EN BANC
executed by the deceased on August 17, 1918,
G.R. No. L-2538             September 21, 1951
Testate Estate of the Deceased MARIANO MOLO
Y LEGASPI. JUANA JUAN VDA. DE
MOLO, petitioner-appellee,
vs.
LUZ, GLICERIA and CORNELIO
MOLO, oppositors-appellants.
Claro M. Recto and Serafin C. Dizon for appellants.
Delgado & Flores for appellee.
BAUTISTA ANGELO, J.:
This is an appeal from an order of the Court of First
Instance of Rizal admitting to probate the last will
and testament of the deceased Mariano Molo y
Legaspi executed on August 17, 1918. The
oppositors-appellants brought the case on appeal to
this Court for the reason that the value of the
properties involved exceeds P50,000.
Mariano Molo y Legaspi died on January 24, 1941,
in the municipality of Pasay, province of Rizal,
without leaving any forced heir either in the
descending or ascending line. He was survived,
however, by his wife, the herein petitioner Juana
Juan Vda. de Molo, and by his nieces and nephew,
the oppositors-appellants, Luz Gliceria and Cornelio,
all surnamed Molo, who were the legitimate children
of Candido Molo y Legaspi, deceased brother of the
testator. Mariano Molo y Legaspi left two wills, one
executed on August 17, 1918, (Exhibit A) and
another executed on June 20, 1939. (Exhibit I). The
later will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo,
filed in the Court of First Instance of Rizal a petition,
which was docketed as special proceeding No. 8022
seeking the probate of the will executed by the
deceased on June 20, 1939. There being no
opposition, the will was probated. However, upon
petition filed by the herein oppositors, the order of
the court admitting the will to probate was set aside
and the case was reopened. After hearing, at which
both parties presented their evidence, the court
rendered decision denying the probate of said will on
the ground that the petitioner failed to prove that the
same was executed in accordance with law.
In view of the disallowance of the will executed on
June 20, 1939, the widow on February 24, 1944,
filed another petition for the probate of the will
which was docketed as special proceeding No. 56,
in the same court. Again, the same oppositors filed
an opposition to the petition based on three grounds:
(1) that petitioner is now estopped from seeking the
probate of the will of 1918; (2) that said will has not
been executed in the manner required by law and
(3) that the will has been subsequently revoked. But
before the second petition could be heard, the battle
for liberation came and the records of the case were
destroyed. Consequently, a petition for reconstitution
was filed, but the same was found to be impossible
because neither petitioner nor oppositors could
produce the copies required for its reconstitution. As
a result, petitioner filed a new petition on September
14, 1946, similar to the one destroyed, to which the
oppositors filed an opposition based on the same
grounds as those contained in their former
opposition. Then, the case was set for trial, and on
May 28, 1948, the court issued an order admitting
the will to probate already stated in the early part of
this decision. From this order the oppositors
appealed assigning six errors, to wit.
I. The probate court erred in not holding that
the present petitioner voluntarily and
deliberately frustrated the probate of the will
dated June 20, 1939, in special proceeding
No. 8022, in order to enable her to obtain
the probate of another alleged will of Molo
dated 191.
II. The court a quo erred in not holding that
the petitioner is now estopped from seeking
the probate of Molo's alleged will of 1918.
III. The lower court erred in not holding that
petitioner herein has come to court with
"unclean hands" and as such is not entitled
to relief.
IV. The probate court erred in not holding
that Molo's alleged will of August 17, 1918
was not executed in the manner required by
law.
V. The probate court erred in not holding
that the alleged will of 1918 was deliberately
revoked by Molo himself.
VI. The lower court erred in not holding that
Molo's will of 1918 was subsequently
revoked by the decedent's will of 1939.
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In their first assignment of error, counsel for
oppositors contend that the probate court erred in
not holding that the petitioner voluntarily and
deliberately frustrated the probate of the will dated
June 20, 1939, in order to enable her to obtain the
probate of the will executed by the deceased on
August 17, 1918, pointing out certain facts and
circumstances with their opinion indicate that
petitioner connived with the witness Canuto Perez in
an effort to defeat and frustrate the probate of the
1939 will because of her knowledge that said will
intrinsically defective in that "the one and only
testamentory disposition thereof was a "disposicion
captatoria". These circumstances, counsel for the
appellants contend, constitute a series of steps
deliberately taken by petitioner with a view to
insuring the realization of her plan of securing the
probate of the 1918 will which she believed would
better safeguard her right to inherit from the
decease.
These imputations of fraud and bad faith allegedly
committed in connection with special proceedings
No. 8022, now closed and terminated, are vigorously
met by counsel for petitioner who contends that to
raise them in these proceedings which are entirely
new and distinct and completely independent from
the other is improper and unfair as they find no
support whatsoever in any evidence submitted by
the parties in this case. They are merely based on
the presumptions and conjectures not supported by
any proof. For this reason, counsel, contends, the
lower court was justified in disregarding them and in
passing them sub silentio in its decision.
A careful examination of the evidence available in
this case seems to justify this contention. There is
indeed no evidence which may justify the insinuation
that petitioner had deliberately intended to frustrate
the probate of the 1939 will of the deceased to
enable her to seek the probate of another will other
than a mere conjecture drawn from the apparently
unexpected testimony of Canuto Perez that he went
out of the room to answer an urgent call of nature
when Artemio Reyes was signing the will and the
failure of petitioner later to impeach the character of
said witness in spite of the opportunity given her by
the court to do so. Apart from this insufficiency of
evidence, the record discloses that this failure has
been explained by petitioner when she informed the
court that she was unable to impeach the character
of her witness Canuto Perez because of her inability
to find witnesses who may impeach him, and this
explanation stands uncontradicted. Whether this
explanation is satisfactory or not, it is not now, for us
to determine. It is an incident that comes within the
province of the former case. The failure of petitioner
to present the testimony of Artemio Reyes at the
hearing has also been explained, and it appears that
petitioner has filed because his whereabouts could
not be found. Whether this is true or not is also for
this Court to determine. It is likewise within the
province and function of the court in the former case.
And the unfairness of this imputation becomes more
glaring when we stock of the developments that had
taken place in these proceedings which show in bold
relief the true nature of the conduct, behavior and
character of the petitioner so bitterly assailed and
held in disrepute by the oppositors.
It should be recalled that the first petition for the
probate of the will executed on June 20, 1939, was
filed on February 7, 1941, by the petitioner. There
being no opposition, the will was probated.
Subsequently, however, upon petition of the herein
oppositors, the order of the court admitting said will
to probate was set aside, over the vigorous
opposition of the herein petitioner, and the case was
reopened. The reopening was ordered because of
the strong opposition of the oppositors who
contended that he will had not been executed as
required by law. After the evidence of both parties
had been presented, the oppositors filed an
extensive memorandum wherein they reiterated their
view that the will should be denied probate. And on
the strenght of this opposition, the court disallowed
the will.
If petitioner then knew that the 1939 will was
inherently defective and would make the
testamentary disposition in her favor invalid and
ineffective, because it is a "disposicion captatoria",
which knowledge she may easily acquire through
consultation with a lawyer, there was no need her to
go through the order of filing the petition for the
probate of the will. She could accomplish her desire
by merely suppressing the will or tearing or
destroying it, and then take steps leading to the
probate of the will executed in 1918. But for her
conscience was clear and bade her to take the only
proper step possible under the circumstances, which
is to institute the necessary proceedings for the
probate of the 1939 will. This she did and the will
was admitted to probate. But then the unexpected
happened. Over her vigorous opposition, the herein
appellants filed a petition for reopening, and over her
vigorous objection, the same was granted and the
case was reopened. Her motion for reconsideration
was denied. Is it her fault that the case was
reopened? Is it her fault that the order admitting the
2
will to probate was set aside? That was a
contingency which petitioner never expected. Had
appellants not filed their opposition to the probate of
the will and had they limited their objection to the
intrinsic validity of said will, their plan to defeat the
will and secure the intestacy of the deceased would
have perhaps been accomplished. But they failed in
their strategy. If said will was denied probate it is due
to their own effort. It is now unfair to impute bad faith
petitioner simply because she exerted every effort to
protect her own interest and prevent the intestacy of
the deceased to happen.
Having reached the foregoing conclusions, it is
obvious that the court did not commit the second
and third errors imputed to it by the counsel for
appellants. Indeed, petitioner cannot be considered
guilty or estoppel which would prevent her from
seeking the probate of the 1918 will simply because
of her effort to obtain the allowance of the 1939 will
has failed considering that in both the 1918 and
1939 wills she was in by her husband as his
universal heir. Nor can she be charged with bad faith
far having done so because of her desire to prevent
the intestacy of her husband. She cannot be blamed
being zealous in protecting her interest.
The next contention of appellants refers to the
revocatory clause contained in 1939 will of the
deceased which was denied probate. They contend
that, notwithstanding the disallowance of said will,
the revocatory clause is valid and still has the effect
of nullifying the prior of 1918.
Counsel for petitioner meets this argument by
invoking the doctrine laid down in the case
of Samson vs. Naval, (41 Phil., 838). He contends
that the facts involved in that case are on all fours
with the facts of this case. Hence, the doctrine is that
case is here controlling.
There is merit in this contention. We have carefully
read the facts involved in the Samson case we are
indeed impressed by their striking similarity with the
facts of this case. We do not need to recite here
what those facts are; it is enough to point out that
they contain many points and circumstances in
common. No reason, therefore, is seen by the
doctrine laid down in that case (which we quote
hereunder) should not apply and control the present
case.
A subsequent will, containing a clause
revoking a previous will, having been
disallowed, for the reason that it was not
executed in conformity with the provisions of
section 618 of the Code of Civil Procedure
as to the making of wills, cannot produce the
effect of annulling the previous will,
inasmuch as said revocatory clause is void.
(41 Phil., 838.)
Apropos of this question, counsel for oppositors
make the remark that, while they do not disagree
with the soundness of the ruling laid down in the
Samson case, there is reason to abandon said ruling
because it is archaic or antiquated and runs counter
to the modern trend prevailing in American
jurisprudence. They maintain that said ruling is no
longer controlling but merely represents the point of
view of the minority and should, therefore, be
abandoned, more so if we consider the fact that
section 623 of our Code of Civil Procedure, which
governs the revocation of wills, is of American origin
and as such should follow the prevailing trend of the
majority view in the United States. A long line of
authorities is cited in support of this contention. And
these authorities hold the view, that "an express
revocation is immediately effective upon the
execution of the subsequent will, and does not
require that it first undergo the formality of a probate
proceeding". (p. 63, appellants' brief .
While they are many cases which uphold the view
entertained by counsel for oppositors, and that view
appears to be in controlling the states where the
decisions had been promulgated, however, we are
reluctant to fall in line with the assertion that is now
the prevailing view in the United States. In the
search we have made of American authorities on the
subject, we found ourselves in a pool of conflicting
opinions perhaps because of the peculiar provisions
contained in the statutes adopted by each State in
the subject of revocation of wills. But the impression
we gathered from a review and the study of the
pertinent authorities is that the doctrine laid down in
the Samson case is still a good law. On page 328 of
the American Jurisprudence Vol. 57, which is a
revision Published in 1948, we found the following
passages which in our opinion truly reflect the
present trend of American jurisprudence on this
matter affecting the revocation of wills:
SEC. 471. Observance of Formalities in
Execution of Instrument. — Ordinarily,
statutes which permit the revocation of a will
by another writing provide that to be
effective as a revocation, the writing must be
executed with the same formalities which
are required to be observed in the execution
3
 of a will. Accordingly, where, under the
statutes, attestation is necessary to the
making of a valid will, an unattested non
testamentary writing is not effective to
revoke a prior will. It has been held that a
writing fails as a revoking instrument where
it is not executed with the formalities
requisite for the execution of a will, even
though it is inscribed on the will itself,
although it may effect a revocation by
cancellation or obliteration of the words of
the will. A testator cannot reserve to himself
the power to modify a will by a written
instrument subsequently prepared but not
executed in the manner required for a will.
SEC, 472. Subsequent Unexecuted, Invalid,
or Ineffective Will or Codicil. — A will which
is invalid because of the incapacity of the
testator, or of undue influence can have no
effect whatever as a revoking will. Moreover,
a will is not revoked by the unexecuted draft
of a later one. Nor is a will revoked by a
defectively executed will or codicil, even
though the latter contains a clause expressly
revoking the former will, in a jurisdiction
where it is provided by a controlling statute
that no writing other than a testamentary
instrument is sufficient to revoke a will, for
the simple reason that there is no revoking
will. Similarly where the statute provides that
a will may be revoked by a subsequent will
or other writing executed with the same
formalities as are required in the execution
of wills, a defectively executed will does not
revoke a prior will, since it cannot be said
that there is a writing which complies with
the statute. Moreover, a will or codicil which,
on account of the manner in which it is
executed, is sufficient to pass only
personally does not affect dispositions of
real estate made by a former will, even
though it may expressly purport to do so.
The intent of the testator to revoke is
immaterial, if he has not complied with the
statute. (57 Am. Jur., 328, 329.)
We find the same opinion in the American Law
Reports, Annotated, edited in 1939. On page 1400,
Volume 123, there appear many authorities on the
"application of rules where second will is invalid",
among which a typical one is the following:
It is universally agreed that where the
second will is invalid on account of not being
executed in accordance with the provisions
of the statute, or where the testator who has
not sufficient mental capacity to make a will
or the will is procured through undue
influence, or the such, in other words, where
the second will is really no will, it does not
revoke the first will or affect it in any manner.
Mort vs. Baker University (193-5) 229 Mo.
App., 632, 78 S.W. (2d), 498.
These treaties cannot be mistaken. They uphold the
view on which the ruling in the Samson case is
predicated. They reflect the opinion that this ruling is
sound and good and for this reason, we see no
justification for abondoning it as now suggested by
counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code
Civil Procedure) provides that a will may be some
will, codicil, or other writing executed as proved in
case of wills" but it cannot be said that the 1939 will
should be regarded, not as a will within the meaning
of said word, but as "other writing executed as
provided in the case of wills", simply because it was
denied probate. And even if it be regarded as
any other writing within the meaning of said clause,
there is authority for holding that unless said writing
is admitted to probate, it cannot have the effect of
revocation. (See 57 Am. Jur. pp. 329-330).
But counsel for oppositors contemned that,
regardless of said revocatory clause, said will of
1918 cannot still be given effect because of the
presumption that it was deliberately revoked by the
testator himself. The oppositors contend that the
testator, after executing the 1939 will, and with full
knowledge of the recovatory clause contained said
will, himself deliberately destroyed the original of the
1918 will, and for that reason the will submitted by
petitioner for probate in these proceedings is only a
duplicate of said original.
There is no evidence which may directly indicate that
the testator deliberately destroyed the original of the
1918 will because of his knowledge of the revocatory
clause contained in the will he executed in 1939.
The only evidence we have is that when the first will
was executed in 1918, Juan Salcedo, who prepared
it, gave the original and copies to the testator himself
and apparently they remained in his possession until
he executed his second will in 1939. And when the
1939 will was denied probate on November 29,
1943, and petitioner was asked by her attorney to
look for another will, she found the duplicate copy
4
(Exhibit A) among the papers or files of the testator.
She did not find the original.
If it can be inferred that the testator deliberately
destroyed the 1918 will because of his knowledge of
the revocatory clause of the 1939 will, and it is true
that he gave a duplicate copy thereof to his wife, the
herein petitioner, the most logical step for the
testator to take is to recall said duplicate copy in
order that it may likewise be destroyed. But this was
not done as shown by the fact that said duplicate
copy remained in the possession of petitioner. It is
possible that because of the long lapse of twenty-
one (21) years since the first will was executed, the
original of the will had been misplaced or lost, and
forgetting that there was a copy, the testator deemed
it wise to execute another will containing exactly the
same testamentary dispositions. Whatever may be
the conclusion we may draw from this chain of
circumstances, the stubborn fact is that there is no
direct evidence of voluntary or deliberate destruction
of the first will by the testator. This matter cannot be
inference or conjectur.
Granting for the sake of argument that the earlier will
was voluntarily destroyed by the testator after the
execution of the second will, which revoked the first,
could there be any doubt, under this theory, that said
earlier will was destroyed by the testator in the
honest belief that it was no longer necessary
because he had expressly revoked it in his will of
1939? In other words, can we not say that the
destruction of the earlier will was but the necessary
consequence of the testator's belief that the
revocatory clause contained in the subsequent will
was valid and the latter would be given effect? If
such is the case, then it is our opinion that the earlier
will can still be admitted to probate under the
principle of "dependent relative revocation".
This doctrine is known as that of dependent
relative revocation, and is usually applied
where the testator cancels or destroys a will
or executes an instrument intended to
revoke a will with a present intention to
make a new testamentary disposition as a
substitute for the old, and the new
disposition is not made or, if made, fails of
effect for same reason. The doctrine is n
limited to the existence of some other
document, however, and has been applied
where a will was destroyed as a
consequence of a mistake of law. . . . (68
C.J.P. 799).
The rule is established that where the act of
destruction is connected with the making of
another will so as fairly to raise the inference
that the testator meant the revocation of the
old to depend upon the efficacy of a new
disposition intended to be substituted, the
revocation will be conditional and dependent
upon the efficacy of the new disposition; and
if, for any reason, the new will intended to be
made as a substitute is inoperative, the
revocation fails and the original will remains
in full force. (Gardner, pp. 232, 233.)
This is the doctrine of dependent relative
revocation. The failure of a new
testamentary disposition upon whose validity
the revocation depends, is equivalent to the
non-fulfillment of a suspensive conditions,
and hence prevents the revocation of the
original will. But a mere intent to make at
some time a will in the place of that
destroyed will not render the destruction
conditional. It must appear that the
revocation is dependent upon the valid
execution of a new will. (1 Alexander, p.
751; Gardner, p. 253.)
We hold therefore, that even in the supposition that
the destruction of the original will by the testator
could be presumed from the failure of the petitioner
to produce it in court, such destruction cannot have
the effect of defeating the prior will of 1918 because
of the fact that it is founded on the mistaken belief
that the will of 1939 has been validly executed and
would be given due effect. The theory on which this
principle is predicated is that the testator did not
intend to die intestate. And this intention is clearly
manifest when he executed two wills on two different
occasion and instituted his wife as his universal heir.
There can therefore be no mistake as to his intention
of dying testate.
The remaining question to be determined refers to
the sufficiency of the evidence to prove the due
execution of the will.
The will in question was attested, as required by law,
by three witnesses, Lorenzo Morales, Rufino
Enriquez, and Angel Cuenca. The first two witnesses
died before the commencement of the present
proceedings. So the only instrumental witness
available was Angel Cuenca and under our law and
precedents, his testimony is sufficient to prove the
due execution of the will. However, petitioner
presented not only the testimony of Cuenca but
5
placed on the witness stand Juan Salcedo, the
notary public who prepared and notarized the will
upon the express desire and instruction of the
testator, The testimony of these witnesses shows
that the will had been executed in the manner
required by law. We have read their testimony and
we were impressed by their readiness and sincerity.
We are convinced that they told the truth.

