu court, such proper exercise of jurisdiction would be nullified and petitioner would have to continually leave her residence in Quezon City and go to Cebu to settle and liquidate even her own community property and conjugal estate with the decedent. 10. The Court therefore holds under the facts of record that the Cebu court did not act without jurisdiction nor with grave abuse of discretion in declining to take cognizance of the intestate petition and instead deferring to the testateproceedings filed just a week later by petitioner as surviving widow and designated executrix of the decedent's last will, since the record before it (the petitioner's opposition and motion to dismiss) showed the falsity of the allegation in the intestate petition that the decedent had died without a will. It is noteworthy that respondents never challenged by certiorari or prohibition proceedings the Cebu court's order of 10 April 1964 deferring to the probate proceedings before the Quezon City court, thus leaving the latter free (pursuant to the Cebu court's order of deference) to exercise jurisdiction and admit the decedent's will to probate. For the same reasons, neither could the Quezon City court be held to have acted without jurisdiction nor with grave abuse of discretion in admitting the decedent's will to probate and appointing petitioner as executrix in accordance with its testamentary disposition, in the light of the settled doctrine that the provisions of Rule 73, section 1 lay down only a rule of venue, not of jurisdiction. Since respondents undisputedly failed to appeal from the Quezon City court's order of May 15, 1964 admitting the will to probate and appointing petitioner as executrix thereof, and said court concededly has jurisdiction to issue said order, the said order of probate has long since become final and can not be overturned in a special civic action of prohibition. 11. Finally, it should be noted that in the Supreme Court's exercise of its supervisory authority over all inferior courts, 22 it may properly determine, as it has done in the case at bar, that venue was properly assumed by and transferredto the Quezon City court and that it is the interest of justice and in avoidance of needless delay that the Quezon City court's exercise of jurisdiction over the testate estate of the decedent (with the due deference and consent of the Cebu court) and its admission to probate of his last will and testament and appointment of petitioner-widow as administratrix without bond in pursuance of the decedent's express will and all its orders and actions taken in the testate proceedings before it be approved and authorized rather than to annul all such proceedings regularly had and to repeat and duplicate the same proceedings before the Cebu court only to revert once more to the Quezon City court should the Cebu court find that indeed and in fact, as already determined by the Quezon City court on the strength of incontrovertible documentary evidence of record, Quezon City was the conjugal residence of the decedent. ACCORDINGLY, judgment is hereby rendered reversing the appealed decision and resolution of the Court of Appeals and the petition for certiorari and prohibition with preliminary injunction originally filed by respondents with the Court of Appeals (CA-G.R. No. 34104-R) is ordered dismissed. No costs.

6

Makalintal, C.J., Zaldivar, Makasiar, Antonio and Esguerra, JJ., concur. Fernando and Castro, JJ., took no part.

G.R. Nos. L-21938-39 May 29, 1970 VICENTE URIARTE, petitioner, vs. THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL (12th Judicial District) THE COURT OF FIRST INSTANCE OF MANILA, BRANCH IV, JUAN URIARTE ZAMACONA and HIGINIO URIARTE, respondents. Norberto J. Quisumbing for petitioner. Tañada, Teehankee & Carreon for respondents.

7

DIZON, J.: On October 3, 1963 petitioner Vicente Uriarte filed an original petition for certiorari — docketed as G.R. L-21938 — against the respondents Juan Uriarte Zamacona, Higinio Uriarte, and the Courts of First Instance of Negros Occidental and of Manila, Branch IV, who will be referred to hereinafter as the Negros Court and the Manila Court, respectively — praying: ... that after due proceedings judgment be rendered annulling the orders of 19 April 1963 (Annex 'H') and 11 July 1963 (Annex 'I') of respondent Negros court dismissing the first instituted Special Proceeding No. 6344, supra, and the order of 1 July 1963 (Annex 'K') of respondent Manila court denying petitioner's omnibus motion to intervene and to dismiss the later-instituted Special Proceeding No. 51396, supra, both special proceedings pertaining to the settlement of the same estate of the same deceased, and consequently annulling all proceedings had in Special Proceeding No. 51396; supra, of the respondent Manila court as all taken without jurisdiction. For the preservation of the rights of the parties pending these proceedings, petitioner prays for the issuance of a writ of preliminary injunction enjoining respondents Manila court, Juan Uriarte Zamacona and Higinio Uriarte from proceeding with Special Proceeding No. 51396, supra, until further orders of this Court. Reasons in support of said petition are stated therein as follows: 6. Respondent Negros court erred in dismissing its Special Proceeding No. 6344, supra, and failing to declare itself 'the court first taking cognizance of the settlement of the estate of' the deceased Don Juan Uriarte y Goite as prescribed in Rule 75 section 1 of the Rules of Court. Respondent Manila court erred in failing to dismiss its Special Proceeding No. 51396, supra, notwithstanding proof of prior filing of Special Proceeding No. 6344, supra, in the Negros court. The writ of preliminary injunction prayed for was granted and issued by this Court on October 24, 1963. On April 22, 1964 petitioner filed against the same respondents a pleading entitled SUPPLEMENTAL PETITION FOR MANDAMUS — docketed in this Court as G.R. No. L-21939 — praying, for the reasons therein stated, that judgment be rendered annulling the orders issued by the Negros Court on December 7, 1963 and February 26, 1964, the first disapproving his record on appeal and the second denying his motion for reconsideration, and further commanding said court to approve his record on appeal and to give due course to his appeal. On July 15, 1964 We issued a resolution deferring action on this Supplemental Petition until the original action for certiorari (G.R. L-21938) is taken up on the merits. On October 21, 1963 the respondents in G.R. L-21938 filed their answer traversing petitioner's contention that the respondent courts had committed grave abuse of discretion in relation to the matters alleged in the petition for certiorari. It appears that on November 6, 1961 petitioner filed with the Negros Court a petition for the settlement of the estate of the late Don Juan Uriarte y Goite (Special Proceeding No. 6344) alleging therein, inter alia, that, as a natural son of the latter, he was his sole heir, and that, during the lifetime of said decedent, petitioner had instituted Civil Case No. 6142 in the same Court for his compulsory acknowledgment as such natural son. Upon petitioner's motion the Negros Court appointed the Philippine National Bank as special administrator on November 13, 1961 and two days later it set the date for the hearing of the petition and ordered that the requisite notices be published in accordance with law. The record discloses, however, that, for one reason or another, the Philippine, National Bank never actually qualified as special administrator. On December 19, 1961, Higinio Uriarte, one of the two private respondents herein, filed an opposition to the above-mentioned petition alleging that he was a nephew of the deceased Juan Uriarte y Goite who had "executed a Last Will and Testament in Spain, a duly authenticated copy whereof has been requested and which shall be submitted to this Honorable Court upon receipt thereof," and further questioning petitioner's capacity and interest to commence the intestate proceeding. On August 28, 1962, Juan Uriarte Zamacona, the other private respondent, commenced Special Proceeding No. 51396 in the Manila Court for the probate of a document alleged to be the last will of the deceased Juan Uriarte y Goite, and on the same date he filed in Special Proceeding No. 6344 of the Negros Court a motion to dismiss the same on the following grounds: (1) that, as the deceased Juan Uriarte y Goite had left a last will, there was no legal basis to proceed with said intestate proceedings, and (2) that petitioner Vicente Uriarte had no legal personality and interest to initiate said intestate proceedings, he not being an acknowledged natural son of the decedent. A copy of the Petition for Probate and of the alleged Will were attached to the Motion to Dismiss. Petitioner opposed the aforesaid motion to dismiss contending that, as the Negros Court was first to take cognizance of the settlement of the estate of the deceased Juan Uriarte y Goite, it had acquired exclusive jurisdiction over same pursuant to Rule 75, Section 1 of the Rules of Court. On April 19, 1963, the Negros Court sustained Juan Uriarte Zamacona's motion to dismiss and dismissed the Special Proceeding No. 6344 pending before it. His motion for reconsideration of said order having been denied on July 27, 1963, petitioner proceeded to file his notice of appeal, appeal bond and record on appeal for the purpose of appealing from said orders to this court on questions of law. The administrator with the will annexed appointed by the Manila Court in Special Proceeding No. 51396 objected to the approval of the record on appeal, and under date of December 7, 1963 the Negros Court issued the following order:

8

Oppositor prays that the record on appeal filed by the petitioner on July 27, 1963, be dismissed for having been filed out of time and for being incomplete. In the meantime, before the said record on appeal was approved by this Court, the petitioner filed a petition for certiorari before the Supreme Court entitled Vicente Uriarte, Petitioner, vs. Court of First Instance of Negros Occidental, et al., G.R. No. L-21938, bringing this case squarely before the Supreme Court on questions of law which is tantamount to petitioner's abandoning his appeal from this Court. WHEREFORE, in order to give way to the certiorari, the record on appeal filed by the petitioner is hereby disapproved. In view of the above-quoted order, petitioner filed the supplemental petition for mandamus mentioned heretofore. On April 15, 1963 Vicente Uriarte filed an Omnibus Motion in Special Proceeding No. 51396 pending in the Manila Court, asking for leave to intervene therein; for the dismissal of the petition and the annulment of the proceedings had in said special proceeding. This motion was denied by said court in its order of July 1 of the same year. It is admitted that, as alleged in the basic petition filed in Special Proceeding No. 6344 of the Negros Court, Vicente Uriarte filed in the same court, during the lifetime of Juan Uriarte y Goite, Civil Case No. 6142 to obtain judgment for his compulsory acknowledgment as his natural child. Clearly inferrable from this is that at the time he filed the action, as well as when he commenced the aforesaid special proceeding, he had not yet been acknowledged as natural son of Juan Uriarte y Goite. Up to this time, no final judgment to that effect appears to have been rendered. The record further discloses that the special proceeding before the Negros Court has not gone farther than the appointment of a special administrator in the person of the Philippine National Bank who, as stated heretofore, failed to qualify. On the other hand, it is not disputed that, after proper proceedings were had in Special Proceeding No. 51396, the Manila Court admitted to probate the document submitted to, it as the last will of Juan Uriarte y Goite, the petition for probate appearing not to have been contested. It appears further that, as stated heretofore, the order issued by the Manila Court on July 1, 1963 denied petitioner. Vicente Uriarte's Omnibus Motion for Intervention, Dismissal of Petition and Annulment of said proceedings. Likewise, it is not denied that to the motion to dismiss the special proceeding pending before the Negros Court filed by Higinio Uriarte were attached a copy of the alleged last will of Juan Uriarte y Goite and of the petition filed with the Manila Court for its probate. It is clear, therefore, that almost from the start of Special Proceeding No. 6344, the Negros Court and petitioner Vicente Uriarte knew of the existence of the aforesaid last will and of the proceedings for its probate. The principal legal questions raised in the petition for certiorari are (a) whether or not the Negros Court erred in dismissing Special Proceeding No. 6644, on the one hand, and on the other, (b) whether the Manila Court similarly erred in not dismissing Special Proceeding No. 51396 notwithstanding proof of the prior filing of Special Proceeding No. 6344 in the Negros Court. Under the Judiciary Act of 1948 [Section 44, paragraph (e)], Courts of First Instance have original exclusive jurisdiction over "all matters of probate," that is, over special proceedings for the settlement of the estate of deceased persons — whether they died testate or intestate. While their jurisdiction over such subject matter is beyond question, the matter of venue, or the particular Court of First Instance where the special proceeding should be commenced, is regulated by former Rule 75, Section 1 of the Rules of Court, now Section 1, Rule 73 of the Revised Rules of Court, which provides that the estate of a decedent inhabitant of the Philippines at the time of his death, whether a citizen or an alien, shall be in the court of first instance in the province in which he resided at the time of his death, and if he is an inhabitant of a foreign country, the court of first instance of any province in which he had estate. Accordingly, when the estate to be settled is that of a non-resident alien — like the deceased Juan Uriarte y Goite — the Courts of First Instance in provinces where the deceased left any property have concurrent jurisdiction to take cognizance of the proper special proceeding for the settlement of his estate. In the case before Us, these Courts of First Instance are the Negros and the Manila Courts — province and city where the deceased Juan Uriarte y Goite left considerable properties. From this premise petitioner argues that, as the Negros Court had first taken cognizance of the special proceeding for the settlement of the estate of said decedent (Special Proceeding No. 6344), the Manila Court no longer had jurisdiction to take cognizance of Special Proceeding No. 51396 intended to settle the estate of the same decedent in accordance with his alleged will, and that consequently, the first court erred in dismissing Special Proceeding No. 6344, while the second court similarly erred in not dismissing Special Proceeding No. 51396. It can not be denied that a special proceeding intended to effect the distribution of the estate of a deceased person, whether in accordance with the law on intestate succession or in accordance with his will, is a "probate matter" or a proceeding for the settlement of his estate. It is equally true, however, that in accordance with settled jurisprudence in this jurisdiction, testate proceedings, for the settlement of the estate of a deceased person take precedence over intestate proceedings for the same purpose. Thus it has been held repeatedly that, if in the course of intestate proceedings pending before a court of first instance it is found it hat the decedent had left a last will, proceedings for the probate of the latter should replace the intestate proceedings even if at that stage an administrator had already been appointed, the latter being required to render final account and turn over the estate in his possession to the executor subsequently appointed. This, however, is understood to be without prejudice that should the alleged last will be rejected or is disapproved, the proceeding shall continue as an intestacy. As already adverted to, this is a clear indication that proceedings for the probate of a will enjoy priority over intestate proceedings. Upon the facts before Us the question arises as to whether Juan Uriarte Zamacona should have filed the petition for the probate of the last will of Juan Uriarte y Goite with the Negros Court — particularly in Special Proceeding No. 6344 — or was entitled to commence the corresponding separate proceedings, as he did, in the Manila Court.

9

The following considerations and the facts of record would seem to support the view that he should have submitted said will for probate to the Negros Court, either in a separate special proceeding or in an appropriate motion for said purpose filed in the already pending Special Proceeding No. 6344. In the first place, it is not in accord with public policy and the orderly and inexpensive administration of justice to unnecessarily multiply litigation, especially if several courts would be involved. This, in effect, was the result of the submission of the will aforesaid to the Manila Court. In the second place, when respondent Higinio Uriarte filed an opposition to Vicente Uriarte's petition for the issuance of letters of administration, he had already informed the Negros Court that the deceased Juan Uriarte y Goite had left a will in Spain, of which a copy had been requested for submission to said court; and when the other respondent, Juan Uriarte Zamacona, filed his motion to dismiss Special Proceeding No. 6344, he had submitted to the Negros Court a copy of the alleged will of the decedent, from which fact it may be inferred that, like Higinio Uriarte, he knew before filing the petition for probate with the Manila Court that there was already a special proceeding pending in the Negros Court for the settlement of the estate of the same deceased person. As far as Higinio Uriarte is concerned, it seems quite clear that in his opposition to petitioner's petition in Special Proceeding No. 6344, he had expressly promised to submit said will for probate to the Negros Court. But the fact is that instead of the aforesaid will being presented for probate to the Negros Court, Juan Uriarte Zamacona filed the petition for the purpose with the Manila Court. We can not accept petitioner's contention in this regard that the latter court had no jurisdiction to consider said petition, albeit we say that it was not the proper venue therefor. It is well settled in this jurisdiction that wrong venue is merely a waiveable procedural defect, and, in the light of the circumstances obtaining in the instant case, we are of the opinion, and so hold, that petitioner has waived the right to raise such objection or is precluded from doing so by laches. It is enough to consider in this connection that petitioner knew of the existence of a will executed by Juan Uriarte y Goite since December 19, 1961 when Higinio Uriarte filed his opposition to the initial petition filed in Special Proceeding No. 6344; that petitioner likewise was served with notice of the existence (presence) of the alleged last will in the Philippines and of the filing of the petition for its probate with the Manila Court since August 28, 1962 when Juan Uriarte Zamacona filed a motion for the dismissal of Special Proceeding No. 6344. All these notwithstanding, it was only on April 15, 1963 that he filed with the Manila Court in Special Proceeding No. 51396 an Omnibus motion asking for leave to intervene and for the dismissal and annulment of all the proceedings had therein up to that date; thus enabling the Manila Court not only to appoint an administrator with the will annexed but also to admit said will to probate more than five months earlier, or more specifically, on October 31, 1962. To allow him now to assail the exercise of jurisdiction over the probate of the will by the Manila Court and the validity of all the proceedings had in Special Proceeding No. 51396 would put a premium on his negligence. Moreover, it must be remembered that this Court is not inclined to annul proceedings regularly had in a lower court even if the latter was not the proper venue therefor, if the net result would be to have the same proceedings repeated in some other court of similar jurisdiction; more so in a case like the present where the objection against said proceedings is raised too late. In his order of April 19, 1963 dismissing Special Proceeding No. 6344, Judge Fernandez of the Negros Court said that he was "not inclined to sustain the contention of the petitioner that inasmuch as the herein petitioner has instituted Civil Case No. 6142 for compulsory acknowledgment by the decedent such action justifies the institution by him of this proceedings. If the petitioner is to be consistent with the authorities cited by him in support of his contention, the proper thing for him to do would be to intervene in the testate estate proceedings entitled Special Proceedings No. 51396 in the Court of First Instance of Manila instead of maintaining an independent action, for indeed his supposed interest in the estate of the decedent is of his doubtful character pending the final decision of the action for compulsory acknowledgment." We believe in connection with the above matter that petitioner is entitled to prosecute Civil Case No. 6142 until it is finally determined, or intervene in Special Proceeding No. 51396 of the Manila Court, if it is still open, or to ask for its reopening if it has already been closed, so as to be able to submit for determination the question of his acknowledgment as natural child of the deceased testator, said court having, in its capacity as a probate court, jurisdiction to declare who are the heirs of the deceased testator and whether or not a particular party is or should be declared his acknowledged natural child (II Moran on Rules of Court, 1957 Ed., p. 476; Conde vs. Abaya, 13 Phil. 249; Severino vs. Severino, 44 Phil. 343; Lopez vs. Lopez, 68 Phil. 227, and Jimoga-on vs. Belmonte, 47 O. G. 1119). Coming now to the supplemental petition for mandamus (G.R. No. L-21939), We are of the opinion, and so hold, that in view of the conclusions heretofore stated, the same has become moot and academic. If the said supplemental petition is successful, it will only result in compelling the Negros Court to give due course to the appeal that petitioner was taking from the orders of said court dated December 7, 1963 and February 26, 1964, the first being the order of said court dismissing Special Proceeding No. 6344, and the second being an order denying petitioner's motion for the reconsideration of said order of dismissal. Said orders being, as a result of what has been said heretofore beyond petitioner's power to contest, the conclusion can not be other than that the intended appeal would serve no useful purpose, or, worse still, would enable petitioner to circumvent our ruling that he can no longer question the validity of said orders. IN VIEW OF THE FOREGOING CONSIDERATIONS, judgment is hereby rendered denying the writs prayed for and, as a result, the petition for certiorari filed in G.R. No. L-21938, as well as the supplemental petition for mandamus docketed as G.R. No. L-21939, are hereby dismissed. The writ of preliminary injunction heretofore issued is set aside. With costs against petitioner. Concepcion, C.J., Makalintal, Zaldivar, Barredo and Villamor, JJ., concur. Reyes, J.B.L., J., concurs in the result. Castro, J., is on leave. Fernando and Teehankee, J., took no part.

10

11

THE HEIRS OF MARCELINO G.R. No. 169454 DORONIO, NAMELY: REGINA AND FLORA, BOTH SURNAMED DORONIO, Present: Petitioners, YNARES-SANTIAGO, J., Chairperson, - versus - AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and HEIRS OF FORTUNATO REYES, JJ. DORONIO, NAMELY: TRINIDAD ROSALINA DORONIO-BALMES, MODING DORONIO, FLORENTINA DORONIO, AND ANICETA Promulgated: ALCANTARA-MANALO, Respondents. December 27, 2007 x--------------------------------------------------x DECISION

REYES, R.T., J.: For Our review on certiorari is the Decision[1] of the Court of Appeals (CA) reversing that[2] of the Regional Trial Court (RTC), Branch 45, Anonas, UrdanetaCity, Pangasinan, in an action for reconveyance and damages. The CA declared respondents as rightful owners of one-half of the subject property and directed petitioners to execute a registerable document conveying the same to respondents.

The Facts Spouses Simeon Doronio and Cornelia Gante, now both deceased, were the registered owners of a parcel of land located at Barangay Cabalitaan, Asingan, Pangasinan covered by Original Certificate of Title (OCT) No. 352.[3] The courts below described it as follows: Un terreno (Lote 1018), situada en el municipio de Asingan, Linda por el NE; con propriedad de Gabriel Bernardino; con el SE con propriedad de Zacarias Najorda y Alejandro Najorda; por el SO con propriedad de Geminiano Mendoza y por el NO con el camino para Villasis; midiendo una extension superficial mil ciento cincuenta y dos metros cuadrados.[4] The spouses had children but the records fail to disclose their number. It is clear, however, that Marcelino Doronio and Fortunato Doronio, now both deceased, were among them and that the parties in this case are their heirs. Petitioners are the heirs of Marcelino Doronio, while respondents are the heirs of Fortunato Doronio. On April 24, 1919, a private deed of donation propter nuptias[5] was executed by spouses Simeon Doronio and Cornelia Gante in favor of Marcelino Doronio and the latters wife, Veronica Pico. One of the properties subject of said deed of donation is the one that it described as follows: Fourth A piece of residential land located in the barrio of Cabalitian but we did not measure it, the area is bounded on the north by Gabriel Bernardino; on the east by Fortunato Doronio; on the south by Geminiano Mendoza and on the west by a road to Villasis. Constructed on said land is a house of light materials also a part of the dowry.Value 200.00.[6]

It appears that the property described in the deed of donation is the one covered by OCT No. 352. However, there is a significant discrepancy with respect to the identity of the owner of adjacent property at the eastern side. Based on OCT No. 352, the adjacent owners are Zacarias Najorda and Alejandro Najorda, whereas based on the deed of donation, the owner of the adjacent property is Fortunato Doronio. Furthermore, said deed of donation remained a private document as it was never notarized.[7] Both parties have been occupying the subject land for several decades [8] although they have different theories regarding its present ownership. According to petitioners, they are now the owners of the entire property in view of the private deed of donation propter nuptias in favor of their predecessors, Marcelino Doronio and Veronica Pico. Respondents, on the other hand, claim that only half of the property was actually incorporated in the said deed of donation because it stated that Fortunato Doronio, instead of Zacarias Najorda and Alejandro Najorda, is the owner of the adjacent property at the eastern side. Respondents posit that the donors respected and segregated the possession of Fortunato Doronio of the eastern half of the land. They are the ones who have been possessing said land occupied by their predecessor, Fortunato Doronio.

12

Eager to obtain the entire property, the heirs of Marcelino Doronio and Veronica Pico filed, on January 11, 1993, before the RTC in Urdaneta, Pangasinan a petition For the Registration of a Private Deed of Donation[9] docketed as Petition Case No. U-920. No respondents were named in the said petition[10] although notices of hearing were posted on the bulletin boards of Barangay Cabalitaan, Municipalities of Asingan and Lingayen.[11]

During the hearings, no one interposed an objection to the petition.[12] After the RTC ordered a general default,[13] the petition was eventually granted on September 22, 1993. This led to the registration of the deed of donation, cancellation of OCT No. 352 and issuance of a new Transfer Certificate of Title (TCT) No. 44481 in the names of Marcelino Doronio and Veronica Pico.[14] Thus, the entire property was titled in the names of petitioners predecessors. On April 28, 1994, the heirs of Fortunato Doronio filed a pleading before the RTC in the form of a petition in the same Petition Case No. U920. The petition was for the reconsideration of the decision of the RTC that ordered the registration of the subject deed of donation. It was prayed in the petition that an order be issued declaring null and void the registration of the private deed of donation and that TCT No. 44481 be cancelled. However, the petition was dismissed on May 13, 1994on the ground that the decision in Petition Case No. U-920 had already become final as it was not appealed. Determined to remain in their possessed property, respondent heirs of Fortunato Doronio (as plaintiffs) filed an action for reconveyance and damages with prayer for preliminary injunction[15] against petitioner heirs of Marcelino Doronio (as defendants) before the RTC, Branch 45, Anonas, Urdaneta City, Pangasinan.Respondents contended, among others, that the subject land is different from what was donated as the descriptions of the property under OCT No. 352 and under the private deed of donation were different. They posited that spouses Simeon Doronio and Cornelia Gante intended to donate only one-half of the property. During the pre-trial conference, the parties stipulated, among others, that the property was originally covered by OCT No. 352 which was cancelled by TCTNo. 44481. They also agreed that the issues are: (1) whether or not there was a variation in the description of the property subject of the private deed of donation and OCT No. 352; (2) whether or not respondents had acquired one-half of the property covered by OCT No. 352 by acquisitive prescription; (3) whether or not the transfer of the whole property covered by OCT No. 352 on the basis of the registration of the private deed of donation notwithstanding the discrepancy in the description is valid; (4) whether or not respondents are entitled to damages; and (5) whether or not TCT No. 44481 is valid.[16] RTC Decision After due proceedings, the RTC ruled in favor of petitioner heirs of Marcelino Doronio (defendants). It concluded that the parties admitted the identity of the land which they all occupy;[17] that a title once registered under the torrens system cannot be defeated by adverse, open and notorious possession or by prescription;[18] that the deed of donation in consideration of the marriage of the parents of petitioners is valid, hence, it led to the eventual issuance of TCT No. 44481 in the names of said parents;[19] and that respondent heirs of Fortunato Doronio (plaintiffs) are not entitled to damages as they are not the rightful owners of the portion of the property they are claiming.[20] The RTC disposed of the case, thus: WHEREFORE, premises considered, the Court hereby renders judgment DISMISSING the herein Complaint filed by plaintiffs against defendants.[21]

Disagreeing with the judgment of the RTC, respondents appealed to the CA. They argued that the trial court erred in not finding that respondents predecessor-in-interest acquired one-half of the property covered by OCT No. 352 by tradition and/or intestate succession; that the deed of donation dated April 26, 1919 was null and void; that assuming that the deed of donation was valid, only one-half of the property was actually donated to Marcelino Doronio and Veronica Pico; and that respondents acquired ownership of the other half portion of the property by acquisitive prescription.[22] CA Disposition In a Decision dated January 26, 2005, the CA reversed the RTC decision with the following disposition: WHEREFORE, the assailed Decision dated June 28, 2002 is REVERSED and SET ASIDE. Declaring the appellants as rightful owners of one-half of the property now covered by TCT No. 44481, the appellees are hereby directed to execute a registerable document conveying the same to appellants. SO ORDERED.[23] The appellate court determined that (t)he intention to donate half of the disputed property to appellees predecessors can be gleaned from the disparity of technical descriptions appearing in the title (OCT No. 352) of spouses Simeon Doronio and Cornelia Gante and in the deed of donation propter nuptias executed on April 24, 1919 in favor of appellees predecessors.[24] The CA based its conclusion on the disparity of the following technical descriptions of the property under OCT No. 352 and the deed of donation, to wit: The court below described the property covered by OCT No. 352 as follows: Un terreno (Lote 1018), situada en el municipio de Asingan, Linda por el NE; con propriedad de Gabriel Bernardino; con el SE con propriedad de Zacarias Najorda y Alejandro Najorda; por el SO con

13

propriedad de Geminiano Mendoza y por el NO con el camino para Villasis; midiendo una extension superficial mil ciento cincuenta y dos metros cuadrados. On the other hand, the property donated to appellees predecessors was described in the deed of donation as: Fourth A piece of residential land located in the barrio of Cabalitian but we did not measure it, the area is bounded on the north by Gabriel Bernardino; on the east by Fortunato Doronio; on the south by Geminiano Mendoza and on the west by a road to Villasis. Constructed on said land is a house of light materials also a part of the dowry. Value 200.00.[25] (Emphasis ours) Taking note that the boundaries of the lot donated to Marcelino Doronio and Veronica Pico differ from the boundaries of the land owned by spouses Simeon Doronio and Cornelia Gante, the CA concluded that spouses Simeon Doronio and Cornelia Gante donated only half of the property covered by OCT No. 352.[26] Regarding the allegation of petitioners that OCT No. 352 is inadmissible in evidence, the CA pointed out that, while the OCT is written in the Spanish language, this document already forms part of the records of this case for failure of appellees to interpose a timely objection when it was offered as evidence in the proceedings a quo. It is a well-settled rule that any objection to the admissibility of such evidence not raised will be considered waived and said evidence will have to form part of the records of the case as competent and admitted evidence.[27] The CA likewise ruled that the donation of the entire property in favor of petitioners predecessors is invalid on the ground that it impairs the legitime of respondents predecessor, Fortunato Doronio. On this aspect, the CA reasoned out: Moreover, We find the donation of the entire property in favor of appellees predecessors invalid as it impairs the legitime of appellants predecessor. Article 961 of the Civil Code is explicit. In default of testamentary heirs, the law vests the inheritance, x x x, in the legitimate x x x relatives of the deceased, x x x. As Spouses Simeon Doronio and Cornelia Gante died intestate, their property shall pass to their lawful heirs, namely: Fortunato and Marcelino Doronio. Donating the entire property to Marcelino Doronio and Veronica Pico and excluding another heir, Fortunato, tantamounts to divesting the latter of his rightful share in his parents inheritance. Besides, a persons prerogative to make donations is subject to certain limitations, one of which is that he cannot give by donation more than what he can give by will (Article 752, Civil Code). If he does, so much of what is donated as exceeds what he can give by will is deemed inofficious and the donation is reducible to the extent of such excess.[28] Petitioners were not pleased with the decision of the CA. Hence, this petition under Rule 45. Issues Petitioners now contend that the CA erred in: 1.

DECLARING ADMISSIBILITY OF THE ORIGINAL CERTIFICATE OF TITLE NO. 352 DESPITE OF LACK OF TRANSLATION THEREOF.

2.

(RULING THAT) ONLY HALF OF THE DISPUTED PROPERTY WAS DONATED TO THE PREDECESSORS-IN-INTEREST OF THE HEREIN APPELLANTS.

3.

(ITS) DECLARATION THAT THE DONATION PROPTER NUPTIAS IS INNOFICIOUS, IS PREMATURE, AND THUS IT IS ILLEGAL AND UNPROCEDURAL.[29] Our Ruling

OCT No. 352 in Spanish Although Not Translated into English or Filipino Is Admissible For Lack of Timely Objection Petitioners fault the CA for admitting OCT No. 352 in evidence on the ground that it is written in Spanish language. They posit that (d)ocumentary evidence in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino.[30] The argument is untenable. The requirement that documents written in an unofficial language must be accompanied with a translation in English or Filipino as a prerequisite for its admission in evidence must be insisted upon by the parties at the trial to enable the court, where a translation has been impugned as incorrect, to decide the issue.[31] Where such document, not so accompanied with a translation in English or Filipino, is offered in evidence and not objected to, either by the parties or the court, it must be presumed that the language in which the document is written is understood by all, and the document is admissible in evidence.[32] Moreover, Section 36, Rule 132 of the Revised Rules of Evidence provides: SECTION 36. Objection. Objection to evidence offered orally must be made immediately after the offer is made. Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor shall become reasonably apparent. An offer of evidence in writing shall be objected to within three (3) days after notice of the offer unless a different period is allowed by the court.

14

In any case, the grounds for the objections must be specified. (Emphasis ours) Since petitioners did not object to the offer of said documentary evidence on time, it is now too late in the day for them to question its admissibility. The rule is that evidence not objected may be deemed admitted and may be validly considered by the court in arriving at its judgment.[33] This is true even if by its nature, the evidence is inadmissible and would have surely been rejected if it had been challenged at the proper time.[34] As a matter of fact, instead of objecting, petitioners admitted the contents of Exhibit A, that is, OCT No. 352 in their comment[35] on respondents formal offer of documentary evidence. In the said comment, petitioners alleged, among others, that Exhibits A, B, C, D, E, F and G, are admitted but not for the purpose they are offered because these exhibits being public and official documents are the best evidence of that they contain and not for what a party would like it to prove.[36]Said evidence was admitted by the RTC.[37] Once admitted without objection, even though not admissible under an objection, We are not inclined now to reject it.[38] Consequently, the evidence that was not objected to became property of the case, and all parties to the case are considered amenable to any favorable or unfavorable effects resulting from the said evidence.[39] Issues on Impairment of Legitime Should Be Threshed Out in a Special Proceeding, Not in Civil Action for Reconveyance and Damages On the other hand, petitioners are correct in alleging that the issue regarding the impairment of legitime of Fortunato Doronio must be resolved in an action for the settlement of estates of spouses Simeon Doronio and Cornelia Gante. It may not be passed upon in an action for reconveyance and damages. A probate court, in the exercise of its limited jurisdiction, is the best forum to ventilate and adjudge the issue of impairment of legitime as well as other related matters involving the settlement of estate.[40] An action for reconveyance with damages is a civil action, whereas matters relating to settlement of the estate of a deceased person such as advancement of property made by the decedent, partake of the nature of a special proceeding. Special proceedings require the application of specific rules as provided for in the Rules of Court.[41] As explained by the Court in Natcher v. Court of Appeals:[42] Section 3, Rule 1 of the 1997 Rules of Civil Procedure defines civil action and special proceedings, in this wise: x x x a) A 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. A civil action may either be ordinary or special. Both are governed by the rules for ordinary civil actions, subject to specific rules prescribed for a special civil action. xxxx c) A special proceeding is a remedy by which a party seeks to establish a status, a right or a particular fact. As could be gleaned from the foregoing, there lies a marked distinction between an action and a special proceeding. An action is a formal demand of ones right in a court of justice in the manner prescribed by the court or by the law. It is the method of applying legal remedies according to definite established rules. The term special proceeding may be defined as an application or proceeding to establish the status or right of a party, or a particular fact. Usually, in special proceedings, no formal pleadings are required unless the statute expressly so provides. In special proceedings, the remedy is granted generally upon an application or motion. Citing American Jurisprudence, a noted authority in Remedial Law expounds further: It may accordingly be stated generally that actions include those proceedings which are instituted and prosecuted according to the ordinary rules and provisions relating to actions at law or suits in equity, and that special proceedings include those proceedings which are not ordinary in this sense, but is instituted and prosecuted according to some special mode as in the case of proceedings commenced without summons and prosecuted without regular pleadings, which are characteristics of ordinary actions x x x. A special proceeding must therefore be in the nature of a distinct and independent proceeding for particular relief, such as may be instituted independently of a pending action, by petition or motion upon notice. Applying these principles, an action for reconveyance and annulment of title with damages is a civil action, whereas matters relating to settlement of the estate of a deceased person such as advancement of property made by the decedent, partake of the nature of a special proceeding, which concomitantly requires the application of specific rules as provided for in the Rules of Court. Clearly, matters which involve settlement and distribution of the estate of the decedent fall within the exclusive province of the probate court in the exercise of its limited jurisdiction.

