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Vda de Kilayko Case
Vda de Kilayko Case
Vda de Kilayko Case
On January 23, 1975, the joint administrators filed a motion for the cancellation of the notice of lis
It should be remembered that when a testator merely names an heir and provides that if such heir should
pendens on the contentions that there existed exceptional circumstances which justified the cancellation
die a second heir also designated shall succeed, there is no fideicommissary substitution. The substitution
of the notice of lis pendens and that no prejudice would be caused to the plaintiffs. On September 20,
should then be construed as a vulgar or simple substitution under Art. 859 of the Civil Code but it shall be
1976, respondent judge issued an order granting the motion for cancellation of notice of lis pendens. The
effective only if the first heir dies before the testator. In this case, the instituted heir, Eustaquia, survived
court simultaneously held in abeyance the resolution of the motion to dismiss the complaint.
the testatrix, Maria Lizares. Hence, there can be no substitution of heirs for, upon Maria Lizares' death,
the properties involved unconditionally devolved upon Eustaquia.
ISSUE: w/n there was a valid partition and w/n there is a need to reopen the testate proceedings
With respect to the cancellation of the notice of lis pendens on the properties involved, there is no merit in
RULING: The petition in G.R. No. 45965 is impressed with merit. In testate succession, there can be no the contention of Celsa L. Vda. de Kilayko, et al., that the lower court acted contrary to law and/or gravely
valid partition among the heirs until after the will has been probated. The law enjoins the probate of a will abused its discretion in cancelling the notice of lis pendens. The cancellation of such a precautionary
and the public requires it, because unless a will is probated and notice thereof given to the whole world, notice, being a mere incident in an action, may be ordered by the court having jurisdiction over it at any
the right of a person to dispose of his property by will may be rendered nugatory. The authentication of a given time. Under Sec. 24, Rule 14 of the Rules of Court, a notice of lis pendens may be cancelled "after
will decides no other question than such as touch upon the capacity of the testator and the compliance proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary
with those requirements or solemnities which the law prescribes for the validity of a will. to protect the rights of the party who caused it to be recorded." In this case, the lower court ordered the
cancellation of said notice on the principal reason that the administrators of the properties involved are
In the instant case, the records will show that in the settlement of the testate estate of Maria Lizares, the subject to the supervision of the court and the said properties are under custodia legis. Therefore, such
executrix, Eustaquia Lizares submitted on January 8, 1971, a project of partition in which the parcels of notice was not necessary to protect the rights of Celsa L. Vda. de Kilayko, et al. More so in this case
land, subject matters of the complaint for reconveyance, were included as property of the estate and where it turned out that their claim to the properties left by Eustaquia is without any legal basis.