Wherefore, the order appealed from is hereby

affirmed, with costs against the
appellants.1âwphïl.nêt

6
SECOND DIVISION
[G.R. No. 76464. February 29, 1988.]
TESTATE ESTATE OF THE LATE ADRIANA
MALOTO, ALDINA MALOTO CASIANO,
CONSTANCIO MALOTO, PURIFICACION
MIRAFLOR, ROMAN CATHOLIC CHURCH OF
MOLO, AND ASILO DE MOLO, Petitioners, v.
COURT OF APPEALS, PANFILO MALOTO AND
FELINO MALOTO, Respondents.
SYLLABUS
1. CIVIL LAW; SUCCESSION; WILLS;
REVOCATION THEREOF; PHYSICAL ACT OF
DESTRUCTION; ANIMUS REVOCANDI, A intestate proceeding and that in an action for
NECESSARY ELEMENT. — The physical act of
destruction of a will, like burning in this case, does
not per se constitute an effective revocation, unless
the destruction is coupled with animus revocandi on
the part of the testator. It is not imperative that the
physical destruction be done by the testator himself.
It may be performed by another person but under
the express direction and in the presence of the
testator. Of course, it goes without saying that the
document destroyed must be the will itself. In this
case, while animus revocandi, or the intention to
revoke, may be conceded, for that is a state of mind,
yet that requisite alone would not suffice. "Animus
revocandi is only one of the necessary elements for
the effective revocation of a last will and testament.
The intention to revoke must be accompanied by the
overt physical act of burning, tearing, obliterating, or
cancelling the will carried out by the testator or by
another person in his presence and under his
express direction.
2. REMEDIAL LAW; CIVIL ACTIONS; RES
JUDICATA; ELEMENTS. — For a judgment to be a
bar to a subsequent case, the following requisites
must concur: (1) the presence of a final former
judgment; (2) the former judgment was rendered by
a court having jurisdiction over the subject matter
and the parties; (3) the former judgment is a
judgment on the merits; and (4) there is, between
the first and the second action, identity of parties, of
subject matter, and of cause of action. We do not
find here the presence of all the enumerated
requisites.
3. ID.; ID.; ID.; DOCTRINE NOT APPLICABLE IN
CASE AT BAR. — There is yet, strictly speaking, no
final judgment rendered insofar as the probate of
Adriana Maloto’s will is concerned. The decision of
the trial court in Special Proceeding No. 1736,
although final, involved only the intestate settlement
of the estate of Adriana. As such, that judgment
could not in any manner be construed to be final with
respect to the probate of the subsequently
discovered will of the decedent. Neither is it a
judgment on the merits of the action for probate.
This is understandably so because the trial court, in
the intestate proceeding, was without jurisdiction to
rule on the probate of the contested will. After all, an
action for probate, as it implies, is founded on the
presence of a will and with the objective of proving
its due execution and validity, something which can
not be properly done in an intestate settlement of
estate proceeding which is predicated on the
assumption that the decedent left no will. Thus, there
is likewise no identity between the cause of action in
probate. Be that as it may, it would be remembered
that it was precisely because of our ruling in G.R.
No. L-30479 that the petitioners instituted this
separate action for the probate of the late Adriana
Maloto’s will. Hence, on these grounds alone, the
position of the private respondents on this score can
not be sustained.
DECISION
SARMIENTO, J.:
This is not the first time that the parties to this case
come to us. In fact, two other cases directly related
to the present one and involving the same parties
had already been decided by us in the past. In G.R.
No. L-30479, 1 which was a petition for certiorari and
mandamus instituted by the petitioners herein, we
dismissed the petition ruling that the more
appropriate remedy of the petitioners is a separate
proceeding for the probate of the will in question.
Pursuant to the said ruling, the petitioners
commenced in the then Court of First Instance of
Iloilo, Special Proceeding No. 2176, for the probate
of the disputed will, which was opposed by the
private respondents presently, Panfilo and Felino,
both surnamed Maloto. The trial court dismissed the
petition on April 30, 1970. Complaining against the
dismissal, again, the petitioners came to this Court
on a petition for review by certiorari. 2 Acting on the
said petition, we set aside the trial court’s order and
directed it to proceed to hear the case on the merits.
The trial court, after hearing, found the will to have
7
already been revoked by the testatrix. Adriana
Maloto, and thus, denied the petition. The petitioners
appealed the trial court’s decision to the
Intermediate Appellate Court which, on June 7,
1985, affirmed the order. The petitioners’ motion for
reconsideration of the adverse decision proved to be
of no avail, hence, this petition.
For a better understanding of the controversy, a
factual account would be a great help.
On October 20, 1963, Adriana Maloto died leaving
as heirs her niece and nephews, the petitioners
Aldina Maloto-Casiano and Constancio Maloto, and
the private respondents Panfilo Maloto and Felino
Maloto. Believing that the deceased did not leave
behind a last will and testament, these four heirs
commenced on November 4, 1963 an intestate
proceeding for the settlement of their aunt’s estate.
The case was instituted in the then Court of First
Instance of Iloilo and was docketed as Special
Proceeding No. 1736. However, while the case was
still in progress, or to be exact on February 1, 1964,
the parties — Aldina, Constancio, Panfilo, and Felino
— executed an agreement of extrajudicial settlement
of Adriana’s estate. The agreement provided for the
division of the estate into four equal parts among the
parties. The Malotos then presented the extrajudicial
settlement agreement to the trial court for approval
which the court did on March 21, 1964. That should
have signalled the end of the controversy, but,
unfortunately, it had not.
Three years later, or sometime in March 1967, Atty.
Sulpicio Palma, a former associate of Adriana’s
counsel, the late Atty. Eliseo Hervas, discovered a
document entitled "KATAPUSAN NGA PAGBULUT-
AN (Testamento)," dated January 3, 1940, and
purporting to be the last will and testament of
Adriana. Atty. Palma claimed to have found the
testament, the original copy, while he was going
through some materials inside the cabinet drawer
formerly used by Atty. Hervas. The document was
submitted to the office of the clerk of the Court of
First Instance of Iloilo on April 1, 1967. Incidentally,
while Panfilo and Felino are still named as heirs in
the said will, Aldina and Constancio are bequeathed
much bigger and more valuable shares in the estate
of Adriana than what they received by virtue of the
agreement of extrajudicial settlement they had
earlier signed. The will likewise gives devises and
legacies to other parties, among them being the
petitioners Asilo de Molo, the Roman Catholic
Church of Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio,
joined by the other devisees and legatees named in
the will, filed in Special Proceeding No. 1736 a
motion for reconsideration and annulment of the
proceedings therein and for the allowance of the will.
When the trial court denied their motion, the
petitioner came to us by way of a petition
for certiorari and mandamus assailing the orders of
the trial court. 3 As we stated earlier, we dismissed
that petition and advised that a separate proceeding
for the probate of the alleged will would be the
appropriate vehicle to thresh out the matters raised
by the petitioners.
Significantly, the appellate court while finding as
inconclusive the matter on whether or not the
document or papers allegedly burned by the
househelp of Adriana, Guadalupe Maloto Vda. de
Coral, upon instructions of the testatrix, was indeed
the will, contradicted itself and found that the will had
been revoked. The respondent court stated that the
presence of animus revocandi in the destruction of
the will had, nevertheless, been sufficiently proven.
The appellate court based its finding on the facts
that the document was not in the two safes in
Adriana’s residence, by the testatrix going to the
residence of Atty. Hervas to retrieve a copy of the
will left in the latter’s possession, and, her seeking
the services of Atty. Palma in order to have a new
will drawn up. For reasons shortly to be explained,
we do not view such facts, even considered
collectively, as sufficient bases for the conclusion
that Adriana Maloto’s will had been effectively
revoked.
There is no doubt as to the testamentary capacity of
the testatrix and the due execution of the will. The
heart of the case lies on the issue as to whether or
not the will was revoked by Adriana.
The provisions of the new Civil Code pertinent to the
issue can be found in Article 830.
Art. 830. No will shall be revoked except in the
following cases:chanrob1es virtual 1aw library
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as
provided in case of wills: or
(3) By burning, tearing, cancelling, or obliterating the
will with the intention of revoking it, by the testator
himself, or by some other person in his presence,
and by his express direction. If burned, torn,
cancelled, or obliterated by some other person,
without the express direction of the testator, the will
8
may still be established, and the estate distributed in
accordance therewith, if its contents, and due
execution, and the fact of its unauthorized
destruction, cancellation, or obliteration are
established according to the Rules of Court.
(Emphasis Supplied.)
It is clear that the physical act of destruction of a will,
like burning in this case, does not per se constitute
an effective revocation, unless the destruction is
coupled with animus revocandi on the part of the
testator. It is not imperative that the physical
destruction be done by the testator himself. It may
be performed by another person but under the
express direction and in the presence of the testator.
Of course, it goes without saying that the document
destroyed must be the will itself.
In this case, while animus revocandi, or the intention
to revoke, may be conceded, for that is a state of
mind, yet that requisite alone would not suffice.
"Animus revocandi is only one of the necessary
elements for the effective revocation of a last will
and testament. The intention to revoke must be
accompanied by the overt physical act of burning,
tearing, obliterating, or cancelling the will carried out
by the testator or by another person in his presence
and under his express direction. There is paucity of
evidence to show compliance with these
requirements. For one, the document or papers
burned by Adriana’s maid, Guadalupe, was not
satisfactorily established to be a will at all, much less
the will of Adriana Maloto. For another, the burning
was not proven to have been done under the
express direction of Adriana. And then, the burning
was not in her presence. Both witnesses, Guadalupe
and Eladio, were one in stating that they were the
only ones present at the place where the stove
(presumably in the kitchen) was located in which the
papers proffered as a will were burned.
The respondent appellate court in assessing the
evidence presented by the private respondents as
oppositors in the trial court, concluded that the
testimony of the two witnesses who testified in favor
of the will’s revocation appear "inconclusive." We
share the same view. Nowhere in the records before
us does it appear that the two witnesses, Guadalupe
Vda. de Corral and Eladio Itchon, both illiterates,
were unequivocably positive that the document
burned was indeed Adriana’s will. Guadalupe, we
think, believed that the papers she destroyed was
the will only because, according to her, Adriana told
her so. Eladio, on the other hand, obtained his
information that the burned document was the will
because Guadalupe told him so, thus, his testimony
on this point is double hearsay.
At this juncture, we reiterate that" (it) is an important
matter of public interest that a purported will is not
denied legalization on dubious grounds. Otherwise,
the very institution of testamentary succession will
be shaken to its very foundations . . ." 4
The private respondents in their bid for the dismissal
of the present action for probate instituted by the
petitioners argue that the same is already barred by
res adjudicata. They claim that this bar was brought
about by the petitioners’ failure to appeal timely from
the order dated November 16, 1968 of the trial court
in the intestate proceeding (Special Proceeding No.
1736) denying their (petitioners’) motion to reopen
the case, and their prayer to annul the previous
proceedings therein and to allow the last will and
testament of the late Adriana Maloto. This is
untenable.
The doctrine of res adjudicata finds no application in
the present controversy. For a judgment to be a bar
to a subsequent case, the following requisites must
concur: (1) the presence of a final former judgment;
(2) the former judgment was rendered by a court
having jurisdiction over the subject matter and the
parties; (3) the former judgment is a judgment on the
merits; and (4) there is, between the first and the
second action, identity of parties, of subject matter,
and of cause of action. 5 We do not find here the
presence of all the enumerated requisites.
For one, there is yet, strictly speaking, no final
judgment rendered insofar as the probate of Adriana
Maloto’s will is concerned. The decision of the trial
court in Special Proceeding No. 1736, although final,
involved only the intestate settlement of the estate of
Adriana. As such, that judgment could not in any
manner be construed to be final with respect to the
probate of the subsequently discovered will of the
decedent. Neither is it a judgment on the merits of
the action for probate. This is understandably so
because the trial court, in the intestate proceeding,
was without jurisdiction to rule on the probate of the
contested will. 6 After all, an action for probate, as it
implies, is founded on the presence of a will and with
the objective of proving its due execution and
validity, something which can not be properly done
in an intestate settlement of estate proceeding which
is predicated on the assumption that the decedent
left no will. Thus, there is likewise no identity
between the cause of action in intestate proceeding
and that in an action for probate. Be that as it may, it
would be remembered that it was precisely because
of our ruling in G.R. No. L-30479 that the petitioners
9
instituted this separate action for the probate of the
late Adriana Maloto’s will. Hence, on these grounds
alone, the position of the private respondents on this
score can not be sustained.

One last note. The private respondents point out that

revocation could be inferred from the fact that" (a)
major and substantial bulk of the properties
mentioned in the will had been disposed of: while an
insignificant portion of the properties remained at the
time of death (of the testatrix); and, furthermore,
more valuable properties have been acquired after
the execution of the will on January 3, 1940." 7
Suffice it to state here that as these additional
matters raised by the private respondents are
extraneous to this special proceeding, they could
only be appropriately taken up after the will has been
duly probated and a certificate of its allowance
issued.

WHEREFORE, judgment is hereby rendered

REVERSING and SETTING ASIDE the Decision
dated June 7, 1985 and the Resolution dated
October 22, 1986, of the respondent Court of
Appeals, and a new one ENTERED for the
allowance of Adriana Maloto’s last will and
testament. Costs against the private respondents.

This Decision is IMMEDIATELY EXECUTORY.

SO ORDERED.

10

FIRST DIVISION
G.R. No. 168156             December 6, 2006
HEIRS OF ROSENDO LASAM, Represented by
Rogelio Lasam and Atty. Edward P.
Llonillo, petitioners,
vs.
VICENTA UMENGAN, respondent.
DECISION
CALLEJO, SR., J.:
Before the Court is the petition for review
on certiorari filed by the Heirs of Rosendo Lasam,
represented by Rogelio M. Lasam and Atty. Edward
P. Llonillo, seeking the reversal of the
Decision1 dated February 16, 2005 of the Court of
Appeals (CA) in CA-G.R. SP No. 80032. The
assailed decision reversed and set aside the
decision of the Regional Trial Court (RTC) of
Tuguegarao City, Cagayan and dismissed, for lack
of merit, the complaint for unlawful detainer file by
the said heirs against respondent Vicenta Umengan.
The RTC decision affirmed that of the Municipal Trial
Court in Cities (MTCC) of the same city, Branch III,
which had rendered judgment in favor of the heirs of
Rosendo Lasam and directed the ejectment of
respondent Vicenta Umengan from the lot subject of
litigation.
The present petition likewise seeks the reversal of
the CA Resolution dated May 17, 2005 denying the
motion for reconsideration filed by the heirs of
Rosendo Lasam.
As culled from the records, the backdrop of the
present case is as follows –
The lot subject of the unlawful detainer case is
situated in Tuguegarao City, Cagayan. It is the
eastern half portion of Lot No. 5427 and Lot No. 990.
The first lot, Lot No. 5427 containing an area of
1,037 square meters, is covered by Original
Certificate of Title (OCT) No. 196. The second lot,
Lot No. 990 containing an area of 118 sq m, is
covered by OCT No. 1032. These lots are registered
in the names of the original owners, spouses Pedro
Cuntapay and Leona Bunagan.
In an instrument denominated as Deed of
Confirmation and acknowledged before a notary
public on June 14, 1979, the heirs of the said
spouses conveyed the ownership of Lots Nos. 990
and 5427 in favor of their two children, Irene
Cuntapay and Isabel Cuntapay. In another
instrument entitled Partition Agreement and
acknowledged before a notary public on December
28, 1979, it was agreed that the eastern half portion
(subject lot) of Lots Nos. 990 and 5427 shall belong
to the heirs of Isabel Cuntapay. On the other hand,
the remaining portion thereof (the west portion) shall
belong to the heirs of Irene Cuntapay. The subject
lot (eastern half portion) has an area of 554 sq m.
Isabel Cuntapay had four children by her first
husband, Domingo Turingan, namely: Abdon, Sado
(deceased), Rufo and Maria. When Domingo
Turingan passed away, Isabel Cuntapay remarried
Mariano Lasam. She had two other children by him,
namely: Trinidad and Rosendo.
Sometime in January 2001, the heirs of Rosendo
Lasam (son of Isabel Cuntapay by her second
husband) filed with the MTCC a complaint for
unlawful detainer against Vicenta Umengan, who
was then occupying the subject lot. Vicenta
Umengan is the daughter of Abdon Turingan (son of
Isabel Cuntapay by her first husband).
In their complaint, the heirs of Rosendo Lasam
alleged that they are the owners of the subject lot,
having inherited it from their father. Rosendo Lasam
was allegedly the sole heir of the deceased Pedro
Cuntapay through Isabel Cuntapay. During his
lifetime, Rosendo Lasam allegedly temporarily
allowed Vicenta Umengan to occupy the subject lot
sometime in 1955. The latter and her husband
allegedly promised that they would vacate the
subject lot upon demand. However, despite written
notice and demand by the heirs of Rosendo Lasam,
Vicenta Umengan allegedly unlawfully refused to
vacate the subject lot and continued to possess the
same. Accordingly, the heirs of Rosendo Lasam
were constrained to institute the action for ejectment.
In her Answer with Counterclaim, Vicenta Umengan
specifically denied the material allegations in the
11
complaint. She countered that when Isabel
Cuntapay passed away, the subject lot was inherited
by her six children by her first and second marriages
through intestate succession. Each of the six
children allegedly had a pro indiviso share of 1/6 of
the subject lot.
It was further alleged by Vicenta Umengan that her
father, Abdon Turingan, purchased the respective
1/6 shares in the subject lot of his siblings Maria and
Sado. These conveyances were allegedly evidenced
by the Deed of Sale dated March 3, 1975, appearing
as Doc. No. 88, Page No. 36, Book No. XIV, series
of 1975 of the notarial book of Atty. Pedro Lagui.
Prior thereto, Rufo already sold his 1/6 share in the
subject lot to Vicenta Umengan and her husband as
evidenced by the Deed of Sale dated June 14, 1961,
appearing as Doc. No. 539, Page No. 41, Book No.
V, series of 1961 of the notarial book of Atty. Pedro
Lagui. Also on June 14, 1961, Abdon donated his
1/6 share in the subject lot to her daughter Vicenta
Umengan as evidenced by the Deed of Donation
appearing as Doc. No. 538, Page No. 41, Book No.
V, series of 1961 of the notarial book of the same
notary public.
According to Vicenta Umengan, the children of
Isabel Cuntapay by her second husband (Rosendo
and Trinidad Lasam) own only 2/6 portion of the
subject lot. She thus prayed that the complaint for
ejectment be dismissed and that the heirs of
Rosendo Lasam be ordered to pay her damages.
The MTCC rendered judgment in favor of the heirs
of Rosendo Lasam and directed the ejectment of
Vicenta Umengan. In so ruling, the MTCC gave
credence to the newly discovered last will and
testament (entitled Testamento Abierto) purportedly
executed by Isabel Cuntapay where she bequeathed
the subject lot to her son, Rosendo Lasam, thus:
x x x my share 1/5th (one-fifth) of the
Cuntapay heirs, bordered on the North by
Sr. Elia Canapi; to the South, by Calle
Aguinaldo; to the East, by Calle P. Burgos
and the West, by the late Don Luis Alonso;
on the property which is my share stands a
house of light materials where I presently
reside; this 1/5th (one-fifth) share of my
inheritance from the Cuntapays I leave to
my son Rosendo Lasam and also the
aforementioned house of light material x x x2
The MTCC reasoned that the heirs of Rosendo
Lasam anchored their claim over the subject lot on
the last will and testament of Isabel Cuntapay while
Vicenta Umengan hinged hers on intestate
succession and legal conveyances. Citing
jurisprudence3 and Article 10804 of the Civil Code,
the MTCC opined that testacy was favored and that
intestacy should be avoided and the wishes of the
testator should prevail. It observed that the last will
and testament of Isabel Cuntapay was not yet
probated as required by law; nonetheless, the
institution of a probate proceeding was not barred by
prescription.
With the finding that the subject lot was already
bequeathed by Isabel Cuntapay to Rosendo Lasam,
the MTCC held that the siblings Abdon, Sado, Rufo
and Maria Turingan no longer had any share therein.
Consequently, they could not convey to Vicenta
Umengan what they did not own. On the issue then
of who was entitled to possession of the subject lot,
the MTCC ruled in favor of the heirs of Rosendo
Lasam as it found that Vicenta Umengan’s
possession thereof was by mere tolerance. The
dispositive portion of the MTCC decision reads:
WHEREFORE, in the light of the foregoing
considerations, this Court Resolve[d] to
order the EJECTMENT of VICENTA T.
UMENGAN and in her place INSTITUTE
THE HEIRS OF ROSENDO LASAM.
It is further ordered the defendant shall pay
the Heirs of Rosendo Lasam the sum of
P500.00 pesos representing the monthly
rental of the land from August 2000 to the
time this case shall have been terminated.
Ordering the defendant to pay the plaintiffs
the amount of P20,000.00 attorney’s fees
plus cost of this litigation.
So Ordered.5
On appeal, the RTC affirmed in toto the decision of
the MTCC. The RTC echoed the reasoning of the
MTCC that the testamentary disposition of the
property of Isabel Cuntapay should be respected,
and that the heirs of Rosendo Lasam have a better
right to possess the subject lot.
Undaunted, Vicenta Umengan filed an appeal with
the CA. She argued that the MTCC had no
jurisdiction over the case as it involved the recovery
12
of ownership of the subject lot, not merely recovery
of possession or unlawful detainer. She also
assailed the RTC’s and the MTCC’s holding that the
purported Testamento Abierto of Isabel Cuntapay
prevails over Vicenta Umengan’s muniments of title
and, consequently, the heirs of Rosendo Lasam
have a better right to the subject lot than Vicenta
Umengan.
In the assailed Decision dated February 16, 2005,
the CA reversed and set aside the decision of the
RTC. The appellate court preliminarily upheld the
jurisdiction of the MTCC over the subject matter as it
found that the allegations in the complaint made out
a case for unlawful detainer. The heirs of Rosendo
Lasam in their complaint, according to the CA, only
sought for Vicenta Umengan to vacate and
surrender possession of the subject lot. The CA also
rejected the contention of the heirs of Rosendo
Lasam that the issue of ownership of the subject lot
had already been settled in another case, Civil Case
No. 4917, before RTC (Branch 3) of Tuguegarao
City. The CA stated that the trial court’s order
dismissing the said case was not a "judgment on the
merits" as to constitute res judicata.
However, the CA declared that the RTC, as well as
the MTCC, erred in ruling that, by virtue of the
purported last will and testament of Isabel Cuntapay,
the heirs of Rosendo Lasam have a better right to
the subject lot over Vicenta Umengan. The CA
explained that the said last will and testament did not
comply with the formal requirements of the law on
wills.6
Specifically, the CA found that the pages of the
purported last will and testament were not numbered
in accordance with the law. Neither did it contain the
requisite attestation clause. Isabel Cuntapay as
testator and the witnesses to the will did not affix
their respective signatures on the second page
thereof. The said instrument was likewise not
acknowledged before a notary public by the testator
and the witnesses. The CA even raised doubts as to
its authenticity, noting that while Isabel Cuntapay
died in 1947 and the heirs of Rosendo Lasam
claimed that they discovered the same only in 1997,
a date – May 19, 1956 – appears on the last page of
the purported will. The CA opined that if this was the
date of execution, then the will was obviously
spurious. On the other hand, if this was the date of
its discovery, then the CA expressed bafflement as
to why the heirs of Rosendo Lasam, through their
mother, declared in the Partition Agreement dated
December 28, 1979 that Isabel Cuntapay died
intestate.
It was observed by the CA that as against these
infirmities in the claim of the heirs of Rosendo
Lasam, Vicenta Umengan presented a Deed of Sale
and a Deed of Donation to justify her possession of
the subject lot. The CA noted that she has also
possessed the subject property since 1955. Such
prior possession, the CA held, gave Vicente
Umengan the right to remain in the subject lot until a
person with a better right lawfully ejects her. The
heirs of Rosendo Lasam do not have such a better
right. The CA stressed that the ruling on the issue of
physical possession does not affect the title to the
subject lot nor constitute a binding and conclusive
adjudication on the merits on the issue of ownership.
The parties are not precluded from filing the
appropriate action to directly contest the ownership
of or the title to the subject lot.
The decretal portion of the assailed decision of the
CA reads:
WHEREFORE, premises considered, the
appeal is GRANTED. The August 29, 2003
decision of the RTC, Branch 1, Tuguegarao
City, Cagayan in Civil Case No. 5924 is
hereby REVERSED and SET ASIDE.
Private respondents’ complaint for unlawful
detainer against petitioner is dismissed for
lack of merit.
SO ORDERED.7
The heirs of Rosendo Lasam sought the
reconsideration thereof but their motion was denied
by the CA in its Resolution dated May 17, 2005.
The heirs of Rosendo Lasam (petitioners) now come
to the Court alleging that the CA committed
reversible error in setting aside the decision of the
RTC, which had affirmed that of the MTCC, and
dismissing their complaint for unlawful detainer
against respondent Vicenta Umengan.
Petitioners argue that the CA erred when it held, on
one hand, that the MTCC had jurisdiction over the
subject matter of the complaint as the allegations
therein make out a case for unlawful detainer but, on
the other hand, proceeded to discuss the validity of
the last will and testament of Isabel Cuntapay.
13
Petitioners insist that respondent is holding the
subject lot by mere tolerance and that they, as the
heirs of Rosendo Lasam who was the rightful owner
of the subject lot, have a better right thereto. It was
allegedly error for the CA to declare the last will and
testament of Isabel Cuntapay as null and void for its
non-compliance with the formal requisites of the law
on wills. The said matter cannot be resolved in an
unlawful detainer case, which only involves the issue
of material or physical possession of the disputed
property. In any case, they maintain that the said will
complied with the formal requirements of the law.
It was allegedly also erroneous for the CA to
consider in respondent’s favor the deed of sale and
deed of donation covering portions of the subject lot,
when these documents had already been passed
upon by the RTC (Branch 3) of Tuguegarao City in
Civil Case No. 4917 when it dismissed the
respondent’s complaint for partition of the subject lot.
The said order allegedly constituted res judicata and
may no longer be reviewed by the CA.
Petitioners emphasize that in an unlawful detainer
case, the only issue to be resolved is who among
the parties is entitled to the physical or material
possession of the property in dispute. On this point,
the MTCC held (and the same was affirmed by the
RTC) that petitioners have a better right since the
"merely tolerated" possession of the respondent had
already expired upon the petitioners’ formal demand
on her to vacate. In support of this claim, they point
to the affidavit of Heliodoro Turingan, full brother of
the respondent, attesting that the latter’s possession
of the subject lot was by mere tolerance of Rosendo
Lasam who inherited the same from Isabel
Cuntapay.
According to petitioners, respondent’s predecessors-
in-interest from whom she derived her claim over the
subject lot by donation and sale could not have
conveyed portions thereof to her, as she had
claimed, because until the present, it is still covered
by OCT Nos. 196 and 1032 under the names of
Pedro and Leona Cuntapay. Their respective estates
have not been settled up to now.
It is also the contention of petitioners that the CA
should have dismissed outright respondent’s petition
filed therewith for failure to comply with the technical
requirements of the Rules of Court. Specifically, the
petition was not allegedly properly verified, lacked
statement of material dates and written explanation
on why personal service was not made.
This last contention of petitioners deserves scant
consideration. The technical requirements for filing
an appeal are not sacrosanct. It has been held that
while the requirements for perfecting an appeal must
be strictly followed as they are considered
indispensable interdictions against needless delays
and for orderly discharge of judicial business, the
law does admit of exceptions when warranted by
circumstances.8 In the present case, the CA cannot
be faulted in choosing to overlook the technical
defects of respondent’s appeal. After all, technicality
should not be allowed to stand in the way of
equitably and completely resolving the rights and
obligations of the parties.9
The Court shall now resolve the substantive issues
raised by petitioners.
It is well settled that in ejectment suits, the only issue
for resolution is the physical or material possession
of the property involved, independent of any claim of
ownership by any of the party litigants. However, the
issue of ownership may be provisionally ruled upon
for the sole purpose of determining who is entitled to
possession de facto.10
In the present case, petitioners base their claim of
right to possession on the theory that their father,
Rosendo Lasam, was the sole owner of the subject
lot by virtue of the newly discovered last will and
testament of Isabel Cuntapay bequeathing the same
to him. Respondent is allegedly holding the subject
lot by mere tolerance of Rosendo Lasam and, upon
the petitioners’ formal demand on her to vacate the
same, respondent’s right to possess it has expired.
On the other hand, respondent hinges her claim of
possession on the legal conveyances made to her
by the children of Isabel Cuntapay by her first
husband, namely, Maria, Rufo, Sado and Abdon.
These conveyances were made through the sale
and donation by the said siblings of their respective
portions in the subject lot to respondent as
evidenced by the pertinent deeds.
The CA correctly held that, as between the
respective claims of petitioners and respondent, the
latter has a better right to possess the subject lot.
As earlier stated, petitioners rely on the last will and
testament of Isabel Cuntapay that they had allegedly
newly discovered. On the basis of this instrument,
the MTCC and RTC ruled that petitioners have a
better right to the possession of the subject lot
because, following the law on succession, it should
14
be respected and should prevail over intestate
succession.
However, contrary to the ruling of the MTCC and
RTC, the purported last will and testament of Isabel
Cuntapay could not properly be relied upon to
establish petitioners’ right to possess the subject lot
because, without having been probated, the said last
will and testament could not be the source of any
right.
Article 838 of the Civil Code is instructive:
Art. 838. No will shall pass either real or
personal property unless it is proved and
allowed in accordance with the Rules of
Court.
The testator himself may, during his lifetime,
petition the court having jurisdiction for the
allowance of his will. In such case, the
pertinent provisions of the Rules of Court for
the allowance of wills after the testator’s
death shall govern.
The Supreme Court shall formulate such
additional Rules of Court as may be
necessary for the allowance of wills on
petition of the testator.
Subject to the right of appeal, the allowance
of the will, either during the lifetime of the
testator or after his death, shall be
conclusive as to its due execution.
In Cañiza v. Court of Appeals,11 the Court ruled that:
"[a] will is essentially ambulatory; at any time prior to
the testator’s death, it may be changed or revoked;
and until admitted to probate, it has no effect
whatever and no right can be claimed thereunder,
the law being quite explicit: ‘No will shall pass either
real or personal property unless it is proved and
allowed in accordance with the Rules of Court.’"12
Dr. Tolentino, an eminent authority on civil law, also
explained that "[b]efore any will can have force or
validity it must be probated. To probate a will means
to prove before some officer or tribunal, vested by
law with authority for that purpose, that the
instrument offered to be proved is the last will and
testament of the deceased person whose
testamentary act it is alleged to be, and that it has
been executed, attested and published as required
by law, and that the testator was of sound and
disposing mind. It is a proceeding to establish the
validity of the will."13 Moreover, the presentation of
the will for probate is mandatory and is a matter of
public policy.14
Following the above truisms, the MTCC and RTC,
therefore, erroneously ruled that petitioners have a
better right to possess the subject lot on the basis of
the purported last will and testament of Isabel
Cuntapay, which, to date, has not been probated.
Stated in another manner, Isabel Cuntapay’s last will
and testament, which has not been probated, has no
effect whatever and petitioners cannot claim any
right thereunder.
Hence, the CA correctly held that, as against
petitioners’ claim, respondent has shown a better
right of possession over the subject lot as evidenced
by the deeds of conveyances executed in her favor
by the children of Isabel Cuntapay by her first
marriage.
Contrary to the claim of petitioners, the dismissal of
respondent’s action for partition in Civil Case No.
4917 before the RTC (Branch 3) of Tuguegarao City
does not constitute res judicata on the matter of the
validity of the said conveyances or even as to the
issue of the ownership of the subject lot. The order
dismissing respondent’s action for partition in Civil
Case No. 4917 stated thus:
For resolution is a motion to dismiss based
on defendants’ [referring to the petitioners
herein] affirmative defenses consisting inter
alia in the discovery of a last will and
testament of Isabel Cuntapay, the original
owner of the land in dispute.
xxx
It appears, however, that the last will and
testament of the late Isabel Cuntapay has
not yet been allowed in probate, hence,
there is an imperative need to petition the
court for the allowance of said will to
determine once and for all the proper
legitimes of legatees and devisees before
any partition of the property may be judicially
adjudicated.
It is an elementary rule in law that testate
proceedings take precedence over any other
action especially where the will evinces the
15
 intent of the testator to dispose of his whole
estate.
With the discovery of the will of the late
Isabel Cuntapay in favor of the defendants,
the Court can order the filing of a petition for
the probate of the same by the interested
party.
WHEREFORE, in light of the foregoing
considerations, let the above-entitled case
be as it is hereby DISMISSED.
SO ORDERED.15
For there to be res judicata, the following elements
must be present: (1) finality of the former judgment;
(2) the court which rendered it had jurisdiction over
the subject matter and the parties; (3) it must be a
judgment on the merits; and (4) there must be,
between the first and second actions, identity of
parties, subject matter and causes of action. 16 The
third requisite, i.e., that the former judgment must be
a judgment on the merits, is not present between the
action for partition and the complaint a quo for
unlawful detainer. As aptly observed by the CA:
Our reading of the Orders (dated June 16,
1997 and October 13, 1997) in Civil Case
No. 4917 reveals that the RTC, Branch 3,
Tuguegarao, Cagayan, dismissed the
complaint for partition because of the
discovery of the alleged last will and
testament of Isabel Cuntapay. The court did
not declare respondents [referring to the
petitioners herein] the owners of the
disputed property. It simply ordered them to
petition the court for the allowance of the will
to determine the proper legitimes of the
heirs prior to any partition. Instead of filing
the appropriate petition for the probate of
Isabel Cuntapay’s will, the respondents filed
the present complaint for unlawful detainer.
Viewed from this perspective, we have no
doubt that the court’s Orders cited by the
respondents are not "judgments on the
merits" that would result in the application of
the principle of res judicata. Where the trial
court merely refrained from proceeding with
the case and granted the motion to dismiss
with some clarification without conducting a
trial on the merits, there is no res judicata.17
Further, it is not quite correct for petitioners to
contend that the children of Isabel Cuntapay by her
first marriage could not have conveyed portions of
the subject lot to respondent, as she had claimed,
because until the present, it is still covered by OCT
Nos. 196 and 1032 under the names of Pedro and
Leona Cuntapay. To recall, it was already agreed by
the heirs of the said spouses in a Partition
Agreement dated December 28, 1979 that the
subject lot would belong to Isabel Cuntapay. The
latter died leaving her six children by both marriages
as heirs. Considering that her purported last will and
testament has, as yet, no force and effect for not
having been probated, her six children are deemed
to be co-owners of the subject lot having their
respective pro indiviso shares. The conveyances
made by the children of Isabel Cuntapay by her first
marriage of their respective pro indiviso shares in
the subject lot to respondent are valid because the
law recognizes the substantive right of heirs to
dispose of their ideal share in the co-heirship
and/co-ownership among the heirs. The Court had
expounded the principle in this wise:
This Court had the occasion to rule that
there is no doubt that an heir can sell
whatever right, interest, or participation he
may have in the property under
administration. This is a matter which comes
under the jurisdiction of the probate court.
The right of an heir to dispose of the
decedent’s property, even if the same is
under administration, is based on the Civil
Code provision stating that the possession
of hereditary property is deemed transmitted
to the heir without interruption and from the
moment of the death of the decedent, in
case the inheritance is accepted. Where
there are however, two or more heirs, the
whole estate of the decedent is, before its
partition, owned in common by such heirs.
The Civil Code, under the provisions of co-
ownership, further qualifies this right.
Although it is mandated that each co-owner
shall have the full ownership of his part and
of the fruits and benefits pertaining thereto,
and thus may alienate, assign or mortgage
it, and even substitute another person in its
enjoyment, the effect of the alienation or the
mortgage, with respect to the co-owners,
shall be limited to the portion which may be
allotted to him in the division upon the
termination of the co-ownership. In other
words, the law does not prohibit a co-owner
16
 from selling, alienating or mortgaging his directly contesting the ownership of or the
ideal share in the property held in common. title to the property.19