15

Thus, under Section 2, Rule 90 of the Rules of Court, questions as to advancement made or alleged to have been made by the deceased to any heir may be heard and determined by the court having jurisdiction of the estate proceedings, and the final order of the court thereon shall be binding on the person raising the questions and on the heir. While it may be true that the Rules used the word may, it is nevertheless clear that the same provision contemplates a probate court when it speaks of the court having jurisdiction of the estate proceedings. Corollarily, the Regional Trial Court in the instant case, acting in its general jurisdiction, is devoid of authority to render an adjudication and resolve the issue of advancement of the real property in favor of herein petitioner Natcher, inasmuch as Civil Case No. 71075 for reconveyance and annulment of title with damages is not, to our mind, the proper vehicle to thresh out said question. Moreover, under the present circumstances, the RTC of Manila, Branch 55, was not properly constituted as a probate court so as to validly pass upon the question of advancement made by the decedent Graciano Del Rosario to his wife, herein petitioner Natcher. We likewise find merit in petitioners contention that before any conclusion about the legal share due to a compulsory heir may be reached, it is necessary that certain steps be taken first.[43] The net estate of the decedent must be ascertained, by deducting all payable obligations and charges from the value of the property owned by the deceased at the time of his death; then, all donations subject to collation would be added to it. With the partible estate thus determined, the legitime of the compulsory heir or heirs can be established; and only then can it be ascertained whether or not a donation had prejudiced the legitimes.[44] Declaration of Validity of Donation Can Be Challenged by an Interested Party Not Impleaded in Petition for Quieting of Title or Declaratory Relief or Where There is No Res Judicata. Moreover, This Court Can Consider a Factual Matter or Unassigned Error in the Interest of Substantial Justice. Nevertheless, petitioners cannot preclude the determination of validity of the deed of donation on the ground that (1) it has been impliedly admitted by respondents; (2) it has already been determined with finality by the RTC in Petition Case No. U-920; or (3) the only issue in an action for reconveyance is who has a better right over the land.[45] The validity of the private deed of donation propter nuptias in favor of petitioners predecessors was one of the issues in this case before the lower courts. The pre-trial order[46] of the RTC stated that one of the issues before it is (w)hether or not the transfer of the whole property covered by OCT No. 352 on the basis of the private deed of donation notwithstanding the discrepancy in the description is valid. Before the CA, one of the errors assigned by respondents is that THE TRIAL COURT ERRED IN NOT FINDING THAT THE PRIVATE DEED OF DONATION DATED APRIL 26, 1919 WAS NULL AND VOID.[47] The issue of the validity of donation is likewise brought to Us by petitioners as they stated in their Memorandum [48] that one of the issues to be resolved is regarding the alleged fact that THE HONORABLE COURT OF APPEALS ERRED IN FINDING THE DONATION INVALID. We are thus poised to inspect the deed of donation and to determine its validity. We cannot agree with petitioners contention that respondents may no longer question the validity of the deed of donation on the ground that they already impliedly admitted it. Under the provisions of the Civil Code, a void contract is inexistent from the beginning. The right to set up the defense of its illegality cannot be waived.[49] The right to set up the nullity of a void or non-existent contract is not limited to the parties as in the case of annullable or voidable contracts; it is extended to third persons who are directly affected by the contract.[50] Consequently, although respondents are not parties in the deed of donation, they can set up its nullity because they are directly affected by the same.[51] The subject of the deed being the land they are occupying, its enforcement will definitely affect them. Petitioners cannot also use the finality of the RTC decision in Petition Case No. U-920[52] as a shield against the verification of the validity of the deed of donation. According to petitioners, the said final decision is one for quieting of title.[53] In other words, it is a case for declaratory relief under Rule 64 (now Rule 63) of the Rules of Court, which provides: SECTION 1. Who may file petition. Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, or ordinance, may, before breach or violation thereof, bring an action to determine any question of construction or validity arising under the instrument or statute and for a declaration of his rights or duties thereunder.

An action for the reformation of an instrument, to quiet title to real property or remove clouds therefrom, or to consolidate ownership under Article 1607 of the Civil Code, may be brought under this rule. SECTION 2. Parties. All persons shall be made parties who have or claim any interest which would be affected by the declaration; and no declaration shall, except as otherwise provided in these rules, prejudice the rights of persons not parties to the action. (Emphasis ours)

16

However, respondents were not made parties in the said Petition Case No. U-920. Worse, instead of issuing summons to interested parties, the RTC merely allowed the posting of notices on the bulletin boards of Barangay Cabalitaan, Municipalities of Asingan and Lingayen, Pangasinan. As pointed out by the CA, citing the ruling of the RTC: x x x In the said case or Petition No. U-920, notices were posted on the bulletin boards of barangay Cabalitaan, Municipalities of Asingan and Lingayen, Pangasinan, so that there was a notice to the whole world and during the initial hearing and/or hearings, no one interposed objection thereto.[54] Suits to quiet title are not technically suits in rem, nor are they, strictly speaking, in personam, but being against the person in respect of the res, these proceedings are characterized as quasi in rem.[55] The judgment in such proceedings is conclusive only between the parties.[56] Thus, respondents are not bound by the decision in Petition Case No. U-920 as they were not made parties in the said case. The rules on quieting of title[57] expressly provide that any declaration in a suit to quiet title shall not prejudice persons who are not parties to the action.

That respondents filed a subsequent pleading[58] in the same Petition Case No. U-920 after the decision there had become final did not change the fact that said decision became final without their being impleaded in the case. Said subsequent pleading was dismissed on the ground of finality of the decision.[59] Thus, the RTC totally failed to give respondents their day in court. As a result, they cannot be bound by its orders. Generally accepted is the principle that no man shall be affected by any proceeding to which he is a stranger, and strangers to a case are not bound by judgment rendered by the court.[60] Moreover, for the principle of res judicata to apply, the following must be present: (1) a decision on the merits; (2) by a court of competent jurisdiction; (3) the decision is final; and (4) the two actions involve identical parties, subject matter and causes of action.[61] The fourth element is not present in this case. The parties are not identical because respondents were not impleaded in Petition Case No. U-920. While the subject matter may be the same property covered by OCT No. 352, the causes of action are different. Petition Case No. U-920 is an action for declaratory relief while the case below is for recovery of property. We are not persuaded by petitioners posture that the only issue in this action for reconveyance is who has a better right over the land; and that the validity of the deed of donation is beside the point.[62] It is precisely the validity and enforceability of the deed of donation that is the determining factor in resolving the issue of who has a better right over the property. Moreover, notwithstanding procedural lapses as to the appropriateness of the remedies prayed for in the petition filed before Us, this Court can brush aside the technicalities in the interest of justice. In some instances, this Court even suspended its own rules and excepted a case from their operation whenever the higher interests of justice so demanded.[63] Moreover, although respondents did not directly raise the issue of validity of the deed of donation at the commencement of the case before the trial court, it was stipulated[64] by the parties during the pre-trial conference. In any event, this Court has authority to inquire into any question necessary in arriving at a just decision of a case before it.[65] Though not specifically questioned by the parties, additional issues may also be included, if deemed important for substantial justice to be rendered.[66] Furthermore, this Court has held that although a factual issue is not squarely raised below, still in the interest of substantial justice, this Court is not prevented from considering a pivotal factual matter. The Supreme Court is clothed with ample authority to review palpable errors not assigned as such if it finds that their consideration is necessary in arriving at a just decision.[67] A rudimentary doctrine on appealed cases is that this Court is clothed with ample authority to review matters, even if they are not assigned as errors on appeal, if it finds that their consideration is necessary at arriving at a just decision of the case. [68] Also, an unassigned error closely related to an error properly assigned or upon which the determination of the question raised by the error properly assigned is dependent, will be considered by the appellate court notwithstanding the failure to assign it as an error.[69] Donation Propter Nuptias of Real Property Made in a Private Instrument Before the New Civil Code Took Effect on August 30, 1950 is Void We now focus on the crux of the petition, which is the validity of the deed of donation. It is settled that only laws existing at the time of the execution of a contract are applicable to it and not the later statutes, unless the latter are specifically intended to have retroactive effect.[70] Accordingly, the Old Civil Code applies in this case as the donation propter nuptias was executed in 1919, while the New Civil Code took effect only on August 30, 1950. Under the Old Civil Code, donations propter nuptias must be made in a public instrument in which the property donated must be specifically described.[71]Article 1328 of the Old Civil Code provides that gifts propter nuptias are governed by the rules established in Title 2 of Book 3 of the same Code. Article 633 of that title provides that the gift of real property, in order to be valid, must appear in a public document.[72] It is settled that a donation of real estate propter nuptias is void unless made by public instrument.[73] In the instant case, the donation propter nuptias did not become valid. Neither did it create any right because it was not made in a public instrument.[74] Hence, it conveyed no title to the land in question to petitioners predecessors. Logically, then, the cancellation of OCT No. 352 and the issuance of a new TCT No. 44481 in favor of petitioners predecessors have no legal basis. The title to the subject property should, therefore, be restored to its original owners under OCT No. 352.

17

Direct reconveyance to any of the parties is not possible as it has not yet been determined in a proper proceeding who among the heirs of spouses Simeon Doronio and Cornelia Gante is entitled to it. It is still unproven whether or not the parties are the only ones entitled to the properties of spouses Simeon Doronio and Cornelia Gante. As earlier intimated, there are still things to be done before the legal share of all the heirs can be properly adjudicated.[75] Titled Property Cannot Be Acquired By Another By Adverse Possession or Extinctive Prescription Likewise, the claim of respondents that they became owners of the property by acquisitive prescription has no merit. Truth to tell, respondents cannot successfully invoke the argument of extinctive prescription. They cannot be deemed the owners by acquisitive prescription of the portion of the property they have been possessing. The reason is that the property was covered by OCT No. 352. A title once registered under the torrens system cannot be defeated even by adverse, open and notorious possession; neither can it be defeated by prescription.[76] It is notice to the whole world and as such all persons are bound by it and no one can plead ignorance of the registration.[77] The torrens system is intended to guarantee the integrity and conclusiveness of the certificate of registration, but it cannot be used for the perpetration of fraud against the real owner of the registered land.[78] The system merely confirms ownership and does not create it. Certainly, it cannot be used to divest the lawful owner of his title for the purpose of transferring it to another who has not acquired it by any of the modes allowed or recognized by law. It cannot be used to protect a usurper from the true owner, nor can it be used as a shield for the commission of fraud; neither does it permit one to enrich himself at the expense of another.[79] Where such an illegal transfer is made, as in the case at bar, the law presumes that no registration has been made and so retains title in the real owner of the land.[80] Although We confirm here the invalidity of the deed of donation and of its resulting TCT No. 44481, the controversy between the parties is yet to be fully settled. The issues as to who truly are the present owners of the property and what is the extent of their ownership remain unresolved. The same may be properly threshed out in the settlement of the estates of the registered owners of the property, namely: spouses Simeon Doronio and Cornelia Gante. WHEREFORE, the appealed Decision is REVERSED AND SET ASIDE. A new one is entered: (1) Declaring the private deed of donation propter nuptias in favor of petitioners predecessors NULL AND VOID; and (2) Ordering the Register of Deeds of Pangasinan to: (a) CANCEL Transfer Certificate of Title No. 44481 in the names of Marcelino Doronio and Veronica Pico; and (b) RESTORE Original Certificate of Title No. 352 in the names of its original owners, spouses Simeon Doronio and Cornelia Gante. SO ORDERED.

18

G.R. No. L-11156

February 23, 1961

PURA CARREON, ET AL., plaintiffs-appellants, vs. RUFO AGCAOILI and LOURDES SANTIAGO, defendants- appellees. Domingo R. Maddumba for plaintiffs-appellants. Meris, Moya, Revilla & Gaffud for defendant-appellee. Nillo and Tiburcio for the other defendant-appellee. BAUTISTA ANGELO, J.: During the marriage of Bonifacio Carreon and Celerina Dauag the registered land subject of this case was acquired. After the death of Carreon, his widow Celerina executed on September 24, 1946, an affidavit adjudicating to herself alone the said land. She declared in said document that she was the only heiress of her husband. The original certificate of title covering the land was cancelled and a transfer certificate was issued in her name. There was however annotated on her certificate a lien to the effect that her title was subject to Section 4 of Rule 74 of the Rules of Court. On September 25, 1946, she borrowed P1,200.00 from the Philippine National Bank guaranteed by a mortgage on one-half of the land. A memorandum of the mortgage was annotated on her transfer certificate. After the maturity of the loan, she requested a certain Mr. Pintang to look for a buyer of the land for P3,000.00. One by the name of Rufo Agcaoili was found. The latter made an advance payment of Pl,500.00 and the balance was paid in full on October 13, 1947. The loan from the bank was paid, the mortgage was released and the deed of absolute sale executed in his favor was registered.1 A new transfer certificate of title was issued in the name of Agcaoili. On February 19, 1955, the children of Celerina with the deceased husband filed a complaint against the spouses Agcaoili seeking to have the deed of sale executed by their mother declared as one of mortgage and to recover one half pro-indiviso of the land described in the complaint. Simultaneous with the filing of said complaint, Celerina filed an action for intervention which was dismissed by the trial court. Defendants filed a motion for summary judgment upon the plea that the main averments of the complaint even if admitted do not constitute a cause of action and supported their plea with certain documentary evidence. Plaintiffs filed an opposition on the ground that there was a genuine issue which could not be determined unless a trial is had. The trial court, however, allowed the parties to submit evidence in support of their contentions and after a careful analysis thereof found for defendants holding that plaintiffs, claim has no legal basis. As may be gleaned from the appellants' assignments of error, the present appeal is predicated on the arguments that appellees were buyers in bad faith; that there existed a trust relationship between them and appellants, and that such being the case, the action against appellees is imprescriptible. There is no clear proof that when Rufo Agcaoili bought the land he knew of any flaw in the title of Celerina Dauag. The mere fact that he was a townmate of Celerina is not sufficient basis to conclude that he knew that she had children by her first husband. It has been shown that since 1920 Rufo Agcaoili has been an enlisted man in the Philippine constabulary and seldom come home to visit his relatives. A man of such a situation cannot be expected to know the relatives and children of his vendor even if they are townmates,. Fraud cannot be presumed. It must be established by clear and sufficient evidence. Here every indication is that Agcaoili bought the land in all good faith oblivious of the source of its acquisition. If fraud had been committed such was perpetrated by Celerina, appellants' mother. By her action she induced Agcaoili to believe that she was the absolute owner of the land which bore a torrens title. In dealing with it he merely relied on such title. He was not required to do more. He is only charged with notice of the burdens which are noted on the face of said title. So, after he bought the land and a new title was issued in his name, he became a purchaser thereof for value and a holder of a good and valid title.2 On the transfer certificate of title issued to Agcaoili there was annotated a statement that it was subject to Section 4, Rule 74 of the Rules of Court. This was an annotation carried over from Celerina's transfer certificate. Section 4, Rule 74, provides the following: 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 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. And if within the same time of two years, it shall appear 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, by order for that purpose, after hearing, settle the amount of such debts or lawful participation and order how much and in what manner each distributee shall contribute in the payment thereof, and may issue execution, if circumstances require, against the bond provided in the preceding section or against the real estate belonging to the deceased, or both. Such bond and such real estate shall remain charged with a liability to creditors, heirs, or other persons for the full period of two years after such distribution, notwithstanding any transfers of the real estate that may have been made.

19

The above lien is effective only for a period of two years. From September 28, 1946, when a transfer certificate of title was issued to Celerina, to September 8, 1949 when the deed of sale in favor of Agcaoili was issued and registered, more than two years had elapsed We sustain the lower court's opinion that thenceforth the right to have such lien cancelled became vested on appellee Agcaoili and that the same had become functus oficio.3 And there being no fraud in the transaction on the part of appellee, nor proof that he knew of any legal infirmity in the title of his vendor, we find no reason to apply the proposition that he is deemed to be holding the land in trust for the children of Celerina Dauag. WHEREFORE, the decision appealed from is affirmed, without pronouncement as to costs. Bengzon, Padilla, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes and Dizon, JJ., concur. G.R. No. L-273

March 29, 1947

CRESENCIA HERNANDEZ, plaintiff-appellee, vs. ZACARIAS ANDAL, defendant-appellant. QUIRINO DIMASACAT, MARIA HERNANDEZ and AQUILINA HERNANDEZ, intervenors-appellants. Pedro Pañganiban y Tolentino for appellants. Vicente Reyes Villavicencio for appellee. TUASON, J.: The plaintiff, Cresencia Hernandez, the intervenors, Maria and Aquilina Hernandez, and Pedro and Basilia Hernandez who are not parties here, are brother and sisters. They acquired in common by descent from their father a parcel of land of which he died seized and known as lot No. 120073 of the Batangas cadastral survey. On January 23, 1944, the intervenors sold 1800 square meters of this parcel, a portion which is particularly described in the deed of conveyance Exhibit A, to Zacarias Andal, the defendant, and Andal's wife in consideration of P860. This portion purports to be the combined shares of the intervenors in the larger parcel, allotted to them in a verbal partition alleged to have been made (time not stated) among the five brother and sisters. After the sale, on a date as to which the evidence is in disagreement but which is not now important, the plaintiff attempted to repurchase the land sold to Andal. According to her original complaint, dated February 3, 1944, she offered the purchasers P150 as price of repurchase, this being, according to that complaint, the amount Andal had paid for Maria Hernandez's and Aquilina Hernandez's shares, but Andal, it is alleged, refused to part with the property. On April 8, the plaintiff filed a supplemental complaint. She alleged that when the cause was called for trial on March 8, she announced in open court that she was willing to repurchase her sister's share from Andal for P860 and reimburse Andal for his expense; that Andal asked for continuance until the 29th stating that he had made other expenses; that on 29th she brought P860 to repurchase the land in question but the case was again postponed because the plaintiff's sisters had intervened; and that meanwhile, on the 26th, Andal resold the land fictitiously to the vendors for P970. It results that on the date last mentioned Andal executed a deed of sale for P970 in favor of the intervenors, an amount which included Andal's expenses as well as the normal sale price. The document of repurchase gave as reason for the transaction the fact that it had been agreed that in the event trouble should arise the sellers should return to the buyer what they had received and pay the latter his expenses. On February 14, 1944, the defendant filed his answer alleging that Maria and Aquilina Hernandez had sold him their respective portions of the inherited land for P860 and that he had no objection to disposing of those portions in favor of the plaintiff for P860 plus the expenses he had incurred in the execution of the deed of sale amounting to P50, but that he was unwilling to accept P150, which was all the plaintiff offered him besides his expenses. On April 4, 1944, Maria and Aquilina Hernandez's answer in intervention was filed. The intervenors alleged that there had been a partition among them and their brother and sisters "with the share of each delineated and marked, and after partition and delineation everyone took exclusive, separate and independent possession of his portion in the partition." They charged the plaintiff with bad faith in that "it was upon her request for chance that the sale to the defendant, about to take place last November, was delayed till January of this year when she finally informed the intervenors that they could sell to the defendant, or she could pay only P150 and could not raise the amount of P860 offered by the defendant." Cresencia Hernandez, the plaintiff, was the only witness to testify on her own behalf. Substantially she reiterated the allegations in her two complaints. Zacarias Andal, the defendant, also testified. He said that he was in possession of the land in question until he returned it to the intervenors. He declared that the plaintiff offered to repurchase the land from him long after he had bought it, that is, when she was about to file her action. He stated that after he came from Candelaria, Tayabas, with the document of sale he showed it to the plaintiff: that was on the 23rd of January. He was able to do this because he lived near Cresencia and passed by her house on his way home from Candelaria. He said that Cresencia Hernandez upon being shown the document merely exclaimed, "Oh, so you already have a document." When asked whether the land "described in the complaint of the herein plaintiff has been the object of partition among the co-owners Pedro, Basilia, Cresencia, Maria and Aquilina surnamed Hernandez," counsel for the plaintiff objected on the ground that the best evidence was the document of partition, and the objection was sustained. The same objection and the same ruling were

20

made on the same ground when the witness was queried how it was that the land he had bought from Maria and Aquilina Hernandez had been specified in the deed of sale, Exhibit A. In consequence of this ruling, counsel for the defendant and intervenors did not call any more witnesses but only announced that he had witnesses ready to prove that a parol partition among the five brother and sisters had been made, mentioning the names of six such witnesses. Counsel for the plaintiff again objected asserting that "under the Rules of Court agreement affecting real estate may not be proved except by means of writing subscribed by the person against whom the proof is offered. "Upon this objection, the court ruled that under Rules 74 and 123 of the Rules of Court (Statute of Frauds) as well as under article 1248 of the Civil Code, parol evidence of partition was inadmissible, adding that to decide the case it had enough with the testimony and evidence offered by the parties. Thereafter the court handed down its decision declaring that the resale of the land by Zacarias Andal in favor of Maria and Aquilina Hernandez was illegal and in bad faith. It, however, did not seem to have found as a fact the allegation that the resale was simulated. The court then made this judgment: (a) declarando y sin valor alguno el documento de reventaotorgado por el demandado Zacarias Andal en 26 de marzo de 1944, a favor de Maria y Aquilina Hernandez sobre el terrenocuestionado que se presento como Exhibito 2 de dichodemandado, y consiguientemente se anulan tambien todas lastransacciones posteriores que las mencionadas Maria y Aquilina Hernandez hayan hecho sobre el terreno cuestionado despuesdel 26 de marzo de 1944, asi como tambien cualquiera anotacionen la Oficiana del Registrador de Titulos de Batangas que hayaanotado dicha reventa por el demandado Zacarias Andal a favorde las terceristas Maria y Aquilina Hernandez en el citado dia 26 de marzo de 1944; y (b) se ordena al aqui demandado Zacarias Andal, que otorgue unaescritura de reventa a favor de la aqui demandante Cresencia Hernandez, de las participaciones de las terceristas en el terrenodescrito en la demanda suplementaria previo pago de P860 mas lacantidad de P50 como gastos de documentacion. Se absuelve al demandado de los daños y perjuicios que reclama la demandante. Se absuelve tambien a la demandante de la contra-demanda de lasterceristas. Sin especial pronunciamento en cuanto a las costas. The defendant and the intervenors are appealing from the foregoing decision and in their joint brief made one assignment of error: The lower court erred in refusing to admit oral evidence for proving a contract of partition among the heirs on the ground that it was not admissible. Before proceeding with a discussion of the questions raised we are tempted to point up some seeming incongruities in the above-quoted judgment. Although Zacarias Andal is no longer interested in the case, as far as the land is concerned, and even though the intervenors have become again the absolute owners and are now in full possession of the property, while Andal has already gotten his money back, the judgment would have Andal execute a deed of resale in favor of the plaintiff and received from her the price of repurchase. The judgment is silent as to the intervenors with reference to the execution of the deed of sale or the receipt of the sale price. And the lower court made no finding and expressed no opinion as to whether the offer of P150 instead of P860, not to mention Andal's expenses, by the plaintiff as price of repurchase was sufficient compliance with article 1067 of the Civil Code on which the court rested the plaintiff's cause of action. However, in this decision we are concerned mainly with the application of section 21 of Rule 123 and section 1 of Rule 74 both of the Rules of Court. Article 1248 of the Civil Code has no bearing on the case. There is a conflict of authority as to whether an agreement of partition is such a contract as is required to be in writing under the statute of frauds. One line of authorities holds the affirmative view; other authorities say no. The reason for the rule that excludes partition from the operation of the statute of frauds is that partition is not a conveyance but simply a separation and designation of that part of the land which belongs to each tenant in common. (27 C.J., 206.) The differences in the conclusions reached are "due perhaps to varied phraseology of the statutes" in the several states. (40 Amer. Jur., 15.) However the case may be, as enacted in the Philippines, first in section 335 of the former Code of Civil Procedure, and now in Rule 123, section 21, of the Rules of Court, the law has been uniformly interpreted in a long line of cases to be applicable to executory and not to completed or executed contracts. (27 C.J., 206.) In this jurisdiction performance of the contract takes it out of the operation of the statute. (Gomez vs. Salcedo, 26 Phil., 485; Almirol and Cariño vs. Monserrat, 48 Phil., 67.) The statute of frauds does not declare the contracts therein enumerated void and of no legal effect, but only makes ineffective the action for specific performance. (Almirol and Cariño vs. Monserrat, supra.) In the United States, even in those states where the affirmative view of the question has been followed, "the weight of authority upholds the rule that an oral partition is effective when several possession is taken under it by the respective parties to the agreement." (27 C.J., 206.) On general principle, independent and in spite of the statute of frauds, courts of equity have enforced oral partition when it has been completely or partly performed. Regardless of whether a parol partition or agreement to partition is valid and enforceable at law, equity will in proper cases, where the parol partition has actually been consummated by the taking of possession in severalty and the exercise of ownership by the parties of the respective portions set off to each, recognize and enforce such parol partition and the rights of the parties thereunder. Thus, it has been held or stated in a number of cases involving an oral partition under which the parties went into possession, exercised acts of ownership, or otherwise partly performed the partition agreement, that equity will confirm such partition and in a proper case decree title in accordance with the possession in severalty.

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In numerous cases it has been held or stated that parol partitions may be sustained on the ground of estoppel of the parties to assert the rights of a tenant in common as to parts of the land divided by parol partition as to which possession in severalty was taken and acts of individual ownership were exercised. And a court of equity will recognize the agreement and decree it to be valid and effectual for the purpose of concluding the right of the parties as between each other to hold their respective parts in severalty. A parol partition may also be sustained on the ground that the parties thereto have acquiesced in and ratified the partition by taking possession in severalty, exercising acts of ownership with respect thereto, or otherwise recognizing the existence of the partition. A number of cases have specifically applied the doctrine of part performance, or have stated that a part performance is necessary, to take a parol partition out of the operation of the statute of frauds. It has been held that where there was a partition in fact between tenants in common, and a part performance, a court of equity would have regard to and enforce such partition agreed to by the parties. (40 Amer. Jur., 15-18.) It is on the effects of Rule 74, section 1, of the Rules of Court on a parol partition that there are sharp divergences of opinion among the members of this Court. This section reads: If the decedent left no debts and the heirs and legatees are all of age, or the minors are represented by their judicial guardians, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument file in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition. If there is only one heir or one legatee, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds. It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two years after the death of the decedent. It is contended that under this rule a verbal partition is entirely void and cannot be validated by any acts of the parties short of the execution of a public document and its registration. As a general proposition, transactions, so far as they affect the parties, are required to be reduced to writing either as a condition of jural validity or as a means of providing evidence to prove the transactions. Written form exacted by the statute of frauds, for example, "is for evidential purposes only." (Domalagan vs. Bolifer, 33 Phil., 471.) The decisions of this Court which we have noticed were predicated on this assumption. The Civil Code, too, requires the accomplishment of acts or contracts in a public instrument, not in order to validate the act or contract but only to insure its efficacy so that after the existence of the acts or contracts has been admitted, the party bound may be compelled to execute the document. (Hawaiian Philippine Co. vs .Hernaez, 45 Phil., 746.) Is section 1 of Rule 74 constitutive and not merely evidential of partition? In other words, is writing the act that confers legal validity upon the agreement? There are no indications in the phraseology of this rule which justify an affirmative answer to these questions. It must be noted that where the law intends a writing or other formality to be the essential requisite to the validity of the transactions it says so in clear and unequivocal terms. Thus, the statute of frauds as originally enacted in England and as enacted in some of the states, uses the words "utterly void" with statute transactions required to be in writing are absolutely void and not merely voidable if not made in the manner indicated. Again article 633 of the Civil Code says that donation may be valid only when made in a public document. Article 146 of the Mortgage Law makes known its intention to have the execution of a public instrument and its registration in the registry indispensable to the validity of the contract by using this phrase: "in order that voluntary mortgages may be legally created in a valid manner." Article 1765 of the Civil Code also employs for the same purpose similar expression with reference to the execution of a public document: "in order that mortgage may be validly constituted." And with respect to the formalities of last wills and testaments, section 618 of Act No. 190 makes this emphatic statement: "No will shall be valid to pass upon any estate real or personal nor change or affect the same, unless it be written etc." Other examples might be mentioned. Section 1 of Rule 74 contains no such express or clear declaration that the required public instruments is to be constitutive of a contract of partition or an inherent element of its effectiveness as between the parties. And this Court had no apparent reason, in adopting this rule, to make the efficacy of a partition as between the parties dependent on the execution of a public instrument and its registration. On the other hand, the opposite theory is not without reasonable support. We can think of possible factors against the proposition that a public document and its registration were contemplated as necessary ingredients to give life to a contract of partition so that without them no oral partition can bind the parties. 1. In the first place, the Rules of Court of which the rule under consideration forms a part were promulgated by the Judicial Department under authority to deal with matters of procedure exclusively. For this court to prescribe what is to be a binding agreement between co-heirs in the settlement of their private affairs which in no way affect the rights of third parties would be to transcends its rule-making power. We bring out this limitation upon the authority of this court to make rules, as an aid to interpretation, as a method of arriving at the conclusion that section 1 of Rule 74 was meant to be remedial and not a rule of substantive law of far-reaching importance and serious juridical and practical implications. It is to be presumed that the framers of the Rules of Court realized the bounds of this court's functions and did not intend to trespass on purely substantive rights of the parties to the partition. To the extent the execution and registration of a notarized instrument are made essential elements to validity to protect innocent third parties, the rule is legitimate and necessary; legitimate because decedent's estate are placed under the jurisdiction of the courts to administer and distribute. The interests of third parties eliminated, the rule loses its character as one of procedure and practice and invades the realm of substantive law. Section 596 of Act No. 190, which is the precursor of section 1 Rule 74, is enlightening and instructive. The former after stating that heirs may apportion and divide the estate among themselves as they may see fit by agreement duly executed in writing by all of them, adds the words "and not otherwise." These words, in our opinion, were expressive of an intention to make the written formality inherent element of the validity of a parol partition. But what is far more to the point is that by logical process of deduction the elimination from the new rule of the words "and not otherwise" imports the casting

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away from the prescribed public document of its jural character which the document enjoyed in the former code. At the same time, the inclusion of the aforesaid words in the old provision serves to emphasize the necessity of a positive and clear language if a given contractual formality is to be the exclusive basis of the contract's binding effect on the parties. It is of course unnecessary to say that the attaching of jural character to the prescribed public instrument in section 596 of Act No. 190 is no argument for contending that such document must be clothed with the same raiment in the new Rules. Act No. 190 was a mixture of procedural and substantive provisions, having been enacted by the legislative body itself which, unlike this court, was unhampered and untrammelled, except by the fundamental law, in the choice of its subjects of legislation. 2. The civil law looks upon the role of public instruments in acts and contracts with greater liberality with a view to better adaptation to human frailties and idiosyncracies. In their blind faith in friends and relatives, in their lack of experience and foresight, and their ignorance, men, in spite of laws, will make and continue to make verbal contracts. The advantages of an air-tight policy concerning such contracts fall far short of compensating for the resulting damage, injustice, inconveniences and confusion. So even though articles 1278, 1279 and 1280 of the Civil Code have made provisions for public instrument for all transactions and contracts whose object is the creation, modification or extinction of real rights in immovables, it has been recognized and held that verbal contracts may be effective between the parties. A leading case on this subject is Thunga Chui vs. Que Bentec (2 Phil., 561), Mr. Justice Williard writing the decision. It was said in that case that when the essential requisites for the existence of a contract are present, the contract is binding upon the parties, and, although required to be in writing by article 1280 of the Civil Code, the plaintiff can maintain an action under article 1279 to compel the execution of a written instrument. It says that "article 1279 does not impose an obligation, but confers a privilege upon both contracting parties, and the fact that the plaintiff has not made use of same does not bar his action." It further says that article 1279, far from making the enforceability of the contract dependent upon any special intrinsic form, recognizes its enforceability by the mere act of granting the contracting parties an adequate remedy whereby to compel the execution of public writing or any other special form whenever such form is necessary in order that contract may produce the effect which is desired according to whatever its object. This doctrine was iterated and reiterated in a series of decisions perhaps longer than that on any other legal topic. And it has been extended even to verbal contracts involving land registered under the Torrens Act. Do the Rules of Court adhere to this salutary principle? We can perceive no sufficient ground for the new Rules to depart from it. No considerations of public policy enter into a partition of hereditary estate among co-heirs greater than those involved in a contract between strangers which operates to create, transmit, modify or extinguish property rights in land. If as between strangers the creation, transmission, modification or extinction of real rights may be lawfully effected by parol agreement notwithstanding the requirement that it be put in writing, the new rule could not be more intransigent when the transaction is between co-heirs and there is no change of ownership but simply designation and segregation of that part which belongs to each heir. The requirement that a partition be put in a public document and registered has, in our opinion, for its purpose the protection of creditors and at the same time the protection of the heirs themselves against tardy claims. Note that the last sentence of the section speaks of debts and creditors. The object of registration is to serve as constructive notice, and this means notice to others. It must follow that the intrinsic validity of partition not executed with the prescribed formalities does not come into play when, as in this case, there are no creditors or the rights of creditors are not affected. No rights of creditors being involved, it is competent for the heirs of an estate to enter into an agreement for distribution in a manner and upon a plan different from those provided by law. It is said that the findings, conclusions and judgment in the appealed decision are not assigned as errors and that for this reason the appeal should be dismissed. We do not think that the premise of this objection is exactly correct. The evidence on parol partition tendered by the defendant and intervenors was ruled out and they specifically complain of this exclusion as error. In this manner the assignment of error squarely meets and attacks the opinion and judgment of the trial court. A superficial analysis of the case will show that on the validity of the alleged partition hangs the result of the entire litigation, and on that validity depends in turn the competence of the excluded evidence. These two interrelated points are the core of the whole case. All other points are incidental to and revolve around them. If a completed oral partition may be enforced, as the defendant and the intervenors contend and as we opine, their evidence should be allowed, and if allowed and it establishes their allegation, the plaintiff's cause of action vanishes. If the appellant's assignment of error be not considered a direct challenge to the decision of the court below, we still believe that the objection takes a narrow view of practice and procedure contrary to the liberal spirit which pervades the Rules of Court. The first injunction of the new Rules (Rule 1, section 2) is that they "shall be liberally construed in order to promote their object and to assist the parties in obtaining just, speedy, and inexpensive determination of every action and proceeding." In line with the modern trends of procedure, we are told that, "while an assignment of error which is required by law or rule of court has been held essential to appellate review, and only those assigned will be considered, there are a number of cases which appear to accord to the appellate court a broad discretionary power to waive the lack of proper assignment of errors and consider errors not assigned. And an unassigned error closely related to an error properly assigned, or upon which the determination of the question raised by the error properly assigned is dependent, will be considered by the appellate court notwithstanding the failure to assign it as error." (4 C.J.S., 1734; 3 C.J., 1341, footnote 77.) At the least, the assignment of error, viewed in this light, authorizes us to examine and pass upon the decision of the court below. The judgment is reversed and the case is remanded to the court of origin for further proceeding and a new decision not incompatible with this decision, with costs of this appeal against the appellee. Moran, C.J., Pablo, Hilado, Bengzon, Briones, Hontiveros, and Padilla, JJ., concur.

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G.R. No. L-32636

March 17, 1930

In the matter Estate of Edward Randolph Hix, deceased. A.W. FLUEMER, petitioner-appellant, vs. ANNIE COUSHING HIX, oppositor-appellee. C.A. Sobral for appellant. Harvey & O' Brien and Gibbs & McDonough for appellee. MALCOLM, J.: The special administrator of the estate of Edward Randolph Hix appeals from a decision of Judge of First Instance Tuason denying the probate of the document alleged to by the last will and testament of the deceased. Appellee is not authorized to carry on this appeal. We think, however, that the appellant, who appears to have been the moving party in these proceedings, was a "person interested in the allowance or disallowance of a will by a Court of First Instance," and so should be permitted to appeal to the Supreme Court from the disallowance of the will (Code of Civil Procedure, sec. 781, as amended; Villanueva vs. De Leon [1925], 42 Phil., 780). It is theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on November 3, 1925, by Hix who had his residence in that jurisdiction, and that the laws of West Verginia Code, Annotated, by Hogg, Charles E., vol. 2, 1914, p. 1690, and as certified to by the Director of the National Library. But this was far from a compliance with the law. The laws of a foreign jurisdiction do not prove themselves in our courts. the courts of the Philippine Islands are not authorized to take American Union. Such laws must be proved as facts. (In re Estate of Johnson [1918], 39 Phil., 156.) Here the requirements of the law were not met. There was no was printed or published under the authority of the State of West Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was the extract from the law attested by the certificate of the officer having charge of the original, under the sale of the State of West Virginia, as provided in section 301 of the Code of Civil Procedure. No evidence was introduced to show that the extract from the laws of West Virginia was in force at the time the alleged will was executed. In addition, the due execution of the will was not established. The only evidence on this point is to be found in the testimony of the petitioner. Aside from this, there was nothing to indicate that the will was acknowledged by the testator in the presence of two competent witnesses, of that these witnesses subscribed the will in the presence of the testator and of each other as the law of West Virginia seems to require. On the supposition that the witnesses to the will reside without the Philippine Islands, it would then the duty of the petitioner to prove execution by some other means (Code of Civil Procedure, sec. 633.)

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It was also necessary for the petitioner to prove that the testator had his domicile in West Virginia and not establish this fact consisted of the recitals in the CATHY will and the testimony of the petitioner. Also in beginning administration proceedings orginally in the Philippine Islands, the petitioner violated his own theory by attempting to have the principal administration in the Philippine Islands. While the appeal pending submission in this court, the attorney for the appellant presented an unverified petition asking the court to accept as part of the evidence the documents attached to the petition. One of these documents discloses that a paper writing purporting to be the was presented for probate on June 8, 1929, to the clerk of Randolph Country, State of West Virginia, in vacation, and was duly proven by the oaths of Dana Wamsley and Joseph L. MAdden, the subscribing witnesses thereto , and ordered to be recorded and filed. It was shown by another document that, in vacation, on June 8, 1929, the clerk of court of Randolph Country, West Virginia, appointed Claude W. Maxwell as administrator, cum testamento annexo, of the estate of Edward Randolph Hix, deceased. In this connection, it is to be noted that the application for the probate of the will in the Philippines was filed on February 20, 1929, while the proceedings in West Virginia appear to have been initiated on June 8, 1929. These facts are strongly indicative of an intention to make the Philippines the principal administration and West Virginia the ancillary administration. However this may be, no attempt has been made to comply with Civil Procedure, for no hearing on the question of the allowance of a will said to have been proved and allowed in West Virginia has been requested. There is no showing that the deceased left any property at any place other than the Philippine Islands and no contention that he left any in West Virginia. Reference has been made by the parties to a divorce purported to have been awarded Edward Randolph Hix from Annie Cousins Hix on October 8, 1925, in the State of West specific pronouncements on the validity or validity of this alleged divorce. For all of the foregoing, the judgment appealed from will be affirmed, with the costs of this instance against the appellant. Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur. G.R. No. L-39247 June 27, 1975 In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX BALANAY, JR., petitioner, vs. HON. ANTONIO M. MARTINEZ, Judge of the Court of First Instance of Davao, Branch VI; AVELINA B. ANTONIO and DELIA B. LANABAN, respondents. Roberto M. Sarenas for petitioner. Jose B. Guyo for private respondents.

AQUINO, J.: Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance of Davao dated February 28, 1974, declaring illegal and void the will of his mother, Leodegaria Julian, converting the testate proceeding into an intestate proceeding and ordering the issuance of the corresponding notice to creditors (Special Case No. 1808). The antecedents of the appeal are as follows: Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 in Davao City at the age of sixty-seven. She was survived by her husband, Felix Balanay, Sr., and by their six legitimate children named Felix Balanay, Jr., Avelina B. Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B. Lanaban and Emilia B. Pabaonon. Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for the probate of his mother's notarial will dated September 5, 1970 which is written in English. In that will Leodegaria Julian declared (a) that she was the owner of the "southern half of nine conjugal lots (par. II); (b) that she was the absolute owner of two parcels of land which she inherited from her father (par. III), and (c) that it was her desire that her properties should not be divided among her heirs during her husband's lifetime and that their legitimes should be satisfied out of the fruits of her properties (Par. IV). Then, in paragraph V of the will she stated that after her husband's death (he was eighty-two years old in 1973) her paraphernal lands and all the conjugal lands (which she described as "my properties") should be divided and distributed in the manner set forth in that part of her will. She devised and partitioned the conjugal lands as if they were all owned by her. She disposed of in the will her husband's one half share of the conjugal assets. * Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the grounds of lack of testamentary capacity, undue influence, preterition of the husband and alleged improper partition of the conjugal estate. The oppositors claimed that Felix Balanay, Jr. should collate certain properties which he had received from the testatrix. Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of Felix Balanay, Sr. dated April 18, 1973 wherein he withdrew his opposition to the probate of the will and affirmed that he was interested in its probate. On the same date Felix Balanay, Sr. signed an instrument captioned "Conformation (sic) of Division and Renunciation of Hereditary Rights" wherein he manifested that out of respect for his wife's will he "waived and

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renounced' his hereditary rights in her estate in favor of their six children. In that same instrument he confirmed the agreement, which he and his wife had perfected before her death, that their conjugal properties would be partitioned in the manner indicated in her will. Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and "conformation" of Felix Balanay, Sr. were void. The lower court in its order of June 18, 1973 "denied" the opposition and reset for hearing the probate of the will. It gave effect to the affidavit and conformity of Felix Balanay, Sr. In an order dated August 28, 1973 it appointed its branch clerk of court as special administrator of the decedent's estate. Mrs. Antonio moved for the reconsideration of the lower court's order of June 18, 1973 on the grounds (a) that the testatrix illegally claimed that she was the owner of the southern half of the conjugal lots and (b) that she could not partition the conjugal estate by allocating portions of the nine lots to her children. Felix Balanay, Jr., through his counsel, Hermenegildo Cabreros, opposed that motion. The lower court denied it in its order of October 15, 1973. In the meanwhile, another lawyer appeared in the case. David O. Montaña, Sr., claiming to be the lawyer of petitioner Felix Balanay, Jr. (his counsel of record was Atty. Cabreros), filed a motion dated September 25, 1973 for "leave of court to withdraw probate of alleged will of Leodegaria Julian and requesting authority to proceed by intestate estate proceeding." In that motion Montaña claimed to be the lawyer not only of the petitioner but also of Felix Balanay, Sr., Beatriz B. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon. Montaña in his motion assailed the provision of the will which partitioned the conjugal assets or allegedly effected a compromise of future legitimes. He prayed that the probate of the will be withdrawn and that the proceeding be converted into an intestate proceeding. In another motion of the same date he asked that the corresponding notice to creditors be issued. Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their comments dated October 15, 1973 manifested their conformity with the motion for the issuance of a notice to creditors. They prayed that the will be declared void for being contrary to law and that an intestacy be declared. The lower court, acting on the motions of Atty. Montaña, assumed that the issuance of a notice to creditors was in order since the parties had agreed on that point. It adopted the view of Attys. Montaña and Guyo that the will was void. So, in its order of February 28, 1974 it dismissed the petition for the probate, converted the testate proceeding into an intestate proceeding, ordered the issuance of a notice to creditors and set the intestate proceeding for hearing on April 1 and 2, 1974. The lower court did not abrogate its prior orders of June 18 and October 15, 1973. The notice to creditors was issued on April 1, 1974 and published on May 2, 9 and 16 in the Davao Star in spite of petitioner's motion of April 17, 1974 that its publication be held in abeyance. Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion dated April 15, 1974, asked for the reconsideration of the lower court's order of February 28, 1974 on the ground that Atty. Montaña had no authority to withdraw the petition for the allowance of the will. Attached to the motion was a copy of a letter dated March 27, 1974 addressed to Atty. Montaña and signed by Felix Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon, wherein they terminated Montaña's services and informed him that his withdrawal of the petition for the probate of the will was without their consent and was contrary to their repeated reminder to him that their mother's will was "very sacred" to them. Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration. The lower court denied the motion in its order of June 29, 1974. It clarified that it declared the will void on the basis of its own independent assessment of its provisions and not because of Atty. Montaña's arguments. The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will, before ruling on its allowance or formal validity, and in declaring it void. We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality, and because of the motion to withdraw the petition for probate (which the lower court assumed to have been filed with the petitioner's authorization), the trial court acted correctly in passing upon the will's intrinsic validity even before its formal validity had been established. The probate of a will might become an idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue (Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho vs. Udan, L-19996, April 30, 1965, 13 SCRA 693).1äwphï1.ñët But the probate court erred in declaring, in its order of February 28, 1974 that the will was void and in converting the testate proceeding into an intestate proceeding notwithstanding the fact that in its order of June 18, 1973 , it gave effect to the surviving husband's conformity to the will and to his renunciation of his hereditary rights which presumably included his one-half share of the conjugal estate. The rule is that "the invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made" (Art. 792, Civil Code). "Where some of the provisions of a will are valid and others invalid, the valid parts will be upheld if they can be separated from the invalid without defeating the intention of the testator or interfering with the general testamentary scheme, or doing injustice to the beneficiaries" (95 C.J.S. 873). The statement of the testatrix that she owned the "southern half of the conjugal lands is contrary to law because, although she was a coowner thereof, her share was inchoate and proindiviso (Art. 143, Civil Code; Madrigal and Paterno vs. Rafferty and Concepcion, 38 Phil. 414). But That illegal declaration does not nullify the entire will. It may be disregarded. The provision of the will that the properties of the testatrix should not be divided among her heirs during her husband's lifetime but should be kept intact and that the legitimes should be paid in cash is contrary to article 1080 of the Civil Code which reads:

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ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs. A parent who, in the interest of his or her family, to keep any agricultural, industrial, or manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned be paid in cash. (1056a) The testatrix in her will made a partition of the entire conjugal estate among her six children (her husband had renounced his hereditary rights and his one-half conjugal share). She did not assign the whole estate to one or more children as envisaged in article 1080. Hence, she had no right to require that the legitimes be paid in cash. On the other hand, her estate may remain undivided only for a period of twenty years. So, the provision that the estate should not be divided during her husband's lifetime would at most be effective only for twenty years from the date of her death unless there are compelling reasons for terminating the coownership (Art. 1083, Civil Code). Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the conjugal partnership (Arts. 179[1] and 1041, Civil Code) but insofar as said renunciation partakes of a donation of his hereditary rights and his one-half share in the conjugal estate (Art. 1060[1] Civil Code), it should be subject to the limitations prescribed in articles 750 and 752 of the Civil Code. A portion of the estate should be adjudicated to the widower for his support and maintenance. Or at least his legitime should be respected. Subject to the foregoing observations and the rules on collation, the will is intrinsically valid and the partition therein may be given effect if it does not prejudice the creditors and impair the legitimes. The distribution and partition would become effective upon the death of Felix Balanay, Sr. In the meantime, the net income should be equitably divided among the children and the surviving spouse. It should be stressed that by reason of the surviving husband's conformity to his wife's will and his renunciation of his hereditary rights, his one-half conjugal share became a part of his deceased wife's estate. His conformity had the effect of validating the partition made in paragraph V of the will without prejudice, of course, to the rights of the creditors and the legitimes of the compulsory heirs. Article 793 of the Civil Code provides that "property acquired after the making of a will shall only pass thereby, as if the testator had it at the time of making the will, should it expressly appear by the will that such was his intention". Under article 930 of the Civil Code "the legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect." In the instant case there is no doubt that the testatrix and her husband intended to partition the conjugal estate in the manner set forth in paragraph V of her will. It is true that she could dispose of by will only her half of the conjugal estate (Art. 170, Civil Code) but since the husband, after the dissolution of the conjugal partnership, had assented to her testamentary partition of the conjugal estate, such partition has become valid, assuming that the will may be probated. The instant case is different from the Nuguid case, supra, where the testatrix instituted as heir her sister and preterited her parents. Her will was intrinsically void because it preterited her compulsory heirs in the direct line. Article 854 of the Civil Code provides that "the preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies, shall be valid insofar as they are not inofficious." Since the preterition of the parents annulled the institution of the sister of the testatrix and there were no legacies and devises, total intestacy resulted (.Art. 960[2], Civil Code).1äwphï1.ñët In the instant case, the preterited heir was the surviving spouse. His preterition did not produce intestacy. Moreover, he signified his conformity to his wife's will and renounced his hereditary rights. . It results that the lower court erred in not proceeding with the probate of the will as contemplated in its uncancelled order of June 18, 1973. Save in an extreme case where the will on its face is intrinsically void, it is the probate court's duty to pass first upon the formal validity of the will. Generally, the probate of the will is mandatory (Art. 838, Civil Code; Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Fernandez vs. Dimagiba, L-23638, October 12, 1967, 21 SCRA 428). As aptly stated by Mr. Justice Barredo, "the very existence of a purported testament is in itself prima facie proof that the supposed testator has willed that his estate should be distributed in the manner therein provided, and it is incumbent upon the state that, if legally tenable, such desire be given effect independent of the attitude of the parties affected thereby" (Resolution, Vda. de Precilla vs. Narciso, L-27200, August 18, 1972, 46 SCRA 538, 565). To give effect to the intention and wishes of the testatrix is the first and principal law in the matter of testaments (Dizon-Rivera vs. Dizon, L-24561, June 30, 1970, 33 SCRA 554, 561). Testacy is preferable to intestacy. An interpretation that will render a testamentary disposition operative takes precedence over a construction that will nullify a provision of the will (Arts. 788 and 791, Civil Code). Testacy is favored. Doubts are resolved in favor of testacy especially where the will evinces an intention on the part of the testator to dispose of practically his whole estate. So compelling is the principle that intestacy should be avoided and that the wishes of the testator should prevail that sometimes the language of the will can be varied for the purpose of giving it effect (Austria vs. Reyes, L-23079, February 27, 1970, 31 SCRA 754, 762).

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As far as is legally possible, the expressed desire of the testator must be followed and the dispositions of the properties in his will should be upheld (Estorque vs. Estorque, L-19573, June 30, 1970, 33 SCRA 540, 546). The law has a tender regard for the wishes of the testator as expressed in his will because any disposition therein is better than that which the law can make (Castro vs. Bustos, L-25913, February 28, 1969, 27 SCRA 327, 341). Two other errors of the lower court may be noticed. It erred in issuing a notice to creditors although no executor or regular administrator has been appointed. The record reveals that it appointed a special administrator. A notice to creditors is not in order if only a special administrator has been appointed. Section 1, Rule 86 of the Rules of Court, in providing that "immediately after granting letters of testamentary or of administration, the court shall issue a notice requiring all persons having money claims against the decedent to file them in the office of the clerk of said court" clearly contemplates the appointment of an executor or regular administrator and not that of a special administrator. It is the executor or regular administrator who is supposed to oppose the claims against the estate and to pay such claims when duly allowed (See. 10, Rule 86 and sec. 1, Rule 88, Rules of Court). We also take this occasion to point out that the probate court's appointment of its branch clerk of court as special administrator (p. 30, Rollo) is not a salutary practice because it might engender the suspicion that the probate Judge and his clerk of court are in cahoots in milking the decedent's estate. Should the branch clerk of court commit any abuse or devastavit in the course of his administration, the probate Judge might find it difficult to hold him to a strict accountability. A court employee should devote his official time to his official duties and should not have as a sideline the administration of a decedent's estate. WHEREFORE, the lower court's orders of February 28, and June 29, 1974 are set aside and its order of June 18, 1973, setting for hearing the petition for probate, is affirmed. The lower court is directed to conduct further proceedings in Special Case No. 1808 in consonance with this opinion. Costs, against the private respondents. SO ORDERED. Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ., concur.

G.R. No. L-58509 December 7, 1982 IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA deceased, MARCELA RODELAS, petitioner-appellant, vs. AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor. Luciano A. Joson for petitioner-appellant. Cesar Paralejo for oppositor-appellee.

RELOVA, J.: This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section 3, Rule 50 of the Rules of Court. As found by the Court of Appeals: ... On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla on the following grounds:

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(1) Appellant was estopped from claiming that the deceased left a will by failing to produce the will within twenty days of the death of the testator as required by Rule 75, section 2 of the Rules of Court; (2) The alleged copy of the alleged holographic will did not contain a disposition of property after death and was not intended to take effect after death, and therefore it was not a will (3) The alleged hollographic will itself,and not an alleged copy thereof, must be produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil. 509; and (4 ) The deceased did not leave any will, holographic or otherwise, executed and attested as required by law. The appellees likewise moved for the consolidation of the case with another case Sp. Proc. No, 8275). Their motion was granted by the court in an order dated April 4, 1977. On November 13, 1978, following the consolidation of the cases, the appellees moved again to dismiss the petition for the probate of the will. They argued that: (1) The alleged holographic was not a last will but merely an instruction as to the management and improvement of the schools and colleges founded by decedent Ricardo B. Bonilla; and (2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills. Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of February 23, 1979. The appellees then filed a motion for reconsideration on the ground that the order was contrary to law and settled pronouncements and rulings of the Supreme Court, to which the appellant in turn filed an opposition. On July 23, 1979, the court set aside its order of February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B. Bonilla. The court said: ... It is our considered opinion that once the original copy of the holographic will is lost, a copy thereof cannot stand in lieu of the original. In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter of holographic wills the law, it is reasonable to suppose, regards the document itself as the material proof of authenticity of said wills. MOREOVER, this Court notes that the alleged holographic will was executed on January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14 years from the time of the execution of the will to the death of the decedent, the fact that the original of the will could not be located shows to our mind that the decedent had discarded before his death his allegedly missing Holographic Will. Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is contended that the dismissal of appellant's petition is contrary to law and well-settled jurisprudence. On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal does not involve question of fact and alleged that the trial court committed the following assigned errors: I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF; II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL; III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL. The only question here is whether a holographic will which was lost or cannot be found can be proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the court after its due execution has been proved. The probate may be uncontested or not. If uncontested, at least one Identifying witness is required and, if no witness is available, experts may be resorted to. If contested, at least three Identifying witnesses are required. However, if the holographic will has been lost or destroyed and no other copy is available, the will can not be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity."

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But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court. WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE. SO ORDERED. G.R. No. L-62952 October 9, 1985 SOFIA J. NEPOMUCENO, petitioner, vs. THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG, CARMELITA JUGO, respondents.

GUTIERREZ, JR., J.: This is a petition for certiorari to set aside that portion of the decision of the respondent Court of Appeals (now intermediate Appellate Court) dated June 3, 1982, as amended by the resolution dated August 10, 1982, declaring as null and void the devise in favor of the petitioner and the resolution dated December 28, 1982 denying petitioner's motion for reconsideration. Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly signed by him at the end of the Will on page three and on the left margin of pages 1, 2 and 4 thereof in the presence of Celestina Alejandro, Myrna C. Cortez, and Leandro Leano, who in turn, affixed their signatures below the attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the presence of the testator and of each other and the Notary Public. The Will was acknowledged before the Notary Public Romeo Escareal by the testator and his three attesting witnesses. In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his sole and only executor of his estate. It is clearly stated in the Will that the testator was legally married to a certain Rufina Gomez by whom he had two legitimate children, Oscar and Carmelita, but since 1952, he had been estranged from his lawfully wedded wife and had been living with petitioner as husband and wife. In fact, on December 5, 1952, the testator Martin Jugo and the petitioner herein, Sofia J. Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The testator devised to his forced heirs, namely, his legal wife Rufina Gomez and his children Oscar and Carmelita his entire estate and the free portion thereof to herein petitioner. The Will reads in part: Art. III. That I have the following legal heirs, namely: my aforementioned legal wife, Rufina Gomez, and our son, Oscar, and daughter Carmelita, both surnamed Jugo, whom I declare and admit to be legally and properly entitled to inherit from me; that while I have been estranged from my above-named wife for so many years, I cannot deny that I was legally married to her or that we have been separated up to the present for reasons and justifications known fully well by them: Art. IV. That since 1952, 1 have been living, as man and wife with one Sofia J. Nepomuceno, whom I declare and avow to be entitled to my love and affection, for all the things which she has done for me, now and in the past; that while Sofia J. Nepomuceno has with my full knowledge and consent, did comport and represent myself as her own husband, in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned previous marriage; On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament of the deceased Martin Jugo in the Court of First Instance of Rizal, Branch XXXIV, Caloocan City and asked for the issuance to her of letters testamentary. On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an opposition alleging inter alia that the execution of the Will was procured by undue and improper influence on the part of the petitioner; that at the time of the execution of the Will, the testator was already very sick and that petitioner having admitted her living in concubinage with the testator, she is wanting in integrity and thus, letters testamentary should not be issued to her. On January 6, 1976, the lower court denied the probate of the Will on the ground that as the testator admitted in his Will to cohabiting with the petitioner from December 1952 until his death on July 16, 1974, the Will's admission to probate will be an Idle exercise because on the face of the Will, the invalidity of its intrinsic provisions is evident. The petitioner appealed to the respondent-appellate court.

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On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of Rizal denying the probate of the will. The respondent court declared the Will to be valid except that the devise in favor of the petitioner is null and void pursuant to Article 739 in relation with Article 1028 of the Civil Code of the Philippines. The dispositive portion of the decision reads: WHEREFORE, the decision a quo is hereby set aside, the will in question declared valid except the devise in favor of the appellant which is declared null and void. The properties so devised are instead passed on in intestacy to the appellant in equal shares, without pronouncement as to cost. On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction of Clerical Error" praying that the word "appellant" in the last sentence of the dispositive portion of the decision be changed to "appellees" so as to read: "The properties so devised are instead passed on intestacy to the appellees in equal shares, without pronouncement as to costs." The motion was granted by the respondent court on August 10, 1982. On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by the respondent court in a resolution dated December 28, 1982. The main issue raised by the petitioner is whether or not the respondent court acted in excess of its jurisdiction when after declaring the last Will and Testament of the deceased Martin Jugo validly drawn, it went on to pass upon the intrinsic validity of the testamentary provision in favor of herein petitioner. The petitioner submits that the validity of the testamentary provision in her favor cannot be passed upon and decided in the probate proceedings but in some other proceedings because the only purpose of the probate of a Will is to establish conclusively as against everyone that a Will was executed with the formalities required by law and that the testator has the mental capacity to execute the same. The petitioner further contends that even if the provisions of paragraph 1 of Article 739 of the Civil Code of the Philippines were applicable, the declaration of its nullity could only be made by the proper court in a separate action brought by the legal wife for the specific purpose of obtaining a declaration of the nullity of the testamentary provision in the Will in favor of the person with whom the testator was allegedly guilty of adultery or concubinage. The respondents on the other hand contend that the fact that the last Will and Testament itself expressly admits indubitably on its face the meretricious relationship between the testator and the petitioner and the fact that petitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil status of the testator, which led private respondents to present contrary evidence, merits the application of the doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et al. (G.R. No. L- 39247, June 27, 1975). Respondents also submit that the admission of the testator of the illicit relationship between him and the petitioner put in issue the legality of the devise. We agree with the respondents. The respondent court acted within its jurisdiction when after declaring the Will to be validly drawn, it went on to pass upon the intrinsic validity of the Will and declared the devise in favor of the petitioner null and void. The general rule is that in probate proceedings, the court's area of inquiry is limited to an examination and resolution of the extrinsic validity of the Will. The rule is expressed thus: xxx xxx xxx ... It is elementary that a probate decree finally and definitively settles all questions concerning capacity of the testator and the proper execution and witnessing of his last Will and testament, irrespective of whether its provisions are valid and enforceable or otherwise. (Fernandez v. Dimagiba, 21 SCRA 428) The petition below being for the probate of a Will, the court's area of inquiry is limited to the extrinsic validity thereof. The testators testamentary capacity and the compliance with the formal requisites or solemnities prescribed by law are the only questions presented for the resolution of the court. Any inquiry into the intrinsic validity or efficacy of the provisions of the will or the legality of any devise or legacy is premature. xxx xxx xxx True or not, the alleged sale is no ground for the dismissal of the petition for probate. Probate is one thing; the validity of the testamentary provisions is another. The first decides the execution of the document and the testamentary capacity of the testator; the second relates to descent and distribution (Sumilang v. Ramagosa, 21 SCRA 1369) xxx xxx xxx To establish conclusively as against everyone, and once for all, the facts that a will was executed with the formalities required by law and that the testator was in a condition to make a will, is the only purpose of the proceedings under the new code for the probate of a will. (Sec. 625). The judgment in such proceedings determines and can determine nothing more. In them the court has no power to pass upon the validity of any provisions made in the will. It can not decide, for example, that a certain legacy is void and another one valid. ... (Castaneda v. Alemany, 3 Phil. 426)

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The rule, however, is not inflexible and absolute. Given exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the Will. In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as universal heir and completely preterited her surviving forced heirs. A will of this nature, no matter how valid it may appear extrinsically, would be null and void. Separate or latter proceedings to determine the intrinsic validity of the testamentary provisions would be superfluous. Even before establishing the formal validity of the will, the Court in Balanay .Jr. v. Martinez (64 SCRA 452) passed upon the validity of its intrinsic provisions. Invoking "practical considerations", we stated: The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will, before ruling on its allowance or formal validity, and in declaring it void. We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality, and because of the motion to withdraw the petition for probate (which the lower court assumed to have been filed with the petitioner's authorization) the trial court acted correctly in passing upon the will's intrinsic validity even before its formal validity had been established. The probate of a will might become an Idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue (Nuguid v. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa L-23135, December 26, 1967, 21 SCRA 1369; Cacho v. Udan L-19996, April 30, 1965, 13 SCRA 693). There appears to be no more dispute at this time over the extrinsic validity of the Will. Both parties are agreed that the Will of Martin Jugo was executed with all the formalities required by law and that the testator had the mental capacity to execute his Will. The petitioner states that she completely agrees with the respondent court when in resolving the question of whether or not the probate court correctly denied the probate of Martin Jugo's last Will and Testament, it ruled: This being so, the will is declared validly drawn. (Page 4, Decision, Annex A of Petition.) On the other hand the respondents pray for the affirmance of the Court of Appeals' decision in toto. The only issue, therefore, is the jurisdiction of the respondent court to declare the testamentary provision in favor of the petitioner as null and void. We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra): We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation will be protracted. And for aught that appears in the record, in the record, in the event of probate or if the court rejects the will, probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. Result, waste of time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief that we might as well meet head-on the issue of the validity of the provisions of the will in question. (Section 2, Rule 1, Rules of Court. Case, et al. v. Jugo, et al., 77 Phil. 517, 522). After all, there exists a justiciable controversy crying for solution. We see no useful purpose that would be served if we remand the nullified provision to the proper court in a separate action for that purpose simply because, in the probate of a will, the court does not ordinarily look into the intrinsic validity of its provisions. Article 739 of the Civil Code provides: The following donations shall be void: (1) Those made between persons who were guilty of adultery or concubinage at the time of the donation; (2) Those made between persons found guilty of the same criminal offense, in consideration thereof; (3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office. In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the same action. Article 1028 of the Civil Code provides:

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The prohibitions mentioned in Article 739, concerning donations inter vivos shall apply to testamentary provisions. In Article III of the disputed Will, executed on August 15, 1968, or almost six years before the testator's death on July 16, 1974, Martin Jugo stated that respondent Rufina Gomez was his legal wife from whom he had been estranged "for so many years." He also declared that respondents Carmelita Jugo and Oscar Jugo were his legitimate children. In Article IV, he stated that he had been living as man and wife with the petitioner since 1952. Testator Jugo declared that the petitioner was entitled to his love and affection. He stated that Nepomuceno represented Jugo as her own husband but "in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned previous marriage. There is no question from the records about the fact of a prior existing marriage when Martin Jugo executed his Will. There is also no dispute that the petitioner and Mr. Jugo lived together in an ostensible marital relationship for 22 years until his death. It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted a marriage before the Justice of the Peace of Victoria, Tarlac. The man was then 51 years old while the woman was 48. Nepomuceno now contends that she acted in good faith for 22 years in the belief that she was legally married to the testator. The records do not sustain a finding of innocence or good faith. As argued by the private respondents: First. The last will and testament itself expressly admits indubitably on its face the meretricious relationship between the testator and petitioner, the devisee. Second. Petitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil status of the testator, which led private respondents to present contrary evidence. In short, the parties themselves dueled on the intrinsic validity of the legacy given in the will to petitioner by the deceased testator at the start of the proceedings. Whether or not petitioner knew that testator Martin Jugo, the man he had lived with as man and wife, as already married, was an important and specific issue brought by the parties before the trial court, and passed upon by the Court of Appeals. Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner who opted to present evidence on her alleged good faith in marrying the testator. (Testimony of Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 62-64). Private respondents, naturally, presented evidence that would refute the testimony of petitioner on the point. Sebastian Jugo, younger brother of the deceased testator, testified at length on the meretricious relationship of his brother and petitioner. (TSN of August 18,1975). Clearly, the good faith of petitioner was by option of the parties made a decisive issue right at the inception of the case. Confronted by the situation, the trial court had to make a ruling on the question. When the court a quo held that the testator Martin Jugo and petitioner 'were deemed guilty of adultery or concubinage', it was a finding that petitioner was not the innocent woman she pretended to be. xxx xxx xxx 3. If a review of the evidence must be made nonetheless, then private respondents respectfully offer the following analysis: FIRST: The secrecy of the marriage of petitioner with the deceased testator in a town in Tarlac where neither she nor the testator ever resided. If there was nothing to hide from, why the concealment' ? Of course, it maybe argued that the marriage of the deceased with private respondent Rufina Gomez was likewise done in secrecy. But it should be remembered that Rufina Gomez was already in the family way at that time and it would seem that the parents of Martin Jugo were not in favor of the marriage so much so that an action in court was brought concerning the marriage. (Testimony of Sebastian Jugo, TSN of August 18, 1975, pp. 29-30) SECOND: Petitioner was a sweetheart of the deceased testator when they were still both single. That would be in 1922 as Martin Jugo married respondent Rufina Gomez on November 29, 1923 (Exh. 3). Petitioner married the testator only on December 5, 1952. There was a space of about 30 years in between. During those 30 years, could it be believed that she did not even wonder why Martin Jugo did not marry her nor contact her anymore after November, 1923 - facts that should impel her to ask her groom before she married him in secrecy, especially so when she was already about 50 years old at the time of marriage.

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THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by itself conclusive demonstration that she new that the man she had openly lived for 22 years as man and wife was a married man with already two children. FOURTH: Having admitted that she knew the children of respondent Rufina Gomez, is it possible that she would not have asked Martin Jugo whether or not they were his illegitimate or legitimate children and by whom? That is un-Filipino. FIFTH: Having often gone to Pasig to the residence of the parents of the deceased testator, is it possible that she would not have known that the mother of private respondent Oscar Jugo and Carmelita Jugo was respondent Rufina Gomez, considering that the houses of the parents of Martin Jugo (where he had lived for many years) and that of respondent Rufina Gomez were just a few meters away? Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say the least, inherently improbable, for they are against the experience in common life and the ordinary instincts and promptings of human nature that a woman would not bother at all to ask the man she was going to marry whether or not he was already married to another, knowing that her groom had children. It would be a story that would strain human credulity to the limit if petitioner did not know that Martin Jugo was already a married man in view of the irrefutable fact that it was precisely his marriage to respondent Rufina Gomez that led petitioner to break off with the deceased during their younger years. Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between persons who are living in adultery or concubinage. It is the donation which becomes void. The giver cannot give even assuming that the recipient may receive. The very wordings of the Will invalidate the legacy because the testator admitted he was disposing the properties to a person with whom he had been living in concubinage. WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals, now Intermediate Appellate Court, is AFFIRMED. No costs. SO ORDERED.