As early as 1942, this Court has recognized Likewise, it is therefore in this context that the CA’s
said right of an heir to dispose of property finding on the validity of Isabel Cuntapay’s last will
under administration. In the case of Teves and testament must be considered. Such is merely a
de Jakosalem vs. Rafols, et al., it was said provisional ruling thereon for the sole purpose of
that the sale made by an heir of his share in determining who is entitled to possession de facto.
an inheritance, subject to the result of the
pending administration, in no wise, stands in WHEREFORE, premises considered, the petition
the way of such administration. The Court is DENIED. The assailed Decision dated February
then relied on the provision of the old Civil 16, 2005 and the Resolution dated May 17, 2005 of
Code, Article 440 and Article 399 which are the Court of Appeals in CA-G.R. SP No. 80032
still in force as Article 533 and Article 493, are AFFIRMED.
respectively, in the new Civil Code. The
Court also cited the words of a noted civilist, SO ORDERED.
Manresa: "Upon the death of a person, each
of his heirs ‘becomes the undivided owner of
the whole estate left with respect to the part
or portion which might be adjudicated to
him, a community of ownership being thus
formed among the co-owners of the estate
which remains undivided.’"18

Contrary to the assertion of petitioners, therefore,

the conveyances made by the children of Isabel
Cuntapay by her first marriage to respondent are
valid insofar as their pro indiviso shares are
concerned. Moreover, the CA justifiably held that
these conveyances, as evidenced by the deed of
donation and deed of sale presented by respondent,
coupled with the fact that she has been in
possession of the subject lot since 1955, establish
that respondent has a better right to possess the
same as against petitioners whose claim is largely
based on Isabel Cuntapay’s last will and testament
which, to date, has not been probated; hence, has
no force and effect and under which no right can be
claimed by petitioners. Significantly, the probative
value of the other evidence relied upon by
petitioners to support their claim, which was the
affidavit of Heliodoro Turingan, was not passed upon
by the MTCC and the RTC. Their respective
decisions did not even mention the same.

In conclusion, it is well to stress the CA’s admonition

that –

x x x our ruling on the issue of physical

possession does not affect title to the
property nor constitute a binding and
conclusive adjudication on the merits on the
issue of ownership. The parties are not
precluded from filing the appropriate action

17
 No. 2-A, with an area of 670 square meters, and Lot
No. 2-E, with an area of 2,000 square meters, were
placed under CANUTOs name. Three other
individuals took the remaining
lots.3cräläwvirtualibräry
FIRST DIVISION

On 26 September 1956, CANUTO and

G.R. No. 115925. August 15, 2003
CONSOLACION executed a Kasulatan ng Bilihang
Tuluyan4 (KASULATAN). Under the KASULATAN,
SPOUSES RICARDO PASCUAL and CANUTO sold his 10/70 share in Lot 2 in favor of
CONSOLACION SIOSON, petitioners, vs.  COURT CONSOLACION for P2,250.00. The KASULATAN,
OF APPEALS and REMEDIOS S. EUGENIO- notarized by Notary Public Jose T. de los Santos of
GINO, Respondents. Navotas, provides:

DECISION Na ako, CANUTO SIOSON, mamamayang Pilipino,

may katampatang gulang, kasal kay Raymunda San
CARPIO, J.: Diego, at naninirahan sa Tanza, Navotas, Rizal, sa
bisa at pamamagitan ng kasulatang ito ay
The Case nagpapatunay at nagpapatibay:

This is a petition for review of the Decision 1 dated 31 1. Na ako ang lubos at tunay na may-
January 1994 of the Court of Appeals ordering the ari ng 10/70 bahaging hindi
Register of Deeds of Metro Manila, District III, to hati (10/70 porcion pro-
place TCT No. (232252) 1321 in the name of indiviso) ng isang lagay na
respondent Remedios S. Eugenio-Gino. The lupa (Lote No. 2, Plano Psu-
Decision ordered the Register of Deeds to cancel 13245), na nasa sa nayon
the names of petitioners Ricardo Pascualand ng Tanza, Municipio ng
Consolacion Sioson (petitioners) in TCT No. Navotas, Provincia ng Rizal,
(232252) 1321. The Decision also directed at ang descripcion o
petitioners to pay respondent moral and exemplary pagkakakilanlan ng
damages and attorneys fees. nasabing lote ay nakasaad
sa Certificado Original, de
The Facts Titulo No. 4207 ng Oficina
ng Registrador de Titulos ng
Rizal, gaya ng sumusunod:
Petitioner Consolacion Sioson (CONSOLACION)
and respondent Remedios S. Eugenio-Gino
(REMEDIOS) are the niece and granddaughter, xxxx
respectively, of the late Canuto Sioson (CANUTO).
CANUTO and 11 other individuals, including his 2. Na dahil at alang-alang sa
sister Catalina Sioson (CATALINA) and his brother halagang Dalawang Libo
Victoriano Sioson (VICTORIANO), were co-owners Dalawang Daan at
of a parcel of land in Tanza, Navotas, Metro Manila. Limampung Piso
The property, known as Lot 2 of Plan Psu 13245, (P2,250.00), salaping
had an area of 9,347 square meters and was Pilipino, na sa akin ay
covered by Original Certificate of Title No. 4207 ibinayad ni CONSOLACION
issued by the Register of Deeds of Rizal. SIOSON, kasal kay Ricardo
CATALINA, CANUTO, and VICTORIANO each S. Pascual, may sapat na
owned an aliquot 10/70 share or 1,335 square gulang, mamamayang
meters of Lot 2. 2cräläwvirtualibräry Pilipino, at naninirahan sa
Dampalit, Malabon, Rizal at
On 20 November 1951, CANUTO had Lot 2 ang pagkakatanggap ng
surveyed and subdivided into eight lots (Lot Nos. 2-A nasabing halaga ay aking
to 2-H) through Subdivision Plan Psd 34713 which inaamin at pinatutunayan,
the Director of Lands approved on 30 May 1952. Lot ay aking ipinagbili, inilipat at
isinalin, sa pamamagitan ng

18
 bilihang tuluyan at walang
pasubali a favor [sic] sa
nasabing si
CONSOLACION SIOSON,
sa kanyang tagapagmana at
mapaglilipatan ang lahat ng
aking titulo, karapatan at
kaparti na binubuo ng 10/70
bahaging hindi hati (10/70
porcion pro-indiviso) ng
loteng descrito or tinutukoy
sa itaas nito. (Emphasis
supplied)
CONSOLACION immediately took possession of Lot
Nos. 2-A and 2-E. She later declared the land for
taxation purposes and paid the corresponding real
estate taxes.5cräläwvirtualibräry
On 23 October 1968, the surviving children of
CANUTO, namely, Felicidad and Beatriz, executed a
joint affidavit6 (JOINT AFFIDAVIT) affirming the
KASULATAN in favor of CONSOLACION. They also
attested that the lots their father had sold to
CONSOLACION were Lot Nos. 2-A and 2-E of
Subdivision Plan Psd 34713. The JOINT AFFIDAVIT
reads:
KAMING sina FELICIDAD SIOSON at BEATRIZ
SIOSON, pawang mga Pilipino, kapuwa may sapat
na gulang at naninirahan, ang una sa Tanza,
Navotas at ang ikalawa sa Concepcion, Malabon,
lalawigan ng Rizal, sa ilalim ng isang ganap na
panunumpa alinsunod sa batas, ay malayang
nagsasalaysay ng mga sumusunod:
Na kami ang mga buhay na anak na naiwan ni
CANUTO SIOSON na nagmamay-ari ng 10/70
bahaging hindi hati (10/70 porcion pro-indiviso) ng
isang lagay na lupa (Lote No. 2, plano Psu-13245),
na nasa Nayon ng Tanza, Navotas, Rizal, at ang
mga palatandaan nito ay nasasaad sa Certificado
Original de Titulo No. 4207 ng Tanggapan ng
Registrador de Titulos ng Rizal;
Na sa lubos naming kaalaman, ay ipinagbili ng
aming Ama na si Canuto Sioson ang kaniyang
buong bahagi na 10/70 sa nasabing Lote No. 2, kay
CONSOLACION SIOSON, may-bahay ni Ricardo S.
Pascual, na taga Dampalit, Malabon, Rizal, sa
halagang P2,250.00, salaping pilipino, noong ika 16
[sic] ng Septiembre, 1956, sa pamamagitan ng isang
KASULATAN NG BILIHANG TULUYAN na
pinagtibay sa harap ng Notario Publico Jose T. de
los Santos nang pechang nabanggit, sa Navotas,
Rizal, (Doc. No. 194, Page No. 84; Book No. IV;
Series of 1956);
Na ang nasabing lupa na ipinagbili ng aming Ama
kay Consolacion Sioson ni Pascual, ay nakikilala
ngayong mga Lote No. 2-A at Lote 2-E ng Plano de
Subdivision Psd-34713; na pinagtibay ng Assistant
Director of Lands noong Mayo 30, 1952;
Na aming ngayong pinatitibayan ang pagka-pagbili
ng bahagi ng aming Ama kay Consolacion Sioson ni
Pascual ng ngayoy nakikilalang Lote No. 2-A at Lote
No. 2-E ng Plano de Subdivision Psd-34713.
(Emphasis supplied)
On 28 October 1968, CONSOLACION registered the
KASULATAN and the JOINT AFFIDAVIT with the
Office of the Register of Deeds of Rizal (Register of
Deeds). Based on these documents, the Register of
Deeds issued to CONSOLACION Transfer
Certificate of Title No. (232252) 1321 covering Lot
Nos. 2-A and 2-E of Subdivision Plan Psd 34713
with a total area of 2,670 square meters.
On 4 February 1988, REMEDIOS filed a complaint
against CONSOLACION and her spouse Ricardo
Pascual in the Regional Trial Court of Malabon,
Branch 165, for Annulment or Cancellation of
Transfer Certificate [of Title] and Damages.
REMEDIOS claimed that she is the owner of Lot
Nos. 2-A and 2-E because CATALINA devised these
lots to her in CATALINAs last will and
testament7 (LAST WILL) dated 29 May 1964.
REMEDIOS added that CONSOLACION obtained
title to these lots through fraudulent means since the
area covered by TCT (232252) 1321 is twice the
size of CANUTOs share in Lot 2. REMEDIOS
prayed for the cancellation of CONSOLACIONs title,
the issuance of another title in her name, and the
payment to her of damages.
Petitioners sought to dismiss the complaint on the
ground of prescription. Petitioners claimed that the
basis of the action is fraud, and REMEDIOS should
have filed the action within four years from the
registration of CONSOLACIONs title on 28 October
1968 and not some 19 years later on 4 February
1988. REMEDIOS opposed the motion, claiming that
she became aware of CONSOLACIONs adverse title
only in February 1987. CONSOLACION maintained
that she had timely filed her complaint within the
four-year prescriptive on 4 February 1988.
In its order of 28 April 1988, the trial court denied
petitioners motion to dismiss. The trial court held that
19
the reckoning of the prescriptive period for filing
REMEDIOS complaint is evidentiary in nature and
must await the presentation of the parties evidence
during the trial. During the pre-trial stage,
REMEDIOS clarified that she was claiming only
CATALINAs 10/70 share in Lot 2, or 1,335 square
meters, which constitute of the area of Lot Nos. 2-A
and 2-E.8 The trial of the case then ensued.
The Ruling of the Trial Court
On 26 November 1990, the trial court rendered
judgment dismissing the case and ordering
REMEDIOS to pay petitioners P10,000 as attorneys
fees and the cost of suit. The trial court held that the
action filed by REMEDIOS is based on fraud,
covered by the four-year prescriptive period. The
trial court also held that REMEDIOS knew of
petitioners adverse title on 19 November 1982 when
REMEDIOS testified against petitioners in an
ejectment suit petitioners had filed against their
tenants in Lot Nos. 2-A and 2-E. Thus, the complaint
of REMEDIOS had already prescribed when she
filed it on 4 February 1988.
The trial court further ruled that REMEDIOS has no
right of action against petitioners because
CATALINAs LAST WILL from which REMEDIOS
claims to derive her title has not been admitted to
probate. Under Article 838 of the Civil Code, no will
passes real or personal property unless it is allowed
in probate in accordance with the Rules of Court.
The dispositive portion of the trial courts decision
provides:
WHEREFORE, judgment is hereby rendered in favor
of the defendants and against plaintiff, ordering:
1. The dismissal of this case;
2. The plaintiff to pay the defendants the
sum of Ten Thousand (P10,000.00)
Pesos as and for attorneys fees;
and
3. The plaintiff to pay the costs of
suit.9cräläwvirtualibräry
REMEDIOS appealed to the Court of Appeals.
The Ruling of the Court of Appeals
On 31 January 1994, the Court of Appeals rendered
judgment reversing the decision of the trial court.
The appellate court held that what REMEDIOS filed
was a suit to enforce an implied trust allegedly
created in her favor when CONSOLACION
fraudulently registered her title over Lot Nos. 2-A
and 2-E. Consequently, the prescriptive period for
filing the complaint is ten years, not four. The Court
of Appeals counted this ten-year period from 19
November 1982. Thus, when REMEDIOS filed her
complaint on 4 February 1988, the ten-year
prescriptive period had not yet expired.
The appellate court held that CATALINAs
unprobated LAST WILL does not preclude
REMEDIOS from seeking reconveyance of Lot Nos.
2-A and 2-E as the LAST WILL may subsequently
be admitted to probate. The dispositive portion of the
appellate courts ruling provides:
WHEREFORE, the decision appealed from is
REVERSED and SET ASIDE. The Registry of
Deeds of Rizal or Metro Manila, District III, is
ordered to place Transfer Certificate of Title No.
(232252) 1321 under the name of Remedios S.
Eugenio-Gino as executor of the will of Catalina
Sioson and cancel the names of the Spouses
Ricardo Pascual and Consolacion Sioson inscribed
over said title as owners of the covered lot.
Defendants-appellees spouses Ricardo Pascual and
Consolacion Sioson are ordered to pay plaintiff-
appellant Remedios S. Eugenio-Gino moral
damages in the amount of P50,000.00, exemplary
damages of P20,000[.00] and attorneys fees
of P20,000.00 and P500.00 per appearance.10
Petitioners sought reconsideration of the ruling.
However, the Court of Appeals denied their motion
in its order dated 15 June 1994.
Hence, this petition.
The Issues
Petitioners allege the following assignment of errors:
I. THE COURT OF APPEALS ERRED
IN HOLDING THAT PRIVATE
RESPONDENTS CAUSE OF
ACTION IS NOT BARRED BY
PRESCRIPTION WHICH FINDING
IS MANIFESTLY CONTRARY TO
LAW AND THE APPLICABLE
DECISIONS OF THIS
HONORABLE COURT.
20
 II. THE COURT OF APPEALS ERRED
IN NOT HOLDING THAT PRIVATE
RESPONDENT DOES NOT HAVE
ANY TITLE AND HAS UTTERLY
FAILED TO PROVE ANY TITLE TO
THE LOTS INVOLVED IN THIS
CASE, AND IN ORDERING THE
CANCELLATION OF THE
CERTIFICATE OF TITLE OF
PETITIONERS.
The trial court held that the action filed by
REMEDIOS is one based on fraud. REMEDIOS
action seeks to recover real property that petitioners
allegedly acquired through fraud. Consequently, the
trial court held that the action prescribes in four
years counted from REMEDIOS actual discovery of
petitioners adverse title. The trial court concluded
that REMEDIOS belatedly filed her suit on 4
February 1988 because she actually knew of
petitioners adverse title since 19 November 1982.

III. THE COURT OF APPEALS ACTED On the other hand, the Court of Appeals held that
WITH GRAVE ABUSE OF what REMEDIOS filed was a suit to enforce an
DISCRETION AMOUNTING TO implied trust. REMEDIOS had ten years counted
LACK OF JURISDICTION AND IN from actual notice of the breach of trust, that is,
GROSS VIOLATION OF THE the  assertion of adverse title, within which to bring
RULES OF COURT IN ORDERING her action. The appellate court held that REMEDIOS
THE ENTIRE PROPERTY seasonably filed her complaint on 4 February 1988
COVERED BY TRANSFER because she allegedly discovered petitioners
CERTIFICATE OF TITLE NO. adverse title only on 19 November 1982.
(232252) 1321 TO BE PLACED IN
THE NAME OF PRIVATE What REMEDIOS filed was an action to enforce an
RESPONDENT, BECAUSE THE implied trust but the same is already barred by
CLAIM OF PRIVATE prescription.
RESPONDENT IS LIMITED ONLY
TO ONE-HALF (1/2) PORTION OF Prescriptive Period is 10 Years Counted
THE PROPERTY, AND THE From Registration of Adverse Title
OTHER HALF THEREOF
UNQUESTIONABLY BELONGS TO
PETITIONERS. The four-year prescriptive period relied upon by the
trial court applies only if the fraud does not give rise
to an implied trust, and the action is to annul a
IV. THE COURT OF APPEALS ERRED voidable contract under Article 139012 of the Civil
IN HOLDING THAT PETITIONERS Code. In such a case, the four-year prescriptive
ACTED FRAUDULENTLY AND IN period under Article 139113 begins to run from the
BAD FAITH IN SECURING THEIR time of discovery of the mistake, violence,
CERTIFICATE OF TITLE TO THE intimidation, undue influence or fraud.
PROPERTY INVOLVED IN THIS
CASE, AND IN ORDERING
PETITIONERS TO PAY PRIVATE In the present case, REMEDIOS does not seek to
RESPONDENTS MORAL annul the KASULATAN. REMEDIOS does not assail
DAMAGES, EXEMPLARY the KASULATAN as a voidable contract. In fact,
DAMAGES AND ATTORNEYS REMEDIOS admits the validity of the sale of 1,335
FEES.11cräläwvirtualibräry square meters of land under the KASULATAN.
However, REMEDIOS alleges that the excess area
of 1,335 meters is not part of the sale under the
The pivotal questions are: (1) whether prescription KASULATAN. REMEDIOS seeks the removal of this
bars the action filed by REMEDIOS, and (2) whether excess area from TCT No. (232252) 1321 that was
REMEDIOS is a real party-in-interest. issued to CONSOLACION. Consequently,
REMEDIOS action is for Annulment or Cancellation
The Ruling of the Court of Transfer Certificate [of Title] and
Damages.14cräläwvirtualibräry
The petition has merit.
REMEDIOS action is based on an implied trust
The Action is Barred by Prescription under Article 1456 since she claims that the
inclusion of the additional 1,335 square meters in
TCT No. (232252) 1321 was without basis. In effect,

21
REMEDIOS asserts that CONSOLACION acquired
the additional 1,335 square meters through mistake
or fraud and thus CONSOLACION should be
considered a trustee of an implied trust for the
benefit of the rightful owner of the property. Clearly,
the applicable prescriptive period is ten years under
Article 1144 and not four years under Articles 1389
and 1391.
It is now well-settled that the prescriptive period to
recover property obtained by fraud or mistake, giving
rise to an implied trust under Article 145615 of the
Civil Code, is ten years pursuant to Article
1144.16 This ten-year prescriptive period begins to
run from the date the adverse party repudiates the
implied trust, which repudiation takes place when the
adverse party registers the land.17cräläwvirtualibräry
REMEDIOS filed her complaint on 4 February 1988
or more than 19 years after CONSOLACION
registered her title over Lot Nos. 2-A and 2-E on 28
October 1968. Unquestionably, REMEDIOS filed the
complaint late thus warranting its dismissal. As the
Court recently declared in Spouses Alfredo v.
Spouses Borras,18cräläwvirtualibräry
Following Caro,19 we have consistently held that an
action for reconveyance based on an implied trust
prescribes in ten years. We went further by
specifying the reference point of the ten-year
prescriptive period as the date of the registration of
the deed or the issuance of the title.
The Court of Appeals Reckoning of
Prescriptive Period from Actual Notice
of Adverse Title Not Justified
In holding that the action filed by REMEDIOS has
not prescribed, the Court of Appeals invoked this
Courts ruling in Adille v. Court of
Appeals.20 In Adille, the Court reckoned the ten-
year prescriptive period for enforcing implied trusts
not from registration of the adverse title but from
actual notice of the adverse title by the cestui que
trust. However, the Court, in justifying its deviation
from the general rule, explained:
[W]hile actions to enforce a constructive trust
prescribes (sic) in ten years, reckoned from the date
of the registration of the property, we x x x are not
prepared to count the period from such date in this
case. We note the petitioners sub rosa  efforts to get
hold of the property exclusively for himself beginning
with his fraudulent misrepresentation in his unilateral
affidavit of extrajudicial settlement that he is the only
heir and child of his mother Feliza[] with the
consequence that he was able to secure title in his
name also. (Emphasis supplied)
Such commission of specific fraudulent conduct is
absent in the present case. Other than asserting that
petitioners are guilty of fraud because they secured
title to Lot Nos. 2-A and 2-E with an area twice
bigger than what CANUTO allegedly sold to
CONSOLACION, REMEDIOS did not present any
other proof of petitioners fraudulent conduct akin
to Adille.
CONSOLACION obtained title to Lot Nos. 2-A and 2-
E through the KASULATAN executed by CANUTO
and the JOINT AFFIDAVIT executed by his surviving
children, one of whom, Felicidad, is the mother of
REMEDIOS. The KASULATAN referred to the sale
of CANUTOs 10/70 share in Lot 2 without specifying
the area of the lot sold. The JOINT AFFIDAVIT
referred to the Plano de Subdivision Psd-34713
without also specifying the area of the lot sold.
However, Subdivision Plan Psd 34713, as certified
by the Assistant Director of Lands on 30 May 1952,
showed an area of 2,670 square meters in the name
of CANUTO. Based on these documents, the
Register of Deeds issued TCT No. (232252) 1321 to
CONSOLACION covering an area of 2,670 square
meters.
REMEDIOS does not assail the KASULATAN or the
JOINT AFFIDAVIT as fictitious or forged.
REMEDIOS even admits the authenticity of
Subdivision Plan Psd 34713 as certified by the
Assistant Director of Lands.21 Moreover, REMEDIOS
has not contested petitioners claim that CANUTO
doubled his share in Lot 2 by acquiring
VICTORIANOs share.22cräläwvirtualibräry
Plainly, the increase in the area sold from 1,335
square meters to 2,670 square meters is a glaring
mistake. There is, however, no proof whatsoever
that this increase in area was the result of fraud.
Allegations of fraud in actions to enforce implied
trusts must be proved by clear and convincing
evidence.23 Adille, which is anchored on
fraud,24 cannot apply to the present case.
At any rate, even if we apply Adille  to this
case, prescription still bars REMEDIOS complaint.
As executrix of CATALINAs LAST WILL,
REMEDIOS submitted to the then Court of First
Instance of Caloocan in Special Proceedings Case
No. C-208 the inventory of all the property
comprising CATALINAs estate, which included Lot
22
Nos. 2-A and 2-E. In a motion dated 7 November
1977, CONSOLACION sought the exclusion of these
lots from the inventory, invoking her title over them.
REMEDIOS was served a copy of the motion on 8
November 1977 against which she filed an
opposition. Nevertheless, the trial court overruled
REMEDIOS objection. In its order of 3 January
1978, the trial court granted CONSOLACIONs
motion and ordered the exclusion of Lot Nos. 2-A
and 2-E from the estate of CATALINA. REMEDIOS
did not appeal from this ruling.
REMEDIOS thus had actual notice of petitioners
adverse title on 8 November 1977. Even if, for the
sake of argument, the ten-year prescriptive period
begins to run upon actual notice of the adverse title,
still REMEDIOS right to file this suit has prescribed.
REMEDIOS had until 11 November 1987 within
which to file her complaint. When she did so on 4
February 1988, the prescriptive period had already
lapsed.
Respondent is Not a Real Party-in-Interest
Not onlydoes prescription bar REMEDIOS
complaint. REMEDIOS is also not a real party-in-
interest who can file the complaint, as the trial court
correctly ruled.
The 1997 Rules of Civil Procedure require that every
action must be prosecuted or defended in the name
of the real party-in-interest who is the party who
stands to benefit or suffer from the judgment in the
suit.25 If one who is not a real party-in-interest brings
the action, the suit is dismissible for lack of cause of
action.26cräläwvirtualibräry
REMEDIOS anchored her claim over Lot Nos. 2-A
and 2-E (or over its one-half portion) on the devise of
these lots to her under CATALINAs LAST WILL.
However, the trial court found that the probate court
did not issue any order admitting the LAST WILL to
probate. REMEDIOS does not contest this finding.
Indeed, during the trial, REMEDIOS admitted that
Special Proceedings Case No. C-208 is still
pending.27cräläwvirtualibräry
Article 838 of the Civil Code states that [N]o will shall
pass either real or personal property unless it is
proved and allowed in accordance with the Rules of
Court. This Court has interpreted this provision to
mean, until admitted to probate, [a will] has no effect
whatever and no right can be claimed
thereunder.28 REMEDIOS anchors her right in filing
this suit on her being a devisee of CATALINAs LAST
WILL. However, since the probate court has not
admitted CATALINAs LAST WILL, REMEDIOS has
not acquired any right under the LAST WILL.
REMEDIOS is thus without any cause of action
either to seek reconveyance of Lot Nos. 2-A and 2-E
or to enforce an implied trust over these lots.
The appellate court tried to go around this deficiency
by ordering the reconveyance of Lot Nos. 2-A and 2-
E to REMEDIOS in her capacity as executrix of
CATALINAs LAST WILL. This is inappropriate
because REMEDIOS sued petitioners not in such
capacity but as the alleged owner of the disputed
lots. Thus, REMEDIOS alleged in her complaint:
3. The plaintiff is a niece and compulsory heir of the
late CATALINA SIOSON who died single and
without any child of her own and who, during her
lifetime, was the owner of those two (2) parcels of
land located at Tanza, Navotas, Rizal (now Metro
Manila), formerly covered by Original Certificate of
Title No. 4207 of the Registry of Deeds for the
Province of Rizal, x x x.
4. The plaintiff, aside from being the compulsory heir
of the deceased CATALINA SIOSON, has sole and
exclusive claim of ownership over the above-
mentioned two (2) parcels of land by virtue of a will
or Huling Habilin at Pagpapasiya executed by
Catalina Sioson on May 19, 1964 before Notary
Public Efren Y. Angeles at Navotas, Rizal, in which
document the deceased Catalina Sioson specifically
and exclusively bequeathed to the plaintiff the
above-mentioned Lots 2-A and 2-E of Psd-34713
approved by the Bureau of Lands on May 30, 1952.
Copy of the Huling Habilin at Pagpapasiya
consisting of four (4) pages is hereto attached and
forms an integral part hereof as Annex A;
5. Sometime on or about February, 1987, plaintiff
discovered that the above-mentioned Lots 2-A and
2-E of subdivision plan Psd-34713 are now
registered or titled in the name of the defendants
under Transfer Certificate of Title No. (232252) 1321
of the Registry of Deeds of Rizal, now Metro-Manila
District III. Copy of the title is hereto attached and
forms an integral part hereof as Annex B;
6. Upon further inquiry and investigation, plaintiff
discovered that the defendants were able to obtain
title in their name of the said parcels of land by virtue
of a Kasulatan ng Bilihang Tuluyan allegedly
executed by Canuto Sioson on September 26, 1956
before Notary Public Jose [T.] de los Santos of
Navotas, Metro-Manila. Copy of the said document
23
is hereto attached and forms an integral part hereof SET ASIDE. The complaint filed by respondent
as Annex C; Remedios Eugenio-Gino, dated 2 February 1988 is
DISMISSED.
7. The plaintiff also discovered that although x x x
the original sale did not specify the parcels of land SO ORDERED.
sold by Canuto Sioson, the defendants submitted an
alleged Affidavit executed by Felicidad Sioson and
Beatriz Sioson identifying the lots sold by Canuto
Sioson to the defendants as Lots 2-A and 2-E of
subdivision plan Psd-34713. Copy of the Affidavit
dated October 3, 1968 on the basis of which the
present Transfer Certificate of Title No. (232252)
1321 was issued to the defendants is hereto
attached and forms an integral part hereof as Annex
D;

8. The defendants are clearly guilty of fraud in

presenting the aforementioned Affidavit (Annex D) to
the Register of Deeds as the basis of their claim to
Lots 2-A and 2-E in view of the fact that the parcels
sold to them by Canuto Sioson, assuming there was
such a sale, were different parcels of land, Lots 2-A
and 2-E being the properties of the late Catalina
Sioson who bequeathed the same to the plaintiff.

xxxx

12. Because of the defendants fraudulent actuations

on this matter, plaintiff suffered and continious [sic]
to suffer moral damages arising from anxiety, shock
and wounded feelings. Defendants should also be
assessed exemplary damages by way of a lesson to
deter them from again committing the fraudulent
acts, or acts of similar nature, by virtue of which they
were able to obtain title to the parcels of land
involved in this case x x x.29 (Emphasis supplied)

Indeed, all throughout the proceedings below and

even in her Comment to this petition, REMEDIOS
continued to pursue her claim as the alleged owner
of one-half of the disputed lots.

Other Matters Raised in the Petition

The Court deems it unnecessary to pass upon the

other errors petitioners assigned concerning the
award of damages and attorneys fees to
REMEDIOS. Such award assumes that REMEDIOS
is a real party-in-interest and that she timely filed her
complaint. As earlier shown, this is not the case.

WHEREFORE, we GRANT the petition. The

Decision of the Court of Appeals dated 31 January
1994 and its Resolution dated 15 June 1994 are

24
 follows: chanrob1es virtual 1aw library

On November 20, 1962, the late Maria Lizares y

Alunan executed a "Testamento" 2 which contains
THIRD DIVISION among its provisions, the following:chanrob1es
virtual 1aw library
[GR No. L-45425. March 27, 1992.]
TENTH - Likewise, I order and dispose that my
CELSA L. VDA. DE KILAYKO, ENCARNACION L. participation consists of a third (1/3) of a fourteen
VDA. DE PANLILIO and REMEDIOS L. VDA. DE (1/14) pro-undivided parts of the Hda. Minuluan,
GUINTO, Petitioners , v. HON. JUDGE ERNESTO which I have acquired through an exchange of my
TENGCO of the Court of First Instance of Negros brother Dr. Antonio A. Lizares, is awarded, as it is
Occidental, Bacolod City, Branch IV and hereby awarded, to my niece Eustaquia
RODOLFO LIZARES and AMELO LIZARES, as Lizares; UNDERSTANDING, however, that in the
Judicial Administrators of the Estate of the late event that my aforementioned niece Eustaquia
EUSTAQUIA LIZARES, Respondents . Lizares dies single or without legitimate
descendants, my aforementioned participation in
[GR No. L-45965. March 27, 1992.] Hda. Minuluan will be awarded to my brother
Antonio A. Lizares that they survive me.
RODOLFO LIZARES and AMELO LIZARES, as
Judicial Administrators of the ESTATE OF ELEVENTH - I also order and dispose that the rest
EUSTAQUIA LIZARES, Petitioners , of all my properties, including my interests, rights
v. HON. JUDGE ERNESTO TENGCO, CELSA D. and interests (not provided above) in the "Minuluan"
VDA. DE KILAYKO, ENCARNACION L. VDA. DE Estates (Lots Nos. 439, 403, 1273, 1274, 1278,
PANLILIO and REMEDIOS VDA. FROM 1279 and 1280 of the Talisay Cadastre, Negros
GUINTO, Respondents . Occidental) and "Matab-ang" (Lots Nos. 514, 550,
552, 553 and 1287-C of the Talisay Cadastre,
Dominador R. Santiago for Rodolfo and Amelo Negros Occidental), located in the Municipality of
Lizares. Talisay, Province of Negros Occidental, IF, the rest
of my shares in the Central Talisay-Silay Milling Co.,
Siguion Reyna, Montecillo & Ongsiako for C. Inc. (about 2,860 shares) and the Financing
Vda. de Kilayko, E. Vda. by Panlilio and RL Corporation of the Philippines (about 53,636
Vda. of Guinto. shares), registered in my name and not inherited
from my late mother Ms. Enrica A. Vda. de Lizares,
my shares in Central Bacolod-Murcia Milling Co.,
DECISION Inc., Negros Navigation Co. and other Mining
Companies, and all other assets not mentioned in
this will and that belong to me on the date of my
ROMERO, J .: death, are awarded, as I hereby adjudicate, to my
niece Miss Eustaquia Lizares, daughter of my late
brother Don Simplicio Lizares, in recognition of the
valuable services and care that my aforementioned
These consolidated cases seek to annul the orders 1
niece has provided and continues to provide me until
dated September 20, 1978, January 7, 1977 and
now. I order, however, my referred niece, Ms.
January 31, 1977 of the then Court of First Instance
Eustaquia Lizares, that she take charge of paying all
of Negros Occidental, Branch IV, respectively,
the obligations that I have and that encumber the
canceling the notice of lis pendens filed by Celsa L .
properties awarded to her. I also order my
Vda. from Kilayko, Et. Al. With the Register of Deeds
aforementioned niece that she order to celebrate a
of Negros Occidental, denying the motion for
Gregorian Mass every year in suffrage of my soul,
reconsideration of the order dated September 20,
and ordinary Masses in suffrage of the souls of my
1976 filed by Celsa L. Vda. by Kilay ko, Et Al., and
late Father and my late Mother, on March 6 and
holding in abeyance the resolution of defendants'
December 17 of each year. , respectively, And have
motion to dismiss. chanrobles.com.ph: virtual law
the feast of San Jose celebrated in Talisay every
library
year as I do until now. In the event that my
aforementioned niece, Miss Eustaquia Lizares, dies
The undisputed facts of the case are as
without leaving legitimate descendants, I order and