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G.R. No. L-23002

July 31, 1967

CONCEPCION FELIX VDA. DE RODRIGUEZ, plaintiff-appellant, vs. GERONIMO RODRIGUEZ., ET AL., defendants-appellees. Ozaeta, Gibbs and Ozaeta for plaintiff-appellant. Sycip, Salazar, Luna and Associates and Carolina C. Griño-Aquino for defendants-appellees. REYES, J.B.L., J.: This is an appeal by Concepcion Felix Vda. de Rodriguez from the decision of the Court of First Instance of Bulacan in Civil Case No. 2565, which she commenced on May 28, 1962, to secure declaration, of nullity of two contracts executed on January 24, 1934 and for recovery of certain properties. The facts of this case may be briefly stated as follows:

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Concepcion Felix, widow of the late Don Felipe Calderon and with whom she had one living child, Concepcion Calderon, contracted a second marriage on June 20, 1929, with Domingo Rodriguez, widower with four children by a previous marriage, named Geronimo, Esmeragdo, Jose and Mauricio, all surnamed Rodriguez. There was no issue in this second marriage. Prior to her marriage to Rodriguez, Concepcion Felix was the registered owner of 2 fishponds located in the barrio of Babañgad, municipality of Bulacan, Bulacan province. with a total area of 557,711 square meters covered by OCT Nos. 605 and 807. Under date of January 24, 1934, Concepcion Felix appeared to have executed a deed of sale conveying ownership of the aforesaid properties to her daughter, Concepcion Calderon, for the sum of P2,500.00, which the latter in turn appeared to have transferred to her mother and stepfather by means of a document dated January 27, 1934. Both deeds, notarized by Notary Public Jose D. Mendoza, were registered in the office of the Register of Deeds of Bulacan on January 29, 1934, as a consequence of which, the original titles were cancelled and TCT Nos. 13815 and 13816 were issued in the names of the spouses Domingo Rodriguez and Concepcion Felix. On March 6, 1953, Domingo Rodriguez died intestate, survived by the widow, Concepcion Felix, his children Geronimo Esmeragdo and Mauricio and grandchildren Oscar, Juan and Ana, surnamed Rodriguez, children of a son, Jose, who had predeceased him. On March 16, 1953, the above-named widow, children and grandchildren of the deceased entered into an extra-judicial settlement of his (Domingo's) estate, consisting of one-half of the properties allegedly belonging to the conjugal partnership. Among the properties listed as conjugal were the two parcels of land in Bulacan, Bulacan, which, together with another piece of property, were divided among the heirs in this manner: WHEREAS, the parties have furthermore agreed that the fishpond covered by TCT Nos. 13815, 13816 and 24109 of the Office of the Register of Deeds of Bulacan, containing an area of 557,971 sq. m., which is likewise the conjugal property of the deceased and his surviving spouse; 1/2 of the same or 278,985.5 sq. m. belongs to said Concepcion Felix Vda. de Rodriguez, as her share in the conjugal property; and 3/4 of the remaining half or 209,239.125 sq. m. are transferred in full ownership to Geronimo Rodriguez, Esmeragdo Rodriguez and Mauricio Rodriguez, share and share alike, while the other 1/4 or 69,746.375 sq. m. of the said remaining half goes in equal shares to Oscar Rodriguez, Juan Rodriguez and Ana Rodriguez. As a result of this partition, TCT Nos. 13815 and 13816 were cancelled and TCT Nos. T-11431 and T-14432 were issued in the names of the said heirs of the deceased. On March 23, 1953, in a power of attorney executed by the children and grandchildren of Domingo Rodriguez, Concepcion Felix Vda. de Rodriguez was named their attorney in-fact, authorized to manage their shares in the fishponds (Exh. 4). On July 2, 1954, the heirs ended their co-ownership by executing a deed of partition, dividing and segregating their respective shares in the properties, pursuant to a consolidation and subdivision plan (PCS-3702), in accordance with which, Concepcion Felix Vda. de Rodriguez obtained TCT No. T-12910, for the portion pertaining to her (Exh. L), while TCT No. T-12911 was issued to the other heirs, for their shares. This latter title was subsequently replaced by TCT No. 16660 (Exh. M). On October 12, 1954, the Rodriguez children executed another document granting unto the widow lifetime usufruct over one-third of the fishpond which they received as hereditary share in the estate of Domingo Rodriguez, which grant was accepted by Concepcion Felix Vda. de Rodriguez. Then, in a contract dated December 15, 1961, the widow appeared to have leased from the Rodriguez children and grandchildren the fishpond (covered by TCT No. 16660) for a period of 5 years commencing August 16, 1962, for an annual rental of P7,161.37 (Exh. 5).1äwphï1.ñët At about this time, it seemed that the relationship between the widow and her stepchildren had turned for the worse. Thus, when she failed to deliver to them the balance of the earnings of the fishponds, in the amount of P3,000.00, her stepchildren endorsed the matter to their lawyer who, on May 16, 1962, sent a letter of demand to the widow for payment thereof. On, May 28, 1962, Concepcion Felix Vda. de Rodriguez filed the present action in the Court of First Instance of Manila naming as defendants, Geronimo Rodriguez, Esmeragdo Rodriguez, Oscar Rodriguez, Concepcion Bautista Vda. de Rodriguez, as guardian of the minors Juan and Ana Rodriguez, and Antonio Diaz de Rivera and Renato Diaz de Rivera, as guardians of the minors Maria Ana, Mercedes, Margarita, Mauricio, Jr. and Domingo (Children of Mauricio Rodriguez who had also died). The action to declare null and void the deeds of transfer of plaintiff's properties to the conjugal partnership was based on the alleged employment or exercise by plaintiff's deceased husband of force and pressure on her; that the conveyances of the properties — from plaintiff to her daughter and then to the conjugal partnership of plaintiff and her husband — are both without consideration; that plaintiff participated in the extrajudicial settlement of estate (of the deceased Domingo Rodriguez) and in other subsequent deeds or instruments involving the properties in dispute, on the false assumption that the said properties had become conjugal by reason of the execution of the deeds of transfer in 1934; that laboring under the same false assumption, plaintiff delivered to defendants, as income of the properties from 1956 to 1961, the total amount of P56,976.58. As alternative cause of action, she contended that she would claim for her share, as surviving widow, of 1/5 of the properties in controversy, should such properties be adjudged as belonging to the conjugal partnership. Thus, plaintiff prayed that the deeds of transfer mentioned in the complaint be declared fictitious and simulated; that the "Extrajudicial Settlement of Estate" be also declared null and void; that TCT No. 16660 of the Registry of Deeds of Bulacan be cancelled and another one be issued in the name of plaintiff, Concepcion Felix Vda. de Felix; that defendants be ordered to pay plaintiff the sum of P56,976.58, with legal interest thereon from the date of the filing of the complaint, and for appropriate relief in connection with her alternative cause of action.

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In their separate answers, defendants not only denied the material allegations of the complaint, but also set up as affirmative defenses lack of cause of action, prescription, estoppel and laches. As counterclaim, they asked for payment by the plaintiff of the unpaid balance of the earnings of the land up to August 15, 1962 in the sum of P3,000.00, for attorney's fees and expenses of litigation. On October 5, 1963, judgment was rendered for the defendants. In upholding the validity of the contracts, the court found that although the two documents, Exhibits A and B, were executed for the purpose of converting plaintiff's separate properties into conjugal assets of the marriage with Domingo Rodriguez, the consent of the parties thereto was voluntary, contrary to the allegations of plaintiff and her witness. The court also ruled that having taken part in the questioned transactions, plaintiff was not the proper party to plead lack of consideration to avoid the transfers; that contracts without consideration are not inexistent, but are only voidable, following the ruling in the case of Concepcion vs. Sta. Ana (87 Phil. 787); that there was ratification or confirmation by the plaintiff of the transfer of her property, by her execution (with the other heirs) of the extrajudicial settlement of estate; that being a voluntary party to the contracts, Exhibits A and B, plaintiff cannot recover the properties she gave thereunder. Plaintiff's alternative cause of action was also rejected on the ground that action for rescission of the deed of extrajudicial settlement should have been filed within 4 years from its execution (on March 16, 1953). From the decision of the Court of First Instance, plaintiff duly appealed to this Court, insisting that the conveyances in issue were obtained through duress, and were inexistent, being simulated and without consideration. We agree with the trial Court that the evidence is not convincing that the contracts of transfer from Concepcion Felix to her daughter, and from the latter to her mother and stepfather were executed through violence or intimidation. The charge is predicated solely upon the improbable and biased testimony of appellant's daughter, Concepcion C. Martelino, whom the trial court, refused to believe, considering that her version of violence and harassment was contradicted by Bartolome Gualberto who had lived with the Rodriguez spouses from 1917 to 1953, and by the improbability of Rodriguez threatening his stepdaughter in front of the Notary Public who ratified her signature. Furthermore, as pointed out by the appealed decision, the charge of duress should be treated with caution considering that Rodriguez had already died when the suit was brought, for duress, like fraud, is not to be lightly paid at the door of men already dead. (Cf. Prevost vs. Gratz, 6 Wheat. [U.S.] 481, 498; Sinco vs. Longa, 51 Phil. 507). What is more decisive is that duress being merely a vice or defect of consent, an action based upon it must be brought within four years after it has ceased;1 and the present action was instituted only in 1962, twenty eight (28) years after the intimidation is claimed to have occurred, and no less than nine (9) years after the supposed culprit died (1953). On top of it, appellant entered into a series of subsequent transactions with appellees that confirmed the contracts that she now tries to set aside. Therefore, this cause of action is clearly barred. Appellant's main stand in attacking the conveyances in question is that they are simulated or fictitious, and inexistent for lack of consideration. We shall examine each purported defect separately. The charge of simulation is untenable, for the characteristic of simulation is the fact that the apparent contract is not really desired or intended to produce legal effects or in way alter the juridical situation of the parties. Thus, where a person, in order to place his property beyond the reach of his creditors, simulates a transfer of it to another, he does not really intend to divest himself of his title and control of the property; hence, the deed of transfer is but a sham. But appellant contends that the sale by her to her daughter, and the subsequent sale by the latter to appellant and her husband, the late Domingo Rodriguez, were done for the purpose of converting the property from paraphernal to conjugal, thereby vesting a half interest in Rodriguez, and evading the prohibition against donations from one spouse to another during coverture (Civil Code of 1889, Art. 1334). If this is true, then the appellant and her daughter must have intended the two conveyance to be real and effective; for appellant could not intend to keep the ownership of the fishponds and at the same time vest half of them in her husband. The two contracts of sale then could not have been simulated, but were real and intended to be fully operative, being the means to achieve the result desired. Nor does the intention of the parties to circumvent by these contracts the law against donations between spouses make them simulated ones. Ferrara, in his classic book, "La Simulacion de los Negocios Juridicos" (Sp. trans, 1926), pp. 95, 105, clearly explains the difference between simulated transactions and transactions in fraudem legis: Otra figura que debe distinguirse de la simulacion es el fraus legis. Tambien aqui se da una gran confusion que persiste aun en la jurisprudencia, apegada tenazmente a antiguos errores. Se debe a Bahr el haber defendido con vigor la antitesis teorica que existe entre negocio fingido y negocio fraudulento y haber atacado la doctrina comun que hacia una mescolanza con los dos conceptos. Se confunde — dice (2) —, el negocio in fraudem legis con el negocio simulado; aunque la naturaleza de ambos sea totalmente diversa. El negocio fraudulento no es, en absolute, un negocio aparente. Es perfectamente serio: se quiere realmente. Es mas, se quiere tal como se ha realizado, con todas las consecuencias que correspondent a la forma juridica elegida. Muchas veces, estas consecuencias con incomodas para una u otra de las partes, aunque serian mucho mas incomodas las consecuencias que lievaria consigo el acto prohibido. xxx

xxx

xxx

El resultado de las precedentes investigaciones es el siguiente el negocio simulado quiere producir una apariencia; el negocio fraudulente, una realidad; los negocios simulados son ficticios, no queridos; los negocios in fraudem son serios, reales, y realizados en tal forma por las partes para consequir un resultado prohibido: la simulacion nunca es un medio para eludir la ley sino para ocultar su violation. La

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transgresion del contenido verbal e inmediato de la norma se encubre bajo el manto de un negocio licito, lo cual no altera el caracter del contra legem agere. Tan verdad es, que si se ha redactado una contra-escritura que documentary y declara la verdadera naturaleza del negocio realizado, no queda mas que aplicar pura y simplementela prohibicion. Tambien el fraude quiere perjudicar la ley, pero emplea para ello medios diversos y sigue distintos caminus. No oculta el acto exterior, sino que lo deja claro y visible, tratando de huir sesgadamente de la aplicacion de la ley merced a una artistica y sabia combinacion de varios medios juridicos no reprobados. Appellant invokes our decision in Vasquez vs. Porta, 98 Phil. 490, but to no purpose. The mortgage and foreclosure sale involved in that case were typical simulations merely apparent but not really intended to produce legal effects, as approved by the Court's finding that the alleged creditor and buyer at the foreclosure sale "Porta himself ostensibly acknowledged by his inertia in allowing the doctor (alleged mortgagor debtor) to exercise dominical power thereon without any protest on his part." (cas. cit., p. 495). Not only this, but the mortgagor's wife, when her husband died, "found among his papers Porta's cancellation of the mortgage in his favor and the draft of the complaint for foreclosure." Plainly, the precedent cited is here inapplicable. Were the two conveyances from appellant to her daughter and from the latter to the spouses Rodriguez void ab initio or inexistent for lack of consideration? We do not find them to be so. In the first transaction, the price of P2,500.00 is recited in the deed itself (Exh. A); in the second (Exh. B), the consideration set forth is P3,000.00. Now, Article 1274 of the Civil Code of 1889 (in force when the deeds were executed) provided that — In onerous contracts the cause is understood to be, for each contracting party, the prestation or promise of a thing or service by the other. (emphasis supplied.) Since in each conveyance the buyer became obligated to pay a definite price in money, such undertaking constituted in themselves actual causa or consideration for the conveyance of the fishponds. That the prices were not paid (assuming ad arguendo that Concepcion Martelino's testimony, to this effect is true) does not make the sales inexistent for want of causa. As ruled in Enriquez de la Cavada vs. Diaz, 37 Phil. 982, "the consideration (causa) need not pass from one (party) to the other at the time the contract is entered into x x x . The consideration need not be paid at the time of the promise. The one promise is a consideration for the other." What would invalidate the conveyances now under scrutiny is the fact that they were resorted to in order to circumvent the legal prohibition against donations between spouses contained in Article 1334, paragraph 1, of the Civil Code of 1889, then prevailing. That illegal purpose tainted the contracts, for as held by the Spanish Tribunal Supreme in its decision of 2 April 1941. ha de ser reputado ineficaz, por exigencias includibles del caracter social y moral del Derecho, todo contrato que persiga un fin ilicito o immoral, sea cualquiera el medio empleado por los contratantes para lograr esa finalidad, no justificada por un interes digno de ser socialmente protegido. The illicit purpose then becomes illegal causa within the terms of the old Civil Code, for as declared by the same Spanish Court in its decision of 14 December 1940 — toda vez que lo que caracteriza fundamentalmente la ilicitud de la causa es la lesion de un interos general juridica 6 moral. a ruling reiterated in the decision of 2 April 1941 when the Court ruled: El concepto de la causa ilicita, tal como la desenvuelve y aplica con gran amplitud y flexibilidad la doctrina moderna, permite cobijar, no solo las convenciones ilicitas por razon de su objeto o de su motivo ... sino tambien multiples convenciones que no encerrando en si ningun elemento de directa antijuricidad son ilicitas por el matiz immoral que reviste la operation en su conjunto x x x . Unfortunately for herein appellant, in contracts invalidated by illegal subject matter or illegal causa, Articles 1305 and 1306 of the Civil Code then in force apply rigorously the rule in pari delicto non oritur action, denying all recovery to the guilty parties inter se. And appellant is clearly as guilty as her husband in the attempt to evade the legal interdiction of Article 1334 of the Code, already cited. Wherefore, her present action to reivindicate the, conveyed properties was correctly repulsed by the Court below. Art. 1306. If the act which constitutes the illicit consideration is neither a crime nor a misdemeanor, the following rules shall be observed: 1. When both parties are guilty, neither of them can recover what he may have given by virtue of the contract, or enforce the performance of the undertaking of the other party; xxx

xxx

xxx

That Article 1306 applies to cases where the nullity arises from the illegality of the consideration or the purpose of the contract was expressly recognized by this Supreme Court in Gustilo vs. Maravilla, 48 Phil. 449-450.2

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Finally, it cannot be denied that plaintiff-appellant had knowledge of the nullity of the contract for the transfer of her properties in 1934, because she was even a party thereto. And yet, her present action was filed only on May 28, 1962 and after the breaking up of friendly relations between her and defendants-appellees. Appellant's inaction to enforce her right, for 28 years, cannot be justified by the lame excuse that she assumed that the transfer was valid. Knowledge of the effect of that transaction would have been obtained by the exercise of diligence. Ignorance which is the effect of inexcusable negligence, it has been said, is no excuse for laches. (Go Chi Gun, etc., et al. vs. Co Cho, et al., G.R. No. L-5208, Feb. 28, 1955). Even assuming for the sake of argument that appellant held her peace, during the lifetime of her husband, out of legitimate fear for her life, there is no justification for her future to bring the proper action after his death in 1953. Instead, she entered into a series of agreements with herein appellees, the children of her husband by a prior marriage, of partition, usufruct and lease of their share in the fishponds, transactions that necessarily assumed that Rodriguez had acquired onehalf of the litigated fishponds. In the circumstances, appellant's cause has become a stale demand and her conduct placed her in estoppel to question the Validity of the transfer of her properties. (Manila, et al. vs. Galvan, et al., G.R. No. L-23507, May 24, 1967; Perez vs. Herranz, 7 Phil. 695-696). In view of the foregoing, the decision appealed from is affirmed. Costs against appellant Concepcion Felix Vda. de Rodriguez. So ordered. Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur. Concepcion, C.J. and Dizon, J., are on leave.

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G.R. No. L-51291 May 29, 1984 FRANCISCO CUIZON, ROSITA CUIZON, PURIFICATION C. GUIDO married to TEODORO GUIDO, and JUAN ARCHE, petitioners, vs.HON. JOSE R. RAMOLETE, Presiding Judge of the Court of First Instance of Cebu, Branch III, DOMINGO L. ANTIGUA and SEGUNDO ZAMBO, respondents. Eliseo C. Alinsug for petitioners. Loreto M. Pono for respondents Domingo Antigua and Segundo Zambo.

GUTIERREZ, JR., J.: The sole issue in this petition for certiorari is whether or not a probate court has jurisdiction over parcels of land already covered by a Transfer Certificate of Title issued in favor of owners who are not parties to the intestate proceedings if the said parcels have been included in the inventory of properties of the estate prepared by the administrator. For a clearer understanding of the present case, the background facts may be appreciated. As far back as 1961, Marciano Cuizon applied for the registration of several parcels of land located at Opao, Mandaue City then covered by certificates of Tax Declaration in Land Registration Case No. N-179. In 1970, he distributed his property between his two children, Rufina and Irene. Part of the property given to Irene consisted largely of salt beds which eventually became the subject of this controversy. On December 29, 1971, Irene Cuizon executed a Deed of Sale with Reservation of Usufruct involving the said salt beds in favor of the petitioners Francisco, Rosita and Purificacion, all surnamed Cuizon. At that time, Francisco and Rosita were minors and assisted by their mother, Rufina, only sister of Irene. However, the sale was not registered because the petitioners felt it was unnecessary due to the lifetime usufructuary rights of Irene. Although the decision in L.R. Case No. N-179 was rendered way back in 1962, the decree of registration No. N-161246 and the corresponding Original Certificate of Title No. 0171 was issued only in 1976 in the name of Marciano Cuizon. In that same year, Transfer Certificate of Title No. 10477 covering the property in question was issued by the Register of Deeds to Irene Cuizon. The latter died in 1978. In the extrajudicial settlement of the estate, her alleged half sister and sole heir Rufina adjudicated to herself all the property of the decedent including the property in question. After the notice of the extrajudicial settlement was duly published in a newspaper of general circulation, Rufina thereafter, executed a deed of Confirmation of Sale wherein she confirmed and ratified the deed of sale of December 29, 1971 executed by the late Irene and renounced and waived whatever rights, interest, and participation she may have in the property in question in favor of the petitioners. The deed was duly registered with the Registry of Deeds and annotated at the back of TCT No. 10477. Subsequently, TCT No. 12665 was issued in favor of the petitioners. On September 28, 1978, a petition for letters of administrator was filed before the Court of First Instance of Cebu (Sp. Proc. No. 3864-R) by respondent Domingo Antigua, allegedly selected by the heirs of Irene numbering seventeen (17) in all to act as administrator of the estate of the decedent. The petition was granted. Respondent Antigua as administrator filed an inventory of the estate of Irene. He included in the inventory the property in question which was being administered by Juan Arche, one of the petitioners. On June 27, 1979, respondent Antigua filed a motion asking the court for authority to sell the salt from the property and praying that petitioner Arche be ordered to deliver the salt to the administrator. The motion was granted and respondent court issued the following order: The administrator, thru this motion, informs the Court that the estate owns some beds and fish pond located in Opao, Mandaue City that these salt beds are producing salt which are now in the warehouse in Mandaue City, under the custody of Juan Arche that the value of the salt in the warehouse is estimated to be worth P5,000.00 are beginning to melt and, unless they are sold as soon as possible, they may depreciate in value. It is likewise prayed in this motion that Juan Arche be ordered to deliver the salt in question to the administrator such other products of the land now in his (Juan Arche) possession. xxx xxx xxx Let this motion be, as it is hereby GRANTED. The administrator is hereby authorized to sell the salt now in the custody of Juan Arche and the latter (Juan Arche) is hereby ordered to deliver the salt in question to the administrator in order to effect the sale thereof and he is likewise directed to deliver such other products of the land to the administrator. Subsequently, on three different occasions, respondent Segundo Zambo with the aid of several men, sought to enforce the order of the respondent court, compelling the petitioners to come to us on certiorari. On September 14, 1979, we issued a restraining order enjoining the respondents from enforcing the above order of the respondent court and from further interfering with the petitioners in their peaceful possession and cultivation of the property in question.

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The thrust of the petitioners' argument is that the respondent court, as a court handling only the intestate proceedings, had neither the authority to adjudicate controverted rights nor to divest them of their possession and ownership of the property in question and hand over the same to the administrator. Petitioners further contend that the proper remedy of the respondent administrator is to file a separate civil action to recover the same. On the other hand, the respondent administrator banked on the failure of the petitioners to first apply for relief in the court of origin before filing the present petition. According to him this was a fatal defect. In addition, the administrator stated that the deed of sale of December 29, 1971 lost its efficacy upon the rendition of judgment and issuance of the decree in favor of Irene Cuizon. It is a well-settled rule that a probate court or one in charge of proceedings whether testate or intestate cannot adjudicate or determine title to properties claimed to be a part of the estate and which are equally (claimed to belong to outside parties. All that the said court could do as regards said properties is to determine whether they should or should not be included in the inventory or list of properties to be administered by the administrator. If there is no dispute, well and good; but if there is, then the parties, the administrator, and the opposing parties have to resort to an ordinary action for a final determination of the conflicting claims of title because the probate court cannot do so (Mallari v. Mallari, 92 Phil. 694; Baquial v. Amihan, 92 Phil. 501). Similarly, in Valero Vda. de Rodriguez vs. CA., (91 SCRA 540) we held that for the purpose of determining whether a certain property should or should not be included in the inventory the probate court may pass upon the title thereto but such determination is not conclusive and is subject to the final decision in a separate a petition regarding ownership which may be instituted by the parties (3 Moran's Comments on the Rules of Court, 1970 Edition, pages 448-9 and 473: Lachenal v. Salas, L-42257, June 14, 1976, 71 SCRA 262, 266). In the instant case, the property involved is not only claimed by outside parties but it, was sold seven years before the death of the decedent and is duly titled in the name of the vendees who are not party to the proceedings. In Bolisay vs. Alcid, (85 SCRA 213), this Court was confronted with a similar situation. The petitioners therein sought to annul the order of the respondent court in a special proceeding which in effect ruled that notwithstanding that the subject property was duly titled in the name of petitioners, the administratrix of the intestate estate involved in said proceeding had the right to collect the rentals of said property over the objection of the titled owners just because it was included in the inventory of said estate and there was an ordinary action in the regular court over the ownership thereof and the estate was one of the parties therein. This Court viewed the petition as one seeking for a prima facie determination and not a final resolution of the claim of ownership. We held that: ... Considering that as aforestated the said property is titled under the Torrens System in the names of the petitioners, it does appear strange, in the light of the probate court's own ruling that it has no jurisdiction to pass on the issue of ownership, that the same court deemed the same as part of the estate under administration just because the administratrix, alleges it is still owned by the estate and has in fact listed it in the inventory submitted by her to the court. It does not matter that respondent - administratrix has evidence purporting to support her claim of ownership, for, on the other hand, petitioners have a Torrens title in their favor, which under the law is endowed with incontestability until after it has been set aside in the manner indicated in the law itself, which, of course, does not include, bringing up the matter as a mere incident in special proceedings for the settlement of the estate of deceased persons. In other words, in Our considered view, the mere inclusion in the inventory submitted by the administrator of the estate of a deceased person of a given property does not of itself deprive the probate court of authority to inquire into the property of such inclusion in case an heir or a third party claims adverse title thereto. To hold otherwise would render inutile the power of that court to make a prima facie determination of the issue of ownership recognized in the above quoted precedents. The correct rule is that the probate court should resolve the issue before it provisionally, as basis for its inclusion in or exclusion from the inventory. It does not even matter that the issue is raised after approval of the inventory because "apparently, it is not necessary that the inventory and appraisal be approved by the Court." (Francisco on the Rules of Court Vol. V-B, p. 99, citing Siy Chong Keng vs. Collector of Internal Revenue, 60 Phil. 494) In regard to such incident of inclusion or exclusion, We hold that if a property covered by Torrens Title is involved, the presumptive conclusiveness of such title should be given due weight, and in the absence of strong compelling evidence to the contrary, the holder thereof should be considered as the owner of the property in controversy until his title is nullified or modified in an appropriate ordinary action, particularly, when as in the case at bar, possession of the property itself is in the persons named in the title. Having been apprised of the fact that the property in question was in the possession of third parties and more important, covered by a transfer certificate of title issued in the name of such third parties, the respondent court should have denied the motion of the respondent administrator and excluded the property in question from the inventory of the property of the estate. It had no authority to deprive such third persons of their possession and ownership of the property. Respondent court was clearly without jurisdiction to issue the order of June 27, 1979. Thus, it was unnecessary for the petitioners to first apply for relief with the intestate court. Even assuming the truth of the private respondents' allegations that the sale of December 29, 1971 was effected under suspicious circumstances and tainted with fraud and that the right of Rufina as alleged half-sister and sole heir of Irene remains open to question, these issues may only be threshed out in a separate civil action filed by the respondent administrator against the petitioners and not in the intestate proceedings.

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WHEREFORE, the petition for certiorari is GRANTED and the respondent court's order dated June 27, 1979 is hereby set aside and declared void as issued in excess of its jurisdiction. Our restraining order enjoining the enforcement of the June 27, 1979 order and the respondents from further interfering, through the intestate proceedings, in the peaceful possession and cultivation of the land in question by the petitioners is hereby made PERMANENT. SO ORDERED.

[G.R. No. 108947. September 29, 1997] ROLANDO SANCHEZ, FLORIDA MIERLY SANCHEZ, ALFREDO T. SANCHEZ and MYRNA T. SANCHEZ, petitioners, vs. THE HONORABLE COURT OF APPEALS, ROSALIA S. LUGOD, ARTURO S. LUGOD, EVELYN LUGOD-RANISES and ROBERTO S. LUGOD, respondents. DECISION

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PANGANIBAN, J.: Is a petition for certiorari, in lieu of appeal, the proper remedy to correct orders of a probate court nullifying certain deeds of sale and, thus, effectively passing upon title to the properties subject of such deeds? Is a compromise agreement partitioning inherited properties valid even without the approval of the trial court hearing the intestate estate of the deceased owner?

The Case These questions are answered by this Court as it resolves the petition for review on certiorari before us assailing the November 23, 1992 Decision[1] of the Court of Appeals[2] in CA-G.R. SP No. 28761 which annulled the decision[3] of the trial court[4] and which declared the compromise agreement among the parties valid and binding even without the said trial courts approval. The dispositive portion of the assailed Decision reads: WHEREFORE, for the reasons hereinabove set forth and discussed, the instant petition is GRANTED and the challenged decision as well as the subsequent orders of the respondent court are ANNULLED and SET ASIDE. The temporary restraining order issued by this Court on October 14, 1992 is made PERMANENT. The compromise agreement dated October 30, 1969 as modified by the memorandum of agreement of April 13, 1970 is DECLARED valid and binding upon herein parties. And Special Proceedings No. 44-M and 1022 are deemed CLOSED and TERMINATED. SO ORDERED. [5]

The Antecedent Facts The facts are narrated by the Court of Appeals as follows: [Herein private respondent] Rosalia S. Lugod is the only child of spouses Juan C. Sanchez and Maria Villafranca while [herein private respondents] Arturo S. Lugod, Evelyn L. Ranises and Roberto S. Lugod are the legitimate children of [herein private respondent] Rosalia. [Herein petitioners] Rolando, Florida Mierly, Alfredo and Myrna, all surnamed Sanchez, are the illegitimate children of Juan C. Sanchez. Following the death of her mother, Maria Villafranca, on September 29, 1967, [herein private respondent] Rosalia filed on January 22, 1968, thru counsel, a petition for letters of administration over the estate of her mother and the estate of her father, Juan C. Sanchez, who was at the time in state of senility (Annex B, Petition). On September 30, 1968, [herein private respondent] Rosalia, as administratrix of the intestate estate of her mother, submitted an inventory and appraisal of the real and personal estate of her late mother (Annex C, Petition). Before the administration proceedings in Special Proceedings No. 44-M could formally be terminated and closed, Juan C. Sanchez, [herein private respondent] Rosalias father, died on October 21, 1968. On January 14, 1969, [herein petitioners] as heirs of Juan C. Sanchez, filed a petition for letters of administration (Special Proceedings No. 1022) over the intestate estate of Juan C. Sanchez, which petition was opposed by (herein private respondent) Rosalia.[6] On October 30, 1969, however, [herein private respondent] Rosalia and [herein petitioners] assisted by their respective counsels executed a compromise agreement (Annex D, Petition) wherein they agreed to divide the properties enumerated therein of the late Juan C. Sanchez. On November 3, 1969, petitioner Rosalia was appointed by [the trial court], and took her oath as the administratrix of her fathers intestate estate. On January 19, 1970, [herein petitioners] filed a motion to require administratrix, [herein private respondent] Rosalia, to deliver deficiency of 24 hectares and or to set aside compromise agreement (Annex E, Petition). Under date of April 13, 1970, (herein private respondent) Rosalia and [herein petitioners] entered into and executed a memorandum of agreement which modified the compromise agreement (Annex F. Petition) On October 25, 1979, or nine years later, [herein petitioners] filed, thru counsel, a motion to require [herein private respondent] Rosalia to submit a new inventory and to render an accounting over properties not included in the compromise agreement (Annex G, Petition). They likewise filed a motion to defer the approval of the compromise agreement (Annex H, Ibid), in which they prayed for the annulment of the compromise agreement on the ground of fraud. On February 4, 1980, however, counsel for [herein petitioners] moved to withdraw his appearance and the two motions he filed, Annex G and H (Annex I, Petition). On February 28, 1980, the [trial] court issued an order directing [herein private respondent] Rosalia to submit a new inventory of properties under her administration and an accounting of the fruits thereof, which prompted [herein private respondent] Rosalia to file a rejoinder on March 31, 1980 (Annex K, Petition). On May 12, 1980, [herein petitioners], thru new counsel, filed a motion to change administratrix (Annex L, Petition) to which [herein private respondent] Rosalia filed an opposition (AnnexM, Ibid).

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The parties were subsequently ordered to submit their respective position papers, which they did (Annexes N and O, Petition). On September 14, 1989, former counsel of (herein petitioners) entered his re-appearance as counsel for (herein petitioners). On the bases of memoranda submitted by the parties, the [trial court], this time presided by Judge Vivencio A. Galon, promulgated its decision on June 26, 1991, the dispositive portion of which states: WHEREFORE, premises considered, judgment is hereby rendered as follows by declaring and ordering: 1.That the entire intestate estate of Maria Villafranca Sanchez under Special Proceedings No.44-M consists of all her paraphernal properties and one-half (1/2) of the conjugal properties which must be divided equally between Rosalia Sanchez de Lugod and Juan C. Sanchez; 2.That the entire intestate estate of Juan C. Sanchez under Special Proceedings No. 1022 consists of all his capital properties, one-half (1/2) from the conjugal partnership of gains and one-half (1/2) of the intestate estate of Maria Villafranca under Special Proceedings No. 44-M; 3.That one-half (1/2) of the entire intestate estate of Juan C. Sanchez shall be inherited by his only legitimate daughter, Rosalia V. Sanchez de Lugod while the other one-half (1/2) shall be inherited and be divided equally by, between and among the six (6) illegitimate children, namely: Patricia Alburo, Maria Ramuso Sanchez, Rolando Pedro T. Sanchez, Florida Mierly T. Sanchez, Alfredo T. Sanchez and Myrna T. Sanchez; 4.That all the Deed (sic) of Absolute Sales executed by Juan C. Sanchez and Maria Villafranca in favor of Rosalia Sanchez Lugod, Arturo S. Lugod, Evelyn S. Lugod and Roberto S. Lugod on July 26, 1963 and June 26, 1967 are all declared simulated and fictitious and must be subject to collation and partition among all heirs; 5.That within thirty (30) days from finality of this decision, Rosalia Sanchez Lugod is hereby ordered to prepare a project of partition of the intestate estate of Juan C. Sanchez under Special Proceedings No. 1022 and distribute and deliver to all heirs their corresponding shares. If she fails to do so within the said thirty (30) days, then a Board of Commissioners is hereby constituted, who are all entitled to honorarium and per diems and other necessary expenses chargeable to the estate to be paid by Administratrix Rosalia S. Lugod, appointing the Community Environment and Natural Resources Officer (CENRO) of Gingoog City as members thereof, with the task to prepare the project of partition and deliver to all heirs their respective shares within ninety (90) days from the finality of said decision; 6.That within thirty (30) days from receipt of this decision, Administratrix Rosalia Sanchez Vda. de Lugod is hereby ordered to submit two (2) separate certified true and correct accounting, one for the income of all the properties of the entire intestate estate of Maria Villafranca under Special Proceedings No. 44-M, and another for the properties of the entire intestate estate of Juan C. Sanchez under Special Proceedings No. 1022 duly both signed by her and both verified by a Certified Public Accountant and distribute and deliver to her six (6) illegitimate brothers and sisters in equal shares, one -half (1/2) of the net income of the estate of Juan C. Sanchez from October 21, 1968 up to the finality of this decision; 7.For failure to render an accounting report and failure to give cash advances to the illegitimate children of Juan C. Sanchez during their minority and hour of need from the net income of the estate of Juan C. Sanchez, which adversely prejudiced their social standing and pursuit of college education, (the trial court) hereby orders Rosalia Sanchez Vda. de Lugod to pay her six (6) illegitimate brothers and sisters the sum of Five Hundred Thousand (P500,000.00) Pesos, as exemplary damages, and also the sum of One Hundred Fifty Thousand (P150,000.00) Pesos for attorneys fees; 8.Upon release of this decision and during its pendency, should appeal be made, the Register of Deeds and Assessors of the Provinces and Cities where the properties of Juan C. Sanchez and Maria Villafranca are located, are all ordered to register and annotate in the title and/or tax declarations, the dispositive portion of this decision for the protection of all heirs and all those who may be concerned. SO ORDERED. [Herein private respondent] Rosalia filed a motion for reconsideration dated July 17, 1991 (Annex P, Petition) on August 6, 1991. On August 13, 1991, [herein petitioners] filed a motion for execution and opposition to [herein private respondent] Rosalias motion for reconsideration (Annex Q, Petition). On September 3, 1991, [the trial court] issued an Omnibus Order (Annex S, Petition) declaring, among other things, that the decision at issue had become final and executory. [Herein private respondent] Rosalia then filed a motion for reconsideration of said Omnibus Order (Annex T, Petition). Said [herein private respondent] was allowed to file a memorandum in support of her motion (Annex V, Petition). On June 26, 1991, [the trial court] issued and Order denying petitioner Rosalias motion for reconsideration (Annex W, Petition).[7] Thereafter, private respondents elevated the case to the Court of Appeals via a petition for certiorari and contended: I The [trial court] has no authority to disturb the compromise agreement. II

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The [trial court] has arbitrarily faulted [herein private respondent] Rosalia S. Lugod for alleged failure to render an accounting which was impossible. III The [trial court] acted without jurisdiction in derogation of the constitutional rights of [herein private respondents] Arturo S. Lugod, Evelyn L. Ranises and Roberto S. Lugod when [the trial court] decided to annul the deed of sale between the said [herein private respondents] and Juan C. Sanchez without affording them their day in court. IV [The trial court judge] defied without rhyme or reason well-established and entrenched jurisprudence when he determined facts sans any evidence thereon. V [The trial court] grossly misinterpreted [herein private respondent] Rosalia S. Lugods right to appeal.[8] For claritys sake, this Court hereby reproduces verbatim the compromise agreement[9] of the parties:

COMPROMISE AGREEMENT COME NOW, the parties in the above-entitled case, motivated by their mutual desire to preserve and maintain harmonious relations between and among themselves, for mutual valuable considerations and in the spirit of good will and fair play, and, for the purpose of this Compromise Agreement, agree to the following: 1. That the deceased Juan C. Sanchez who died intestate on October 21, 1968 was legally married to Maria Villafranca de Sanchez, who predeceased her on September 29, 1967, out of whose wedlock Rosalia Sanchez Lugod, Oppositor herein, was born, thus making her the sole and only surviving legitimate heir of her deceased parents; 2. That the said deceased Juan C. Sanchez, left illegitimate children, Intervenors-Oppositors and Petitioners, respectively, herein namely; (1) Patricio Alburo, born out of wedlock on March 17, 1926 at Cebu City, Philippines, to Emilia Alburo; (2) Maria Ramoso Sanchez, born out of wedlock on May 9, 1937 at Gingoog, Misamis Oriental, now, Gingoog City, to Alberta Ramoso; (3) (a) Rolando Pedro Sanchez, born on May 19, 1947, (b) Florida Mierly Sanchez, born on February 16, 1949, (c) Alfredo Sanchez, born on July 21, 1950,and (d) Myrna Sanchez, born on June 16, 1952, all born out of wedlock to Laureta Tampus in Gingoog City, Philippines. 3. That the deceased Juan C. Sanchez left the following properties, to wit: I. SEPARATE CAPITAL OF JUAN C. SANCHEZ NATURE, DESCRIPTION AND AREA ASSESSED VALUE (1) Agricultural Land. Covered by Tax. Decl. No. 06458, Cad. Lot No. 1041 C-2, located at Murallon, Gingoog City and bounded on the North by Lot Nos. 1033, 1035, 1036, 1037, 1039, 1040, 1042 & 1043; South by Lot No. 1080, 1088, 1087 & 1084; East by Lot Nos. 1089, 1061 & 2319; West by Lot Nos. 954, 1038, 1057 & 1056, containing an area of ONE HUNDRED EIGHTY THREE THOUSAND SIX HUNDRED SEVENTY TWO (183, 672) sq. ms. more or less. P21,690.00 II. CONJUGAL PROPERTY OF JUAN C. SANCHEZ AND MARIA VILLAFRANCA DE SANCHEZ

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(1) Agricultural Land. Covered by Tax Decl. No. 06447, Cad. Lot No. 2745, C-7 located at Agay-ayan, Gingoog City and bounded on the North by Lot Nos. 2744, 2742, 2748; South by Lot No. 2739; East by Lot No. 2746; West by Lot No. 2741, containing an area of FOURTEEN THOUSAND SEVEN HUNDRED (14,700) sq. ms. more or less. P1,900.00 (2) Agricultural Land. Covered by Tax Decl. No. 06449, Cad, Lot No. 3271 C-7 located at Panyangan, Lanao, Gingoog City and bounded on the North by Lot No. 3270; South by Lot Nos. 2900 & 3462; East by Panyangan River & F. Lumanao; and Part of Lot 3272; and West by Samay Creek, containing an area of ONE HUNDRED FOUR THOUSAND SIX HUNDRED (104,600) sq. ms. more or less. P11,580.00 (3) Agricultural Land. Covered by Tax Decl. No. 06449, Cad. Lot No. 2319, Case 2, located at Murallon, Gingoog City and bounded on the North by Lot No. 1061; South by Hinopolan Creek; East by Lot No. 1044; and West by Lot No. 1041, containing an area of THREE THOUSAND TWO HUNDRED TWENTY FIVE (3,225) sq. ms. more or less. (4) Agricultural Land. Covered by Tax Decl. No. 06452, Cad. Lot No. 3272, C-7 Part 4 located at Panyangan, Lunao, Gingoog City and bounded on the North by Lot Nos. 3270 & 3273; East by Panyangan River; South by Panyangan River; and West by Lot Nos. 3270 & 3271, containing an area of FIFTY FIVE THOUSAND SIX HUNDRED (55,600) sq. ms. more or less, being claimed by Damian Querubin. P2.370.00 (5) Agricultural Land. Covered by Tax Decl. No. 06453, Cad. Lot No. 3270 Case 7, located at Sunog, Lunao, Gingoog City and bounded on the North by Samay Creek & Lot 3267; South by Lot Nos. 3271 & 3272; East by Lot Nos. 3269 & 3273; and West by Samay Creek, containing an area of FOUR HUNDRED EIGHT THREE THOUSAND SIX HUNDRED (483,600) sq. ms. more or less. P61,680.00 (6) Agricultural Land. Covered by Tax Decl. No. 06457, Cad. Lot No. 3273, C-7 Part 2 located at Panyangan, Lunao, Gingoog City and bounded on the North by Lot No. 3269; South by Lot No. 3272; East by Panyangan River; and West by Lot No. 3270, contaning an area of THIRTY FOUR THOUSAND THREE HUNDRED (34,300) sq. ms. more or less, being claimed by Miguel Tuto. P3,880.00 (7) Agricultural Land. Covered by Tax Decl. No. 12000, Cad. Lot No. 2806, Case 7 located at Agayayan, Gingoog City and bounded on the North by Agayayan River; South by Victoriano Barbac; East by Isabelo Ramoso; and West by Restituto Baol, contaning an area of SIX THOUSAND SIX HUNDRED SEVENTY SIX (6,676) sq. ms. more or less. P380.00 (8) Agricultural Land. Covered by Tax Decl. No. 12924, Cad. Lot No. 1206 C-1 located at Cahulogan, Gingoog City and bounded on the NW., by Lot No. 1209; SW., by Lot No. 1207; East by National Highway; and West by Lot No. 1207; containing an area of FOUR THOUSAND FIVE HUNDRED THIRTEEN (4,513) sq. ms. more or less. P740.00 (9) Agricultural Land. Covered by Tax Decl. No. 12925, Cad. Lot No. 5554, located at Tinaytayan, Pigsalohan, Gingoog City and bounded on the North by Lot Nos. 5559 & 5558; South by Lot No. 3486; East by Lot No. 5555; and West by Lot No. 5355, containing an area of EIGHTEEN THOUSAND FIVE HUNDRED TWENTY EIGHT (18,528) sq. ms. more or less. P320.00 (10) Agricultural Land. Covered by Tax Decl. No. 12926, Cad. Lot No. 5555 C-7 located at Tinaytayan, Pigsalojan, Gingoog City and bounded on the North by Tinaytayan Creek & Lot Nos. 5557 & 5558; South by Lot Nos. 3486, 3487, 3488, 3491 & 3496; East by Cr. & Lot No. 3496; and West by Lot No. 5554, containing an area of SEVENTY SEVEN THOUSAND SEVEN HUNDRED SEVENTY SIX (77,776) sq. ms. more or less. P1,350.00

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(11) A Commercial Land. Covered by Tax Decl. No. 06454, Cad. Lot No. 61-C-1 located at Guno-Condeza Sts., Gingoog City and bounded on the North by Lot 64; South by Road-Lot 613 Condeza St; East by Lot Nos. 63, and 62; West by Road-Lot 614-Guno St., containing an area of ONE THOUSAND FORTY TWO (1,042) sq. ms. more or less. P9,320.00 (12) A Commercial Land. Covered by Tax Decl. No. 06484, Lot No. 5, Block 2, located at Cabuyoan, Gingoog City and bounded on the North by Lot No. 4, block 2; South by Lot No. 8, block 2; East by Lot No. 6, block 2, West by Subdivision Road, containing an area of FOUR HUNDRED (400) sq. ms. more or less. P12,240.00 (13) A Commercial Land. Covered by Tax Decl. No. 15798, Block No. 7-A-16-0 located at Cabuyoan, Gingoog City and bounded on the North by Lot No. 7-A-16-0; South by Lot No. 7-16-0; East by Lot No. 7-A-18-Road; West by Lot No. 8, PSU-120704-Julito Arengo vs. Restituto Baol, containing an area of TWO HUNDRED SIXTEEN (216) sq. ms. more or less. P1,050.00 (14) Agricultural Land. Covered by Tax, Decl. No. 06789, Cad. Lot No. 5157-C-7, located at Kiogat, Agayayan, Gingoog City and bounded on the North by Lot No. 5158, 5159, 5156; South by SE-Steep Bank; East by NW, by Lot No. 5158, Villafranca, containing an area of NINETY SIX THOUSAND TWO HUNDRED (96,200) sq. ms. more or less. P3,370.00 III. PERSONAL ESTATE (CONJUGAL) NATURE AND DESCRIPTION LOCATION APPRAISAL 1. Fifty (50) shares of stock Rural Bank of Gingoog, Inc. at P100.00 per share P5,000.00 2. Four (4) shares of Preferred Stock with San Miguel Corporation 400.00 4. That, the parties hereto have agreed to divide the above-enumerated properties in the following manner, to wit: (a) To Patricio Alburo, Maria Ramoso Sanchez, Roland Pedro T. Sanchez, Florida Mierly Sanchez, Alfredo T. Sanchez and Myrna T. Sanchez, in equal pro-indiviso shares, considering not only their respective areas but also the improvements existing thereon, to wit: Agricultural Land. Covered by Tax Decl. No. 06453, Cad. Lot No. 3270 Case 7, located at Sunog, Lunao, Gingoog City and bounded on the North by Samay Creek & Lot 3267; South by Lot Nos. 3271 and 3272; East by Lot Nos. 3269 & 3273; and West by Samay Creek, containing an area of FOUR HUNDRED EIGHTY THREE THOUSAND SIX HUNDRED (483,600) sq. ms. and assessed in the sum of P61,680.00. (b) To Rosalia Sanchez Lugod all the rest of the properties, both real and personal, enumerated above with the exception of the following: (1) Two Preferred Shares of Stock in the San Miguel Corporation, indicated in San Miguel Corporation Stock Certificate No. 30217, which two shares she is ceding in favor of Patricio Alburo; (2) The house and lot designated as Lot No. 5, Block 2 together with the improvements thereon and identified as parcel No. II-12, lot covered by Tax Decl. No. 15798 identified as Parcel No. II-13 in the above enumerated, and Cad. Lot No. 5157-C-7 together with the improvements thereon, which is identified as parcel No. II-14 of the above-enumeration of properties, which said Rosalia S. Lugod is likewise ceding and renouncing in favor of Rolando Pedro, Florida Mierly, Alfredo and Myrna, all surnamed Sanchez, in equal pro-indiviso shares; 5. That Rolando Pedro, Florida Mierly, Alfredo and Myrna, all surnamed Sanchez hereby acknowledge to have received jointly and severally in form of advances after October 21, 1968 the aggregate sum of EIGHT THOUSAND FIVE HUNDRED THIRTY-THREE PESOS (P8,533.94) and NINETY-FOUR CENTAVOS;

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6. That the parties hereto likewise acknowledge and recognize in the indebtedness of the deceased Juan G. Sanchez and his deceased wife Maria Villafranca Sanchez to the Lugod Enterprises, Inc., in the sum of P43,064.99; 7. That the parties hereto shall be responsible for the payment of the estate and inheritance taxes proportionate to the value of their respective shares as may be determined by the Bureau of Internal Revenue and shall likewise be responsible for the expenses of survey and segregation of their respective shares; 8. That Patricio Alburo, Maria Ramoso Sanchez, Roland Pedro Sanchez, Florida Mierly Sanchez, Alfredo Sanchez and Myrna Sanchez hereby waive, relinquish and renounce, jointly and individually, in a manner that is absolute and irrevocable, all their rights and interests, share and participation which they have or might have in all the properties, both real and personal, known or unknown and/or which may not be listed herein, or in excess of the areas listed or mentioned herein, and/or which might have been, at one time or another, owned by, registered or placed in the name of either of the spouses Juan C. Sanchez or Maria Villafranca de Sanchez or both, and which either one or both might have sold, ceded, transferred, or donated to any person or persons or entity and which parties hereto do hereby confirm and ratify together with all the improvements thereon, as well as all the produce and proceeds thereof, and particularly of the properties, real and personal listed herein, as well as demandable obligations due to the deceased spouses Juan C. Sanchez, before and after the death of the aforementioned spouses Juan C. Sanchez and Maria Villafranca de Sanchez, in favor of oppositor Rosalia S. Lugod; 9. That the expenses of this litigation including attorneys fees shall be borne respectively by the parties hereto; 10. That Laureta Tampus for herself and guardian ad-litem of her minor children, namely: Florida Mierly, Alfredo, and Myrna, all surnamed Sanchez, hereby declare that she has no right, interest, share and participation whatsoever in the estate left by Juan C. Sanchez and/or Maria Villafranca de Sanchez, or both, and that she likewise waives, renounces, and relinquishes whatever rigid, share, participation or interest therein which she has or might have in favor of Rosalia S. Lugod; 11. That, the parties hereto mutually waive and renounce in favor of each other any whatever claims or actions, arising from, connected with, and as a result of Special Proceedings Nos. 44-M and 1022 of the Court of First Instance of Misamis Oriental, Rosalia S. Lugod, warranting that the parcel of land ceded to the other parties herein contains 48 hectares and 36 acres. 12. That, Rosalia S. Lugod shall assume as she hereby assumes the payment to Lugod Enterprises, Inc., of the sum of P51,598.93 representing the indebtedness of the estate of Juan C. Sanchez and Maria Villafranca de Sanchez and the advances made to Rolando Pedro, Mierly, Alfredo, and Myrna all surnamed Sanchez, mentioned in paragraphs 5 and 6 hereof and, to give effect to this Agreement, the parties hereto agree to have letters of administration issued in favor of Rosalia S. Lugod without any bond. That Rosalia S. Lugod likewise agrees to deliver possession and enjoyment of the parcel of land herein ceded to petitioners and intervenors immediately after the signing of this agreement and that the latter also mutually agree among themselves to have the said lot subdivided and partitioned immediately in accordance with the proportion of one sixth (1/6) part for every petitioner and intervenor and that in the meantime that the partition and subdivision is not yet effected, the administrations of said parcel of land shall be vested jointly with Laureta Tampos, guardian ad litemof petitioners and Maria Ramoso, one of the intervenors who shall see to it that each petitioner and intervenor is given one sixth (1/6) of the net proceeds of all agricultural harvest made thereon. WHEREFORE, it is most respectfully prayed that the foregoing compromise agreement be approved. Medina, Misamis Oriental, October 30, 1969. (Sgd.) (Sgd.) PATRICIO ALBURO ROSALIA S. LUGOD Intervenor-Oppositor Oppositor (Sgd.) MARIA RAMOSO SANCHEZ ASSISTED BY: Intervenor-Oppositor (Sgd.) ASSISTED BY: PABLO S. REYES R-101-Navarro Bldg. (Sgd.) Don A. Velez St. REYNALDO L. FERNANDEZ Cagayan de Oro City Gingoog City (Sgd.) (Sgd.) ROLANDO PEDRO T. SANCHEZ ALFREDO T. SANCHEZ Petitioner Petitioner (Sgd.) (Sgd.)

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FLORIDA MIERLY T. SANCHEZ MYRNA T. SANCHEZ Petitioner Petitioner (Sgd.) LAURETA TAMPUS For herself and as Guardian Ad-Litem of the minors Florida Mierly, Alfredo, and Myrna, all surnamed Sanchez ASSISTED BY: TEOGENES VELEZ, JR. Counsel for Petitioners Cagayan de Oro City

The Clerk of Court Court of First Instance Branch III, Medina, Mis. Or. Greetings: Please set the foregoing compromise agreement for the approval of the Honorable Court today, Oct. 30, 1969. (Sgd.) (Sgd.) (Sgd.) PABLO S. REYES TEOGENES VELEZ, JR. REYNALDO L. FERNANDEZ The Memorandum of Agreement dated April 13, 1970, which the parties entered into with the assistance of their counsel, amended the above compromise. (It will be reproduced later in our discussion of the second issue raised by the petitioners.) The Court of Appeals, in a Resolution[10] dated September 4, 1992, initially dismissed private respondents petition. Acting, however, on a motion for reconsideration and a supplemental motion for reconsideration dated September 14, 1992 and September 25, 1992, respectively,[11] Respondent Court thereafter reinstated private respondents petition in a resolution[12] dated October 14, 1992. In due course, the Court of Appeals, as earlier stated, rendered its assailed Decision granting the petition, setting aside the trial courts decision and declaring the modified compromise agreement valid and binding. Hence, this appeal to this Court under Rule 45 of the Rules of Court.

The Issues In this appeal, petitioners invite the Courts attention to the following issues: I The respondent court grossly erred in granting the petition for certiorari under Rule 65 considering that the special civil action of certiorari may not be availed of as a substitute for an appeal and that, in any event, the grounds invoked in the petition are merely alleged errors of judgment which can no longer be done in view of the fact that the decision of the lower court had long become final and executory. II Prescinding from the foregoing, the respondent court erred in annulling the decision of the lower court for the reason that a compromise agreement or partition, as the court construed the same to be, executed by the parties on October 30, 1969 was void and unenforceable the same not having been approved by the intestate court and that the same having been seasonably repudiated by petitioners on the ground of fraud. III The respondent court grossly erred in ignoring and disregarding findings of facts of the lower court that the alleged conveyances of real properties made by the spouses Juan C. Sanchez and Maria Villafranca just before their death in favor of their daughter and grandchildren, private respondents herein, are tainted with fraud or made in contemplation of death, hence, collationable. IV

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In any event, the respondent court grossly erred in treating the lower courts declaration of fictitiousness of the deeds of sale as a final adjudication of annulment. V The respondent court grossly erred in declaring the termination of the intestate proceedings even as the lower court had not made a final and enforceable distribution of the estate of the deceased Juan C. Sanchez. VI Prescinding from the foregoing, the respondent court grossly erred in not at least directing respondent Rosalia S. Lugod to deliver the deficiency of eight (8) hectares due petitioners under the compromise agreement and memorandum of agreement, and in not further directing her to include in the inventory properties conveyed under the deeds of sale found by the lower court to be part of the estate of Juan C. Sanchez.[13] The salient aspects of some issues are closely intertwined; hence, they are hereby consolidated into three main issues specifically dealing with the following subjects: (1) the propriety of certiorari as a remedy before the Court of Appeals, (2) the validity of the compromise agreement, and (3) the presence of fraud in the execution of the compromise and/or collation of the properties sold.

The Courts Ruling The petition is not meritorious.

First Issue: Propriety of Certiorari Before the Court of Appeals Since private respondents had neglected or failed to file an ordinary appeal within the reglementary period, petitioners allege that the Court of Appeals erred in allowing private respondents recourse to Rule 65 of the Rules of Court. They contend that private respondents invocation of certiorari was procedurally defective.[14] They further argue that private respondents, in their petition before the Court of Appeals, alleged errors of the trial court which, being merely errors of judgment and not errors of jurisdiction, were not correctable by certiorari.[15] This Court disagrees. Doctrinally entrenched is the general rule that certiorari is not a substitute for a lost appeal. However, Justice Florenz D. Regalado lists several exceptions to this rule, viz.:(1) where the appeal does not constitute a speedy and adequate remedy (Salvadades vs. Pajarillo, et al., 78 Phil. 77), as where 33 appeals were involved from orders issued in a single proceeding which will inevitably result in a proliferation of more appeals (PCIB vs. Escolin, et al., L27860 and 27896, Mar. 29, 1974); (2) where the orders were also issued either in excess of or without jurisdiction (Aguilar vs. Tan, L-23600, Jun 30, 1970, Cf. Bautista, et al. vs. Sarmiento, et al., L-45137, Sept. 231985); (3) for certain special consideration, as public welfare or public policy (See Jose vs. Zulueta, et al. -16598, May 31, 1961 and the cases cited therein); (4) where in criminal actions, the court rejects rebuttal evidence for the prosecution as, in case of acquittal, there could be no remedy (People vs. Abalos, L029039, Nov. 28, 1968); (5) where the order is a patent nullity (Marcelo vs. De Guzman, et al., L29077, June 29, 1982); and (6) where the decision in the certiorari case will avoid future litigations (St. Peter Memorial Park, Inc. vs. Campos, et al., L-38280, Mar. 21, 1975).[16] Even in a case where the remedy of appeal was lost, the Court has issued the writ of certiorari where the lower court patently acted in excess of or outside its jurisdiction,[17] as in the present case. A petition for certiorari under Rule 65 of the Rules of Court is appropriate and allowable when the following requisites concur: (1) the writ is directed against a tribunal, board or officer exercising judicial or quasi-judicial functions; (2) such tribunal, board or officer has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law.[18] After a thorough review of the case at bar, we are convinced that all these requirements were met. As a probate court, the trial court was exercising judicial functions when it issued its assailed resolution. The said court had jurisdiction to act in the intestate proceedings involved in this case with the caveat that, due to its limited jurisdiction, it could resolve questions of title only provisionally.[19] It is hornbook doctrine 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. This pronouncement no doubt applies with equal force to an intestate proceeding as in the case at bar.[20] In the instant case, the trial court rendered a decision declaring as simulated and fictitious all the deeds of absolute sale which, on July 26, 1963 and June 26, 1967, Juan C. Sanchez and Maria Villafranca executed in favor of their daughter, Rosalia Sanchez Lugod; and grandchildren, namely, Arturo S. Lugod, Evelyn S. Lugod and Roberto S. Lugod. The trial court ruled further that the properties covered by the said sales must be subject to collation. Citing Article 1409 (2) of the Civil Code, the lower court nullified said deeds of sale and determined with finality the ownership of the properties subject thereof. In doing so, it clearly overstepped its jurisdiction as a probate court. Jurisprudence teaches: [A] probate court or one in charge of proceedings whether testate or intestate cannot adjudicate or determine title to properties claimed to be a part of the estate and which are claimed to belong to outside parties. All that the said court could do as regards said properties is to determine whether they should or should not be included in the inventory or list of properties to be administered by the administrator. If there is not dispute, well and good, but if there is, then the parties, the administrator, and the opposing parties have to resort to an ordinary action for a final determination of the conflicting claims of title because the probate court cannot do so.[21] Furthermore, the trial court committed grave abuse of discretion when it rendered its decision in disregard of the parties compromise agreement.[22] Such disregard, on the ground that the compromise agreement was not approved by the court, [23] is tantamount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act in contemplation and within the bounds of law.[24]

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The foregoing issues clearly involve not only the correctness of the trial courts decision but also the latters jurisdiction. They encompass plain errors of jurisdiction and grave abuse of discretion, not merely errors of judgment.[25] Since the trial court exceeded its jurisdiction, a petition for certiorari is certainly a proper remedy. Indeed, it is well-settled that (a)n act done by a probate court in excess of its jurisdiction may be corrected by certiorari.[26] Consistent with the foregoing, the following disquisition by respondent appellate court is apt: As a general proposition, appeal is the proper remedy of petitioner Rosalia here under Rule 109 of the Revised Rules of Court. But the availability of the ordinary course of appeal does not constitute sufficient ground to [prevent] a party from making use of the extraordinary remedy of certiorari where appeal is not an adequate remedy or equally beneficial, speedy and sufficient (Echauz vs. Court of Appeals, 199 SCRA 381). Here, considering that the respondent court has disregarded the compromise agreement which has long been executed as early as October, 1969 and declared null and void the deeds of sale with finality, which, as a probate court, it has no jurisdiction to do, We deem ordinary appeal is inadequate. Considering further the [trial courts] granting of [herein petitioners] motion for execution of the assailed decision,[27] [herein private respondent] Rosalias resort to the instant petition [for review on certiorari] is all the more warranted under the circumstances.[28] We thus hold that the questioned decision and resolutions of the trial court may be challenged through a special civil action for certiorari under Rule 65 of the Rules of Court. At the very least, this case is a clear exception to the general rule that certiorari is not a substitute for a lost appeal because the trial courts decision and resolutions were issued without or in excess of jurisdiction, which may thus be challenged or attacked at any time. A void judgment for want of jurisdiction is no judgment at all. It cannot be the source of any right nor the creator of any obligation. All acts performed pursuant to it and all claims emanating from it have no legal effect. Hence, it can never become final and any writ of execution based on it is void; x x x it may be said to be a lawless thing which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it exhibits its head. [29]

Second Issue: Validity of Compromise Agreement Petitioners contend that, because the compromise agreement was executed during the pendency of the probate proceedings, judicial approval is necessary to shroud it with validity. They stress that the probate court had jurisdiction over the properties covered by said agreement. They add that Petitioners Florida Mierly, Alfredo and Myrna were all minors represented only by their mother/natural guardian, Laureta Tampus.[30] These contentions lack merit. Article 2028 of the Civil Code defines a compromise agreement as a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one already commenced. Being a consensual contract, it is perfected upon the meeting of the minds of the parties. Judicial approval is not required for its perfection.[31] Petitioners argument that the compromise was not valid for lack of judicial approval is not novel; the same was raised in Mayuga vs. Court of Appeals,[32] where the Court, through Justice Irene R. Cortes, ruled: It is alleged that the lack of judicial approval is fatal to the compromise. A compromise is a consensual contract. As such, it is perfected upon the meeting of the minds of the parties to the contract. (Hernandez v. Barcelon, 23 Phil. 599 [1912]; see also De los Reyes v. de Ugarte, 75 Phil. 505 [1945].) And from that moment not only does it become binding upon the parties (De los Reyes v. De Ugarte, supra ), it also has upon them the effect and authority of res judicata (Civil Code, Art. 2037), even if not judicially approved (Meneses v. De la Rosa, 77 Phil. 34 [1946]; Vda. De Guilas v. David, 132 Phil. 241, L-24280, 23 SCRA 762 [May 27, 1968]; Cochingyan v. Cloribel, L-27070-71 [April 22, 1977], 76 SCRA 361). (Italics found in the original.) In the case before us, it is ineludible that the parties knowingly and freely entered into a valid compromise agreement. Adequately assisted by their respective counsels, they each negotiated its terms and provisions for four months; in fact, said agreement was executed only after the fourth draft. As noted by the trial court itself, the first and second drafts were prepared successively in July, 1969; the third draft on September 25, 1969; and the fourth draft, which was finally signed by the parties on October 30, 1969, [33] followed. Since this compromise agreement was the result of a long drawn out process, with all the parties ably striving to protect their respective interests and to come out with the best they could, there can be no doubt that the parties entered into it freely and voluntarily. Accordingly, they should be bound thereby.[34] To be valid, it is merely required under the law to be based on real claims and actually agreed upon in good faith by the parties thereto.[35] Indeed, compromise is a form of amicable settlement that is not only allowed but also encouraged in civil cases.[36] Article 2029 of the Civil Code mandates that a court shall endeavor to persuade the litigants in a civil case to agree upon some fair compromise. In opposing the validity and enforcement of the compromise agreement, petitioners harp on the minority of Florida Mierly, Alfredo and Myrna. Citing Article 2032 of the Civil Code, they contend that the courts approval is necessary in compromises entered into by guardians and parents in behalf of their wards or children.[37] However, we observe that although denominated a compromise agreement, the document in this case is essentially a deed of partition, pursuant to Article 1082 of the Civil Code which provides that [e]very act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction. For a partition to be valid, Section 1, Rule 74 of the Rules of Court, requires the concurrence of the following conditions: (1) the decedent left no will; (2) the decedent left no debts, or if there were debts left, all had been paid; (3) the heirs and liquidators are all of age, or if they are minors, the latter are represented by their judicial guardian or legal representatives; and (4) the partition was made by means of a public instrument or affidavit duly filed with the Register of Deeds.[38] We find that all the foregoing requisites are present in this case. We therefore affirm the validity of the parties compromise agreement/partition in this case. In any event, petitioners neither raised nor ventilated this issue in the trial court. This new question or matter was manifestly beyond the pale of the issues or questions submitted and threshed out before the lower court which are reproduced below, viz.: I Are the properties which are the object of the sale by the deceased spouses to their grandchildren collationable?

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II Are the properties which are the object of the sale by the deceased spouses to their legitimate daughter also collationable? III The first and second issues being resolved, how much then is the rightful share of the four (4) recognized illegitimate children?[39] Furthermore, the 27-page Memorandum dated February 17, 1990 filed by petitioners before the Regional Trial Court [40] readily reveals that they never questioned the validity of the compromise. In their comment before the Court of Appeals,[41] petitioners based their objection to said compromise agreement on the solitary reason that it was tainted with fraud and deception, zeroing specifically on the alleged fraud committed by private respondent Rosalia S. Lugod.[42] The issue of minority was first raised only in petitioners Motion for Reconsideration of the Court of Appeals Decision;[43] thus, it is as if it was never duly raised in that court at all.[44] Hence, this Court cannot now, for the first time on appeal, entertain this issue, for to do so would plainly violate the basic rule of fair play, justice and due process.[45] We take this opportunity to reiterate and emphasize the well-settled rule that (a)n issue raised for the first time on appeal and not raised timely in the proceedings in the lower court is barred by estoppel. Questions raised on appeal must be within the issues framed by the parties and, consequently, issues not raised in the trial court cannot be raised for the first time on appeal.[46] The petitioners likewise assail as void the provision on waiver contained in No. 8 of the aforequoted compromise, because it allegedly constitutes a relinquishment by petitioners of a right to properties which were not known.[47] They argue that such waiver is contrary to law, public policy, morals or good custom. The Court disagrees. The assailed waiver pertained to their hereditary right to properties belonging to the decedents estate which were not included in the inventory of the estates properties. It also covered their right to other properties originally belonging to the spouses Juan Sanchez and Maria Villafranca de Sanchez which have been transferred to other persons. In addition, the parties agreed in the compromise to confirm and ratify said transfers. The waiver is valid because, contrary to petitioners protestation, the parties waived a known and existing interest -- their hereditary right which was already vested in them by reason of the death of their father. Article 777 of the Civil Code provides that (t)he rights to the succession are transmitted from the moment of death of the decedent. Hence, there is no legal obstacle to an heirs waiver of his/her hereditary share even if the actual extent of such share is not determined until the subsequent liquidation of the estate.[48] At any rate, such waiver is consistent with the intent and letter of the law advocating compromise as a vehicle for the settlement of civil disputes.[49] Finally, petitioners contend that Private Respondent Rosalia T. Lugods alleged fraudulent acts, specifically her concealment of some of the decedents properties, attended the actual execution of the compromise agreement.[50] This argument is debunked by the absence of any substantial and convincing evidence on record showing fraud on her part. As aptly observed by the appellate court: [Herein petitioners] accuse [herein private respondent] Rosalia of fraud or deception by alleging, inter alia, that the parcel of land given to them never conformed to the stated area, i.e., forty-eight (48) hectares, as stated in the compromise agreement. We find this argument unconvincing and unmeritorious. [Herein petitioners] averment of fraud on the part of [herein private respondent] Rosalia becomes untenable when We consider the memorandum of agreement they later executed with [herein private respondent] Rosalia wherein said compromise agreement was modified by correcting the actual area given to [herein petitioners] from forty-eight (48) hectares to thirty-six (36) hectares only. If the actual area allotted to them did not conform to the 48 hectare area stated in the compromise agreement, then why did they agree to the memorandum of agreement whereby their share in the estate of their father was even reduced to just 36 hectares? Where is fraud or deception there? Considering that [herein petitioners] were ably represented by their lawyers in executing these documents and who presumably had explained to them the import and consequences thereof, it is hard to believe their charge that they were defrauded and deceived by [herein private respondent] Rosalia. If the parcel of land given to [herein petitioners], when actually surveyed, happened to be different in area to the stated area of 48 hectares in the compromise agreement, this circumstance is not enough proof of fraud or deception on [herein private respondent] Rosalias part. Note that Tax Declaration No. 06453 plainly discloses that the land transferred to [herein petitioners] pursuant to the compromise agreement contained an area of 48 hectares (Annex A, Supplemental Reply). And when [herein petitioners] discovered that the land allotted to them actually contained only 24 hectares, a conference between the parties took place which led to the execution and signing of the memorandum of agreement wherein [herein petitioners] distributive share was even reduced to 36 hectares. In the absence of convincing and clear evidence to the contrary, the allegation of fraud and deception cannot be successfully imputed to [herein private respondent] Rosalia who must be presumed to have acted in good faith.[51] The memorandum of agreement freely and validly entered into by the parties on April 13, 1970 and referred to above reads: MEMORANDUM OF AGREEMENT The parties assisted by their respective counsel have agreed as they hereby agree: 1. To amend the compromise agreement executed by them on October 30, 1969 so as to include the following: a. Correction of the actual area being given to the petitioners and intervenors, all illegitimate children of the late Juan C. Sanchez, forty-eight (48) hectares, thirty-six (36) acres as embodied in the aforementioned compromise agreement to thirty-six (36) hectares only, thus enabling each of them to get six (6) hectares each. b. That the said 36-hectare area shall be taken from that parcel of land which is now covered by O.C.T. No. 146 (Patent No. 30012) and the adjoining areas thereof designated as Lot A and Lot C as reflected on the sketch plan attached to the record of this case prepared by Geodetic Engineer Olegario E. Zalles pursuant to the Courts commission of March 10, 1970 provided, however, that if the said 36-hectare area could not be found after adding thereto the areas of said lots A and C, then the additional area shall be taken from what is designated as Lot B, likewise also reflected in the said sketch plan attached to the records;

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c. That the partition among the six illegitimate children of the late Juan C. Sanchez (petitioners and intervenors) shall be effective among themselves in such a manner to be agreed upon by them, each undertaking to assume redemption of whatever plants found in their respective shares which need redemption from the tenants thereof as well as the continuity of the tenancy agreements now existing and covering the said shares or areas. d. The subdivision survey shall be at the expense of the said petitioners and intervenors prorata. e. That the administratrix agrees to deliver temporary administration of the area designated as Lot 5 of the Valles Sketch Plan pending final survey of the said 36-hectare area. Cagayan de Oro City, April 13, 1970. (Sgd.) LAURETA TAMPOS For herself and as Guardian ad-litem of Rolando, Mierly, Alfredo and Myrna, all surnamed Sanchez Assisted by: (Sgd.) TEOGENES VELEZ, Jr. Counsel for Petitioners (Sgd.) ROSALIA S. LUGOD Administratrix Assisted by: (Sgd.) PABLO S. REYES Counsel for Administratrix (Sgd.) MARIA RABOSO SANCHEZ Intervenor[52] Not only did the parties knowingly enter into a valid compromise agreement; they even amended it when they realized some errors in the original. Such correction emphasizes the voluntariness of said deed. It is also significant that all the parties, including the then minors, had already consummated and availed themselves of the benefits of their compromise.[53] This Court has consistently ruled that a party to a compromise cannot ask for a rescission after it has enjoyed its benefits.[54] By their acts, the parties are ineludibly estopped from questioning the validity of their compromise agreement. Bolstering this conclusion is the fact that petitioners questioned the compromise only nine years after its execution, when they filed with the trial court their Motion to Defer Approval of Compromise Agreement, dated October 26, 1979.[55] In hindsight, it is not at all farfetched that petitioners filed said motion for the sole reason that they may have felt shortchanged in their compromise agreement or partition with private respondents, which in their view was unwise and unfair. While we may sympathize with this rueful sentiment of petitioners, we can only stress that this alone is not sufficient to nullify or disregard the legal effects of said compromise which, by its very nature as a perfected contract, is binding on the parties. Moreover, courts have no jurisdiction to look into the wisdom of a compromise or to render a decision different therefrom.[56] It is a well-entrenched doctrine that the law does not relieve a party from the effects of an unwise, foolish, or disastrous contract, entered into with all the required formalities and with full awareness of what he was doing[57] and a compromise entered into and carried out in good faith will not be discarded even if there was a mistake of law or fact, (McCarthy vs. Barber Steamship Lines, 45 Phil. 488) because courts have no power to relieve parties from obligations voluntarily assumed, simply because their contracts turned out to be disastrous deals or unwise investments.[58] Volenti non fit injuria. Corollarily, the petitioners contend that the Court of Appeals gravely abused its discretion in deeming Special Proceedings Nos. 44-M and 1022 CLOSED and TERMINATED, arguing that there was as yet no order of distribution of the estate pursuant to Rule 90 of the Rules of Court. They add that they had not received their full share thereto.[59] We disagree. Under Section 1, Rule 90 of the Rules of Court, an order for the distribution of the estate may be made when the debts, funeral charges, and expenses of administration, the allowance to the widow, and inheritance tax, if any, had been paid. This order for the distribution of the estates residue must contain the names and shares of the persons entitled thereto. A perusal of the whole record, particularly the trial courts conclusion,[60] reveals that all the foregoing requirements already concurred in this case. The payment of the indebtedness of the estates of Juan C. Sanchez and Maria Villafranca in the amount of P51,598.93 was shouldered by Private Respondent Rosalia, who also absorbed or charged against her share the advances of Rolando T. Lugod in the sum of P8,533.94, in compliance with Article 1061 of the Civil Code on collation.[61] Furthermore, the compromise of the parties, which is the law between them, already contains the names and shares of the heirs to the residual estate, which shares had also been delivered. On this point, we agree with the following discussion of the Court of Appeals:

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But what the (trial court) obviously overlooked in its appreciation of the facts of this case are the uncontroverted facts that (herein petitioners) have been in possession and ownership of their respective distributive shares as early as October 30, 1969 and they have received other properties in addition to their distributive shares in consideration of the compromise agreement which they now assail. Proofs thereof are Tax Declarations No. 20984, 20985, 20986, 20987, 20988, 20989 and 20990 (Annexes B to H, Supplemental Reply) in the respective names of (herein petitioners), all for the year 1972. (Herein petitioners) also retained a house and lot, a residential lot and a parcel of agricultural land (Annexes I, J and K, Ibid.) all of which were not considered in the compromise agreement between the parties. Moreover, in the compromise agreement per se, it is undoubtedly stated therein that cash advances in the aggregate sum of P8,533.94 were received by (herein petitioners) after October 21, 1968 (Compromise Agreement, par. 5)[62] All the foregoing show clearly that the probate court had essentially finished said intestate proceedings which, consequently, should be deemed closed and terminated. In view of the above discussion, the Court sees no reversible error on the part of the Court of Appeals.