25
dispose that my participation consisting of one sixth
(1/6) of the Hda. Matab-ang, with its corresponding
quota of sugar and other improvements, be awarded
to my aforementioned sisters and brother and may
they outlive me (Emphasis supplied ).
On January 28, 1968, Maria Lizares and Alunan died
without any issue leaving said "testament" in the
possession and custody of her niece, Eustaquia
Lizares. 3 On February 6, 1968, Eustaquia filed a
petition for the settlement of the testate estate of
Maria Lizares y Alunan, before the Court of First
Instance of Negros Occidental, Branch IV, docketed
as Special Proceedings No. 8452. 4 Maria Lizares, which were allegedly in the nature of
The required publication of the notice of hearing of
the petition having been made, in due course, the
probate court issued an order declaring the will
probated and appointing Estaquia as the executrix of
the estate of Maria Lizares. 5
On July 10, 1968, Eustaquia filed a project of
partition 6 which was granted by the probate court in
an order dated January 8, 1971. Simultaneously,
said court declared the heirs, devisees, legatees and
usufructuaries mentioned in the project of partition
as the only heirs, devisees, legatees and
usufructuaries of the estate; adjudicated to them the
properties respectively assigned to each and every
one of them, and ordered the Register of Deeds of
Negros Occidental and Bacolod City to effect the
corresponding transfer of the real properties to said
heirs as well as the transfer of shares, stocks, and
dividends in different corporations, companies and
partnerships in the name of Maria Lizares to the
heirs and legatees, and the closure of the testate
proceedings of Maria Lizares. 7
Thereafter, Eustaquia filed an urgent motion to
reopen the testate proceedings in order that some
properties of Maria Lizares which had been omitted
in the partition be adjudicated to her. 8 The Court
granted the motion and correspondingly reopened
the testate proceedings. It awarded to Eustaquia
certain shares of stocks, a revolving fund certificate,
plantation credits and sugar quota allocations, and
real or personal properties of Maria Lizares which
were not given by her to any other person in her last
will and testament. 9
On November 28, 197Z, the heirs of Maria Lizares,
namely: Encarnacion L. Vda. de Panlilio, Remedios
L. Vda. de Guinto, Felicidad Paredes Llopez,
Rosario Paredes Mendoza and Eustaquia Lizares
executed an agreement of partition and subdivision,
thereby terminating their co-ownership over Lots
Nos. 550, 514, 553, 1287-C of plan SWO-7446, and
552, all of the Cadastral Survey of Talisay covered
by Transfer Certificates of Title Nos. T-65004, T-
65005; T-65006, T-65007, and T-65008. 10
A year later or on November 23, 1973, Eustaquia
Lizares died single without any descendant. 11 In
due time, Rodolfo Lizares and Amelo Lizares were
appointed joint administrators of Eustaquia's
intestate estate.
On the strength of the testamentary provisions
contained in paragraphs 10 and 11 of the will of
a simple substitution, Celsa Vda. by Kilayko,
Encarnacion Vda. by Panlilio, and Remedios
Vda. de Guinto (hereinafter collectively referred to as
Celsa L. Vda. de Kilayko, Et. Al.) filed a motion in
Special Proceedings No. 8452 to reopen once again
the testate estate proceedings of Maria
Lizares. They prayed among others that a substitute
administrator be appointed; that the order dated
January 8, 1971 be reconsidered and amended by
declaring them as heirs to 1/3 of 1/14 of
Hda. Minuluan and to 1/6 of Hda. Matab-ang, both of
which form an aggregate area of 33 hectares; that
the Register of Deeds of Negros Occidental, after
such amendment, be ordered to register at the back
of their respective certificates of title, the order of
probate and a "declaration" that movants are the
heirs of said properties, and correspondingly issue
new certificates of title in their names. 12
Two (2) sets of intestate heirs of the deceased
Eustaquia Lizares namely: Socorro L. Vda. by
Escario, Rodolfo Lizares, Mario Lizares, Lucrecia
Gustilo, and Aurora Lizares Wagner opposed the
aforesaid motion. They alleged that the court had no
more jurisdiction to reopen the testate estate
proceedings of Maria Lizares as the order of closure
had long become final and that the testamentary
provisions sought to be enforced are null and
void. 13
On April 6, 1974, the Court issued an order denying
the motion to reopen the testate proceedings and
holding that inasmuch as the settlement of an estate
is a proceeding in rem, the judgment therein is
binding against the whole world. It observed that
inspite of the fact that the movants knew that the
court had jurisdiction over them, they did not take
part in the proceedings nor did they appeal the order
of January 8, 1871. Thus, the court concluded, even
if the said order was erroneous, and since the error
was not jurisdictional, the same could have been
corrected only by a regular appeal. The period for
26
filing a motion for reconsideration having expired,
the court opined that the movants could have sought
relief from judgment under Rule 38 of the Rules of
Court, but unfortunately for the movants, the period
for filing such remedy had also elapsed. 14
Celsa L. Vda. from Kilayko, Et. Al. Then filed a
motion for reconsideration of said order. It was
denied on June 17, 1974. 15 Hence, on October 14,
1974, the said movants filed a complaint for recovery
of ownership and possession of real property against
the joint administrators of the estate of Eustaquia
Lizares, Rodolfo and Amelo Lizares. It was docketed
as Civil Case No. 11639 with the then Court of First
Instance of Negros Occidental, Branch IV. 16 On the
same date, they availed of their rights under Rule
14, Section 24 of Rules of Court by filing a notice of
lis pendens with the Register of Deeds of Negros
Occidental. 17
As duly appointed judicial joint administrators of the
estate of the late Eustaquia Lizares, Rodolfo Lizares
and Amelo Lizares (the joint administrators for
brevity), filed a motion to dismiss alleging that the
court had no jurisdiction over the subject matter or
nature of the case; the cause of action was barred
by prior judgment, and the complaint stated no
cause of action. 18 This motion was opposed by the
plaintiffs.
On January 23, 1975, the joint administrators filed a
motion for the cancellation of the notice of lis
pendens on the contentions that there existed
exceptional circumstances which justified the
cancellation of the notice of lis pendens and that no
prejudice would be caused to the plaintiffs. 19 The
latter opposed said motion. The defendants having
filed a reply thereto, the plaintiffs filed a rejoinder
reiterating their arguments in their opposition to the
motion for cancellation of notice of lis pendens. 20
On September 20, 1976, respondent judge issued
an order granting the motion for cancellation of
notice of lis pendens. 21 The court simultaneously
held in abeyance the resolution of the motion to
dismiss the complaint.
The joint administrators filed their answer to the
complaint in Civil Case No. 11639. 22 Thereafter,
they filed a motion for preliminary hearing on
affirmative defenses. 23 Celsa L. Vda. from Kilayko,
Et. Al. Vigorously opposed said motion. 24
On November 3, 1976, Celsa L. Vda. from Kilayko,
Et. Al. Filed a motion praying for the reconsideration
of the order dated September 20, 1976. 25 The joint
administrators having filed an opposition thereto, 26
on January 7, 1977 the lower court denied the
aforesaid motion for reconsideration. 27 It held that
while a notice of lis pendens would serve as notice
to strangers that a particular property was under
litigation, its annotation upon the certificates of title
to the properties involved was not necessary
because such properties, being in custody legis,
could not just be alienated without the approval of
the court. Moreover, the court added, a notice of lis
pendens would prejudice any effort of the estate to
secure crop loans which were necessary for the
viable cultivation and production of sugar to which
the properties were planted.
Upon receipt of a copy of said order, Celsa L.
Vda. from Kilayko, Et. Al. Filed in this Court a motion
for extension of time to file a petition for review
on certiorari . Docketed as GR No. L-45425, the
petition contends that the grounds of lis pendens,
namely, that the properties are in custody legis and
the lending institutions would not grant crop loans to
the estate, are not the legal grounds provided for
under Sec 24, Rule 14 of the Rules of Court for the
cancellation of a notice of lis pendens.
Meanwhile, on January 31, 1977, the lower court
issued an order stating that since on September 21,
1976 it had held in abeyance the resolution of the
motion to dismiss, it was also proper to suspend the
resolution of the affirmative defenses interposed by
the defendants until after trial on the merits of the
case. Accordingly, the court set the date of pre-trial
for March 24, 1977. 28
On April 13, 1977, the joint administrators filed
before this Court a petition for certiorari, prohibition
and / or mandamus with prayer for a writ of
preliminary injunction. It was docketed as GR No. L-
45965. Petitioners contend that the lower court had
no jurisdiction over Civil Case No. 11639 as it
involves the interpretation of the will of Maria
Lizares, its implementation and / or the adjudication
of her properties. They assert that the matter had
been settled in Special Proceedings No. 8452 which
had become final and unappealable long before the
complaint in Civil Case No. 11639 was filed, and
therefore, the cause of action in the latter case was
barred by the principle of res judicata. They aver that
the claim of Celsa, Encarnacion and Remedios,
sisters of Maria Lizares, over the properties left by
their niece Eustaquia and which the latter had
inherited by will from Maria Lizares, was groundless
because paragraphs 10 and 11 of Maria's will on
which Celsa L. Vda. from Kilayko, Et. Al. Base their
claim, conceived of a fideicommissary substitution of
27
heirs. Petitioners contend that said provisions of the
will are not valid because under Article 863 of the
Civil Code, they constitute an invalid
fideicommissary substitution of heirs.
On April 26, 1977, this Court issued a temporary
restraining order enjoining the lower court from
further proceeding with the trial of Civil Case No.
11839. 29 After both GR Nos. L-45425 and L-45965
had been given due course and submitted for
decision, on January 20, 1986, the two cases were
consolidated.
The petition in GR No. L-45965 is impressed with
merit.
In testate succession, there can be no valid partition
among the heirs until after the will has been
probated. 30 The law enjoins the probate of a will
and the public requires it, because unless a will is
probated and notice thereof given to the whole
world, the right of a person to dispose of his property
by will may be rendered nugatory. 31 The
authentication of a will decides no other question
than such as touch upon the capacity of the testator
and the compliance with those requirements or
solemnities which the law prescribes for the validity
of a will. 32
Pertinent to the issue interposed by the petitioners in
GR No. L-45965 is Section 1, Rule 90 of the Rules
of Court which reads: chanrob1es virtual 1aw library
Section 1. When order for distribution of residue
made. - When the debts, funeral charges, and
expenses of administration, the allowance to the
widow, and inheritance tax, if any, chargeable to the
estate in accordance with law, have been paid, the
court, on application of the executor or administrator,
or of a person interested in the estate, and after
hearing upon notice, shall assign the residue of the
estate to the persons entitled to the same, naming
them and the proportions, or parts, to which each is
entitled, and such persons may demand and recover
their respective shares from the executor or
administrator, or any other person having the same
in his possession. If there is a controversy before the
court as to who are the lawful heirs of the deceased
person or as to the distributive shares to which each
person is entitled under the law,
No distribution shall be allowed until the payment of
the obligations above-mentioned has been made or
provided for, unless the distributees, or any of them
give a bond, in a sum to be fixed by the court,
conditioned for the payment of said obligations
within such time as the court directs. " cralaw
virtua1aw library
Applying this rule, in the cases of De Jesus v. Daza,
33 and Torres v. Encarnacion, 34 the Court said: jgc:
chanrobles.com.ph
"... (T) he probate court, having the custody and
control of the entire estate, is the most logical
authority to effectuate this provision, within the
estate proceeding, proceeding being the most
convenient one in which this power and function of
the court can be exercised and performed without
the necessity of requiring the parties to undergo the
inconvenience and litigate an entirely different
action. " cralaw virtua1aw library
Some decisions of the Court pertinent to the issue
that the probate court has the jurisdiction to settle
the claims of an heir and the consequent
adjudication of the properties, are worth
mentioning. In the cases of Arroyo v. Gerona, 35
and Benedicto v. Javellana, 36 this Court said: jgc:
chanrobles.com.ph
"... any challenge to the validity of a will, any
objection to the authentication thereof, and every
demand or claim which any heir, legatee or party
interested in a testate or intestate succession may
make, must be acted upon and decided within the
same special proceedings, not in a separate action,
and the same judge having jurisdiction in the
administration of the estate shall take cognizance of
the question raised, inasmuch as when the day
comes he will be called upon to make distribution
and adjudication of the property to the interested
parties... " ( Emphasis supplied ).
The probate court, in the exercise of its jurisdiction to
distribute the estate, has the power to determine the
proportion or parts to which each distributee is
entitled. . . 37 A project of partition is merely a
proposal for the distribution of the hereditary estate
which the court may accept or reject. It is the court
that makes that distribution of the estate and
determines the persons entitled thereto. 38
In the instant case, the records will show that in the
settlement of the testate estate of Maria Lizares, the
executrix, Eustaquia Lizares submitted on January
8, 1971, a project of partition in which the parcels of
land, subject matters of the complaint for
reconveyance, were included as property of the
estate and assigned exclusively to Eustaquia as a
devisee of Maria Lizares. In accordance with said
project of partition which was approved by the
28
probate court, Encarnacion Lizares Vda. by Panlilio,
Remedios Lizares Vda. de Guinto, Felicidad
Paredes Llopez, Rosario Paredes Mendoza and
Eustaquia Lizares executed an Agreement of
Partition and Subdivision on November 28, 1972,
whereby they agreed to terminate their co-ownership
over Lots Nos. 550, 514, 553, 1287-C of SWO -7446
and 552 covered by Transfer Certificates of Title
Nos. T-65004, T-65005, T-65006, T-65007 and T-
65008. These facts taken altogether show that the
Lizares sisters recognized the decree of partition
sanctioned by the probate court and in fact reaped
the fruits thereof.chanrobles lawlibrary: rednad
Hence, they are now precluded from attacking the
validity of the partition or any part of it in the guise of
a complaint for reconveyance. A party cannot, in law
and in good conscience be allowed to reap the fruits
of a partition, agreement or judgment and repudiate
what does not suit him. 39 Thus, where a piece of
land has been included in a partition and there is no
allegation that the inclusion was effected through
improper means or without petitioner's knowledge,
the partition barred any further litigation on said title
and operated to bring the property under the control
and jurisdiction of the court for its proper disposition
according to the tenor of the partition. 40 The
question of private respondents' title over the lots in
question has been concluded by the partition and
became a closed matter.
The admission made by Celsa L. Vda. from Kilayko,
Et. Al. In their complaint, Civil Case No. 11639, that
Eustaquia had been in possession of the questioned
lots since March 2, 1971 up to the time of her death
indicates that the distribution pursuant to the decree
of partition has already been carried out. Moreover,
it cannot be denied that when Celsa L. Vda. by Kilay
ko, Et. Al. Moved for the reopening of the testate
estate proceedings of Maria Lizares, the judicial
decree of partition and order of closure of such
proceedings was already final and executory, the
then reglementary period of thirty (30) days having
elapsed from the time of its issuance, with no timely
appeal having been filed by them. Therefore, they
cannot now be permitted to question the adjudication
of the properties left by will of Maria Lizares,
A final decree of distribution of the estate of a
deceased person vests the title to the land of the
estate in the distributees. If the decree is erroneous,
it should be corrected by opportune appeal, for once
it becomes final, its binding effect is like any other
judgment in rem, unless properly set aside for lack of
jurisdiction or fraud. Where the court has validly
issued a decree of distribution and the same has
become final, the validity or invalidity of the project of
partition becomes irrelevant. 41
It is a fundamental concept in the origin of every jural
system, a principle of public policy, that at the risk of
occasional errors, judgments of courts should
become final at some definite time fixed by law,
interest rei publicae ut finis sit litum. "The very object
of which the courts were constituted was to put an
end to controversies." 42 The only instance where a
party interested in a probate proceeding may have a
final liquidation set aside is when he is left out by
reason of circumstances beyond his control or
through mistake or inadvertence not imputable to
negligence. Even then, the better practice to secure
relief is the opening of the same by proper motion
within the reglementary period, instead of an
independent action, the effect of which if
successful, would be for another court or judge to
throw out a decision or order already final and
executed and reshuffle properties long ago
distributed and disposed of. 43
The fundamental principle upon which the doctrine
of res judicata rests is that parties ought not to be
permitted to litigate the same issue more than once,
that, when a right or fact has been judicially tried and
determined by a court of competent jurisdiction, or
an opportunity for such trial has been given, the
judgment of the court, so long as it remains
unreversed, should be conclusive upon the parties
and those in privity with then in law or estate. 44
All the requisites for the existence of res judicata are
present. Thus, the order approving the distribution of
the estate of Maria Lizares to the heirs instituted in
said will have become final and unappealable; the
probate court that rendered judgment had
jurisdiction over the subject matter and over the
parties; the judgment or orders had been rendered
on the merits; the special proceedings for the
settlement of the estate of Maria Lizares was a
proceeding in rem that was directed against the
whole world including Celsa L. Vda. de Kilay ko, Et
Al., so that it can be said that there is a similarity of
parties in Special Proceedings No. 8452 and Civil
Case No. 11639, the judicial administrators of
Eustaquia being privy to Celsa L. Vda. de Kilay ko,
et al; there is identity of subject matter involved in
both actions, namely, the properties left by Maria
Lizares; there is identity of causes of action because
in the first action there was a declaration of the
probate court in its order dated April 6, 1974, that
although the testatrix intended a fideicommissary
substitution in paragraphs 10 and 11 of her will, the
substitution can have no effect because the
29
requirements for it to be valid, had not been case where it turned out that their claim to the
satisfied. Four. Five properties left by Eustaquia is without any legal
basis.chanrobles.com:cralaw:red
Granting that res judicata has not barred the
institution of Civil Case No. 11639, the contention of WHEREFORE, the petition for review on certiorari in
Celsa L. Vda. by Kilay ko Et. Al. That they are L-45425 is hereby DENIED but the petition
conditional substitute heirs of Eustaquia in the for certiorari and prohibition and / or mandamus in L-
testate estate of Maria Lizares 46 is not 45965 is GRANTED. The temporary restraining
meritorious. While the allegation of the joint order of April 26, 1977 which was issued by the
administrators that paragraphs 10 and 11 of Maria Court in L-45965 is made PERMANENT. Costs
Lizares' last will and testament conceives of a against the petitioners in L-45425.
fideicommissary substitution under Article 863 of the
Civil Code is also baseless as said paragraphs do
not impose upon Eustaquia a clear obligation to
preserve the estate in favor of Celsa L. Vda. by Kilay
ko, Et Al., neither may said paragraphs be
considered as providing for a vulgar or simple
substitution. chanroblesvirtualawlibrary

It should be remembered that when a testator

merely names an heir and provides that if such heir
should die a second heir also designated shall
succeed, there is no fideicommissary
substitution. The substitution should then be
construed as a vulgar or simple substitution under
Art. 859 of the Civil Code but it shall be effective only
if the first heir dies before the testator. 47 In this
case, the instituted heir, Eustaquia, survived the
testatrix, Maria Lizares. Hence, there can be no
substitution of heirs for, upon Maria Lizares death,
the properties involved unconditionally returned
upon Eustaquia. Under the circumstances, the
sisters of Maria Lizares could only inherit the estate
of Eustaquia by operation of the law of intestacy.

With respect to the cancellation of the notice of lis

pendens on the properties involved, there is no merit
in the contention of Celsa L. Vda. by Kilay ko, Et Al.,
that the lower court acted contrary to law and / or
gravely abused its discretion in canceling the notice
of lis pendens. The cancellation of such a
precautionary notice, being a mere incident in an
action, may be ordered by the court having
jurisdiction over it at any given time. 48 Under Sec.
24, Rule 14 of the Rules of Court, a notice of lis
pendens may be canceled "after proper showing that
the notice is for the purpose of molesting the
adverse party, or that it is not necessary to protect
the rights of the party who caused it to be recorded
"49 In this case, the lower court ordered the
cancellation of said notice on the main reason that
the administrators of the properties involved are
subject to the supervision of the court and the said
properties are under custody legis. Therefore, such
notice was not necessary to protect the rights of
Celsa L. Vda. by Kilay ko, Et. Al. More so in this

30
 to be overturned by any contrary proof however
strong. The will in question having been probated by
a competent court, the law will not admit any proof to
overthrow the legal presumption that it is genuine
EN BANC and not a forgery.

[G.R. No. 45629. September 22, 1938.]
ATILANO G. MERCADO, Petitioner, v. ALFONSO
SANTOS, Judge of First Instance of Pampanga,
and IÑIGO S. DAZA, Provincial Fiscal of
Pampanga, Respondents. ROSARIO BASA DE
LEON, ET AL., intervenors.
Claro M. Recto and Benigno S. Aquino,
for Petitioner.
Esperanza de la Cruz and Heracho Abistado,
for Respondents.
Sotto & Sotto, for intervenors.
SYLLABUS
1. WILLS; CONCLUSIVENESS OF THE DUE
EXECUTION OF A PROBATED WILL. — Section
625 of the Code of Civil Procedure is explicit as to
the conclusiveness of the due execution of a
probated will. It provides: "No will shall pass either
the real or personal estate, unless it is proved and
allowed in the Court of First Instance, or by appeal to
the Supreme Court; and the allowance by the court
of a will of real and personal estate shall be
conclusive as to its due execution."cralaw virtua1aw
library
2. ID.; ID. — The probate of a will by the probate
court having jurisdiction thereof is considered as
conclusive as to its due execution and validity, and is
also conclusive that the testator was of sound and
disposing mind at the time when he executed the
will, and was not acting under duress, menace,
fraud, or undue influence, and that the will is genuine
and not a forgery.
3. ID.; ID.; PROCEEDING "IN REM." — The probate
of a will in this jurisdiction is a proceeding in rem.
The provision of notice by publication as a
prerequisite to the allowance of a will is constructive
notice to the whole world, and when probate is
granted, the judgment of the court is binding upon
everybody, even against the State.
4. ID.; ID.; CONCLUSIVE PRESUMPTION. —
Conclusive presumptions are inferences which the
law makes so peremptory that it will not allow them
5. ID.; ID.; CRIMINAL ACTION AGAINST FORGER
OF A DULY PROBATED WILL. — Upon the facts
stated in the opinion of the court, it was held: That in
view of the provisions of sections 306, 333 and 625
of the Code of Civil Procedure, criminal action will
not lie in this jurisdiction against the forger of a will
which had been duly admitted to probate by a court
of competent jurisdiction.
6. CRIMINAL LAW; PROSECUTION OF
OFFENSES; RIGHT TO A SPEEDY TRIAL. — The
prosecution of offenses is a matter of public interest
and it is the duty of the government or those acting
in its behalf to prosecute all cases to their
termination without oppressive, capricious and
vexatious delay. The Constitution does not say that
the right to a speedy trial may be availed of only
where the prosecution for crime is commenced and
undertaken by the fiscal. It does not exclude from its
operation cases commenced by private individuals.
Where once a person is prosecuted criminally, he is
entitled to a speedy trial, irrespective of the nature of
the offense or the manner in which it is authorized to
be commenced. In any event, even the actuations of
the fiscal himself in this case is not entirely free from
criticism.
7. ID.; ID. — In Kalaw v. Apostol (G. R. No. 45591,
Oct. 15, 1937), the Supreme Court observed that the
prosecuting officer is in charge and has under the
direction and control all prosecutions for public
offenses (sec. 1681 and 2465 of the Rev. Adm.
Code), and that it is his duty to see that criminal
cases are heard without vexatious, capricious and
oppressive delays so that the courts of justice may
dispose of them on the merits and determine
whether the accused is guilty or not. This is as clear
an admonition as could be made. An accused
person is entitled to a trial at the earliest opportunity.
(Sutherland on the Constitution, 664; United States
v. Fox, 3 Mont., 512.) He cannot be oppressed by
delaying the commencement of trial for an
unreasonable length of time. If the proceedings
pending trial are deferred, the trial itself is
necessarily delayed.
8. ID.; ID.; ID. — It is not to be supposed, of course,
that the Constitution intends to remove from the
prosecution every reasonable opportunity to prepare
for trial. Impossibilities cannot be expected or

31
extraordinary efforts required on the part of the dismissed, again at the instance of the complainant
prosecutor or the court. As stated by the Supreme herself who alleged that the petitioner was in poor
Court of the United States, "The right of a speedy health. That was on April 27, 1933. Some nine
trial is necessarily relative. It is consistent with months later, on February 2, 1934, to be exact, the
delays and depends upon circumstances. It secures same intervenor accused the same petitioner for the
rights to a defendant. It does not preclude the rights third time of the same offense. The information was
of public justice." (Beavers v. Haubert [1905], 198 U. filed by the provincial fiscal of Pampanga in the
S., 86; 25 S. Ct., 573; 49 Law. ed., 950, 954.) justice of the peace court of Mexico. The petitioner
was again arrested, again put up a bond of P4,000,
and engaged the services of defense counsel. The
DECISION case was dismissed on April 24, 1934, after due
investigation, on the ground that the will alleged to
have been falsified had already been probated and
LAUREL, J.: there was no evidence that the petitioner had forged
the signature of the testatrix appearing thereon, but
that, on the contrary, the evidence satisfactorily
established the authenticity of the signature
On May 28, 1931, the petitioner herein filed in the
aforesaid. Dissatisfied with the result, the provincial
Court of First Instance of Pampanga a petition for
fiscal, on May 9, 1934, moved in the Court of First
the probate of the will of his deceased wife, Ines
Instance of Pampanga for reinvestigation of the
Basa. Without any opposition, and upon the
case. The motion was granted on May 23, 1934,
testimony of Benigno F. Gabino, one of the attesting
and, for the fourth time, the petitioner was arrested,
witnesses, the probate court, on June 27, 1931,
filed a bond and engaged the services of counsel to
admitted the will to probate. Almost three years later,
handle his defense. The reinvestigation dragged on
on April 11, 1934, the five intervenors herein moved
for almost a year until February 18, 1934, when the
ex parte to reopen the proceedings, alleging lack of
Court of First Instance ordered that the case be tried
jurisdiction of the court to probate the will and to
on the merits. The petitioner interposed a demurrer
close the proceedings. Because filed ex parte, the
on November 25, 1935, on the ground that the will
motion was denied. The same motion was filed a
alleged to have been forged had already been
second time, but with notice to the adverse party.
probated. This demurrer was overruled on
The motion was nevertheless denied by the probate
December 24, 1935, whereupon an exception was
court on May 24, 1934. On appeal to this court, the
taken and a motion for reconsideration and notice of
order of denial was affirmed on July 26, 1935. (Basa
appeal were filed. The motion for reconsideration
v. Mercado, 33 off. Gaz., 2521.)
and the proposed appeal were denied on January
14, 1936. The case proceeded to trial, and forthwith
It appears that on October 27, 1932, i. e., sixteen
petitioner moved to dismiss the case claiming again
months after the probate of the will of Ines Basa,
that the will alleged to have been forged had already
intervenor Rosario Basa de Leon filed with the
been probated and, further, that the order probating
justice of the peace court of San Fernando,
the will is conclusive as to the authenticity and due
Pampanga, a complaint against the petitioner herein,
execution thereof. The motion was overruled and the
for falsification or forgery of the will probated as
petitioner filed with the Court of Appeals a petition
above indicated. The petitioner was arrested. He put
for certiorari with preliminary injunction to enjoin the
up a bond in the sum of P4,000 and engaged the
trial court from further proceedings in the matter. The
services of an attorney to undertake his defense.
injunction was issued and thereafter, on June 19,
Preliminary investigation of the case was continued
1937, the Court of Appeals denied the petition
twice upon petition of the complainant. The
for certiorari, and dissolved the writ of preliminary
complaint was finally dismissed, at the instance of
injunction. Three justices dissented in a separate
the complainant herself, in an order dated December
opinion. The case is now before this court for review
8, 1932. Three months later, or on March 2, 1933,
on certiorari.
the same intervenor charged the petition for the
second time with the same offense, presenting the
Petitioner contends: (1) that the probate of the will of
complaint this time in the justice of the peace court
his deceased wife is a bar to his criminal prosecution
of Mexico, Pampanga. The petitioner was again
for the alleged forgery of the said will; and, (2) that
arrested, again put up a bond in the sum of P4,000,
he has been denied the constitutional right to a
and engaged the services of counsel to defend him.
speedy trial.
This second complaint, after investigation, was also

32
1. Section 306 of our Code of Civil Procedure
provides as to the effect of
judgment:jgc:chanrobles.com.ph
"SEC. 306. Effect of judgment. — The effect of a
judgment or final order in an action or special
proceeding before a court or judge of the Philippine
Islands or of the United States, or of any State or
Territory of the United States, having jurisdiction to
pronounce the judgment or order, may be as
follows:jgc:chanrobles.com.ph
"1. In case of a judgment or order against a specific
thing, or in respect to the probate of a will, or the
administration of the estate of a deceased person, or
in respect to the personal, political, or legal condition
or relation of a particular person, the judgment or
order is conclusive upon the title of the thing, the will
or administration, or the condition or relation of the
person: Provided, That the probate of a will or
granting of letters of administration shall only be
prima facie evidence of the death of the testator or
intestate:chanrob1es virtual 1aw library
x           x          x
(Emphasis ours.)
Section 625 of the same Code is more explicit as to
the conclusiveness of the due execution of a
probated will. It says:jgc:chanrobles.com.ph
"SEC. 625. Allowance Necessary, and Conclusive
as to Execution. — No will shall pass either the real
or personal estate, unless it is proved and allowed in
the Court of First Instance, or by appeal to the
Supreme Court; and the allowance by the court of a
will of real and personal estate shall be conclusive
as to its due execution." (Emphasis ours.)
In Manahan v. Manahan (58 Phil., 448, 451), we
held:jgc:chanrobles.com.ph
". . . The decree of probate is conclusive with respect
to the due execution thereof and it cannot be
impugned on any of the grounds authorized by law,
except that of fraud, in any separate or independent
action or proceeding. (Sec. 625, Code of Civil
Procedure; Castaneda v. Alemany, 3 Phil., 426;
Pimentel v. Palanca, 5 Phil., 436; Sahagun v. De
Gorostiza, 7 Phil., 347; Limjuco v. Ganara, 11 Phil.,
393; Montañano v. Suesa, 14 Phil., 676; In re Estate
of Johnson, 39 Phil., 156; Riera v. Palmaron, 40
Phil., 105; Austria v. Ventenilla, 21 Phil., 180;
Ramirez v. Gmur, 42 Phil., 855; and Chiong Joc-soy
v. Vano, 8 Phil., 119."cralaw virtua1aw library
In 28 R. C. L., p. 377, section 378, it is
said:jgc:chanrobles.com.ph
"The probate of a will by the probate court having
jurisdiction thereof is usually considered as
conclusive as to its due execution and validity, and is
also conclusive that the testator was of sound and
disposing mind at the time when he executed the
will, and was not acting under duress, menace,
fraud, or undue influence, and that the will is genuine
and not a forgery." (Emphasis ours.)
As our law on wills, particularly section 625 of our
Code of Civil Procedure aforequoted, was taken
almost bodily from the Statutes of Vermont, the
decisions of the Supreme Court of that State relative
to the effect of the probate of a will are of persuasive
authority in this jurisdiction. The Vermont statute as
to the conclusiveness of the due execution of a
probated will reads as follows:jgc:chanrobles.com.ph
"SEC. 2356. No will shall pass either real or personal
estate, unless it is proved and allowed in the probate
court, or by appeal in the country or supreme court;
and the probate of a will of real or personal estate
shall be conclusive as to its due execution."
(Vermont Statutes, p. 451.)
Said the Supreme Court of Vermont in the case of
Missionary Society v. Eelss (68 Vt., 497, 504): "The
probate of a will by the probate court having
jurisdiction thereof, upon the due notice, is
conclusive as to its due execution against the whole
world. (Vt. St., sec. 2336; Foster’s Exrs. v.
Dickerson, 64 Vt., 233.)"
The probate of a will in this jurisdiction is a
proceeding in rem. The provision of notice by
publication as a prerequisite to the allowance of a
will is constructive notice to the whole world, and
when probate is granted, the judgment of the court is
binding upon everybody, even against the State.
This court held in the case of Manalo v. Paredes and
Philippine Food Co. (47 Phil.,
938):jgc:chanrobles.com.ph
"The proceeding for the probate of a will is one in
rem (40 Cyc., 1265), and the court acquires
jurisdiction over all the persons interested, through
the publication of the notice prescribed by section
630 of the Code of Civil Procedure, and any order
that may be entered therein is binding against all of
them.
33
"Through the publication of the petition for the
probate of the will, the court acquires jurisdiction
over all such persons as are interested in said will;
and any judgment that may be rendered after said
proceeding is binding against the world."cralaw
virtua1aw library
In Everrett v. Wing (103 Vt., 488, 492), the Supreme
Court of Vermont held:jgc:chanrobles.com.ph
"In this State the probate of a will is a proceeding in
rem, being in form and substance upon the will itself
to determine its validity. The judgment determines
the status of the instrument, whether it is or is not
the will of the testator. When the proper steps
required by law have been taken the judgment is
binding upon everybody, and makes the instrument
as to all the world just what the judgment declares it
to be. (Woodruff v. Taylor, 20 Vt., 65, 73; Burbeck v.
Little, 50 Vt., 713; 715; Missionary Society v. Eells,
68 Vt., 497, 504; 35 Atl. 463.) The proceedings
before the probate court are statutory and are not
governed by common-law rules as to parties or
causes of action. (Holdrige v. Holdrige’s Estate, 53
Vt., 546, 550; Purdy v. Estate of Purdy, 67 Vt. 50,
55; 30 Atl., 695.) No process is issued against
anyone in such proceedings, but all persons interest
in determining the state or conditions of the
instrument are constructively notified by the
publication of notice as required by G. L. 3219.
(Woodruff v. Taylor, supra; In re Warner’s Estate 98
Vt., 254; 271; 127 Atl., 362.)"
Section 333, paragraph 4, of the Code of Civil
Procedure establishes an incontrovertible
presumption in favor of judgments declared by it to
be conclusive:jgc:chanrobles.com.ph
"SEC. 333. Conclusive Presumptions. — The
following presumptions or deductions, which the law
expressly directs to be made from particular facts,
are deemed conclusive:jgc:chanrobles.com.ph
"x       x       x
"4. The judgment or order of a court, when declared
by this code to be conclusive."cralaw virtua1aw
library
Conclusive presumptions are inferences which the
law makes so peremptory that it will not allow them
to be overturned by any contrary proof however
strong. (Brant v. Morning Journal Ass’n., 80 N. Y. S.,
1002, 1004; 81 App. Div., 183; see, also, Joslyn v.
Puloer, 59 Hun., 129, 140; 13 N. Y. S., 311.) The will
in question having been probated by a competent
court, the law will not admit any proof to overthrow
the legal presumption that it is genuine and not a
forgery.
The majority decision of the Court of Appeals cites
English decisions to bolster up its conclusion that
"the judgment admitting the will to probate is binding
upon the whole world as to the due execution and
genuineness of the will insofar as civil rights and
liabilities are concerned, but not for the purpose of
punishment of a crime." The cases of Dominus Rex
v. Vincent, 93 English Reports, Full Reprint, 648 and
Dominus Rex v. Rodes, 93 English Reports, Full
Reprint, 795, the first case being decided in 1721,
were cited to illustrate the earlier English decisions
to the effect that upon indictment for forging a will,
the probating of the same is conclusive evidence in
the defendant’s favor of its genuine character.
Reference is made, however, to the cases of Rex v.
Gibson, 168 English Reports, Full Reprint, 836,
footnote (a), decided in 1802, and Rex v. Buttery
and Macnamarra, 168 English Reports, Full Reprint,
836, decided in 1818, which establish a contrary
rule. Citing these later cases, we find the following
quotation from Black on Judgments, Vol. II, page
764:jgc:chanrobles.com.ph
"A judgment admitting a will to probate cannot be
attacked collaterally although the will was forged;
and a payment to the executor names therein of a
debt due the decedent will discharge the same,
notwithstanding the spurious character of the
instrument probated. It has also been held that, upon
an indictment for forging a will, the probate of the
paper in question is conclusive evidence in the
defendant’s favor of its genuine character. But this
particular point has lately been ruled
otherwise."cralaw virtua1aw library
It was the case of Rex v. Buttery, supra, which
induced the Supreme Court of Massachusetts in the
case of Waters v. Stickney (12 Allen 1; 90 Am. Dec.,
122) also cited by the majority opinion, to hold that
"according to later and sounder decisions, the
probate, though conclusive until set aside of the
disposition of the property, does not protect the
forger from punishment." This was reproduced in 28
R. C. L., p. 376, and quoted in Barry v. Walker 9103
Fla., 533; 137 So., 711, 715), and Thompson v.
Freeman (149 So., 740, 742), also cited in support of
the majority opinion of the Court of Appeals. The
dissenting opinion of the Court of Appeals in the
instant case under review makes a cursory study of
the statutes obtaining in England, Massachusetts
and Florida, and comes to the conclusion that the
decisions cited in the majority opinion do not appear
34
to "have been promulgated in the face of statutes
similar to ours." The dissenting opinion cites
Wharton’s Criminal Evidence (11th ed., sec. 831), to
show that the probate of a will in England is only
prima facie proof of the validity of the will (Op. Cit.
quoting Marriot v. Marriot, 93 English Reprint, 770);
and 21 L. R. A. (pp. 686-689 and note), to show that
in Massachusetts there is no statute making the
probate of a will conclusive, and that in Florida the
statute (sec. 1810, Revised Statutes) makes the
probate conclusive evidence as to the validity of the
will with regard to personal, and prima facie as to
real estate. The cases decided by the Supreme
Court of Florida cited by the majority opinion, supra,
refer to wills of both personal and real estate.
The petitioner cites the case of State v. McGlynn (20
Cal., 233, decided in 1862), in which Justice Norton
of the Supreme Court of California, makes the
following review of the nature of probate
proceedings in England with respect to wills
personal and real property:jgc:chanrobles.com.ph
"In England, the probate of wills of personal estate
belongs to the Ecclesiastical Courts. No probate of a
will relating to real estate is there necessary. The
real estate, upon the death of the party seized,
passes immediately to the devisee under the will if
there be one; or if there be no will, to the heir at law.
The person who thus becomes entitled takes
possession. If one person claims to be the owner
under a will, and another denies the validity of the
will and claims to be the owner as heir at law, an
action of ejectment is brought against the party who
may be in possession by the adverse claimant; and
on the trial of such an action, the validity of the will is
contested, and evidence may be given by the
respective parties as to any fraud practiced upon
him, or as to the actual execution of it, or as to any
other circumstance affecting its character as a valid
devise of the real estate in dispute. The decision
upon the validity of the will in such action becomes
res adjudicata, and is binding and conclusive upon
the parties to that action and upon any reason who
may subsequently acquire the title from either of
those parties; but the decision has no effect upon
other parties, and does not settle what may be called
the status or character of the will, leaving it subject
to be enforced as a valid will, or defeated as invalid,
whenever other parties may have a contest
depending upon it. A judicial determination of the
character of the will itself. It does not necessarily or
ordinarily arise from any controversy between
adverse claimants, but is necessary in order to
authorize a disposition of the personal estate in
pursuance of its provisions. In case of any
controversy between adverse claimants of the
personal estate, the probate is given in evidence and
is binding upon the parties, who are not at liberty to
introduce any other evidence as to the validity of the
will."cralaw virtua1aw library
The intervenors, on the other hand, attempt to show
that the English law on wills is different from that
stated in the case of State v. McGlynn, supra, citing
the following statutes:chanrob1es virtual 1aw library
1. The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26).
2. The Court of Probate Act, 1857 (20 & 21 Vict. c.
77).
3. The Judicature Act, 1873 (36 & 37 Vict. c. 66).
The Wills Act of 1837 provides that probate may be
granted of "every instrument purporting to be
testamentary and executed in accordance with the
statutory requirements . . . if it disposes of property,
whether personal or real." the Ecclesiastical Courts
which took charge of testamentary causes (Ewell’s
Blackstone [1910], p. 460), were determined by the
Court of Probate Act of 1857, and the Court of
Probate in turn was, together with other courts,
incorporated into the Supreme Court of Judicature,
and transformed into the Probate Division thereof, by
the Judicature Act of 1873. (Lord Halsbury, The
Laws of England [1910], pp. 151-156.) The
intervenors overlook the fact, however, that the case
of Rex v. Buttery and Macnamarra, supra, upon
which they rely in support of their theory that the
probate of a forged will does not protect the forger
from punishment, was decided long before the
foregoing amendatory statutes to the English law on
wills were enacted. The case of State v. McGlynn
may be considered, therefore, as more or less
authoritative on the law of England at the time of the
promulgation of the decision in the case of Rex v.
Buttery and Macnamarra.
In the case of State v. McGlynn, the Attorney-
General of California filed an information to set aside
the probate of the will of one Broderick, after the
lapse of one year provided by the law of California
for the review of an order probating a will, in order
that the estate may be escheated to the State of
California, on the ground that the probated will was
forged and that Broderick therefore died intestate,
leaving no heirs, representatives or devisees
capable of inheriting his estate. Upon these facts,
the Supreme Court of California
held:jgc:chanrobles.com.ph
35
"The fact that a will purporting to be the genuine will
of Broderick, devising his estate to a devisee
capable of inheriting and holding it, has been
admitted to probate and established as a genuine
will by the decree of a Probate Court having
jurisdiction of the case, renders it necessary to
decide whether that decree, and the will established
by it, or either of them, can be set aside and vacated
by the judgment of any other court. If it shall be
found that the decree of the Probate Court, not
reversed by the appellate court, is final and
conclusive, and not liable to be vacated or
questioned by any other court, either incidentally or
by any direct proceeding, for the purpose of
impeaching it, and that so long as the probate
stands the will must be recognized and admitted in
all courts to be valid, then it will be immaterial and
useless to inquire whether the will in question was in
fact genuine or forged." (State v. McGlynn, 20 Cal.,
233; 81 Am. Dec., 118, 121.)
Although in the foregoing case the information filed
by the State was to set aside the decree of probate
on the ground that the will was forged, we see no
difference in principle between that case and the
case at bar. A subtle distinction could perhaps be
drawn between setting aside a decree of probate,
and declaring a probated will to be a forgery. it is
clear, however, that a duly probated will cannot be
declared to be a forgery without disturbing in a way
the decree allowing said will to probate. It is at least
anomalous that a will should be regarded as genuine
for one purpose and spurious for another.
The American and English cases show a conflict of
authorities on the question as to whether or not the
probate of a will bars criminal prosecution of the
alleged forger of the probated will. We have
examined some important cases and have come to
the conclusion that no fixed standard may be
adopted or drawn therefrom, in view of the conflict
no less than of diversity of statutory provisions
obtaining in different jurisdictions. It behooves us,
therefore, as the court of last resort, to choose that
rule most consistent with our statutory law, having in
view the needed stability of property rights and the
public interest in general. To be sure, we have
seriously reflected upon the dangers of evasion from
punishment of culprits deserving of the severity of
the law in cases where, as here, forgery is
discovered after the probate of the will and the
prosecution is had before the prescription of the
offense. By and large, however, the balance seems
inclined in favor of the view that we have taken. Not
only does the law surround the execution of the will
with the necessary formalities and require probate to
be made after an elaborate judicial proceeding, but
section 113, not to speak of section 513, of our Code
of Civil Procedure provides for an adequate remedy
to any party who might have been adversely affected
by the probate of a forged will, much in the same
way as other parties against whom a judgment is
rendered under the same or similar circumstances.
(Pecson v. Coronel, 43 Phil., 358.) The aggrieved
party may file an application for relief with the proper
court within a reasonable time, but in no case
exceeding six months after said court has rendered
the judgment of probate, on the ground of mistake,
inadvertence, surprise or excusable neglect. An
appeal lies to review the action of a court of first
instance when that court refuses to grant relief.
(Banco Español-Filipino v. Palanca, 37 Phil., 921;
Philippine Manufacturing Co. v. Imperial, 47 Phil.,
810; Samia v. Medina, 56 Phil., 613.) After a
judgment allowing a will to be probated has become
final and unappelable, and after the period fixed by
section 113 of the Code of Civil Procedure has
expired, the law as an expression of the legislative
wisdom goes no further and the case ends there.
". . . The court of chancery has no capacity, as the
authorities have settled, to judge or decide whether
a will is or is not a forgery; and hence there would be
an incongruity in its assuming to set aside a probate
decree establishing a will, on the ground that the
decree was procured by fraud, when it can only
arrive at the fact of such fraud by first deciding that
the will was a forgery. There seems, therefore, to be
a substantial reason, so long as a court of chancery
is not allowed to judge of the validity of a will, except
as shown by the probate, for the exception of
probate decrees from the jurisdiction which courts of
chancery exercise in setting aside other judgments
obtained by fraud. But whether the exception be
founded in good reason or otherwise, it has become
too firmly established to be disregarded. At the
present day, it would not be a greater assumption to
deny the general rule that courts of chancery may
set aside judgments procured by fraud, than to deny
the exception to that rule in the case of probate
decrees. We must acquiesce in the principle
established by the authorities, if we are unable to
approve of the reason. Judge Story was a staunch
advocate for the most enlarged jurisdiction of courts
of chancery, and was reluctant to allow the
exception in cases of wills, but was compelled to
yield to the weight of authority. He says: ’No other
excepted case is known to exist; and it is not easy to
discover the grounds upon which this exception
stands, in point of reason or principle, although it is
clearly settled by authority.’ (1 Story’s Eq. Jur. sec.
440.)" (State v. McGlyn,, 20 Cl., 233; 81 Am. Dec.,
36
118, 129. See, also, Tracy v. Muir, 121 American
State Reports, 118, 125.) . openly unjust to her and a detriment to the public. By
We hold, therefore, that in view of the provisions of
sections 306, 333 and 625 of our Code of Civil Code
Procedure, criminal action will not lie in this
jurisdiction against the forger of a will which had
been duly admitted to probate by a court of
competent jurisdiction.
The resolution of the foregoing legal question is
sufficient to dispose of the case. However, the other
legal question with reference to the denial to the
accused of his right to a speedy trial having been
squarely raised and submitted, we shall proceed to
consider the same in the light of cases already
adjudicated by this court.
2. The Constitution of the Philippines provides that
"In all criminal prosecutions the accused . . . shall
enjoy the right . . . to have a speedy . . . trial . . . (Art.
III, sec, 1, par. 17. See, also G. O. No. 58 sec. 15,
NO. 7.) Similar provisions are to be found in the
President’s Instructions to the Second Philippine
Commission (par. 11), the Philippine Bill of July 1,
1902 (sec. 5, par. 2) and the Jones Act of August 29,
1916 (sec. 3, par. 2). The provision in the foregoing
organic acts appear to have been taken from similar
provisions in the Constitution of the United States
(6th Amendment) and those of the various states of
the American Union. A similar injunction is contained
in the Malolos Constitution (art. 8, Title IV), not to
speak of other constitutions. More than once this
court had occasion to set aside the proceedings in
criminal cases to give effect to the constitutional
injunction of speedy trial. (Conde v. Judge of First
Instance and Fiscal of Tayabas [1923], 45 Phil., 173;
Conde v. Rivera and Unson [1924], 45 Phil., 650;
People v. Castañeda and Fernandez [1936]), 35 Off.
GAz., 1269; Kalaw v. Apostol, Oct. 15, 1937, G. R.
No. 45591; Esguerra v. De la Costa, Aug. 30, 1938,
G. R. NO. 46039.)
In Conde v. Rivera and Unson, supra, decided
before the adoption of our Constitution, we
said:jgc:chanrobles.com.ph
"Philippine organic and statutory law expressly
guarantee that in all criminal prosecutions the
accused shall enjoy the right to have a speedy trial.
Aurelia Conde, like all other accused persons, has a
right to a speedy trial in order that if innocent she
may go free, and she has been deprived of that right
in defiance of law. Dismissed from her humble
position, and compelled to dance attendance on
courts while investigations and trials are arbitrarily
postponed without her consent, is palpably and
the use of reasonable diligence, the prosecution
could have settled upon the appropriate information,
could have settled upon the appropriate information,
could have attended to the formal preliminary
examination, and could have prepared the case for a
trial free from vexatious, capricious, and oppressive
delays."cralaw virtua1aw library
In People v. Castañeda and Fernandez, supra, this
court found that the accused had not been given a
fair and impartial trial. The case was to have been
remanded to the court a quo for a new trial before an
impartial judge. This step, however, was found
unnecessary. A review of the evidence convinced
this court that a judgment of conviction for theft, as
changed, could not be sustained and, having in view
the right to a speedy trial guaranteed by the
Constitution to every person accused of crime,
entered a judgment acquitting the accused, with
costs de oficio. We said:jgc:chanrobles.com.ph
". . . The Constitution, Article III, section 1, paragraph
17, guarantees to every accused person the right to
a speedy trial. This criminal proceeding has been
dragging on for almost five years now. The accused
have twice appealed to this court for redress from
the wrong that they have suffered at the hands of the
trial court. At least one of them, namely Pedro
Fernandez alias Piro, had been confined in prison
from July 20, 1932 to November 27, 1934, for
inability to post the required bond of P3,000 which
was finally reduced to P300. The Government
should be the last to set an example of delay and
oppression in the administration of justice and it is
the moral and legal obligation of this court to see
that the criminal proceedings against the accused
come to an end and that they be immediately
discharged from the custody of the law. (Conde v.
Rivera and Unson, 45 Phil., 651.)"
In Kalaw v. Apostol, supra, the petitioner invoked
and this court applied and gave effect to the
doctrines stated in the second Conde case, supra. In
granting the writs prayed for, this court, after
referring to the constitutional and statutory
provisions guaranteeing to persons accused of crime
the right to a speedy trial,
said:jgc:chanrobles.com.ph
"Se infiere de los preceptos legales transcritos que
todo acusado en causa criminal tiene derecho a ser
juzgado pronta y publicamente. Juicio rapido
significa un juicio que se celebra de acuerdo con la
ley de procedimiento criminal y los reglamentos,
37
libre de dilaciones vejatorias, caprichosas y
opresivas (Burnett v. State, 76 Ark., 295; 88 S. W.,
956; 113 AMSR, 94; Stewart v. State, 13 Ark., 720;
Peo. v. Shufelt, 61 Mich, 237; 28 N. W., 79; Nixon v.
State, 10 Miss., 497; 41 AMD., 601; State v. Cole, 4
Okl., Cr., 25; 109 P., 736; State v. Caruthers, 1 Okl.
Cr., 428; 98 P., 474; State v. Keefe, 17 Wyo., 227,
98 p., 122; 22 IRANS, 896; 17 Ann. Cas., 161).
Segun los hechos admitidos resulta que al
recurrente se le concedio vista parcial del asunto, en
el Juzgado de Primera Instancia de Samar, solo
despues de haber transcurrido ya mas de un año y
medio desde la presentacion de la primera querella
y desde la recepcion de la causa en dicho Juzgado,
y despues de haberse transferido dos veces la vista
del asunto sin su consentimiento. A esto debe
añadirse que la primera transferencia de vista era
claramente injustificada porque el motivo que se
alego consistio unicamente en la conveniencia
personal del ofendido y su abogado, no habiendose
probado suficientemente la alegacion del primero de
que se hallaba enfermo. Es cierto que el recurrente
habia pedido que, en vez de seialarse a vista el
asunto para el mayo de 1936, lo fuera para el
noviembre del mismo año; pero, aparte de que la
razon que alego era bastante fuerte porque su
abogado se oponia a comparecer por compromisos
urgentes contraidos con anterioridad y en tal
circunstancia hubiera quedado indefenso si hubiese
sido obligado a entrar en juicio, aparece que la vista
se pospuso por el Juzgado a motu proprio, por
haber cancelado todo el calendario judicial
preparado por el Escribano para el mes de junio.
Declaramos, con visto de estos hechos, que al
recurrente se le privo de su derecho fundamental de
ser juzgado prontamente."cralaw virtua1aw library
Esguerra v. De la Costa, supra, was a petition for
mandamus to compel the respondent judge of the
Court of First Instance of Rizal to dismiss the
complaint filed in a criminal case against the
petitioner, to cancel the bond put up by the said
petitioner and to declare the costs de oficio. In
accepting the contention that the petitioner had been
denied speedy trial, this court
said:jgc:chanrobles.com.ph
"Consta que en menos de un año el recurrente fue
procesado criminalmente por el ageldao delito de
abusos deshonestos, en el Juzgado de Paz del
Municipio de Cainta, Rizal. Como consecuencia de
las denuncias que contra el se presentaron fue
arrestado tres veces y para gozar de libertad
provisional, en espera de los juicios, se vio obligado
a prestar tres fianzas por la suma de P1,000 cada
una. Si no se da fin al proceso que ultimamente se
ha incoado contra el recurrente la incertidumbre
continuara cerniendose sobre el y las consiguientes
molestias y preocupaciones continuaran igualmente
abrumandole. El Titulo III, articulo 1, No. 17, de la
Constitucio preceptua que en todo proceso criminal
el acusado tiene derecho de ser juzgado pronta y
publicamente. El Articulo 15, No. 7, de la Orden
General No. 58 dispone asimismo que en las causas
criminales el acusado tendra derecho a ser juzgado
pronta y publicamente. Si el recurrente era
realmente culpable del delito que se le imputo, tenia
de todos modos derechos a que fuera juzgado
pronta y publicamente y sin dilaciones arbitrarias y
vejatorias. Hemos declarado reiteradamente que
existe un remedio positivo para los casos en que se
viola el derecho constitucional del acusado de ser
juzgado prontamente. El acusado que es privado de
su derecho fundamental de ser enjuiciado
rapidamente tiene derecho a pedir que se le ponga
en libertad, si estuviese detenido, o a que la causa
que pende contra el sea sobreseida definitivamente.
(Conde contra Rivera y Unson, 45 Jur. Fil., 682; In
the matter of Ford [1911], 160 Cal., 334; U. S. v. Fox
[1880], 3 Mont., 512; Kalaw contra Apostol, R. G.
No. 45591, Oct. 15, 1937; Pueblo contra Castañeda
y Fernandez, 35 Gac. Of., 1357.)"
We are again called upon to vindicate the
fundamental right to a speedy trial. The facts of the
present case may be at variance with those of the
cases hereinabove referred to. Nevertheless, we are
of the opinion that, under the circumstances, we
should consider the substance of the right instead of
indulging in more or less academic or undue factual
differentiations. The petitioner herein has been
arrested four times, has put up a bond in the sum of
P4,000 and has engaged the services of counsel to
undertake his defense an equal number of times.
The first arrest was made upon a complaint filed by
one of the intervenors herein for alleged falsification
of a will which, sixteen months before, had been
probated in court. This complaint, after investigation,
was dismissed at the complaint’s own request. The
second arrest was made upon a complaint charging
the same offense and this complaint, too, was
dismissed at the behest of the complainant herself
who alleged the quite startling ground that the
petitioner was in poor health. The third arrest was
made following the filing of an information by the
provincial fiscal of Pampanga, which information was
dismissed, after due investigation, because of
insufficiency of the evidence. The fourth arrest was
made when the provincial fiscal secured a
reinvestigation of the case against the petitioner on
the pretext that he had additional evidence to
present, although such evidence does not appear to
38
have ever been presented.
It is true that provincial fiscal did not intervene in the
case until February 2, 1934, when he presented an
information charging the petitioner, for the third time,
of the offense of falsification. This, however, does
not matter. The prosecution of offenses is a matter
of public interest and it is the duty of the government
or those acting in its behalf to prosecute all cases to
their termination without oppressive, capricious and
vexatious delay. The Constitution does not say that
the right to a speedy trial may be availed of only
where the prosecution for crime is commenced and
undertaken by the fiscal. It does not exclude from its
operation cases commenced by private individuals.
Where once a person is prosecuted criminally, he is
entitled to a speedy trial, irrespective of the nature of
the offense or the manner in which it is authorized to
be commenced. In any event, even the actuations of
the fiscal himself in this case is not entirely free from
criticism. From October 27, 1932, when the first
complaint was filed in the justice of the peace court
of San Fernando, to February 2, 1934, when the
provincial fiscal filed his information with the justice
of the peace of Mexico, one year, three months and
six days transpired; and from April 27, 1933, when
the second criminal complaint was dismissed by the
justice of the peace of Mexico, to February 2, 1934,
nine months and six days elapsed. The investigation
following the fourth arrest, made after the fiscal had
secured a reinvestigation of the case, appears also
to have dragged on for about a year. There
obviously has been a delay, and considering the
antecedent facts and circumstances within the
knowledge of the fiscal, the delay may not at all be
regarded as permissible. In Kalaw v. Apostol, supra,
we observed that the prosecuting officer is in charge
of and has under his direction and control all
prosecutions for public offenses (secs. 1681 and
2465 of the Rev. Adm. Code), and that it is his duty
to see that criminal cases are heard without
vexatious, capricious and oppressive delays so that
the courts of justice may dispose of them on the
merits and determine whether the accused is guilty
or not. This is as clear an admonition as could be
made. an accused person is entitled to a trial at the
earliest opportunity. (Sutherland on the Constitution,
p. 664; United States v. Fox, 3 Mont., 512.) He
cannot be oppressed by delaying the
commencement of trial for an unreasonable length of
time. If the proceedings pending trial are deferred,
the trial itself is necessarily delayed. It is not to be
supposed, of course, that the Constitution intends to
remove from the prosecution every reasonable
opportunity to prepare for trial. Impossibilities cannot
be expected or extraordinary efforts required on the
part of the prosecutor or the court. As stated by the
Supreme Court of the United States, "The right of a
speedy trial is necessarily relative. It is consistent
with delays and depends upon circumstances. It
secures rights to a defendant. It does preclude the
rights of public justice." (Beavers v. Haubert [1905],
198 U. S. 86; 25 S. Ct., 573; 49 Law. ed., 950, 954.)
It may be true, as seems admitted by counsel for the
intervenors, in paragraph 8, page 3 of his brief, that
the delay was due to "the efforts towards reaching
an amicable extrajudicial compromise," but this fact,
we think, casts doubt instead upon the motive which
led the intervenors to bring criminal action against
the petitioner. The petitioner claims that the intention
of the intervenors was to press upon settlement, with
the continuous threat of criminal prosecution,
notwithstanding the probate of the will alleged to
have been falsified. Argument of counsel for the
petitioner in this regard is not without justification.
Thus after the filing of the second complaint with the
justice of the peace court of Mexico, complainant
herself, as we have seen, asked for dismissal of the
complaint, on the ground that "el acusado tenia la
salud bastante delicada," and, apparently because
of failure to arrive at any settlement, she decided to
renew her complaint.
Counsel for the intervenors contend — and the
contention is sustained by the Court of Appeals —
that the petitioner did not complain heretofore of the
denial of his constitutional right to a speedy trial.
This is a mistake. When the petitioner, for the fourth
time, was ordered arrested by the Court of First
Instance of Pampanga, he moved for
reconsideration of the order of arrest, alleging,
among other things, "Que por estas continuas
acusaciones e investigaciones, el acusado
compareciente no obsdtante su mal estado de salud
desde el año 1932 en que tuvo que ser operado por
padecer de tuberculosis ha tenido que sostener
litigios y ha sufrido la mar de humiliaciones y
zozobras y ha incurrido en enormes gastos y
molestias y ha desatendido su quebrantada salud."
The foregoing allegation was inserted on page 6 of
the amended petition for certiorari presented to the
Court of Appeals. The constitutional issue also
appears to have been actually raised and
considered in the Court of Appeals. In the majority
opinion of that court, it is
stated:jgc:chanrobles.com.ph
"Upon the foregoing facts, counsel for the petitioner
submits for the consideration of this court the
following questions of law: First, that the respondent
court acted arbitrarily and with abuse of its authority,
39
with serious damage and prejudice to the rights and
interests of the petitioner, in allowing that the latter
be prosecuted and arrested for the fourth time, and
that he be subjected, also for the fourth time, to a
preliminary investigation for the same offense,
thereby converting the court into an instrument of
oppression and vengeance on the pat of the alleged
offended parties, Rosario Basa Et. Al.;. . . ."cralaw
virtua1aw library