Third Issue: Fraud and Collation Petitioners fault Respondent Court for not ordering Private Respondent Rosalia T. Lugod to deliver to them the deficiency as allegedly provided under the compromise agreement. They further contend that said court erred in not directing the provisional inclusion of the alleged deficiency in the inventory for purposes of collating the properties subject of the questioned deeds of sale.[63] We see no such error. In the trial court, there was only one hearing conducted, and it was held only for the reception of the evidence of Rosalia S. Lugod to install her as administratix of the estate of Maria Villafranca. There was no other evidence, whether testimonial or otherwise, received, formally offered to, and subsequently admitted by the probate court below; nor was there a trial on the merits of the parties conflicting claims.[64] In fact, the petitioners moved for the deferment of the compromise agreement on the basis of alleged fraudulent concealment of properties -- NOT because of any deficiency in the land conveyed to them under the agreements.[65] Hence, there is no hard evidence on record to back up petitioners claims. In any case, the trial court noted Private Respondent Rosalias willingness to reimburse any deficiency actually proven to exist. It subsequently ordered the geodetic engineer who prepared the certification and the sketch of the lot in question, and who could have provided evidence for the petitioners, to bring records of his relocation survey.[66] However, Geodetic Engineer Idulsa did not comply with the courts subpoena duces tecum and ad testificandum. Neither did he furnish the required relocation survey.[67] No wonder, even after a thorough scrutiny of the records, this Court cannot find any evidence to support petitioners allegations of fraud against Private Respondent Rosalia. Similarly, petitioners allegations of fraud in the execution of the questioned deeds of sale are bereft of substance, in view of the palpable absence of evidence to support them. The legal presumption of validity of the questioned deeds of absolute sale, being duly notarized public documents, has not been overcome.[68] On the other hand, fraud is not presumed. It must be proved by clear and convincing evidence, and not by mere conjectures or speculations. We stress that these deeds of sale did not involve gratuitous transfers of future inheritance; these were contracts of sale perfected by the decedents during their lifetime.[69] Hence, the properties conveyed thereby are not collationable because, essentially, collation mandated under Article 1061 of the Civil Code contemplates properties conveyed inter vivos by the decedent to an heir by way of donation or other gratuitous title. In any event, these alleged errors and deficiencies regarding the delivery of shares provided in the compromise, concealment of properties and fraud in the deeds of sale are factual in nature which, as a rule, are not reviewable by this Court in petitions under Rule 45. [70] Petitioners have failed to convince us that this case constitutes an exception to such rule. All in all, we find that the Court of Appeals has sufficiently addressed the issues raised by them. Indeed, they have not persuaded us that said Court committed any reversible error to warrant a grant of their petition. WHEREFORE, the petition is hereby DENIED and the assailed Decision of the Court of Appeals is AFFIRMED. SO ORDERED. Narvasa, C.J. (Chairman), Romero, Melo and Francisco, JJ., concur.

G.R. Nos. L-3087 and L-3088

July 31, 1954

In re: Testate Estate of the deceased JOSE B. SUNTAY. SILVINO SUNTAY, petitioner-appellant, vs. In re: Intestate Estate of the deceased JOSE B. SUNTAY, FEDERICO C. SUNTAY, administrator-appellee. Claro M. Recto for appellant. Sison and Aruego for appellee. PADILLA, J.: This is an appeal from a decree of the Court of First Instance of Bulacan disallowing the alleged will and testament executed in Manila on November 1929, and the alleged last will and testament executed in Kulangsu, Amoy, China, on 4 January 1931, by Jose B. Suntay. The value of the estate left by the deceased is more than P50,000. On 14 May 1934 Jose B. Suntay, a Filipino citizen and resident of the Philippines, died in the city of Amoy, Fookien province, Republic of China, leaving real and personal properties in the Philippines and a house in Amoy, Fookien province, China, and children by the first marriage had with the late

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Manuela T. Cruz namely, Apolonio, Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano, and Jose, Jr. and a child named Silvino by the second marriage had with Maria Natividad Lim Billian who survived him. Intestate proceedings were instituted in the Court of First Instance of Bulacan (special proceedings No. 4892) and after hearing letters of administration were issued to Apolonio Suntay. After the latter's death Federico C. Suntay was appointed administrator of the estate. On 15 October 1934 the surviving widow filed a petition in the Court of First Instance of Bulacan for the probate of a last will and testament claimed to have been executed and signed in the Philippines on November 1929 by the late Jose B. Suntay. This petition was denied because of the loss of said will after the filing of the petition and before the hearing thereof and of the insufficiency of the evidence to establish the loss of the said will. An appeal was taken from said order denying the probate of the will and this Court held the evidence before the probate court sufficient to prove the loss of the will and remanded the case to the Court of First Instance of Bulacan for the further proceedings (63 Phil., 793). In spite of the fact that a commission from the probate court was issued on 24 April 1937 for the taking of the deposition of Go Toh, an attesting witness to the will, on 7 February 1938 the probate court denied a motion for continuance of the hearing sent by cablegram from China by the surviving widow and dismissed the petition. In the meantime the Pacific War supervened. After liberation, claiming that he had found among the files, records and documents of his late father a will and testament in Chinese characters executed and signed by the deceased on 4 January 1931 and that the same was filed, recorded and probated in the Amoy district court, Province of Fookien, China, Silvino Suntay filed a petition in the intestate proceedings praying for the probate of the will executed in the Philippines on November 1929 (Exhibit B) or of the will executed in Amoy, Fookien, China, on 4 January 1931 (Exhibit N). There is no merit in the contention that the petitioner Silvino Suntay and his mother Maria Natividad Lim Billian are estopped from asking for the probate of the lost will or of the foreign will because of the transfer or assignment of their share right, title and interest in the estate of the late Jose B. Suntay to Jose G. Gutierrez and the spouses Ricardo Gutierrez and Victoria Goño and the subsequent assignment thereof by the assignees to Francisco Pascual and by the latter to Federico C. Suntay, for the validity and legality of such assignments cannot be threshed out in this proceedings which is concerned only with the probate of the will and testament executed in the Philippines on November 1929 or of the foreign will allegedly executed in Amoy on 4 January 1931 and claimed to have been probated in the municipal district court of Amoy, Fookien province, Republic of China. As to prescription, the dismissal of the petition for probate of the will on 7 February 1938 was no bar to the filing of this petition on 18 June 1947, or before the expiration of ten years. As to the lost will, section 6, Rule 77, provides: No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and the will is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded. The witnesses who testified to the provisions of the lost will are Go Toh, an attesting witness, Anastacio Teodoro and Ana Suntay. Manuel Lopez, who was an attesting witness to the lost will, was dead at the time of the hearing of this alternative petition. In his deposition Go Toh testifies that he was one of the witnesses to the lost will consisting of twenty-three sheets signed by Jose B. Suntay at the bottom of the will and each and every page thereof in the presence of Alberto Barretto, Manuel Lopez and himself and underneath the testator's signature the attesting witnesses signed and each of them signed the attestation clause and each and every page of the will in the presence of the testator and of the other witnesses (answers to the 31st, 41st, 42nd, 49th, 50th, 55th and 63rd interrogatories, Exhibit D-1), but did not take part in the drafting thereof (answer to the 11th interrogatory, Id.); that he knew the contents of the will written in Spanish although he knew very little of that language (answers to the 22nd and 23rd interrogatories and to X-2 cross-interrogatory, Id.) and all he knows about the contends of the lost will was revealed to him by Jose B. Suntay at the time it was executed (answers to the 25th interrogatory and to X-4 and X-8 cross-interrogatories, Id.); that Jose B. Suntay told him that the contents thereof are the same as those of the draft (Exhibit B) (answers to the 33rd interrogatory and to X-8 cross-interrogatory, Id.) which he saw in the office of Alberto Barretto in November 1929 when the will was signed (answers to the 69th, 72nd, and 74th interrogatories, Id); that Alberto Barretto handed the draft and said to Jose B. Suntay: "You had better see if you want any correction" (answers to the 81st, 82nd and 83rd interrogatories, Id.); that "after checking Jose B. Suntay put the "Exhibit B" in his pocket and had the original signed and executed" (answers to the 91st interrogatory, and to X-18 cross-interrogatory, Id.); that Mrs. Suntay had the draft of the will (Exhibit B) translated into Chinese and he read the translation (answers to the 67th interrogatory, Id.); that he did not read the will and did not compare it (check it up) with the draft (Exhibit B) (answers to X-6 and X-20 cross-interrogatories, Id.). Ana Suntay testifies that sometime in September 1934 in the house of her brother Apolonio Suntay she learned that her father left a will "because of the arrival of my brother Manuel Suntay, who was bringing along with him certain document and he told us or he was telling us that it was the will of our father Jose B. Suntay which was taken from Go Toh. ..." (p. 524, t. s. n., hearing of 24 February 1948); that she saw her brother Apolonio Suntay read the document in her presence and of Manuel and learned of the adjudication made in the will by her father of his estate, to wit: one-third to his children, one-third to Silvino and his mother and the other third to Silvino, Apolonio, Concepcion and Jose, Jr. (pp. 526-8, 530-1, 542, t. s. n. Id.); that "after Apolonio read that portion, then he turned over the document to Manuel, and he went away," (p. 528, t. s. n., Id.). On cross-examination, she testifies that she read the part of the will on adjudication to know what was the share of each heir (pp. 530, 544, t. s. n., Id.) and on redirect she testifies that she saw the signature of her father, Go Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n., Id.). Anastacio Teodoro testifies that one day in November 1934 (p. 273, t. s. n., hearing of 19 January 1948), before the last postponement of the hearing granted by the Court, Go Toh arrived at his law office in the De los Reyes Building and left an envelope wrapped in red handkerchief [Exhibit C] (p. 32, t. s. n., hearing of 13 October 1947); that he checked up the signatures on the envelope Exhibit A with those on the will placed in the envelope (p. 33, t. s. n., Id.); that the will was exactly the same as the draft Exhibit B (pp. 32, 47, 50, t. s. n., Id.).

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If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro And returned by the latter to the former because they could not agree on the amount of fees, the former coming to the latter's office straight from the boat (p. 315, t. s. n., hearing of 19 January 1948) that brought him to the Philippines from Amoy, and that delivery took place in November 1934 (p. 273, t. s. n., Id.), then the testimony of Ana Suntay that she saw and heard her brother Apolonio Suntay read the will sometime in September 1934 (p. 524, t. s. n., hearing of 24 February 1948), must not be true. Although Ana Suntay would be a good witness because she was testifying against her own interest, still the fact remains that she did not read the whole will but only the adjudication (pp. 526-8, 530-1, 542, t. s. n., Id.) and saw only the signature, of her father and of the witnesses Go Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n., Id.). But her testimony on cross-examination that she read the part of the will on adjudication is inconsistent with her testimony in chief that after Apolonio had read that part of the will he turned over or handed the document to Manuel who went away (p. 528, t. s. n., Id.). If it is true that Go Toh saw the draft Exhibit B in the office of Alberto Barretto in November 1929 when the will was signed, then the part of his testimony that Alberto Barretto handed the draft to Jose B. Suntay to whom he said: "You had better see if you want any correction" and that "after checking Jose B. Suntay put the "Exhibit B" in his pocket and had the original signed and executed" cannot be true, for it was not the time for correcting the draft of the will, because it must have been corrected before and all corrections and additions written in lead pencil must have been inserted and copied in the final draft of the will which was signed on that occasion. The bringing in for the draft (Exhibit B) on that occasion is just to fit it within the framework of the appellant's theory. At any rate, all of Go Toh's testimony by deposition on the provisions of the alleged lost will is hearsay, because he came to know or he learned to them from information given him by Jose B. Suntay and from reading the translation of the draft (Exhibit B) into Chinese. Much stress is laid upon the testimony of Federico C. Suntay who testifies that he read the supposed will or the alleged will of his father and that the share of the surviving widow, according to the will, is two-thirds of the estate (p. 229, t. s. n., hearing of 24 October 1947). But this witness testified to oppose the appointment of a co-administrator of the estate, for the reason that he had acquired the interest of the surviving widow not only in the estate of her deceased husband but also in the conjugal property (pp. 148, 205, 228, 229, 231, t. s. n., Id.) Whether he read the original will or just the copy thereof (Exhibit B) is not clear. For him the important point was that he had acquired all the share, participation and interest of the surviving widow and of the only child by the second marriage in the estate of his deceased father. Be that as it may, his testimony that under the will the surviving widow would take two-thirds of the estate of the late Jose B. Suntay is at variance with Exhibit B and the testimony of Anastacio Teodoro. According to the latter, the third for strict legitime is for the ten children; the third for betterment is for Silvino, Apolonio, Concepcion and Jose Jr.; and the third for free disposal is for the surviving widow and her child Silvino. Hence, granting that there was a will duly executed by Jose B. Suntay placed in the envelope (Exhibit A) and that it was in existence at the time of, and not revoked before, his death, still the testimony of Anastacio Teodoro alone falls short of the legal requirement that the provisions of the lost will must be "clearly and distinctly proved by at least two credible witnesses." Credible witnesses mean competent witnesses and those who testify to facts from or upon hearsay are neither competent nor credible witnesses. On the other hand, Alberto Barretto testifies that in the early part of 1929 he prepared or drew up two mills for Jose B. Suntay at the latter's request, the rough draft of the first will was in his own handwriting, given to Manuel Lopez for the final draft or typing and returned to him; that after checking up the final with the rough draft he tore it and returned the final draft to Manuel Lopez; that this draft was in favor of all the children and the widow (pp. 392-4, 449, t. s. n., hearing of 21 February 1948); that two months later Jose B. Suntay and Manuel Lopez called on him and the former asked him to draw up another will favoring more his wife and child Silvino; that he had the rough draft of the second will typed (pp. 395, 449 t. s. n., Id.) and gave it to Manuel Lopez (p. 396, t. s. n., Id.); that he did not sign as witness the second will of Jose B. Suntay copied from the typewritten draft [Exhibit B] (p. 420, t. s. n., Id.); that the handwritten insertions or additions in lead pencil to Exhibit B are not his (pp. 415-7 435-6, 457, t. s. n., Id.); that the final draft of the first will made up of four or five pages (p. 400, t. s. n., Id.) was signed and executed, two or three months after Suntay and Lopez had called on him (pp. 397-8, 403, 449, t. s. n., Id.) in his office at the Cebu Portland Cement in the China Banking Building on Dasmariñas street by Jose B. Suntay, Manuel Lopez and a Chinaman who had all come from Hagonoy (p. 398, t. s. n., Id.); that on that occasion they brought an envelope (Exhibit A) where the following words were written: "Testamento de Jose B. Suntay" (pp. 399, 404, t. s. n., Id.); that after the signing of the will it was placed inside the envelope (Exhibit A) together with an inventory of the properties of Jose B. Suntay and the envelope was sealed by the signatures of the testator and the attesting witnesses (pp. 398, 401, 441, 443, 461, t. s. n., Id.); that he again saw the envelope (Exhibit A) in his house one Saturday in the later part of August 1934, brought by Go Toh and it was then in perfect condition (pp. 405-6, 411, 440-2, t. s. n., Id.); that on the following Monday Go Toh went to his law office bringing along with him the envelope (Exhibit A) in the same condition; that he told Go Toh that he would charge P25,000 as fee for probating the will (pp. 406, 4402, Id.); that Go Toh did not leave the envelope (Exhibit A) either in his house or in his law office (p. 407, t. s. n., Id.); that Go Toh said he wanted to keep it and on no occasion did Go Toh leave it to him (pp. 409, 410, t. s. n., Id.). The testimony of Go Toh taken and heard by Assistant Fiscal F. B. Albert in connection with the complaint for estafa filed against Manuel Suntay for the alleged snatching of the envelope (Exhibit A), corroborates the testimony of Alberto Barretto to the effect that only one will was signed by Jose B. Suntay at his office in which he (Alberto Barretto), Manuel Lopez and Go Toh took part as attesting witnesses (p. 15, t. s. n., Exhibit 6). Go Toh testified before the same assistant fiscal that he did not leave the will in the hands of Anastacio Teodoro (p. 26, t. s. n., Exhibit 6). He said, quoting his own words, "Because I can not give him this envelope even though the contract (on fees) was signed. I have to bring that document to court or to anywhere else myself." (p. 27, t. s. n., Exhibit 6). As to the will claimed to have been executed on 4 January 1931 in Amoy, China, the law on the point in Rule 78. Section 1 of the rule provides: Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines. Section 2 provides:

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When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition for allowance in the Philippines, by the executor or other person interested, in the court having jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be given as in case of an original will presented for allowance. Section 3 provides: If it appears at the hearing that the will should be allowed in the Philippines, the court shall so allow it, and a certificate of its allowance, signed by the Judge, and attested by the seal of the courts, to which shall be attached a copy of the will, shall be filed and recorded by the clerk, and the will shall have the same effect as if originally proved and allowed in such court. The fact that the municipal district court of Amoy, China, is a probate court must be proved. The law of China on procedure in the probate or allowance of wills must also be proved. The legal requirements for the execution of a valid will in China in 1931 should also be established by competent evidence. There is no proof on these points. The unverified answers to the questions propounded by counsel for the appellant to the Consul General of the Republic of China set forth in Exhibits R-1 and R-2, objected to by counsel for the appellee, are inadmissible, because apart from the fact that the office of Consul General does not qualify and make the person who holds it an expert on the Chinese law on procedure in probate matters, if the same be admitted, the adverse party would be deprived of his right to confront and cross-examine the witness. Consuls are appointed to attend to trade matters. Moreover, it appears that all the proceedings had in the municipal district court of Amoy were for the purpose of taking the testimony of two attesting witnesses to the will and that the order of the municipal district court of Amoy does not purport to probate the will. In the absence of proof that the municipal district court of Amoy is a probate court and on the Chinese law of procedure in probate matters, it may be presumed that the proceedings in the matter of probating or allowing a will in the Chinese courts are the a deposition or to a perpetuation of testimony, and even if it were so it does not measure same as those provided for in our laws on the subject. It is a proceedings in rem and for the validity of such proceedings personal notice or by publication or both to all interested parties must be made. The interested parties in the case were known to reside in the Philippines. The evidence shows that no such notice was received by the interested parties residing in the Philippines (pp. 474, 476, 481, 503-4, t. s. n., hearing of 24 February 1948). The proceedings had in the municipal district court of Amoy, China, may be likened toe or come up to the standard of such proceedings in the Philippines for lack of notice to all interested parties and the proceedings were held at the back of such interested parties. The order of the municipal district court of Amoy, China, which reads as follows: ORDER: SEE BELOW The above minutes were satisfactorily confirmed by the interrogated parties, who declare that there are no errors, after said minutes were loudly read and announced actually in the court. Done and subscribed on the Nineteenth day of the English month of the 35th year of the Republic of China in the Civil Section of the Municipal District Court of Amoy, China. HUANG KUANG CHENG Clerk of Court CHIANG TENG HWA Judge

(Exhibit N-13, p. 89 Folder of Exhibits.). does not purport to probate or allow the will which was the subject of the proceedings. In view thereof, the will and the alleged probate thereof cannot be said to have been done in accordance with the accepted basic and fundamental concepts and principles followed in the probate and allowance of wills. Consequently, the authenticated transcript of proceedings held in the municipal district court of Amoy, China, cannot be deemed and accepted as proceedings leading to the probate or allowance of a will and, therefore, the will referred to therein cannot be allowed, filed and recorded by a competent court of this country. The decree appealed from is affirmed, without pronouncement as to costs. Pablo, Bengzon, A. Reyes, Labrador and Concepcion, JJ., concur.

Separate Opinions

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PARAS, C.J., dissenting: As a preliminary statement we may well refer to the case of Maria Natividad Lim Billian, petitioner and appellant, vs.Apolonio Suntay, Angel Suntay, Manuel Suntay, and Jose Suntay, oppositors and appellees, 63 Phil., 793-797, in which the following decision was rendered by this Court on November 25, 1936, holding that the will executed by Jose B. Suntay who died in the City of Amoy, China, on May 14, 1934, was lost under the circumstances pointed out therein, and ordering the return of the case to the Court of First Instance of Bulacan for further proceedings: On May 14, 1934, Jose B. Suntay died in the City of Amoy, China. He married twice, the first time to Manuela T. Cruz with whom he had several children now residing in the Philippines, and the second time to Maria Natividad Lim Billian with whom he had a son. On the same date, May 14, 1934, Apolonio Suntay, eldest son of the deceased by his first marriage, filed the latter's intestate in the Court of First Instance of Manila (civil case No. 4892). On October 15, 1934, and in the same court, Maria Natividad Lim Billian also instituted the present proceedings for the probate of a will allegedly left by the deceased. According to the petitioner, before the deceased died in China he left with her a sealed envelope (Exhibit A) containing his will and, also another document (Exhibit B of the petitioner) said to be a true copy of the original contained in the envelope. The will in the envelope was executed in the Philippines, with Messrs. Go Toh, Alberto Barretto and Manuel Lopez as attesting witnesses. On August 25, 1934, Go Toh, as attorney-in-fact of the petitioner, arrived in the Philippines with the will in the envelope and its copy Exhibit B. While Go Toh was showing this envelope to Apolonio Suntay and Angel Suntay, children by first marriage of the deceased, they snatched and opened it and, after getting its contents and throwing away the envelope, they fled. Upon this allegation, the petitioner asks in this case that the brothers Apolonio, Angel, Manuel and Jose Suntay, children by the first marriage of the deceased, who allegedly have the document contained in the envelope which is the will of the deceased, be ordered to present it in court, that a day be set for the reception of evidence on the will, and that the petitioner be appointed executrix pursuant to the designation made by the deceased in the will. In answer to the court's order to present the alleged will, the brothers Apolonio, Angel, Manuel and Jose Suntay stated that they did not have the said will and denied having snatched it from Go Toh. In view of the allegations of the petition and the answer of the brothers Apolonio, Angel, Manuel and Jose Suntay, the questions raised herein are: The loss of the alleged will of the deceased, whether Exhibit B accompanying the petition is an authentic copy thereof, and whether it has been executed with all the essential and necessary formalities required by law for its probate. At the trial of the case on March 26, 1934, the petitioner put two witnesses upon the stand, Go Toh and Tan Boon Chong, who corroborated the allegation that the brothers Apolonio and Angel appropriated the envelope in the circumstances above-mentioned. The oppositors have not adduced any evidence counter to the testimony of these two witnesses. The court, while making no express finding on this fact, took it for granted in its decision; but it dismissed the petition believing that the evidence is insufficient to establish that the envelope seized from Go Toh contained the will of the deceased, and that the said will was executed with all the essential and necessary formalities required by law for its probate. In our opinion, the evidence is sufficient to establish the loss of the document contained in the envelope. Oppositors' answer admits that, according to Barretto, he prepared a will of the deceased to which he later become a witness together with Go Toh and Manuel Lopez, and that this will was placed in an envelope which was signed by the deceased and by the instrumental witnesses. In court there was presented and attached to the case an open and empty envelope signed by Jose B. Suntay, Alberto Barretto, Go Toh and Manuel Lopez. It is thus undeniable that this envelope Exhibit A is the same one that contained the will executed by the deceased-drafted by Barretto and with the latter, Go Toh and Manuel Lopez as attesting witnesses. These tokens sufficiently point to the loss of the will of the deceased, a circumstance justifying the presentation of secondary evidence of its contents and of whether it was executed with all the essential and necessary legal formalities. The trial of this case was limited to the proof of loss of the will, and from what has taken place we deduce that it was not petitioner's intention to raise, upon the evidence adduced by her, the other points involved herein, namely, as we have heretofore indicated, whether Exhibit B is a true copy of the will and whether the latter was executed with all the formalities required by law for its probate. The testimony of Alberto Barretto bears importantly in this connection. Wherefore, the loss of the will executed by the deceased having been sufficiently established, it is ordered that this case be remanded to the court of origin for further proceedings in obedience to this decision, without any pronouncement as to the costs. So ordered On June 18, 1947, Silvino Suntay, the herein petitioner, filed a petition in the Court of First Instance of Bulacan praying "that an order be issued (a) either directing the continuation of the proceedings in the case remanded by the Supreme Court by virtue of its decision in G. R. No. 44276 and fixing a date for the reception of evidence of the contents of the will declared lost, or the allowance, filing and recording of the will of the deceased which had been duly probated in China, upon the presentation of the certificates and authentications required by Section 41, Rule 123 (Yu Chengco vs. Tiaoqui supra), or both

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proceedings concurrently and simultaneously; (b) that letters of administration be issued to herein petitioner as co-administrator of the estate of the deceased together with Federico Suntay; and (c) that such other necessary and proper orders be issued which this Honorable Court deems appropriate in the premises." While this petition was opposed by Federico C. Suntay, son of the deceased Jose B. Suntay with his first wife, Manuela T. Cruz, the other children of the first marriage, namely, Ana Suntay, Aurora Suntay, Concepcion Suntay, Lourdes Guevara Vda. de Suntay, Manuel Suntay and Emiliano Suntay, filed the following answer stating that they had no opposition thereto; "Come now the heirs Concepcion Suntay, Ana Suntay, Aurora Suntay, Lourdes Guevara Vda. de Suntay, Manuel Suntay, and Emiliano Suntay, through their undersigned attorney, and, in answer to the alternative petition filed in these proceedings by Silvino Suntay, through counsel, dated June 18, 1947, to this Honorable Court respectfully state that, since said alternative petition seeks only to put into effect the testamentary disposition and wishes of their late father, they have no opposition thereto." After hearing, the Court of First Instance of Bulacan rendered on April 19, 1948, the following decision: This action is for the legalization of the alleged will of Jose B. Suntay, deceased. In order to have a comprehensive understanding of this case, it is necessary to state the background on which the alternative petition of the herein petitioner Silvino Suntay has been based. The decision of the Supreme Court (Exhibit O), in re will of the deceased Jose B. Suntay, 63 Phil., 793-797, is hereunder produced: (As quoted above) The above quoted decision of the Supreme Court was promulgated on November 25, 1936 (Exhibit O). The Clerk of the Court of Court of First Instance of Bulacan notified the parties of the decision on December 15, 1936; and the case was set for hearing on February 12, 1937, but it was transferred to March 29, 1937 (Exhibit O), on motion of the then petitioner Maria Natividad Lim Billian (Exhibit F). Again, it was postponed until "further setting" in the order of court dated March 18, 1937, upon motion of the petitioner (Exhibit H). In the meantime, the deposition of Go Toh was being sought (Exhibit H). The hearing of the case was again set for February 7, 1936, by order of the court dated January 5, 1938, upon motion of Emiliano Suntay and Jose Suntay, Jr. On the same day of the hearing which had been set, the petitioner, then, Maria Natividad Lim Billian, sent a telegram from Amoy, China, addressed to the Court of First Instance of Bulacan moving for the postponement of the hearing on the ground that Atty. Eriberto de Silva who was representing her died (Exhibit K). The court, instead of granting the telegraphic motion for postponement, dismissed the case in the order dated February 7, 1938 (Exhibit L). On July 3, 1947, the petitioner Silvino Suntay filed a motion for the consolidation of the intestate Estate of the deceased Jose B. Suntay, Special Proceeding No. 4892 and the Testate Estate of Jose B. Suntay, Special Proceeding No. 4952, which latter case is the subject of the said alternative petition. The motion for the merger and consolidation of the two cases was granted on July 3, 1947. That oppositor, Federico C. Suntay, in the Testate Proceeding filed a motion to dismiss the alternative petition on November 14, 1947, which was denied by the court in its resolution of November 22, 1947. The said oppositor not being satisfied with the ruling of this court denying the motion to dismiss, filed before the Supreme Court a petition for a writ of certiorari with preliminary injunction, which was dismissed for lack of merit on January 27, 1948. In obedience to the decision of the Supreme Court (Exhibit O) and upon the alternative petition of Silvino Suntay, and, further, upon the dismissal of the petition for a writ of certiorari with preliminary injunction, the court was constrained to proceed with the hearing of the probate of the lost will, the draft of which is Exhibit B, or the admission and recording of the will which had been probated in Amoy, China. The evidence for the petitioner, Silvino Suntay, shows that Jose B. Suntay married twice; first to Manuela T. Cruz who died on June 15, 1920 and had begotten with her Apolonio, now deceased, Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano and Jose, Jr., all surnamed Suntay, and second, to Maria Natividad Lim Billian with whom he had as the only child Silvino Suntay, the petitioner herein. Some time in November 1929, Jose B. Suntay executed his last will and testament in the office of Atty. Alberto Barretto in Manila, which was witnessed by Alberto Barretto, Manuel Lopez and Go Toh. The will was prepared by said Alberto Barretto upon the instance of Jose B. Suntay, and it was written in the Spanish language which was understood and spoken by said testator. After the due execution of the will, that is signing every page and the attestation clause by the testator and the witnesses in the presence of each other, the will was placed inside the envelope (Exhibit A), sealed and on the said envelope the testator and the three subscribing witnesses also signed, after which it was delivered to Jose B. Suntay. A year or so after the execution of the will, Jose B. Suntay together with his second wife Maria Natividad Lim Billian and Silvino Suntay who was then of tender age went to reside in Amoy, Fookien, China, where he died on May 14, 1934. The will was entrusted to the widow, Maria Natividad Lim Billian.