And in the dissenting opinion, we find the following

opening paragraph:jgc:chanrobles.com.ph

"We cannot join in a decision declining to stop a

prosecution that has dragged for about five years
and caused the arrest on four different occasions of
a law abiding citizen for the alleged offense of
falsifying a will that years before, had been declared
genuine and valid by a court of competent
jurisdiction."cralaw virtua1aw library

From the view we take of the instant case, the

petitioner is entitled to have the criminal proceedings
against him quashed. The judgment of the Court of
Appeals is hereby reversed, without pronouncement
regarding costs. So ordered.

40

SECOND DIVISION
[G.R. No. 78778 :  December 3, 1990.]
191 SCRA 814
LEONIDA CORONADO, FELIX BUENO, MELANIA
RETIZOS, BERNARDINO BUENASEDA and
JOVITA MONTEFALCON, Petitioners, vs.  THE
COURT OF APPEALS and JUANA BUENO
ALBOVIAS, Respondents.
 
 
DECISION
 
PARAS, J.:
 
This is a petition for review on certiorari seeking to
reverse the decision* of the respondent appellate
court dated March 3, 1987 CA-G.R. CV No. 06911
entitled "Juana (Bueno) Albovias et al., v. Leonida
Coronado, et al.," affirming the decision of the lower
court, the decretal portion of which reads:: nad
"WHEREFORE, premises considered,
judgment is hereby rendered:
1. Declaring Leonida Coronado to have no
title or interest over the property in question,
hence, has no authority to dispose of the
same in favor of her co-defendants;
2. Declaring the sales executed by
Coronado and subsequent transactions
involving the same property null and void ab
initio;
3. Declaring the plaintiff to be the true and
legal owner of the subject parcel of land;
4. Ordering the defendants to vacate the
subject premises and to surrender
possession thereof unto the plaintiff;
5. Ordering the defendants to jointly and
severally pay unto the plaintiff the sum of
P2,000.00 as attorney's fees and
P10,000.00 as moral and exemplary
damages.
Costs against the defendants." (Rollo, p. 17)
As found by the respondent appellate court, the
property subject of this case is a parcel of land
situated in Nagcarlan, Laguna, containing 277
square meters, more particularly described as
follows:: nad
"A parcel of land situated in the Poblacion,
Municipality of Nagcarlan, province of
Laguna. Bounded on the North, by property
of Epifania Irlandez (formerly Bonifacio
Formentera); on the East, by that of Julio
Lopez; on the South, by that of Dalmacio
Monterola (formerly Domingo Bueno); and
on the West, by C. Lirio Street. Containing
an area of two hundred seventy seven (277)
square meters, more or less. Assessed at
P3,320.00 under tax declaration No. 241."
(Ibid., p. 15)
Said parcel of land is being contested by Juana
Albovias, herein private respondent, on the one
hand, and Leonida-Coronado, Felix Bueno, Melania
Retizos, Bernardino Buenseda and Jovita
Montefalcon, herein petitioners, on the other hand.
Juana Albovias (JUANA, for brevity) claims that the
property in question is a portion of a bigger lot
referred to as Parcel G in the last will and testament
executed in 1918 by Melecio Artiaga, grandfather of
JUANA. This bigger lot was inherited under that will
by JUANA, her brother Domingo Bueno, and two
other grandchildren, namely Bonifacio and
Herminigildo, both surnamed Formentera. Parcel G
is described as follows:
"Isang lagay na lupa na ang bahagi ay walang tanim
na halaman at ang bahagi naman ay may tanim na
saguing, tumatayo sa gawin Canloran ng Calle
Avenida Rizal nitong Nagcarlan, at humahangan sa
Ibaba; sa ari cong Testador; sa Silangan, sa cay
Enrique Jovellano; sa Ilaya, sa namatay na Perfecto
Nanagas, at sa Canloran, tubig na pinamamagatang
San Cido." (Ibid., p. 16)
JUANA further claims that sometime in 1925 or
1926, C. Lirio Street was created by the Municipality
of Nagcarla traversing said Parcel G and thus
dividing it into two portions, one on the west of C.
Lirio St. and the other to the east of said street.
Parcel G was divided by the heirs in the following
manner; the land was divided into two portions, the
northern portion of which was adjudicated in favor of
the Formenteras and the southern portion was given
to JUANA and Doming Bueno. The southern portion
in turn was partitioned between JUANA and
Domingo Bueno, the former getting the northern part
adjoining the lot of the Formenteras, and the latter
the southern part which adjoins the lot of Perfecto
41
Nanagas (not owned by Dalmacio Monterola). The
part allocated to Domingo was later sold by him to
Dalmacio Monterola, owner of the adjoining property
(Ibid.).: nad
Moreover, JUANA claims that her property was
included together with the two parcels of land owned
by Dalmacio Monterola, which were sold by
Monterola's successor-in-interest Leonida Coronado
(now married to Felix Bueno) to Melania Retizos on
April 18, 1970. Melania Retizos in turn sold the lots,
including that one being claimed by JUANA, to the
spouse Bernardino Buenaseda and Jovita
Montefalcon, now the present possessors thereof,
sometime in 1974 (Ibid., pp. 16-17).
On the other hand, Leonida Coronado and her co-
petitioners (CORONADO, for brevity) claim that the
property in question was bequeathed to Leonida
Coronado under a Will executed by Dr. Dalmacio
Monterola, who was allegedly in possession thereof
even before the outbreak of World War II (Ibid., p.
107).
Parenthetically, said will was probated under Sp.
Proc. No. SC-283, entitled "Testate Estate of the
Deceased Monterola Leonida F. Coronado,
petitioner (Ibid., p. 105). JUANA, together with her
husband, opposed the said probate. Despite their
opposition, however, the Will was allowed by the
then Court of First Instance of Laguna, Sta. Cruz
Branch (Ibid., p. 106). On appeal, said decision was
affirmed by the Court of Appeals in CA-G.R. No.
40353, entitled "Leonida F. Coronado, petitioner-
appellee v. Heirs of Dr. Dalmacio Monterola,
oppositors-appellants" (Ibid.). It is not apparent,
however, from the record whether or not said
decision has already become final and executory.
As a result of the conflicting claims over the property
in question, JUANA filed an action for quieting of
title, declaratory relief and damages against
CORONADO in the Regional Trial Court of the
Fourth Judicial Region, Branch XXVI, Sta. Cruz,
Laguna, docketed as Civil Case No. 7345 (Ibid., p.
4).
As adverted to above (first par.), the lower court
rendered judgment in favor of JUANA.
Not satisfied with the decision of the lower court,
CORONADO elevated the case to the Court of
Appeals, which affirmed the decision appealed from
(Ibid., p. 20). Hence, this petition.:-cralaw
CORONADO raised the following assigned errors:
I
THE RESPONDENT COURT OF APPEALS
SERIOUSLY ERRED IN ARRIVING AT A
CONCLUSION WHICH IS CONTRARY TO THE
FACTS AND CIRCUMSTANCES OF THE CASE
AND IN NOT APPLYING THE APPLICABLE
PROVISION OF LAW AND JURISPRUDENCE LAID
DOWN BY THIS HONORABLE COURT. (Ibid., p.
108)
II
THERE IS NO EVIDENCE PRESENTED TO SHOW
THAT THE LAND IN QUESTION CLAIMED BY
PRIVATE RESPONDENT IS THE SAME
PROPERTY ADJUDICATED TO JUANA BUENO
UNDER THE WILL OF THE DECEASED MELECIO
ARTIAGA; NEITHER IS THERE EVIDENCE TO
SHOW THAT SAID WILL HAD BEEN PROBATED.
(Ibid., p. 114)
III
PRIVATE RESPONDENT IS IN ESTOPPEL FROM
QUESTIONING THE OWNERSHIP OF THE
PETITIONER OVER THE LAND IN QUESTION
HAVING FAILED TO RAISE THE SAME IN THE
ESTATE PROCEEDING IN THE TRIAL COURT
AND EVEN ON APPEAL. (Ibid., p. 119)
IV
THE RESPONDENT COURT OF APPEALS
MISAPPRECIATED THE EVIDENCE SUBMITTED
AND FACTS ADMITTED ON RECORD. IT
THEREFORE COMMITTED GRAVE AND
SERIOUS ERROR. (Ibid., p. 121)
As required by this Court, CORONADO filed their
memorandum on May 8, 1989 (Ibid., p. 105); while
that of JUANA was filed on October 13, 1989 (Ibid.,
p. 139).
The petition is devoid of merit.
Under the first assigned error, CORONADO assails
the respondent appellate court's finding that Dr.
Dalmacio Monterola could not have acquired the
subject land by acquisitive prescription. Citing Art.
1116 of the New Civil Code in relation to Section 41
of the Code of Civil Procedure, CORONADO claims
that JUANA had already foreclosed whatever right or
legal title she had over the property in question, the
reason being that Monterola's continued possession
of the said property for over ten years since 1934
ripened into full and absolute ownership (Ibid., p.
112).
The argument has no factual basis.
Time and again, it has been ruled that the
jurisdiction of the Supreme Court in cases brought to
42
it from the Court of Appeals is limited to reviewing
and revising the errors of law imputed to it, its
findings of fact being conclusive. It is not the function
of the Supreme Court to analyze or weigh such
evidence all over again, its jurisdiction being limited
to reviewing errors of law that might have been
committed. Absent, therefore, a showing that the
findings complained of are totally devoid of support
in the record, so that they are so glaringly erroneous
as to constitute serious abuse of discretion, such
findings must stand, for the Supreme Court is not
expected or required to examine or contrast the oral
and documentary evidence submitted by the parties
(Andres v. Manufacturers Hanover & Trust
Corporation, G.R. 82670, September 15, 1989).
There are no convincing reasons in the instant case
to depart from this rule.
As found by the respondent appellate court,
Monterola never claimed ownership over the
property in question. As a matter of fact, one of the
deeds of donation executed by Monterola in favor of
Leonida Coronado acknowledged that the boundary
owner on the property conveyed to her is JUANA.
This is precisely the reason why during the lifetime
of the late Dalmacio Monterola, JUANA had always
been allowed to enter and reap the benefits or
produce of the said property. It was only after the
death of said Monterola in 1970 that Leonida
Coronado prohibited JUANA from entering it (Ibid.,
p. 18).:- nad
Even assuming arguendo that Monterola was indeed
in continued possession of the said property for over
ten years since 1934, said possession is insufficient
to constitute the fundamental basis of the
prescription. Possession, under the Civil Code, to
constitute the foundation of a prescriptive right, must
be possession under claim of title (en concepto de
dueno), or to use the common law equivalent of the
term, it must be adverse. Acts of possessory
character performed by one who holds by mere
tolerance of the owner are clearly not en concepto
de dueno, and such possessory acts, no matter how
long so continued, do not start the running of the
period of prescription (Manila Electric Company v.
Intermediate Appellate Court, G.R. 71393, June 28,
1989).
In this case, Monterola, as found by the respondent
appellate court and the lower court, never
categorically claimed ownership over the property in
question, much less his possession thereof en
concepto de dueno. Accordingly, he could not have
acquired said property by acquisitive prescription.
Anent the contention of CORONADO that Leonida
Coronado could tack her possession to that of
Monterola, so that claim of legal title or ownership
over the subject property, even against the
petitioners, the Buenasesas, who are purchasers for
value and in good faith, is a foregone or settled
issue, the respondent appellate court aptly answered
the same in this wise:
"It follows that Leonida Coronado could not have
derived ownership of the land in question from her
predecessor-in-interest Dalmacio Monterola,
whether by prescription or by some other title.
Neither can she claim acquisitive prescription in her
own name. It was only in 1970 after the death of
Dalmacio Monterola that she asserted her claim of
ownership adverse to that of plaintiff-appellee.
Having knowledge that she had no title over the land
in question, she must be deemed to have claimed it
in bad faith. Under Article 1137 of the Civil Code,
ownership and other real rights over immovables
prescribe through uninterrupted adverse possession
thereof for thirty years, without need of title or good
faith. And even granting that she had no notice or
defect in her title and was, therefore, in good faith, a
period of ten years of possession is necessary for
her to acquire the land by ordinary prescription.
(Article 1134, Civil Code). But she can claim to have
possessed the land only in 1968, the year the
Monterola lots were donated to her. The period,
however, was interrupted in 1975, or 7 years after,
when the complaint below was filed." (Rollo, pp. 18-
19)
Under the second assigned error, CORONADO
claims that the will under which JUANA inherited the
property in question from her grandfather, Melecio
Artiaga, was never probated; hence, said transfer for
ownership was ineffectual considering that under
Rule 75, Sec. 1 of the Rules of Court (formerly Sec.
125 of Act No. 190, no will shall pass either real or
personal property unless it is proved and allowed in
the proper court (Ibid., p. 115).
The contention is without merit.chanrobles virtual
law library
While it is true that no will shall pass either real or
personal property unless it is proved and allowed in
the proper court (Art. 838, Civil Code), the
questioned will, however, may be sustained on the
basis of Article 1056 of the Civil Code of 1899, which
was in force at the time said document was
executed by Melecio Artiaga in 1918. The said
article read as follows:
"Article 1056. If the testator should make a partition
of his properties by an act inter vivos, or by will, such
partition shall stand in so far as it does not prejudice
43
the legitime of the forced heir." (Mang-Oy v. Court of property (Ibid., p. 20). Such findings are conclusive
Appeals, 144 SCRA 33 [1986]) upon this Court (Reynolds Philippine Corporation v.
Court of Appeals, 169 SCRA 220 [1989]).
In this case, nowhere was it alleged nor shown that
Leonida Coronado is entitled to legitime from PREMISES CONSIDERED, the decision appealed
Melecio Artiaga. The truth of the matter is that the from is hereby AFFIRMED.
record is bereft of any showing that Leonida
SO ORDERED.
Coronado and the late Melecio Artiaga were related
to each other.
Under the third assigned error, CORONADO claims
that JUANA is estopped from questioning the
ownership of Leonida Coronado over the land in
question having failed to raise the same in the estate
proceedings in the trial court and even on appeal
(Rollo, p. 119).
The contention is likewise without merit.
Normally, the probate of a will does not look into its
intrinsic validity. The authentication of a will decides
no other questions than such as touch upon the
capacity of the testator and the compliance with
those requisites or solemnities which the law
prescribes for the validity of the wills. It does not
determine nor even by implication prejudge the
validity or efficiency of the provisions of the will, thus
may be impugned as being vicious or null,
notwithstanding its authentication. The question
relating to these points remain entirely unaffected,
and may be raised even after the will has been
authenticated (Maninang, et al., v. Court of Appeals,
114 SCRA 473 [1982]). Consequently, JUANA is not
estopped from questioning the ownership of the
property in question, notwithstanding her having
objected to the probate of the will executed by
Monterola under which Leonida Coronado is
claiming title to the said property.:-cralaw
Under the fourth assigned error, it is alleged by
CORONADO that JUANA's petition is weak for want
of factual and legal support; the weakness of
JUANA's position lies in the fact that she did not only
fail to identify the subject land, but also failed to
explain the discrepancy in the boundary of the
property she is claiming to be hers (Rollo, p. 125).
The contention is unavailing.
The fact that JUANA failed to identify the property in
question and to explain the discrepancy in the
boundary of said property, assuming they are true, is
immaterial, in view of the findings of the lower court
as to the identity of the property in question.
Moreover, the lower court found sufficient evidence
to support the conclusion that the property in
question is the same property adjudicated to JUANA
under the will of Melecio Artiaga, and that
CORONADO has no right whatsoever to said