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Upon the death of Jose B. Suntay on May 14, 1934, Apolonio Suntay, the oldest son now deceased, instituted the Intestate Proceedings No. 4892, upon the presumption that no will existed. Maria Natividad Lim Billian who remained in Amoy, China, had with her the will and she engaged the services of the law firm of Barretto and Teodoro for the probate of the will. Upon the request of the said attorneys the will was brought to the Philippines by Go Toh who was one of the attesting witnesses, and it was taken to the law office of Barretto and Teodoro. The law firm of Barretto and Teodoro was composed of Atty. Alberto Barretto and Judge Anastacio Teodoro. The probate of the will was entrusted to the junior partner Judge Anastacio Teodoro; and, upon the presentation of the sealed envelope to him, he opened it and examined the said will preparatory to the filing of the petition for probate. There was a disagreement as to the fees to be paid by Maria Natividad Lim Billian, and as she (through Go Toh) could not agree to pay, P20,000 as fees, the will was returned to Go Toh by Judge Anastacio Teodoro after the latter had kept it in his safe, in his office, for three days. Subsequently, the will inside the envelope was snatched from Go Toh by Manuel Suntay and Jose, Jr., which fact has been established in the decision of the Supreme Court at the beginning of this decision. Go Toh could recover the envelope (Exhibit A) and the piece of cloth with which the envelope was wrapped (Exhibit C). The Testate Proceeding was filed nevertheless and in lien of the lost will a draft of the will (Exhibit B) was presented as secondary evidence for probate. It was disallowed by this court through Judge Buenaventura Ocampo, but on appeal the Supreme Court remanded the case to this court for further proceeding (Exhibit C). In the meantime, a Chinese will which was executed in Amoy Fookien, China, on January 4, 1931, by Jose B. Suntay, written in Chinese characters (Exhibit P) was discovered in Amoy, China, among the papers left by Jose B. Suntay, and said will had been allowed to probate in the Amoy District Court, China, which is being also presented by Silvino Suntay for allowance and recording in this court. The said petition is opposed by Federico C. Suntay on the main ground that Maria Natividad Lim Billian and Silvino Suntay have no more interest in the properties left by Jose B. Suntay, because they have already sold their respective shares, interests and participations. But such a ground of opposition is not of moment in the instant case, because the proposition involved herein in the legalization of the lost will or the allowance and recording of the will which had been probated in Amoy, China. It is now incumbent upon this court to delve into the evidence whether or not Jose B. Suntay, deceased, left a will (the draft of which is Exhibit B) and another will which was executed and another will which was executed and probated in Amoy, China. There is no longer any doubt that Jose B. Suntay while he was still residing in the Philippines, had executed a will; such is the conclusion of the Supreme Court in its decision (Exhibit O). That the will was snatched and it has never been produced in court by those who snatched it, and consequently considered lost, is also an established fact. The contention of the oppositor, Federico C. Suntay, is that the will that was executed by Jose B. Suntay in the Philippines contained provisions which provided for equal distribution of the properties among the heirs; hence, the draft (Exhibit B) cannot be considered as secondary evidence, because it does not provide for equal distribution, but if favors Maria Natividad Lim Billian and Silvino Suntay. He relies on the testimony of Atty. Alberto Barretto who declared that the first will which he drafted and reduced into a plain copy was the will that was executed by Jose B. Suntay and placed inside the envelope (Exhibit A). Granting that the first will which Atty. Alberto Barretto had drafted became the will of Jose B. Suntay and it was snatched by, and, therefore, it had fallen into the hands of, Manuel Suntay and the brothers of the first marriage, it stands to reason that said Manuel Suntay and brothers would have been primarily interested in the production of said will in court, for obvious reasons, namely, that they would have been favored. But it was suppressed and "evidence willfully suppressed would be adverse if produced" (Section 69 (e), Rule 123 of the Rules of Court). The contention, therefore, that the first will which was drafted by Atty. Barretto was the one placed inside the envelope (Exhibit A) is untenable. It might be said in this connection that the draft of the will (Exhibit B) has been admitted by Atty. Alberto Barretto as identical in substance and form to the second draft which he prepared in typewriting; it differs only, according to him, in style. He denied that the insertions in long hand in the said draft are in his own handwriting; however, Judge Anastacio Teodoro averred that the said insertions are the handwriting of Atty. Alberto Barretto. But when Atty. Alberto Barretto was asked to show any manuscript of his for purposes of comparison, he declined to do so alleging that he did not have any document in his possession showing his handwriting notwithstanding the fact that he was testifying in his own house at 188 Sta. Mesa Boulevard, Manila. He further testified that the first will be drafted contained four or five pages, but the second draft contained twenty-three pages; that he declared in one breath that he did not read the will any more when it was signed by the testator and the attesting witnesses because it would take up much time, and in the same breath he declared that he checked it before it was signed; and that he destroyed the draft of the first will which was in his own handwriting, but he delivered the draft of the second will which he prepared to Jose B. Suntay in the presence of Manuel Lopez, now deceased. Whether or not the final plain copy of the draft of the will (Exhibit B) was executed by the testator, Jose B. Suntay, and attested by the subscribing witnesses, Atty. Alberto Barretto, Manuel Lopez and Go Toh, is the pivotal point in this instant case. Judge Anastacio Teodoro testified that he opened the sealed envelope when it was given to him by Go Toh preparatory to the presentation of the petition for the probate of the said will. As the lawyer entrusted with that task, he had to examine the will and have it copied to be reproduced or appended to the petition. He could not do otherwise if he is worth salt as a good lawyer; he could not perform the stunt of "blind flying" in the judicial firmament. Every step must be taken with certainty and precision under any circumstances. He could not have talked about the attorney's fees with Go Toh, unless he has not examined the will beforehand. And, declaring that it was the exact draft of the will that was inside the envelope (Exhibit A), the testimony of Atty. Alberto Barretto to the contrary notwithstanding.

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The testimony of Judge Anastacio Teodoro is corroborated by Go Toh, one of the attesting witnesses, in his deposition (Exhibit D-1). Ana Suntay, one of the heirs and who would be affected adversely by the legalization of the will in question, also testified on rebuttal that she saw the original will in the possession of Manuel Suntay, immediately after the snatching. She read it and she particularly remembers the manner in which the properties were to be distributed. Exhibit B was shown to her on the witness stand and she declared that the provision regarding the distribution of the properties in said Exhibit B is the same as that contained in the original will. Said testimony of Ana Suntay, therefore, belies the testimony of Atty. Alberto Barretto. With respect to the proof of lost or destroyed will, Section 6 of Rule 77 provides as follows: "No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and the will is proved to have been in existence at the time of the death of the testator, or it is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded." Section 8 of the same Rule provides as follows: "If it appears at the time fixed for the hearing that the subscribing witnesses are dead or insane, or that none of them resides in the Philippines the court may admit the testimony of other witnesses to prove the sanity of the testator, and the due execution of the will; and as evidence of the due execution of the will, it may admit proof of the handwriting of the testator and of the subscribing witnesses, or any of them." Manuel Lopez as one of the subscribing witnesses is dead. Atty. Alberto Barretto and Go Toh are still living. The former testified during the hearing, while Go Toh's deposition was introduced in evidence which was admitted. In the absence of the testimony of Manuel Lopez, deceased, the testimony of Judge Anastacio Teodoro and Ana Suntay was received. It is an established fact that the will, draft of which is Exhibit B, was lost or destroyed; that it was executed and valid and that it existed at the time of the death of Jose B. Suntay. These circumstances also apply to the will (Exhibit P) which was executed in Amoy, China. The contents of the Chinese will is substantially the same as the draft (Exhibit B). Granting that the will executed in the Philippines is nonexistent as contended by the oppositor, although the findings of this court is otherwise, the will executed and probated in China should be allowed and recorded in this court. All the formalities of the law in China had been followed in its execution, on account of which it was duly probated in the Amoy District Court. There is no cogent reason, therefore, why it should not be admitted and recorded in this jurisdiction. The said will (Exhibit P) in Chinese characters is presented as an alternate in case the will executed in the Philippines would not be allowed to probate, or as a corroborative evidence that the will, the draft of which is Exhibit B, has been duly executed in the Philippines by Jose B. Suntay. Rule 78 of the Rules of Court covers the allowance of will proved outside of the Philippines and administration of estate thereunder. Section 1 of said rule provides: "Wills proved and allowed in the United States, or any state or territory thereof, or in foreign country, according to the laws of such state, territory, or country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines." Section 2 of the same rule provides: "When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition for allowance in the Philippines, by the executor or other person interested, in the court having jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be given as in case of an original will presented for allowance." This court has delved deep into the evidence adduced during the hearing with that penetrating scrutiny in order to discovery the real facts; it had used unsparingly the judicial scapel; and it has winnowed the evidenced to separate the grain from the chaff. All the facts lead to the inevitable conclusion that Jose B. Suntay, in his sound and disposing mind and not acting under duress or undue influence, executed the will which is lost, the draft of which is Exhibit B, with all the necessary formalities prescribed by law. He, likewise, executed the second will (Exhibit P) in Amoy, China, which has been duly probated in Amoy District Court,-a corroborative evidence that the testator really executed the will. Copies of the said wills duly certified and under the seal of the court are appended hereto, marked Exhibits B and P, and they form part of this decision. In view of the foregoing considerations, the court is of the opinion and so declares that the draft of the will (Exhibit B) is, to all legal intents and purposes, and testament of the deceased Jose B. Suntay. With costs against the oppositor, Federico C. Suntay.

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Oppositor Federico C. Suntay filed on May 20, 1948, a motion for new trial and to set aside the decision rendered on April 19, 1948, to which the petitioner filed an opposition, followed by a reply filed by the oppositor and an answer on the part of the petitioner. Without reopening the case and receiving any new or additional evidence, the Court of First Instance of Bulacan, on September 29, 1948, promulgated the following resolution setting aside his first decision and disallowing the wills sought to be probated by the petitioner in his alternative petition filed on June 18, 1947: This is a motion for new trial and to set aside the decision legalizing the will of Jose B. Suntay and allowing and recording another will executed by him in Amoy, China. By virtue of this motion, this court is constrained to go over the evidence and the law applicable thereto with the view of ascertaining whether or not the motion is well founded. Both parties have presented extensive memoranda in support of their respective contentions. This court has gone over the evidence conscientiously, and it reiterates its findings of the same facts in this resolution, whether or not the facts established by the petitioner, Silvino Suntay, warrant the legalization of the lost will and the allowance and recording of the will that was executed in Amoy, China, is therefore, the subject of this instant motion. A. As to the legalization of the Lost Will. — There is no question in the mind of this court that the original will which Jose B. Suntay, deceased executed in the Philippines in the year 1929 was lost (Exhibit O, Decision of the Supreme Court). The evidence adduced by the petitioner during the hearing has established through the testimony of Judge Anastacio Teodoro and that of Go Toh (an attesting witness) that the will was executed by Jose B. Suntay, deceased, with all the formalities required by law. For the purpose of legalizing an original and existing will, the evidence on record is sufficient as to the execution and attesting in the manner required by law. Section 8 of Rule 77 provides as follows: "SEC. 8. Proof when witnesses dead or insane or do not reside in the Philippines. — If it appears at the time fixed for the hearing that the subscribing witnesses are dead or insane, or that none of them resides in the Philippines, the court may admit the testimony of other witnesses to prove the sanity of the testator, and the due execution of the will; and as evidence of the execution of the will, may admit proof of the handwriting of the testator and of the subscribing witnesses, or any of them." Section 11 of said rule also provides as follows: "SEC. 11. Subscribing witnesses produced or accounted for where contest. — If the will is contested, all the subscribing witnesses present in the Philippines and not insane, must be produced and examined, and the death, absence, or insanity of any of them must be satisfactorily shown to the court. If all or some of the subscribing witnesses are present in the Philippines, but outside the province where the will has been filed, their deposition must be taken. If all or some of the subscribing witnesses produced and examined testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful credibility, the will may be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law." The three attesting witnesses were Manuel Lopez, deceased Alberto Barretto and Go Toh. The last two witnesses are still living; the former testified against and the latter in favor. In other words, the attesting witness, Go Toh, only, testified in his deposition in favor of the due execution of the will. Hence, the petitioner presented another witness, Judge Anastacio Teodoro, to establish and prove the due execution of the said will. Ana Suntay was also presented as a witness in rebuttal evidence. The testimony of Go Toh in his deposition as an attesting witness, coupled with the testimony of Judge Anastacio Teodoro who was able to examine the original will that was executed by Jose B. Suntay, deceased, when it was given to him by Go Toh for the purpose of filing the petition in court for its legalization, and could recognize the signatures of the testator as well as of the three attesting witnesses on the said original will is sufficient to convince the court that the original will was executed by the deceased Jose B. Suntay with all the formalities required by law. The original will, therefore, if it was presented in court to probate would be allowed to all legal intents and purposes. But it was not the original will that was presented, because it was lost, but an alleged draft (Exhibit B) of the said original will which does not bear the signature of the testator and any of the attesting witness. The original will was duly executed with all the formalities required by law, but it was unfortunately lost; and the curtain falls for the next setting. The Court is now confronted with the legalization of the lost will — whether or not the draft (Exhibit B) should be admitted as secondary evidence in lieu of the lost will and allowed to probate. Section 6. Rule 77 provides as follows: "SEC. 6. Proof of lost or destroyed will — Certificate thereupon. — No will shall be proved as a lost will or destroyed will unless the execution and validity of the same be established, and the will is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and certified by the Judge, under the seal of the court and the certificate must be filed and recorded as other wills are filed and recorded." (Emphasis Court's)

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From the above quoted provision of the law, it is clear that the petitioner should not only establish the execution and validity of the will, its existence at the time of the death of the testator or its fraudulent and accidental destruction in the lifetime of the testator without his knowledge, but also must prove its provisions clearly and distinctly by at least two credible witnesses. The exact language of the clause in the above quoted provision of the law is "nor unless its provisions are clearly and distinctly proved by at least two credible witnesses." The legalization of a lost will is not so easy, therefore, as that of an original will. The question, therefore, is boiled down to, and projected on the screen, in a very sharp focus; namely, the execution and validity must be established and the provisions must be clearly and distinctly proved by at least credible witnesses. Granting that the execution and validity of the lost will have been established through the testimony of Judge Anastacio Teodoro and Go Toh, and perhaps superficially by the rebuttal witness, Ana Suntay, does it follow that the provisions of the lost will have been clearly and distinctly proved by at least two credible witnesses? A careful review of the evidence has revealed that at most the only credible witness who testified as to the provisions of the will was Judge Anastacio Teodoro, and yet he testified on the provisions of the lost will with the draft (Exhibit B) in his hands while testifying. It may be granted, however, that with or without the draft of the will (Exhibit B) in his hands, he could have testified clearly and distinctly on the provisions of the said lost will, because he had kept the will in his safe, in his office, for three days, after opening it, and he is well versed in Spanish language in which the will as written. But did the attesting witness Go Toh, testify in his deposition and prove clearly and distinctly the provisions of the lost will? He did not, and he could not have done so even if he tried because the original will was not read to him nor by him before or at the signing of the same. It was written in Spanish and he did not and does not understand the Spanish language. Neither was there any occasion for him to have the contents of the said will, after its execution and sealing inside the envelope (Exhibit A), read to him because it was opened only when Judge Teodoro had examined it and then subsequently snatched from Go Toh. Ana Suntay on rebuttal did not, likewise, prove clearly and distinctly the provisions of the said lost will because she has not had enough schooling and she does possess adequate knowledge of the Spanish language as shown by the fact that she had to testify in Tagalog on the witness standing. It is evident, therefore, that although the petitioner has established the execution and validity of the lost will, yet he had not proved clearly and distinctly the provisions of the will by at least two credible witnesses. B. As to the Allowance and Recording of the will Executed in Amoy, China. — Jose B. Suntay, while he was residing in China during the remaining years of his life, executed also a will, written in Chinese characters, the translation of which is marked Exhibit P. It was allowed to probate in the District Court of Amoy, China. The question is whether or not the said will should be allowed and recorded in this jurisdiction. Section 1 of Rule 78 provides as follows: "SEC. 1. Will proved outside Philippines any be allowed here. — Will proved and allowed in the United States, or any state or territory thereof, or in a foreign country, according to the laws of such state, territory, or country, may be allowed, filed, and recorded by the proper court of First Instance in the Philippines." Section 2 of the same Rule also provides: "SEC. 2. Notice of hearing for allowance. — When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition for allowance in the Philippines by the executor or other persons interested, in the Court having jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be given as in case of an original will presented for allowance." Sections 41 and 42 of Rule 123 provides as follows: "SEC. 41. Proof of Public or official record. — An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is within the United States or its territory, the certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of the office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the United States stationed in the foreign country in which the record is kept, and authenticated by the seal of his office." F. "SEC. 42. What attestation of copy must state. — Whenever a copy of writing is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court." In the case of Yu Changco vs. Tiaoqui, 11 Phil. 598, 599, 600, our Supreme Court said: "Section 637 of the Code of Civil Procedure says that will proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded in the Court of First Instance of the province in which the testator has real or personal estate on which such will may operate; but section 638 requires that the proof of the authenticity of a will executed in a foreign country must be duly "authenticated". Such authentication, considered as a foreign judicial record, is prescribed by section 304, which requires the attestation

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of the clerk or of the legal keeper of the records with the seal of the court annexed, if there be a seal, together with a certificate of the chief judge or presiding magistrate that the signature of either of the functionaries attesting the will is genuine, and, finally, the certification of the authenticity of the signature of such judge or presiding magistrate, by the ambassador, minister, consul, vice consul or consular agent of the United States in such foreign country. And, should the will be considered, from an administrative point of view, as a mere official document 'of a foreign country', it may be proved, 'by the original, or by a copy certified by the legal keeper thereof, with a certificate, under the seal of the country or sovereign, that the document is a valid and subsisting document of such country, and that the copy is duly certified by the officer having the legal custody of the original. (Sec. 313, par. 8)." In the case of Fluemer vs. Hix, 54 Phil. 610, 611, 612, and 613, our Supreme Court said: "It is the theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on November 3, 1925, by Hix who had his residence in that jurisdiction, and that the laws of West Virginia govern. To this end, there was submitted a copy of section 3868 of Acts 1882, c. 84 as found in West Virginia Code, Annotated, by Hogg, Charles E., Vol. 2, 1914, p. 1690, and as certified to by the Director of the National Library. But this was far from compliance with the law. The laws of a foreign jurisdiction do not prove themselves in our courts. The courts of the Philippine Islands are not authorized to take judicial notice of the laws of the various States of the American Union. Such laws must be proved as facts. (In re Estate of Johnson (1918), 39 Phil., 156.) Here the requirements of the law were not met. There was not showing that the book from which an extract was taken was printed or published under the authority of the State of West Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was the extract from the law attested by the certificate of the officer having charge of the original under the seal of the State of West Virginia, as provided in section 301 of the Code of Civil Procedure. No evidence was introduced to show that the extract from the laws of West Virginia was in force at the time the alleged will was executed. "It was also necessary for the petitioner to prove that the testator had his domicile in West Virginia and not in the Philippine Islands. The only evidence introduced to establish this fact consisted of the recitals in the alleged will and the testimony of the petitioner. "While the appeal was pending submission in this court, the attorney for the appellant presented an unverified petition asking the court to accept as part of the evidence the documents attached to the petition. One of these documents discloses that a paper writing purporting to be the last will and testament of Edward Randolph Hix, deceased, was presented for probate on June 8, 1929, to the clerk of Randolph County, State of West Virginia, in vacation, and was duly proven by the oaths of Dana Vansley and Joseph L. Madden, the subscribing witnesses thereto, and ordered to be recorded and filed. It was shown by another document that in vacation, on June 8, 1929, the clerk of court of Randolph County, West Virginia, appointed Claude E. Maxwell as administrator, cum testamento annexo, of the estate of Edward Randolph Hix, deceased ... However this may be no attempt has been made to comply with the provisions of sections 637, 638, and 639 of the Code of Civil Procedure, for no hearing on the question of the allowance of a will said to have been proved and allowed in West Virginia has been requested. ... ." Granting that the will of Jose B. Suntay which was executed in Amoy, China, was validly done in accordance with the law of the Republic of China on the matter, is it necessary to prove in this jurisdiction the existence of such law in China as a prerequisite to the allowance and recording of said will? The answer is in the affirmative as enunciated in Fluemer vs. Hix, supra, and in Yanez de Barnuevo vs. Fuster, 29 Phil., 606. In the latter case, the Supreme Court said: "A foreign law may be proved by the certificate of the officer having in charge of the original, under the seal of the state or country. It may also be proved by an official copy of the same published under the authority of the particular state and purporting to contain such law. (Secs. 300 and 301, Act No. 190.), (Syllabus.) The provisions of section 300 and 301 of the Code of Civil Procedure (Act No. 190) are as follows: "SEC. 300. Printed laws of the State or Country. — Books printed or published under the authority of the United States, or one of the States of the United States, or a foreign country, and purporting to contain statutes, codes, or other written law of such State or country or proved to be commonly admitted in the tribunals of such State or country an evidence of the written law thereof, are admissible in the Philippine Islands are evidence of such law." "SEC. 301. Attested copy of foreign laws. — A copy of the written law or other public writing of any state or country, attested by the certificate of the officer having charge of the original, under the seal of the state or country, is admissible as evidence of such law or writing." The petitioner has presented in evidence the certification of the Chinese Consul General, Tsutseng T. Shen, of the existence of the law in China (Exhibit B-3), relative to the execution and probate of the will executed by Jose B. Suntay in Amoy, China (Exhibit P). Is that evidence admissible, in view of the provisions of Sections 41 and 42 of the Rules of the Rules of Court. Is the said certification of the Chinese Consul General in the Philippines a substantial compliance with the provisions of the above mentioned section 41 and 42 of our Rules of Court? This court has its doubts as to the admissibility in evidence of the Chinese Consul General in the Philippines of the existence of the laws of Republic of China relative to the execution and probate of a will executed in China. Such law may exist in China, but — "An official record or an entry therein, when admissible for any purpose, may be evidence by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. ... If the office in which the record is kept is in a foreign country, the certificate may be

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made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the United States stationed in the foreign country in which the record is kept, and authenticated by the seal of his office." (Sec. 41 of Rule 123.) The law of the Republic of China is a public or official record and it must be proved in this jurisdiction through the means prescribed by our Rules of Court. It is, therefore, obvious that the Chinese Counsel General in the Philippines who certified as to the existence of such law is not the officer having the legal custody of the record, nor is he a deputy of such officer. And, if the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the United States stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. It is clear, therefore, that the above provisions of the Rules of Court (Rule 123, sec. 41) not having been complied with, the doubt of this court has been dissipated, and it is of the opinion and so holds that the certification of the Chinese Consul General alone is not admissible as evidence in the jurisdiction. The evidence of record is not clear as to whether Jose B. Suntay, who was born in China, but resided in the Philippines for a long time, has become a Filipino citizen by naturalization, or he remained a citizen of the Republic of China. The record does not, likewise, show with certainty whether or not he had changed his permanent domicile from the Philippines to Amoy, China. His change of permanent domicile could only be inferred. But the question of his permanent domicile pales into insignificance in view of the overtowering fact that the law of China pertinent to the allowance and recording of the said will in this jurisdiction has been satisfactorily established by the petitioner. Both the petitioner and the oppositor have extensively urged in their respective memorandum and in the oral argument in behalf of the oppositor the question of estoppel. The consideration of the points raised by them would open the door to the appreciation of the intrinsic validity of the provisions of the will which is not of moment at the present stage of the proceeding. While the probate of a will is conclusive as to the compliance with all formal requisites necessary to the lawful execution of the will, such probate does not affect the intrinsic validity of the provisions of the will. With respect to the latter the will in governed by the substantive law relative to descent and distribution. (In re Johnson, 39 Phil., 157). IN VIEW OF THE FOREGOING, and upon reconsideration, the previous decision rendered in this case allowing the will (Exhibit B) and allowing and recording the foreign will (Exhibit P) is set aside; and this court is of the opinion and so holds that the said two wills should be, as they are hereby disallowed. Without special pronouncement as to costs. It is very significant that in the foregoing resolution, the Court of First Instance of Bulacan "reiterates its finding of the same facts in this resolution," and merely proceeds to pose the sole question "whether or not the facts established by the petitioner, Silvino Suntay, warrant the legalization of the lost will and allowance and recording of the will that was executed in Amoy, China." The somersault executed by the trial court is premised on the ground that "although the petitioner has established the execution and validity of the lost will, yet he has not proved clearly and distinctly the provisions of the will by the least two credible witnesses"; and that, assuming that the will of Jose B. Suntay executed in Amoy, China, was in accordance with the law of the Republic of China, the certification of the Chinese Consul General in the Philippines as the existence of such law is not admissible evidence in this jurisdiction. In effect the resolution on the motion for reconsideration promulgated by the trial court, and the decision of the majority herein, adopt the position that the testimony of Judge Anastacio Teodoro as to the provisions of the lost will, while credible and perhaps sufficient in extent, is not corroborated by the witnesses Go Toh and Ana Suntay and, therefore, falls short of the requirement in section 6, Rule 77, of the Rules of Court that the provisions of the lost will must be "clearly and distinctly proved by at least two witnesses." That this requirement was obviously construed, to mean that the exact provisions are to be established, may be deduced from the following dialogue between his Honor, Judge Potenciano Pecson, and attorney Teofilo Sison, new counsel for oppositor Federico C. Suntay, who appeared for the first time at the ex parte hearing of the oppositor's motion for new trial on September 1, 1949: COURT: However, Rule 77, Section 6, provides in proving a lost will, the provisions of the lost will must be distinctly stated and certified by the Judge. ATTY. TEOFILO SISON: Yes, Your Honor. COURT: That presupposes that the judge could only certify to the exact provisions of the will from the evidence presented. ATTY. TEOFILO SISON: That is our contention, provided that provision is clearly established by two credible witnesses so that the Court could state that in the decision, we agree, that is the very point. (t. s. n. 75, Session of Sept. 1, 1948) The sound rule, however, as we have found it to be, as to the degree of proof required to establish the contents of a lost or destroyed will, is that there is sufficient compliance if two witnesses have substantiated the provisions affecting the disposition of the testator's properties; and this is especially necessary to prevent the "perpetration of fraud by permitting a presumption to supply the suppressed proof," to keep a wrong-doer from utilizing the rule as his "most effective weapon," or to avoid the enjoyment of a "premium from the rascality of one whose interests might suggest the destruction of a will."

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Section 1865 of the Code requires that the provisions of a lost will must be clearly and distinctly proved by at least two credible witnesses before it can be admitted to probate; but this section must receive a liberal construction (Hook vs. Pratt, 8 Hun. 102-109) and its spirit is complied with by holding that it applies only to those provisions which affect the disposition of the testator's property and which are of the substance of the will. The allegations of the contents of the will are general, and under ordinary circumstances, would be in sufficient; but the fact alleged, if proven as alleged, would certainly authorize the establishment of the will so far as its bequests are concerned. To require that a copy of the will or the language of the bequests, in detail, should be pleaded, where no copy has been preserved, and where the memory of the witnesses does not hold the exact words, would not only deny the substance for mere form, but would offer a premium upon the rascality of one whose interests might suggest the destruction of a will. As said in Anderson vs. Irwin, 101 Ill. 411: "The instrument in controversy having been destroyed without the fault of the defendant in error ... and there not appearing to be any copy of it in existence, it would be equivalent to denying the complainant relief altogether to require her to prove the very terms in which it was conceived. All that could reasonably be required of her under the circumstances could be to show in general terms the disposition which the testator made of his property by the instruments; that it purported to be his will and was duly attested by the requisite number of witnesses." In Allison vs. Allison, 7 Dana 91, it was said in speaking of the character and extent of proof required in such a case:" nor is there any just ground to object to the proof because the witnesses have not given the language of the will or the substance thereof. They have given the substance of the different devises as to the property or interest devised, and to whom devised and we would not stop, in the case of a destroyed will, to scan with rigid scrutiny the form of the proof, provided we are satisfied of the substance of its provisions." (Jose vs. Casler 139 Ind. 392, 38 N. E. 812). The evidence in the case falls short of establishing the existence of such a writing, except as it may be presumed, under the maxim Omnia preasumuntur in odium spoliateris." There was evidence tending to show that the second will of Anne Lambie was in the possession of Francis Lambie, and that it came to the hands of the proponents, warranting the inference that it has been suppressed or destroyed. If from this evidence the jury found such paper destroyed the law permits the presumption that it was legally drawn and executed, notwithstanding the terms of the statute, which requires the revoking instrument to be formally executed. If a will be lost, secondary evidence may be given of its contents; if suppressed or destroyed, the same is true; and, if necessary the law will prevent the perpetration of a fraud by permitting a presumption to supply the suppressed proof. We cannot assent to the proposition that the statute is so right as to be the wrongdoer's most effective weapons. The misconduct once established to the satisfaction of the jury, it is no hardship to the wrongdoer to say. "Produce the evidence in your possession, or we will presume that your opponent's contention is true." When one deliberately destroys, or purposely induces another to destroy, a written instrument subsequently become a matter of judicial inquiry between the spoliator and an innocent party, the latter will not be required to make strict proof of the contents of such instrument in order to establish a right founded thereon. Brook, Leg. Max. 576, Preston vs. Preston, 132, Atl. 55, 61. (Re Lambie's Estate, 97 Mich, 55,56 N. W. 225) Judged from the standard set forth in the foregoing authorities, and bearing in mind that the circumstances of this case lead to the only conclusion that the loss of the will in question is of course imputable to those whose interests are adverse to the petitioner and the widow Lim Billian, we have no hesitancy in holding the view that the dispositions of the properties left by the deceased Jose B. Suntay is provided in his will which was lost or snatched in the manner recited in the decision of this Court in the case of Lim Billian vs. Suntay, 63 Phil., 798-797, had been more than sufficiently proved by the testimony of Judge Anastacio Teodoro, Go Toh, and Ana Suntay, supported conclusively by the draft of the lost will presented in evidence as Exhibit "B", and even by the testimony of oppositor Federico C. Suntay himself. It is to be recalled that the trial Judge, in his first decision of April 19, 1948, made the following express findings with respect to the testimony of Judge Teodoro: "Judge Anastacio Teodoro testified that he opened the sealed envelope when it was given to him by Go Toh preparatory to the presentation of the petition for the probate of the said will. As the lawyer entrusted with that task, he had to examine the will and have it copied to be reproduced or appended to the petition. He could not do otherwise if he is worth his salt as a good lawyer. He could not perform the stunt of "blind flying" in the judicial firmament. Every step must be taken with certainty and precision under any circumstances. He could not have talked about the attorney's fees with Go Toh, unless he has not examined the will beforehand. And, when he was shown Exhibit B, he did not hesitate in declaring that it was the exact draft of the will that was inside the envelope (Exhibit A), the testimony of Atty. Alberto Barretto to the contrary notwithstanding." We should not forget, in this connection, that in the resolution on the motion for reconsideration the trial Judge reiterated the findings in his decision, although as regards the testimony of Judge Teodoro admittedly "the only credible witness who testified as to the provisions of the will," he observed that Judge Teodoro had the draft Exhibit "B" in his hands while testifying. We cannot see any justifying for the observation, assuming that Judge Teodoro consulted the draft, since even the trial Judge granted that he "could have testified clearly and distinctly on the provisions of the said lost will, because he had kept the will in his safe, in his office, for three days, after opening it, and he is well versed in Spanish language in which the will was written." As a matter of fact, however, it is not true that Judge Teodoro had the draft in question before him while testifying as may be seen from the following passages of the transcript: Q. And, have you read that will which was inside this envelope, Exhibit A? — "A. Yes. Q. Do you remember more or less the contents of the will? ATTY. FERRIN: With our objection, the best evidence is original will itself, Your Honor. ATTY. RECTO: We are precisely proving by means of secondary evidence, the contents of the will, because according to the Supreme Court, and that is a fact already decided, that the will of Jose B. Suntay was lost and that is res adjudicata. COURT: Witness may answer.

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WITNESS: I remember the main features of the will because as I said I was the one fighting for the postponement of the hearing of the intestate case because I was asked by Don Alberto Barretto to secure the postponement until the will that was executed by the deceased is sent here by the widow from China, with whom we communicated with several letters, and when the will arrived. I had to check the facts as appearing in the will, and examined fully in connection with the facts alleged in the intestate, and there was a striking fact in the intestate that Apolonio Suntay has.. ATTY. FERRIN: (Interrupting) May we ask that the witness answer categorically the questions of Atty. Recto, it seems that the answers of the witness are kilometric ... ATTY. RECTO: Sometimes the question cannot be answered fully unless the witness would relate and give all the facts. COURT: The Attorney for the Administrator may move for the striking out of any testimony that is not responsive to the question. ATTY. FERRIN: That is why, our objection, the answer is out of the question. COURT: Atty. Recto may propound another question. ATTY. RECTO: I heard the witness was saying something and he has not finished the sentence, and I want to ask the Court just to allow the witness to finish his sentence. COURT: You may finish. WITNESS: "A. There was a sentence, the point I was trying to check first was whether the value of the estate left by the deceased was SIXTY THOUSAND PESOS (P60,000.00) as Apolonio Suntay made it appear in his petition, and when I looked at the original will, I found out that it was several hundred thousand pesos, several thousands of pesos, hundreds of pesos, that was very striking fact to me because the petition for intestate was for SIXTY THOUSAND PESOS (P60,000.00), and I came to know that it was worth more than SEVEN HUNDRED THOUSAND (P700,000.00) PESOS. Q. Do you remember, Judge, the disposition of the will, the main disposition of the will? — "A. Yes, because our client were the widow, Maria Natividad Lim Billian, and his son, Silvino, the only son in the second marriage, that was very important for me to know. Q. How were the properties distributed according to that will?- "A. The properties were distributed into three (3) parts, one part which we call legitima corta, were equally distributed to the ten (10) children, nine (9) in the first marriage, and one (1) in the second marriage with Maria Natividad Lim Billian. The other third, the betterment was given to four (4) children, Concepcion, and Apolonio getting a quiet substantial share in the betterment, around SIXTY THOUSAND (P60,000.00) for Concepcion, Apolonio the amount of SEVENTY THOUSAND (70,000,00) PESOS or little over, and then about ONE HUNDRED THOUSAND (P100,000.00) PESOS of the betterment in favor of Silvino, the minor of the second marriage, and to Jose equal to Concepcion. Q. So the betterment, as I understand from you went to four (4) children?-"A. Yes. Q. Silvino in the second marriage, Concepcion, Apolonio and Jose in the first marriage? — " A. Yes. Q. What about the free disposal?-" A. The free disposal was disposed in favor of the widow, Maria Natividad Lim Billian and Silvino, his minor son in equal parts.. Q. What about, if you remember, if there was something in the will in connection with that particular of the usufruct of the widow? — "A. It was somewhat incorporated into the assets of the estate left by the deceased. Q. Do you remember the number of pages of which that will consisted? — "A. Twenty-three (23) pages. Q. Do you remember if the pages were signed by the testator? — "A. Yes, sir, it was signed. Q. And the foot of the testament or the end of the testament, was it signed by the testator? — "A. Yes, sir, and the attestation clause was the last page signed by the three instrumental witnesses, Alberto Barretto, one Chinaman Go Toh, and Manuel Lopez, my former Justice of the Peace of Hagonoy. Q. Do you remember if there witnesses signed on the different pages of the will? — "A. Yes, sir, they signed with their name signatures. Q. Showing you this document consisting of twenty-three (23) pages in Spanish and which document appears already attached to this same testamentary proceedings and already marked as EXHIBIT B, will you please tell the Court if and for instance on page eight (8) of this

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document, pagina octavo, it says, there are handwritings in pencil, some of which read as follows: "Los cinco-octavos (5/8) partes corresponds a mi hijo Emiliano", can you recognize whose handwriting is that? — "A. From my best estimate it is the handwriting of Don Alberto Barretto. Q. About the end of the same page eight (8) pagina octavo, of the same document Exhibit B, there is also the handwriting in pencil which reads: "La otra sexta parte (6.a) corresponde a Bonifacio Lopez", can you recognize that handwriting? — "A. Yes, sir, this is the handwriting of Don Alberto Barretto, and I wish to call the attention of the Court to compare letter "B" which is in capital letter with the signature of Don Alberto Barretto in the envelope, "Alberto Barretto" and stroke identifies one hand as having written those words. Q. Will you please go over cursorily this document, Exhibit B composed of twenty-three (23) pages and please tell the Court if this document had anything to do with the will which according to you was contained in the envelope, Exhibit A? — "A. This is exactly the contents of the original will which I received and kept in my office inside the safe for three (3) days, and I precisely took special case in the credits left by the deceased, and I remember among them, were the De Leon family, and Sandiko, well known to me, and then the disposition of the estate, divided into three (3) equal parts, and I noticed that they are the contents of the will read. His Honor, Judge Pecson, was positive in his first decision that "the testimony of Judge Anastacio Teodoro is corroborated by Go Toh, one of the attesting witnesses, in his deposition (Exhibit D-1)." Yet in setting aside his first decision, he remarked that Go Toh's testimony did not prove clearly and distinctly the provision of the lost will, because: "He did not, and he could not have done so even if he tried because the original will was not read to him nor by him before or at the signing of the same. It was written in Spanish and he did not and does not understand the Spanish language. Neither was there any occasion for him to have the contents of the said will, after its execution and sealing inside the envelope (Exhibit A), read to him, because it was opened only when Judge Teodoro had examined it and then subsequently snatched from Go Toh." The later position thus taken by Judge Pecson is palpably inconsistent with the following unequivocal statements of Go Toh contained in hid disposition taken in Amoy, China, on April 17, 1938, and in oppositor's Exhibit "6": 26. State what you know of the contents of that will. . . . . Regarding (1) expenditures (2) Philippine citizenship; (3) Distribution of estates among children (4) Taking care of grave lot; (5) guardianship of Silvino Suntay and (6) after paying his debts he will have approximately 720,000 pesos left. This amount will be divided into three equal parts of 240,000 pesos each. The first part is to be divided equally among the ten children born by the first and second wives and the second part among the three sons Silvino Suntay, 75,000 approximately; Apolonio Suntay, 50,000 pesos approximately; Jose Suntay and Concepcion Suntay, 36,000 each approximately. The third part is to be divided between Maria Lim Billian and Silvino Suntay; each will get approximately 110,000 pesos. Silvino Suntay will get a total of 210,000 pesos approximately, Maria Natividad Lim Billian a total of 290,000 approximately, and Apolonio Suntay a total of 80,000 approximately, Concepcion Suntay and Jose Suntay will get 60,000 pesos each approximately. The rest of the children will get approximately 29,000 each. The way of distribution of the property of Jose B. Suntay, movable and immovable, and the outstanding debts to be collected was arranged by Jose B. Suntay. xxx

xxx

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78. On the occasion of the execution of the testament of Jose B. Suntay, state whether or not you say Exhibit B — ... Yes. 79. In the affirmative case, state if you know who had the possession of Exhibit B and the testament the first time you saw them on that occasion. — ... Yes, I know who had possession of them. 80. Can you say whether or not Jose B. Suntay happened to get those documents later on, on that same occasion? — ... He got them after the execution. 81. Please name the person who gave those documents to Mr. Suntay. — ... Alberto Barretto gave the documents to Jose B. Suntay. 82. Did the person who gave those documents to Suntay say anything to him (Suntay) at the time of giving them? — ... Yes. 83. If so what was it that he said, if he said any? — ... He said, "You had better see if you want any correction." 84. What did Mr. Suntay do after those documents were given to him? — ... Jose B. Suntay looked at them and then gave one copy to Manuel Lopez for checking. 85. State whether or not Mr. Suntay gave one of those documents to another man. — ... Yes. 86. In the affirmative case, can you say which of the two documents was given and who the man was? — ... Yes he gave Exhibit B to Manuel Lopez.

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87. State whether or not Mr. Suntay said something to the man to whom he gave one of those documents. — ... Yes. 88. In the affirmative case can you repeat more or less what Mr. Suntay said to that man? — ... He told him to read it for checking. 89. State if you know what did the man do with one of those documents given to him. — ... He took it and read it for checking. 90. What did in turn Mr. Suntay do with the other one left with him? — ... Jose B. Suntay looked at the original and checked them. 91. What was done with those documents later on if there was anything done with them? — ... After checking, Jose B. Suntay put Exhibit B in his pocket and had the original signed and executed. 92. What was done with the testament of Jose B. Suntay after it was signed by the testator and its witnesses? — ... It was taken away by Jose B. Suntay. (Exhibit D, D-1.) Q. Did you know the contents of this envelope? — "A. I knew that it was a will. Q. But did you know the provisions of the will? — "A. It is about the distribution of the property to the heirs. Q. Did you know how the property was distributed according to the will? — "A. I know that more than P500,000 was for the widow and her son, more than P100,000 for the heirs that are in the family. (Exhibit "6", p. 28). Q. You stated that you were one of the witnesses to the will and that the will was written in Spanish. Was it written in typewriting or in handwriting of somebody? — "A. That will was written in typewriting. Q. Did you read the contents of that will, or do you know the contents of that will? — A. No, sir, because I do not know Spanish. Q. How do you know that it was the will of Jose B. Suntay ? — "A. Because I was one of the signers and I saw it." (Exhibit "6", p. 19.) 22. Do you understand the language in which that will was written? — ... I know a little Spanish. 23. Do you talk or write that language? I can write and talk a little Spanish. (Exhibits D, D-1.) As to Ana Suntay's corroborating testimony, Judge Pecson aptly made the following findings: "Ana Suntay, one of the heirs and who would be affected adversely by the legalization of the will in question, also testified on rebuttal that she saw the original will in the possession of Manuel Suntay immediately after the snatching. She read it and she particularly remembers the manner in which the properties were to be distributed. Exhibit B was shown to her on the witness stand and she declared that the provision regarding the distribution of the properties in said Exhibit B is the same as that contained in the original will. Said testimony of Ana Suntay, therefore, belies the testimony of Atty. Alberto Barretto." And yet in the resolution on the motion for new trial, the trial Judge had to state that "Ana Suntay on rebuttal did not, likewise, prove clearly and distinctly the provisions of the said lost will, because she has not had enough schooling and she does not possess adequate knowledge of the Spanish language as shown by the fact that she had to testify in Tagalog on the witness stand." The potent error committed by Judge Pecson in reversing his views as regards Ana's testimony, is revealed readily in the following portions of the transcript: P. Cuantas paginas tenia aquel documento a que usted se refiere? — "R. Probablemente seria mas de veinte (20) paginas. P. No serian treinta (30) paginas? — "Abogado Recto: La testigo ha contestado ya que mas de veinte (20). Juzgado: Se estima Abogado Mejia: P. Usted personalmente leyo el documento" — "R. Yo leyo mi hermano en presencia mia. P. La pregunta es, si usted personalmente ha leido el documento? — " R. Si, lo he visto. P. No solamente le pregunto a usted si Vd. ha visto el testamento sino si usted ha leido personalmente el testamento? — "R. Si la parte de la adjudicacion lo he leido para asegurarme a que porcion corresponde a cada uno de nosotros. P. Puede usted repetir poco mas o menos esa porcion a que se hacia la distribucion del alegado testamento? — "R. Como ya he declarado, que las propiedades de mi difunto padre se habian dividido en tres partes, una tercera parte se nos adjudica a nosotros diez (1) hijos en

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primeros nupcias y segunda nupcia, la segunda tercera parte los adjudica a la viuda y a Silvino, y la otra tercera parte se lo adjudica a sus hijos como mejora a Silvino, Apolonio, Concepcion y Jose. P. Eso, tal como usted personalmente lo leyo en el documento? — "R. Si Señor. P. Quiere usted tener la bondad, señora, de repetir poco mas o menos las palabras en ese documento que se distribuia las propiedades del defundo padre usted como usted relata aqui? "Abogado Recto: Objetamos a la pregunta por falta de base, porque elle solamente se fijo en la parte como se distribuian las propiedades pero no ha dicho la testigo que ella lo ha puesto de memoria, ni Vd. ha preguntado en que lenguaje estaba escrito el testamento ... Juzgado: Se estima. Abogado Mejia: P. Sabe usted en que lenguaje estaba redactado el documento que usted leyo personalmente? — "R. En Castellano. P. Puede usted repetirnos ahora en Castellano algunas frases o palabras como se hizo la distribucion en aquel supuesto testamento? — Abogado Recto: Objecion, por falta de base, uno puede entender el español y sin embargo no podra repetir lo que ha leido, y no se sabe todavia si ha estudiado el español bastante hasta el punto de poder hablarlo. Juzgado: Se estima. Abogado Mejia P. Usted dijo que estaba puesto en castellano el supuesto testamento que Vda. leyo, usted poso el castellano? — "R. Yo entiendo el castellano, pero no puedo hablar bien. P. Usted estudio el castellano en algun colegio? — "Rj. Si, señor, En Sta. Catalina. P. Cuantos años? — "R. Nuestros estudios no han sido continuous porque mi padre nos ingresaba en el colegio y despues nos sacaba para estar afuera, y no era continuo nuestro estudio. P. Pero en total, como cuantos meses o años estaba usted en el colegio aprendiendo el castelano? — "R. Unos cuatro o cinco años. P. Entonces usted puede leer el castellano con facilidad, señora? — "R. Si, castellano sencillo puedo entender y lo puedo leer. P. Usted entiende las preguntas que se le dirigian aqui en castellano sin interpretacion o sin el interprete? — "R. Si, Señor. P. Puede usted contestar en castellano? — "R. Bueno, pero como de contestar, por eso quiero que la pregunta se me traduzca antes. asi puedo contestar debidamente. (t.s.n. pp. 533-534.) We are really at a loss to understand why, without any change whatsoever in the evidence, the trial Judge reversed his first decision, particularly when he announced therein that "it is now incumbent upon this court to delve into the evidence whether or not Jose B. Suntay, deceased, left a will (the draft of which is Exhibit B) and another will which was executed and probated in Amoy, China." His action is indeed surprising when we take into account the various circumstancial features presently to be stated, that clearly confirm the testimony of Judge Anastacio Teodoro, G. Toh and Ana Suntay, or otherwise constitute visible indicia of oppositor's desire to frustrate the wishes of his father, Jose B. Suntay. In our opinion the most important piece of evidence in favor of the petitioner's case is the draft of the lost will, Exhibit "B." Its authenticity cannot be seriously questioned, because according to the trial Judge himself, oppositor's own witness, Atty. Alberto Barretto, admitted it to be "identical in substance and form to the second draft which he prepared in typewriting." Indeed, all the "A's" and "B's" in the handwritten insertions of the draft are very similar to those in Barretto's admittedly genuine signature on the envelope, Exhibit "A." The finding of Judge Pecson on the point in his first decision (reiterated expressly in the resolution on the motion for new trial), should control, not only because it is in accordance with the evidence but because the oppositor had failed and did not even attempt to have the trial Judge reconsider or reverse his factual conclusions. The draft, Exhibit "B," having been positively identified by the witnesses for the petitioner to be an exact copy of the lost will of Jose B. Suntay, is therefore conclusive. Oppositor's effort to show that said draft was never signed in final form, and was thought of merely to deceive petitioner's mother, Lim Billian, and that the will actually executed and put in the envelope, Exhibit "A", provided that the testator's estate would be divided equally among his heirs, as in the case of intestacy, was necessarily futile because, if this allegation is true, the will would not have been "snatched" from Go Toh — and the loss certainly cannot be imputed to the widow Lim Billian or the petitioner; the snatched will would have been produced to put an end to petitioner's and his mother's claim for greater inheritance or participation under the lost will; and the envelope containing the first will providing for equal shares, would not have been entrusted to the care and custody of the widow Lim Billian.

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It is very noteworthy that out of the nine children of the first marriage, only Angel, Jose and Federico Suntay had opposed the probate of the will in question; the rest, namely, Ana, Aurora, Concepcion, Lourdes, Manuel and Emiliano Suntay, having expressly manifested in their answer that they had no opposition thereto, since the petitioner's alternative petition "seeks only to put into effect the testamentary disposition and wishes of their late father." This attitude is significantly an indication of the justness of petitioner's claim, because it would have been to their greater advantage if they had sided with oppositor Federico Suntay in his theory of equal inheritance for all the children of Jose B. Suntay. Under the lost will or its draft Exhibit "B", each of the Suntay children would receive only some P 25,000.00, whereas in case of intestacy or under the alleged will providing for equal shares, each of them would receive some P100,000.00. And yet the Suntay children other than Angel, Jose and Federico had chosen to give their conformity to the alternative petition in this case. Another unequivocal confirmation of the lost will is the will which Jose B. Suntay executed in Amoy, Fookien, China, on January 4, 1931, and probated in Amoy District Court, China, containing virtually the same provisions as those in the draft Exhibit "B". What better evidence is there of an man's desire or insistence to express his last wishes than the execution of a will reiterating the same provisions contained in an earlier will. Assuming that the Chinese will cannot be probated in the jurisdiction, its probative value as corroborating evidence cannot be ignored. Oppositor himself had admitted having read the will in question under which the widow Lim Billian was favored; and this again in a way goes to corroborate the evidence for the petitioner as to the contents of the will sought to be probated. COURT: Q. Have you read the supposed will or the alleged will of your father? — "A. Yes, sir. COURT: Q. Can you tell the court the share or participation in the inheritance of Maria Natividad Lim Billian according to the will? — A. Yes sir, she will inherit, I think, two-thirds (2/3) of the estate, in other words she is the most favored in the will, so when they sold that, they sold everything, they are selling everything even the conjugal property. (t. s. n. 228-229.) The decision of the majority leans heavily on the testimony of Atty. Alberto Barretto, forgetful perhaps of the fact that the trial Judge gave no credence to said witness. It should be repeated that Judge Pecson reiterated in the resolution on the motion for new trial all his findings in the first decision. If as Atty. Barretto testified, Lim Billian was entitled under the will actually signed by Jose Suntay only to P10,000.00, in addition to properties in China value at P15,000.00, the fees of P25,000.00 admittedly asked by him would absorb her entire inheritance; and this would normally not be done by any law practitioner. Upon the other hand, there is evidence to the effect that Atty. Barretto might have become hostile to the petitioner and his mother Lim Billian in view of the latter's refusal to agree to the amount of P25,000.00 and her offer to pay only P100.00. There is also evidence tending to show that as early as 1942, Atty. Barretto was paid by oppositor Federico Suntay the sum of P16,000.00 which, although allegedly for services in the testate proceedings, was paid out of the personal funds of said oppositors to supply Atty. Barretto's needs. This circumstances perhaps further explains why the latter had to support the side of Federico Suntay. We have quoted in full the decision of this court in the "snatching" case and the first decision of Judge Pecson in this case, both in the hope and in the belief (1) that the first would reveal the manner by which those adversely affected had planned to prevent the last wishes of the deceased Jose B. Suntay from being carried on, and (2) that the second, by the facts correctly recited therein and by the force and accuracy of its logic would amply show the weakness and utter lack of foundation of the resolution on the motion for reconsideration. We have set forth at length pertinent portions of the testimony of various witnesses to demonstrate more plainly the plausibility of the original decision of Judge Pecson, and the latter's consequent bad judgment in having forced himself to accomplish a somersault, a feat which the majority, in my opinion, have mistakenly commended. We have found this to be one of the cases of this court in which we have had occasion to participate, where there can be absolutely no doubt as to the result — outright reversal — for which, with due respect to the majority opinion, we vote without hesitancy. Montemayor and Jugo, JJ., concur.

RESOLUTION 5 November 1954

PADILLA, J.: This is a motion for reconsideration of the decision promulgated on 31 July 1954, affirming the decree of the Court of First Instance of Bulacan which disallowed the alleged last will and testament executed in November 1929 and the alleged last will and testament executed in Kulangsu, Amoy, China, on 4 January 1931, by Jose B. Suntay, without pronouncement as to costs, on grounds that will presently be taken up and discussed. Appellant points to an alleged error in the decision where it states that —

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. . . This petition was denied because of the loss of said will after the filing of the petition and before the hearing thereof, . . . because according to him the "will was lost before not after (the) filing of the petition." This slight error, if it is an error at all, does not, and cannot, after the conclusions and pronouncements made in the judgment rendered in the case. In his alternative petition the appellant alleges: 4. That on October 15, 1934, Marian Natividad Lim Billian, the mother of herein petitioner filed a petition in this court for the allowance and probate of a last will and testament executed, and signed in the Philippines in the year 1929 by said deceased Jose B. Suntay. (P. 3, amended record on appeal.) If such will and testament was already lost or destroyed at the time of the filing of the petition by Maria Natividad Lim Billian (15 October 1934), the appellant would have so stated and alleged. If Anastacio Teodoro, a witness for the appellant, is to be believed when he testified — . . . that one day in November 1934 (p. 273, t. s. n., hearing of 19 January 1948), ... Go Toh arrived at his law office in the De Los Reyes Building and left an envelope wrapped in red handkerchief [Exhibit C] (p. 32, t. s. n., hearing of 13 October 19470 . . . and — If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro and returned by the latter to the former because they could not agree on the amount of fees, . . . then on 15 October 1934, the date of the filing of the petition, the will was not yet lost. And if the facts alleged in paragraph 5 of the appellant's alternative petition which states: That this Honorable Court, after hearing, denied the aforesaid petition for probate filed by Maria Natividad Lim Billian in view of the loss and/or destruction of said will subsequent to the filing of said petition and prior to the hearing thereof, and the alleged insufficiency of the evidence adduced to established the loss and/or destruction of the said will, (Emphasis supplied, P. 3, amended record on appeal.) may be relied upon, then the alleged error pointed out by the appellant, if it is an error, is due to the allegation in said paragraph of his alternative petition. Did the appellant allege the facts in said paragraph with reckless abandon? Or, did the appellant make the allegation as erroneously as that which he made in paragraph 10 of the alternative petition that "his will which was lost and ordered probated by our Supreme Court in G. R. No. 44276, above referred to?" (P. 7, amended record on appeal.) This Court did not order the probate of the will in said case because if it did, there would have been no further and subsequent proceedings in the case after the decision of this Court referred to had been rendered and had become final. Be that as it may, whether the loss of the will was before or subsequent to the filing of the petition, as already stated, the fact would not affect in the slightest degree the conclusions and pronouncements made by this Court. The appellant advances the postulate that the decision of this Court in the case of Lim Billian vs. Suntay, G. R. No. 44276, 63 Phil., 793, constitutes res judicata on these points: (a) that only one will was prepared by attorney Barretto, and (b) that the issue to be resolved by the trial court was whether the draft (Exhibit B) is a true copy or draft of the snatched will, and contends that these points already adjudged were overlooked in the majority opinion. The decision of this Court in the case referred to does not constitute res judicata on the points adverted to by the appellant. The only point decided in that case is that "the evidence is sufficient to establish the loss of the document contained in the envelope." In the opinion of this Court, this circumstance justified "the presentation of secondary evidence of its contents and of whether it was executed with all the essential and necessary legal formalities." That is all that was decided. This Court further said: The trial of this case was limited to the proof of loss of the will, and from what has taken place we deduce that it was not petitioner's intention to raise, upon the evidence adduced by her, and other points involved herein, namely, as we have heretofore indicated, whether Exhibit B is a true copy of the will and whether the latter was executed with all the formalities required by law for its probate. The testimony of Alberto Barretto bears importantly in this connection. (P. 796, supra.) Appellant's contention that the question before the probate court was whether the draft (Exhibit B) is a true copy or draft of the snatched will is a mistaken interpretation and view of the decision of this Court in the case referred to, for if this Court did make that pronouncement, which, of course, it did not, such pronouncement would be contrary to law and would have been a grievous and irreparable mistake, because what the Court passed upon and decided in that case, as already stated, is that there was sufficient evidence to prove the loss of the of the will and that the next step was to prove by secondary evidence its due execution in accordance with the formalities of the law and its contents, clearly and districtly, by the testimony of at least two credible witnesses.1 The appellant invokes Rule 133 to argue that Rule 77 should not have been applied to the case but the provisions of section 623 of the Code of Civil Procedure (Act No. 190), for the reason that this case had been commenced before the Rules of Court took effect. But Rule 133 cited by the appellant provides: These rules shall take effect on July 1, 1940. They shall govern all cases brought after they take effect, and also all further proceedings in cases then pending, except to the extent that in the opinion of the court their application would not be feasible or would work injustice, in which event the former procedure shall apply. (Emphasis supplied.)

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So, Rule 77 applies to this case because it was a further proceedings in a case then pending. But even if section 623 of the Code of Civil Procedure were to be applied, still the evidence to prove the contents and due execution of the will and the fact of its unauthorized destruction, cancellation, or obliteration must be established "by full evidence to the satisfaction of the Court." This requirement may even be more strict and exacting than the two-witness rule provided for in section 6, Rule 77. The underlying reason for the exacting provisions found in section 623 of Act No. 190 and section 6, Rule 77, the product of experience and wisdom, is to prevent imposters from foisting, or at least to make for them difficult to foist, upon probate courts alleged last wills or testaments that were never executed. In commenting unfavorably upon the decree disallowing the lost will, both the appellant and the dissenting opinion suffer from an infirmity born of a mistaken premise that all the conclusions and pronouncements made by the probate court in the first decree which allowed the probate of the lost will of the late Jose B. Suntay must be accepted by this Court. This is an error. It must be borne in mind that this is not a petition for a writ of certiorari to review a judgment of the Court of Appeals on questions of law where the findings of fact by said Court are binding upon this Court. This is an appeal from the probate court, because the amount involved in the controversy exceeds P50,000, and this Court in the exercise of its appellate jurisdiction must review the evidence and the findings of fact and legal pronouncements made by the probate court. If such conclusions and pronouncements are unjustified and erroneous this Court is in duty bound to correct them. Not long after entering the first decree the probate court was convinced that it had committed a mistake, so it set aside the decree and entered another. This Court affirmed the last decree not precisely upon the facts found by the probate court but upon facts found by it after a careful review and scrutiny of the evidence, parole and documentary. After such review this Court has found that the provisions of the will had not been established clearly and distinctly by at least two credible witnesses and that conclusion is unassailable because it is solidly based on the established facts and in accordance with law. The appellant and the dissent try to make much out of a pleading filed by five (5) children and the widow of Apolonio Suntay, another child of the deceased by the first marriage, wherein they state that — . . . in answer to the alternative petition filed in these proceedings by Silvino Suntay, through counsel, dated June 18, 1947, to this Honorable Court respectfully state that, since said alternative petition seeks only to put into effect the testamentary disposition and wishes of their late father, they have no opposition thereto. (Pp. 71-72, amended record on appeal.) Does that mean that they were consenting to the probate of the lost will? Of course not. If the lost will sought to be probated in the alternative petition was really the will of their late father, they, as good children, naturally had, could have, no objection to its probate. That is all that their answer implies and means. But such lack of objection to the probate of the lost will does not relieve the proponent thereof or the party interested in its probate from establishing its due execution and proving clearly and distinctly the provisions thereof at least two credible witnesses. It does not mean that they accept the draft Exhibit B as an exact and true copy of the lost will and consent to its probate. Far from it. In the pleading copied in the dissent, which the appellant has owned and used as argument in the motion for reconsideration, there is nothing that may bolster up his contention. Even if all the children were agreeable to the probate of said lost will, still the due execution of the lost will must be established and the provisions thereof proved clearly and distinctly by at least two credible witnesses, as provided for in section 6, Rule 77. The appellant's effort failed to prove what is required by the rule. Even if the children of the deceased by the first marriage, out of generosity, were willing to donate their shares in the estate of their deceased father or parts thereof to their step mother and her only child, the herein appellant, still the donation, if validly made, would not dispense with the proceedings for the probate of the will in accordance with section 6, Rule 77, because the former may convey by way of donation their shares in the state of their deceased father or parts thereof to the latter only after the decree disallowing the will shall have been rendered and shall have become final. If the lost will is allowed to probate there would be no room for such donation except of their respective shares in the probated will. The part of the deposition of Go Toh quoted in the motion for reconsideration which appellant underscores does not refer to Go Toh but to Manuel Lopez. Even if Go Toh heard Manuel Lopez read the draft (Exhibit B) for the purpose of checking it up with the original held and read by Jose B. Suntay, Go Toh should not have understood the provisions of the will because he knew very little of the Spanish language in which the will was written (answer to 22nd and 23rd interrogatories and to X-2 cross-interrogatory). In fact, he testifies in his deposition that all he knows about the contents of the lost will was revealed to him by Jose B. Suntay at the time it was executed (answers to 25th interrogatory and to X-4 and X-8 cross-interrogatories); that Jose B. Suntay told him that the contents thereof are the same as those of the draft [Exhibit B] (answers to 33rd interrogatory and to X-8 cross-interrogatory); that Mrs. Suntay had the draft of the will (Exhibit B) translated into Chinese and he read the translation (answer to the 67th interrogatory); that he did not read the will and did not compare it (check it up) with the draft [Exhibit B] (answers to X-6 and X-20 cross-interrogatories). We repeat that — . . . all of Go Toh's testimony by deposition on the provisions of the alleged lost will is hearsay, because he came to know or he learned of them from information given him by Jose B. Suntay and from reading the translation of the draft (Exhibit B) into Chinese. This finding cannot be contested and assailed. The appellant does not understand how the Court came to the conclusion that Ana Suntay, a witness for the appellant could not have read the part of the will on adjudication. According to her testimony "she did not read the whole will but only the adjudication," which, this Court found, "is inconsistent with her testimony in chief (to the effect) that "after Apolonio read that portion, then he turned over the document of Manuel, and he went away." (P. 528, t. s. n., hearing of 24 February 1948.) And appellant asks the question: "Who went away? Was it Manuel or Apolonio?" In answer to his own question the appellant says: "The more obvious inference is that it was Apolonio and not Manuel who went away." This inference made by the appellant not only is not obvious but it is also illogical, if it be borne in mind that Manuel came to the house of Apolonio and it happened that Ana was there, according to her testimony. So the sentence "he went away" in Ana's testimony must logically and reasonably refer to Manuel, who was a caller or visitor in the house of his brother Apolonio and not to the latter who was in his house. If it was Apolonio who "went away," counsel for the appellant could have brought that out by a single question. As the evidence stands could it be said that the one who went away was Apolonio and not Manuel? The obvious answer is that it was Manuel. That inference is the result of a straight process of reasoning and clear thinking.

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There is a veiled insinuation in the dissent that Alberto Barretto testified as he did because he had been paid by Federico C. Suntay the sum of P16,000. Federico C. Suntay testifies on the point thus — Q. You mentioned in your direct testimony that you paid certain amount to Atty. Alberto Barretto for services rendered, how much did you pay? — A. Around SIXTEEN THOUSAND (P16,000.00). Q. When did you make the payment? — A. During the Japanese time. Q. Did you state that fact in any accounts you presented to the Court? — A. I do not quite remember that. . . . (P. 180, t. s. n., hearing of 24 October 1947.) Q. When you made that payment, was (it) your intention to charge it to the state or to collect it later from the estate? — A. Yes, sir. Q. More or less when was such payment made, during the Japanese time, what particular month and year, do you remember? — A. I think in 1942. Q. And you said you paid him because of services he rendered? — A. Upon the order to the Court. Q. And those services were precisely because he made a will and he made a will which was lost, the will of Jose B. Suntay? ... (P. 181, t. s. n., supra.) — A. I think I remember correctly according to ex-Representative Vera who is the administrator whom I followed at that time, that was paid according to the services rendered by Don Alberto Barretto with regard to our case in the testamentaria but he also rendered services to my father. Q. At least your Counsel said that there was an order of the Court ordering you to pay that, do you have that copy of the order? — A. Yes, sir, I have, but I think that was burned. (P. 184, t. s. n., supra.). So the sum of P16,000 was paid upon recommendation of the former administrator and order of the probate court for services rendered by Alberto Barretto not only in the probate proceedings that also for services rendered to his father. But if this sum of P16,000 paid to Alberto Barretto upon recommendation of the previous administrator and order of the probate court for professional services rendered in the probate proceedings and to the deceased in his lifetime be taken against his truthfulness and veracity as to affect adversely his testimony, what about the professional services of Anastacio Teodoro who appeared in this case as one of the attorneys for the petitioner-appellant? (P. 2, t. s. n., hearing of 13 October 1947.)Would that not likewise or by the same token affect his credibility? It is the latter's interest more compelling than the former's? For the foregoing reasons, the motion for reconsideration is denied. Pablo, Bengzon, Reyes, A. and Concepcion, JJ., concur.

Paras, C.J., dissenting: For the same reasons and considerations set forth in detail in my dissent promulgated on July 31, 1954, I vote to grant the motion for reconsideration. Montemayor and Jugo, JJ., concur.

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G.R. No. 160530

November 20, 2007

CYNTHIA V. NITTSCHER, petitioner, vs. DR. WERNER KARL JOHANN NITTSCHER (Deceased), ATTY. ROGELIO P. NOGALES and THE REGIONAL TRIAL COURT OF MAKATI (Branch 59), respondents. DECISION QUISUMBING, J.: For review on certiorari are the Decision1 dated July 31, 2003 and Resolution2 dated October 21, 2003 of the Court of Appeals in CA-G.R. CV No. 55330, which affirmed the Order3 dated September 29, 1995 of the Regional Trial Court (RTC), Branch 59, Makati City, in SP Proc. No. M-2330 for the probate of a will. The facts are as follows. On January 31, 1990, Dr. Werner Karl Johann Nittscher filed with the RTC of Makati City a petition for the probate of his holographic will and for the issuance of letters testamentary to herein respondent Atty. Rogelio P. Nogales. On September 19, 1991, after hearing and with due notice to the compulsory heirs, the probate court issued an order allowing the said holographic will, thus: WHEREFORE, premises considered, the Holographic Will of the petitioner-testator Dr. Werner J. Nittscher executed pursuant to the provision of the second paragraph of Article 838 of the Civil Code of the Philippines on January 25, 1990 in Manila, Philippines, and proved in accordance with the provision of Rule 76 of the Revised Rules of Court is hereby allowed. SO ORDERED.4 On September 26, 1994, Dr. Nittscher died. Hence, Atty. Nogales filed a petition for letters testamentary for the administration of the estate of the deceased. Dr. Nittscher’s surviving spouse, herein petitioner Cynthia V. Nittscher, moved for the dismissal of the said petition. However, the court in its September 29, 1995 Order denied petitioner’s motion to dismiss, and granted respondent’s petition for the issuance of letters testamentary, to wit: In view of all the foregoing, the motion to dismiss is DENIED. The petition for the issuance of Letters Testamentary, being in order, is GRANTED. Section 4, Rule 78 of the Revised Rules of Court, provides "when a will has been proved and allowed, the court shall issue letters testamentary thereon to the person named as executor therein, if he is competent, accepts the trust and gives a bond as required by these rules." In the case at bar, petitioner Atty. Rogelio P. Nogales of the R.P. Nogales Law Offices has been named executor under the Holographic Will of Dr. Werner J. Nittscher. As prayed for, let Letters Testamentary be issued to Atty. Rogelio P. Nogales, the executor named in the Will, without a bond. SO ORDERED.5 Petitioner moved for reconsideration, but her motion was denied for lack of merit. On May 9, 1996, Atty. Nogales was issued letters testamentary and was sworn in as executor. Petitioner appealed to the Court of Appeals alleging that respondent’s petition for the issuance of letters testamentary should have been dismissed outright as the RTC had no jurisdiction over the subject matter and that she was denied due process.

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The appellate court dismissed the appeal, thus: WHEREFORE, the foregoing considered, the appeal is hereby DISMISSED and the assailed Order is AFFIRMED in toto. The court a quo is ordered to proceed with dispatch in the proceedings below. SO ORDERED.6 Petitioner’s motion for reconsideration of the aforequoted decision was denied for lack of merit. Hence, the present petition anchored on the following grounds: I. BOTH THE CA AND THE LOWER COURT ERRED IN NOT DISMISSING OUTRIGHT THE PETITION FOR LETTERS … TESTAMENTARY FILED BY ATTY. NOGALES WHEN, OBVIOUSLY, IT WAS FILED IN VIOLATION OF REVISED CIRCULAR NO. 28-91 AND ADMINISTRATIVE CIRCULAR NO. 04-94 OF THIS HONORABLE COURT. II. THE CA ERRED IN NOT DECLARING THAT THE LOWER COURT [HAS] NO JURISDICTION OVER THE SUBJECT MATTER OF THE PRESENT SUIT. III. THE CA ERRED IN CONCLUDING THAT SUMMONS WERE PROPERLY ISSUED TO THE PARTIES AND ALL PERSONS INTERESTED IN THE PROBATE OF THE HOLOGRAPHIC WILL OF DR. NITTSCHER. IV. THE CA ERRED IN CONCLUDING THAT THE PETITIONER WAS NOT DEPRIVED OF DUE PROCESS OF LAW BY THE LOWER COURT. 7 Petitioner contends that respondent’s petition for the issuance of letters testamentary lacked a certification against forum-shopping. She adds that the RTC has no jurisdiction over the subject matter of this case because Dr. Nittscher was allegedly not a resident of the Philippines; neither did he leave real properties in the country. Petitioner claims that the properties listed for disposition in her husband’s will actually belong to her. She insists she was denied due process of law because she did not receive by personal service the notices of the proceedings. Respondent Atty. Nogales, however, counters that Dr. Nittscher did reside and own real properties in Las Piñas, Metro Manila. He stresses that petitioner was duly notified of the probate proceedings. Respondent points out that petitioner even appeared in court to oppose the petition for the issuance of letters testamentary and that she also filed a motion to dismiss the said petition. Respondent maintains that the petition for the issuance of letters testamentary need not contain a certification against forum-shopping as it is merely a continuation of the original proceeding for the probate of the will. We resolve to deny the petition. As to the first issue, Revised Circular No. 28-918 and Administrative Circular No. 04-949 of the Court require a certification against forum-shopping for all initiatory pleadings filed in court. However, in this case, the petition for the issuance of letters testamentary is not an initiatory pleading, but a mere continuation of the original petition for the probate of Dr. Nittscher’s will. Hence, respondent’s failure to include a certification against forum-shopping in his petition for the issuance of letters testamentary is not a ground for outright dismissal of the said petition. Anent the second issue, Section 1, Rule 73 of the Rules of Court provides: SECTION 1. Where estate of deceased persons settled. – If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance (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. … (Emphasis supplied.) In this case, the RTC and the Court of Appeals are one in their finding that Dr. Nittscher was a resident of Las Piñas, Metro Manila at the time of his death. Such factual finding, which we find supported by evidence on record, should no longer be disturbed. Time and again we have said that reviews on certiorari are limited to errors of law. Unless there is a showing that the findings of the lower court are totally devoid of support or are glaringly erroneous, this Court will not analyze or weigh evidence all over again.10 Hence, applying the aforequoted rule, Dr. Nittscher correctly filed in the RTC of Makati City, which then covered Las Piñas, Metro Manila, the petition for the probate of his will and for the issuance of letters testamentary to respondent.

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Regarding the third and fourth issues, we note that Dr. Nittscher asked for the allowance of his own will. In this connection, Section 4, Rule 76 of the Rules of Court states: SEC. 4. Heirs, devisees, legatees, and executors to be notified by mail or personally. – … If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory heirs. In this case, records show that petitioner, with whom Dr. Nittscher had no child, and Dr. Nittscher’s children from his previous marriage were all duly notified, by registered mail, of the probate proceedings. Petitioner even appeared in court to oppose respondent’s petition for the issuance of letters testamentary and she also filed a motion to dismiss the said petition. She likewise filed a motion for reconsideration of the issuance of the letters testamentary and of the denial of her motion to dismiss. We are convinced petitioner was accorded every opportunity to defend her cause. Therefore, petitioner’s allegation that she was denied due process in the probate proceedings is without basis. As a final word, petitioner should realize that the allowance of her husband’s will is conclusive only as to its due execution.11 The authority of the probate court is limited to ascertaining whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law.12 Thus, petitioner’s claim of title to the properties forming part of her husband’s estate should be settled in an ordinary action before the regular courts. WHEREFORE, the petition is DENIED for lack of merit. The assailed Decision dated July 31, 2003 and Resolution dated October 21, 2003 of the Court of Appeals in CA-G.R. CV No. 55330, which affirmed the Order dated September 29, 1995 of the Regional Trial Court, Branch 59, Makati City, in SP Proc. No. M-2330 are AFFIRMED. No pronouncement as to costs. SO ORDERED. Carpio, Carpio-Morales, Tinga, Velasco, Jr., JJ., concur.

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