44

FIRST DIVISION
[G.R. No. L-31048. January 20, 1976.]
LUCENA MAGALLANES, Petitioner, v. HON.
UNION KAYANAN, Presiding Judge of Branch IV,
CFI, Quezon and the HEIRS OF ELIGIO
MAGALLANES, Respondents.
Abelio M. Marte and Clemente T. Alcala
for Petitioner.
De Mesa & De Mesa, Bienvenido A. Mapaye,
Lualhati S. Arceo-Martinez, Renato A. Martinez &
Bayani G. Romulo, Wilfredo B. Villabona
for Private Respondents.
SYNOPSIS
Petitioner filed a "solicitud" praying that certain lots
be partitioned and distributed among the heirs of
Filomena Magallanes. Private respondents, heirs of
Eligio Magallanes, filed an opposition and a motion
to dismiss claiming ownership and title over the lots
in question. Subsequently, private respondents filed
a petition for summary judgment on the pleadings
praying that their absolute right be recognized and
confirmed. Notwithstanding the opposition thereto of
petitioner, the lower court rendered a summary
judgment confirming private respondents’ absolute
and exclusive right of ownership and possession
over the properties. Petitioner moved for
reconsideration but the lower court denied the
motion for being pro-forma and declared its decision
final and executory, and a writ of execution was
issued and served upon petitioner. In the meantime,
petitioner was able to perfect her appeal.
The Supreme Court, ruling that the probate court
cannot pass the question of title or ownership over
the properties alleged to form part of the estate of
the deceased but claimed by another by an adverse
title to that of the deceased; that the conflicting
claims of petitioner and respondents can only be
settled by trial on the merits; and that the motion for
reconsideration was not pro-forma, declared the
decision of the lower court as null and void and
remanded the case to the lower court as a Court of
general jurisdiction.
SYLLABUS
1. SPECIAL PROCEEDINGS; SETTLEMENT OF
STATE OF DECEASED PERSON; JURISDICTION
OF PROBATE COURT. — Well established is the
doctrine that the property, whether real or personal,
which are alleged to form part of the estate of a
deceased person but denied by another to be his
property by adverse title to that of the deceased and
his state and not by virtue of any right of inheritance
from the deceased, cannot be determined by the
probate court. Such question must be submitted to
the court of First Instance in the exercise of its
general jurisdiction to try and determine ordinary
actions. The probate court may do so only for the
purpose of determining whether or not a given
property should be included in the inventory of the
estate of the deceased but such determination is not
conclusive and is still subject to a final decision in a
separate action to be instituted between the parties.
Likewise, the probate court may also determine
question of title to property if the parties voluntarily
submitted to its jurisdiction and introduced evidence
to prove ownership.
2. ID.; ID.; ID.; CASE AT BAR. — Where the action
instituted by the petitioner was not for the purpose of
determining whether or not a given property should
be included in the inventory of the estate of the
deceased but the action was for partition and
distribution of the properties left by the deceased, it
is erroneous for the probate court to resolve the
question of title or ownership over the properties in
said proceedings.
3. JUDGMENTS; SUMMARY JUDGMENT; CAN BE
AVAILED OF WHERE NO GENUINE ISSUE AS TO
ANY MATERIAL FACT IS RAISED IN THE
PLEADINGS. — Summary judgment can be availed
of where no genuine issue as to any material fact is
raised in the pleadings. Where there is an issues of
fact joined by the parties or where the facts pleaded
by the parties are disputed or contested neither one
of them can pray for a summary judgment to take
the place of a trial.
4. ID.; ID.; ID.; CASE AT BAR. — Where petitioner
claims she and her co-heirs have the right to inherit
the properties as they form part of the estate of the
deceased, while on the other hand, private
respondents contend that they acquired the
45
ownership over the said properties by purchase from
the deceased during her lifetime, there is a factual
dispute which can only be properly settled by means
of a trial on the merits, and, hence summary
judgment is uncalled for.
5. PLEADINGS; MOTION FOR NEW TRIAL; PRO-
FORMA MOTION. — A motion for new trial or
reconsideration on the ground that the judgment is
contrary to law, which does not point out the
supposed defects in the judgment is pro-forma
Section 2, Rule 37 of the Rules of Court requires the
movant for the new trial to point out the findings of
fact or conclusions of law supposed to be
insufficiently borne out by the evidence or contrary to
law.
6. ID.; ID.; MOTION FOR
RECONSIDERATION/NEW TRIAL IN INSTANT
CASE IS NOT PRO-FORMA. — Where the motion
for reconsideration shows specifically the
conclusions reached by the lower court which are
contrary to law, the lack of jurisdiction on the part of
the lower court resolve the issue of ownership and
possession of properties left by the deceased person
in the settlement of his estate proceedings and the
propriety of the rendition of the summary judgment
on the pleadings, said motion is not pro-forma since
it expressly makes reference to what portion of the
lower court’s conclusion are contrary to law and to
established jurisprudence.
7. ID.; ID.; ID.; FILING OF MOTION FOR
RECONSIDERATION; WHICH TO APPEAL. —
Where a motion for reconsideration is not pro-forma,
the filing of the same on time stopped the running of
the period within which to appeal the decision. It was
therefore an error on the part of the lower court to
issue a writ of execution of the decision in question
before it has become final and executory.
8. SPECIAL CIVIL ACTIONS; CERTIORARI;
SUBMISSION OF RECORD ON APPEAL NOT
NECESSARY. — It is elementary that in a petition
for certiorari the submission of a record on appeal is
not necessary.
DECISION
MARTIN, J.:
The validity of a summary judgment rendered in the
Court of First Instance of Quezon, in Special
Proceedings No. 3913, entitled Re: Summary
Settlement of the Estate of Filomena Magallanes,
Lucena Magallanes, Petitioner, versus Heirs of Eligio
Magallanes, oppositors, is the main issue in this
petition for review.
On August 4, 1960, petitioner Lucena Magallanes
filed a "Solicitud" praying that Lot No. 2657 covered
by Original Certificate of Title No. 1091 and one-half
(1/2) of Lot No. 3465 covered by Original Certificate
of Title No. 6447, both of the Register of Deeds of
Tayabas (Quezon) be partitioned and distributed
among the heirs of the deceased Filomena
Magallanes.
On October 31, 1961, private respondents, the Heirs
of Eligio Magallanes, namely: Maria San
Buenaventura, Godofredo Magallanes and Carmen
Magallanes de Ingente, filed their opposition and
motion to dismiss the "Solicitud", claiming title and
ownership over the parcels of land in question and
raising the issue that the trial court is devoid of
jurisdiction to resolve the issues raised in the
pleadings.
On July 12, 1968, the private respondents filed a
petition for summary judgment on the pleadings
praying that their absolute right of ownership over
the properties in question be recognized and
confirmed. Petitioner filed her opposition to the
petition for summary judgment on the ground that in
a summary settlement of an estate, the Court has no
jurisdiction to pass finally and definitely upon the title
or ownership over the properties involved therein;
and that summary judgment is not proper, there
being a genuine issue or material controversy raised
by the pleadings of the parties.
On March 21, 1969, the lower court rendered a
summary judgment on the pleadings submitted by
the parties confirming the private respondents’
(Heirs of Eligio Magallanes) absolute and exclusive
right of ownership and possession over the whole of
Lot No. 2657 and the one-half undivided portion of
Lot No. 3465 and ordering the Register of Deeds of
Quezon Province to cancel the Notice of Lis
Pendens on Original Certificate of Title No. 1091
covering Lot No. 2657.chanrobles.com : virtual law
library
On April 22, 1969, the petitioner moved for
reconsideration of the aforesaid summary judgment
and/or new trial but the lower court on June 19, 1969
denied the motion for reconsideration for being pro
46
forma and declared its decision dated March 21,
1969 to be final and executory. Accordingly, a writ of
execution was issued and served upon the petitioner
on July 14, 1969. However, even before said date,
petitioner was able to perfect her appeal on June 30,
1969, with the filing of the notice of appeal, appeal
bond and record on appeal.
In her brief, petitioner presses upon the lower court
the following errors:chanrob1es virtual 1aw library
I
"THE TRIAL COURT ERRED IN PASSING UPON
FINALLY AND DEFINITELY THE TITLE TO OR
OWNERSHIP OF LOT 2657 OF THE LUCENA
CADASTRE, COVERED BY ORIGINAL
CERTIFICATE OF TITLE NO. 1091 OF THE
REGISTER OF DEEDS OF TAYABAS AND ONE-
HALF (1/2) OF LOT NO. 3465 OF THE LUCENA
CADASTRE, COVERED BY CERTIFICATE OF
TITLE NO. 6447 OF THE REGISTER OF DEEDS
OF TAYABAS, WHEN IT HAS NO JURISDICTION
TO SO ACT, THE PETITIONER HAVING
CONSISTENTLY REFUSED TO SUBMIT THAT
ISSUE TO THE JURISDICTION OF THE TRIAL
COURT.
II
"THE TRIAL COURT ERRED IN NOT MERELY
DETERMINING IN THE DECISION DATED MARCH
21, 1969 WHETHER OR NOT THE PROPERTIES
IN QUESTION SHOULD BE INCLUDED IN THE
INVENTORY ASSUMING THE AFORESAID
DECISION RENDERED THROUGH SUMMARY
JUDGMENT WAS PROPER AND REGULAR.
III
"THE TRIAL COURT ERRED IN RENDERING THE
DECISION DATED MARCH 21, 1969 THROUGH
SUMMARY JUDGMENT, WITHOUT TRIAL,
WHERE (THERE) ARE GENUINE ISSUES AND
MATERIAL CONTROVERSY, THE PETITIONER
CLAIMING IN HER PLEADINGS THAT SHE AND
HER CO-HEIRS OWN THE REALTIES IN
QUESTION BY INHERITANCE FROM THE
DECEASED FILOMENA MAGALLANES WHILE
THE RESPONDENTS CLAIM OWNERSHIP OVER
THE AFORESAID REALTIES BY PURCHASE
FROM THE DECEASED FILOMENA
MAGALLANES DURING HER LIFETIME.
IV
"THE TRIAL COURT ERRED WHEN IT HELD IN
ITS ORDER ON JUNE 19, 1969 THAT THE
MOTION FOR RECONSIDERATION DATED APRIL
21, 1969 IS PRO FORMA AND DID NOT SUSPEND
THE RUNNING OF THE PERIOD TO APPEAL.
V
"THE TRIAL COURT ERRED IN HOLDING THE
DECISION DATED MARCH 21, 1969 FINAL AND
EXECUTORY.
VI
"THE TRIAL COURT ERRED IN ORDERING THE
ISSUANCE OF A WRIT OF EXECUTION IN THE
SAME ORDER OF JUNE 19, 1969.
VII
"THE TRIAL COURT ERRED IN ISSUING THE
WRIT OF EXECUTION DATED JUNE 19, 1969
WHICH IS VOID AND OF NO EFFECT."cralaw
virtua1aw library
We find merit in the petitioner’s argument that the
lower court has no jurisdiction to pass finally and
definitely upon the title or ownership of the
properties involved in the summary settlement of the
estate of the deceased Filomena Magallanes
instituted by the petitioner. Well established is the
doctrine that the property, whether real or personal,
which are alleged to form part of the estate of a
deceased person but claimed by another to be his
property by adverse title to that of the deceased and
his estate and not by virtue of any right of
inheritance from the deceased, cannot be
determined by the probate court. Such questions
must be submitted to the Court of First Instance in
the exercise of its general jurisdiction to try and
determine ordinary actions. 1 The probate court may
do so only for the purpose of determining whether or
not a given property should be included in the
inventory of the estate of the deceased, but such
determination is not conclusive and is still subject to
a final decision in a separate action to be instituted
between the parties. 2 Likewise, the probate court
may also determine questions of title to property if
the parties voluntarily submitted to its jurisdiction and
introduced evidence to prove ownership. 3
47

In the case at bar, the action instituted by the
petitioner was not for the purpose of determining
whether or not a given property should be included
in the inventory of the estate of the deceased. The
action was for partition and distribution of the
properties left by the deceased. Neither have all of
the parties voluntarily submitted the issue of
ownership for resolution by the court. As a matter of
fact the petitioner opposed the petition of private
respondents to have the issue of ownership or title
decided in the proceeding for the settlement of the
estate of the deceased. It was therefore erroneous
for the lower court to resolve the question of title or,
ownership over the properties in said proceeding. It
could only pass upon such a question in the exercise
of its general jurisdiction in an ordinary
action.chanrobles law library
Petitioner faulted the lower court for rendering
summary judgment on the case. Summary judgment
can be availed of where no genuine issue as to any
material fact is raised in the pleadings. 4 Where
there is an issue or issues of fact joined by the
parties or where the facts pleaded by the parties are
disputed or contested, neither one of them can pray
for a summary judgment to take the place of a trial. 5
Summary judgment can be rendered only where
there are no questions of fact in issue or where the
material allegations of the pleadings are not
disputed.
An examination of the pleadings in this case clearly
shows that there is a genuine issue or material
controversy raised therein. Thus, petitioner claims
that she and her co-heirs have the right to inherit the
properties in question as they form part of the estate
of Filomena Magallanes. On the other hand, herein
private respondents contend that they acquired the
ownership over the said properties by purchase from
Filomena Magallanes during her lifetime. In the face
of the conflicting claims of both petitioner and
respondents a factual dispute certainly arises which
can only be properly settled by means of a trial on
the merits. Summary judgment was, therefore,
uncalled for in the premises.
Petitioner also assailed the order of the lower court
denying her motion for reconsideration of the
summary judgment in question as pro forma. A
motion for new trial or reconsideration on the ground
that the judgment is contrary to law, which does not
point out the supposed defects in the judgment is
pro forma. Section 2, Rule 37 of the Rules of Court
requires the movant for the new trial to point out the
findings of fact or conclusions of law supposed to be
insufficiently borne out by the evidence or contrary to
law. 6 A reading of the motion for reconsideration of
the aforesaid summary judgment shows specifically
the conclusions reached by the lower court which
are contrary to law, the lack of jurisdiction on the part
of the lower court to resolve the issue of ownership
and possession of properties left by a deceased
person in the settlement of his estate and the
propriety of the rendition of the summary judgment
on the pleadings submitted by the parties. Although
the former pleadings of the petitioner already
contained allegations on the question of jurisdiction
and the propriety of the summary judgment, this fact
does not make the motion for reconsideration pro
forma because it expressly made reference to what
portion of the lower court’s conclusion are contrary
to law and to established jurisprudence. In a case 7
the Supreme Court held that the motion for new trial
or reconsideration cannot be considered as simply
pro forma where it not only states that the decision is
contrary to law but also explains in detail relevant
facts for seeking its revocation. Since the motion for
reconsideration is not pro forma, the filing of the
same on time stopped the running of the period
within which to appeal the decision. It was therefore
an error on the part of the lower court to issue a writ
of execution of the decision in question before it has
become final and executory.chanrobles law library :
red
Finally, private respondents claim that the trial court
erred in approving petitioner’s record on appeal after
it had lost jurisdiction over the case. There is no
need to resolve the assigned error. It is elementary
that in a petition for certiorari like the case before Us,
the submission of a record on appeal is not
necessary.
WHEREFORE, in view of all the foregoing judgment
is hereby rendered:chanrob1es virtual 1aw library
1. Declaring the decision of the lower court dated
March 21, 1968 and the writ of execution dated June
19, 1969 null and void; and
2. Remanding the case to the lower court as a court
of general jurisdiction to settle the title and
ownership over the parcels of land in question
between Lucena Magallanes who claims to have
inherited the same from Filomena Magallanes and
the heirs of Eligio Magallanes who claim to have
purchased them.
Costs against the private respondents.
SO ORDERED.
48

G.R. No. 192828 : November 28, 2011
RAMON S. CHING AND PO WING PROPERTIES,
INC., Petitioners, v. HON. JANSEN R.
RODRIGUEZ, in his capacity as Presiding Judge
of the Regional Trial Court of Manila, Branch 6,
JOSEPH CHENG, JAIME CHENG, MERCEDES
IGNE AND LUCINA SANTOS, substituted by her
son, EDUARDO S. BALAJADIA, Respondents.
RESOLUTION
REYES, J.:
The Case
Before us is a Petition for Review
on Certiorari1red under Rule 45 of the Rules of Court
assailing the December 14, 2009 Decision 2red and
July 8, 2010 Resolution3red of the Court of Appeals
(CA) in CA-G.R. SP No. 99856. The dispositive
portion of the assailed Decision
reads: chanroblesvirtuallawlibrary
WHEREFORE, in view of all the foregoing premises,
judgment is hereby rendered by us DENYING the
petition filed in this case and AFFIRMING the
assailed Orders dated March 15, 2007 and May 16,
2007 issued by the respondent Judge of the
Regional Trial Court (RTC), Branch 6, in Manila in
Civil Case No. 02-105251.4red
The assailed Resolution denied the petitioners'
Motion for Reconsideration.
The Factual Antecedents
Sometime between November 25, 2002  and  properties. Further, there are two other parcels of
December 3, 2002,5red the respondents filed a
Complaint6red against the petitioners and Stronghold
Insurance Company, Global Business Bank, Inc.
(formerly PhilBank), Elena Tiu Del Pilar, Asia Atlantic
Resources Ventures, Inc., Registers of Deeds of  educational attainment, was sweet-talked by Ramon
Manila and Malabon, and all persons claiming rights
or titles from Ramon Ching (Ramon) and his
successors-in-interest.
The Complaint, captioned as one for
" Disinheritance, Declaration of Nullity of Agreement
and Waiver, Affidavit of Extra-Judicial Settlement,
Deed of Absolute Sale, Transfer Certificates of Title
with Prayer for [the] Issuance of [a] Temporary
Restraining Order and [a] Writ of Preliminary
Injunction, " was docketed as Civil Case No. 02-
105251 and raffled to Branch 8 of the Regional Trial
Court of Manila (RTC).
In the Complaint, the respondents alleged the
following as causes of
action: chanroblesvirtuallawlibrary
First Cause of Action. They are the heirs of Lim
San, also known as Antonio Ching / Tiong Cheng /
Ching Cheng Suy (Antonio). Respondents Joseph
Cheng (Joseph) and Jaime Cheng (Jaime) are
allegedly the children of Antonio with his common-
law wife, respondent Mercedes Igne (Mercedes).
Respondent Lucina Santos (Lucina) claimed that
she was also a common-law wife of Antonio. The
respondents averred that Ramon misrepresent
edhimself as Antonio's and Lucina's son when in
truth and in fact, he was adopted and his birth
certificate was merely simulated. On July 18, 1996,
Antonio died of a stab wound. Police investigators
identified Ramon as the prime suspect and he now
stands as the lone accused in a criminal case for
murder filed against him. Warrants of arrest issued
against him have remain edunserved as he is at
large. From the foregoing circumstances and upon
the authority of Article 919 7red of the New Civil Code
(NCC), the respondents concluded that Ramon can
be legally disinherited, hence, prohibited from
receiving any share from the estate of Antonio.
Second Cause of Action. On August 26, 1996,
prior to the conclusion of the police investigations
tagging Ramon as the prime suspect in the murder
of Antonio, the former made an inventory of the
latter's estate. Ramon misrepresented that there
were only six real estate properties left by Antonio.
The respondents alleged that Ramon had illegally
transferred to his name the titles to the said
land, cash and jewelries, plus properties in
Hongkong, which were in Ramon's possession.
Third Cause of Action. Mercedes, being of low
49
into surrendering to him a Global Business Bank,
Inc. (Global Bank) Certificate of Time Deposit
of  P4,000,000.00 in the name of Antonio, and the
certificates of title covering two condominium units in
Binondo which were purchased by Antonio using his
own money but which were registered in Ramon's
name. Ramon also fraudulently misrepresented to
Joseph, Jaime and Mercedes that they will promptly
receive their complete shares, exclusive of the
stocks in Po Wing Properties, Inc. (Po Wing), from
the estate of Antonio. Exerting undue influence,
Ramon had convinced them to execute an
Agreement8red and a Waiver9red on August 20,
1996. The terms and conditions stipulated in the
Agreement and Waiver, specifically, on the payment
by Ramon to Joseph, Jaime and Mercedes of the
amount of P22,000,000.00, were not complied with.
Further, Lucina was not informed of the execution of
the said instruments and had not received any
amount from Ramon. Hence, the instruments are
null and void.
Fourth Cause of Action. Antonio's 40,000 shares in
Po Wing, which constitute 60% of the latter's total
capitalstock, were illegally transferred by Ramon to
his own name through a forged document of sale
executed after Antonio died. Po Wing owns a ten-
storey building in Binondo. Ramon's claim that he
bought the stocks from Antonio before the latter died
is baseless. Further, Lucina's shares in Po Wing had
also banished into thin air through Ramon's
machinations.
Fifth Cause of Action. On October 29, 1996,
Ramon executed an Affidavit of Extra-Judicial
Settlement of Estate10red adjudicating solely to
himself Antonio's entire estate to the prejudice of the
respondents. By virtue of the said instrument, new
Transfer Certificates of Title (TCTs) covering eight
real properties owned by Antonio were issued in
Ramon's name. Relative to the Po Wing shares, the
Register of Deeds of Manila had required Ramon to
post a Surety Bond conditioned to answer for
whatever claims which may eventually surface in
connection with the said stocks. Co-defendant
Stronghold Insurance Company issued the bond in
Ramon's behalf.
Sixth Cause of Action .  Ramon sold Antonio's two
parcels of land in Navotas to co-defendant Asia
Atlantic Business Ventures, Inc. Another parcel of
land, which was part of Antonio's estate, was sold by
Ramon to co-defendant Elena Tiu Del Pilar at an
unreasonably low price. By reason of Ramon's lack
of authority to dispose of any part of Antonio's
estate, the conveyances are null and void ab initio.
Since Ramon is at large, his wife, Belen Dy Tan
Ching, now manages Antonio's estate. She has no
intent to convey to the respondents their shares in
the estate of Antonio.
The respondents thus prayed for the following in
their Complaint: chanroblesvirtuallawlibrary
1. x x x a temporary restraining order be issued
restraining the defendant RAMON CHING and/or his
attorney-in-fact Belen Dy Tan Ching from disposing,
selling or alienating any property that belongs to the
estate of the deceased ANTONIO CHING;
xxx
4. x x x
a.) Declaring that the defendant RAMON CHING
who murdered his father ANTONIO CHING
disqualified as heir and from inheriting to (sic) the
estate of his father;
b.) Declaring the nullity of the defendant RAMON
CHING transfer (sic) of the six [6] parcels of land
from the name of his father ANTONIO CHING to his
name covered by TCT No. x x x;
c.) Declaring the nullity of the AGREEMENT and
WAIVER executed by plaintiffs x x x in favor of x x x
RAMON CHING for being patently immoral, invalid,
illegal, simulated and (sic) sham;
d.) Declaring the nullity of the transfer of the shares
of stocks at (sic) PO WING from the names of
ANTONIO CHING and LUCINA SANTOS to the
defendant ANTONIO  CHING's name for having
been illegally procured through the falsification of
their signatures in the document purporting the
transfer thereof;
e.) Declaring the nullity and to have no force and
effect the AFFIDAVIT OF SETTLEMENT OF
ESTATE executed by x x x RAMON CHING for
being contrary to law and existing jurisprudence;
f.) Declaring the nullity of the DEED OF SALES (sic)
executed by x x x RAMON CHING (i) over two (2)
parcels of land x x x to defendant ASIA ATLANTIC
BUSINESS VENTURES, Inc.; and (ii) one (1) parcel
50
of land x x x sold to x x x ELENA TIU DEL PILAR for
having illegally procured the ownership and titles of
the above properties;
x x x.11red
The petitioners filed with the RTC a Motion to
Dismiss12red alleging forum shopping, litis
pendentia, res judicata and the respondents as not
being the real parties in interest.
On July 30, 2004, the RTC issued an Omnibus
Order13red denying the petitioners' Motion to
Dismiss.
The respondents filed an Amended
Complaint14red dated April 7, 2005 impleading
Metrobank as the successor-in-interest of co-
defendant Global Bank. The Amended Complaint
also added a seventh cause of action relative to
the existence of a Certificate of Premium Plus
Acquisition (CPPA) in the amount of P4,000,000.00
originally issued by PhilBank to Antonio. The
respondents prayed that they be declared as the
rightful owners of the CPPA and that it be
immediately released to them. Alternatively, the
respondents prayed for the issuance of a hold order
relative to the CPPA to preserve it during the
pendency of the case.
On April 22, 2005, the petitioners filed their
Consolidated Answer with Counterclaim.15red
On October 28, 2005, the RTC issued an
Order16red admitting the respondents' Amended
Complaint. The RTC stressed that Metrobank had
already filed Manifestations admitting that as
successor-in-interest of Global Bank, it now
possesses custody of Antonio's deposits. Metrobank
expressed willingness to abide by any court order as
regards the disposition of Antonio's deposits. The
petitioners' Motion for Reconsideration filed to assail
the aforecited Order was denied by the RTC on May
3, 2006.
On May 29, 2006, the petitioners filed their
Consolidated Answer with Counterclaim to the
respondents' Amended Complaint.
On August 11, 2006, the RTC issued a pre-trial
order.17red
On January 18, 2007, the petitioners filed a Motion
to Dismiss18red the respondents' Amended
Complaint on the alleged ground of the RTC's lack of
jurisdiction over the subject matter of the Complaint.
The petitioners argued that since the Amended
Complaint sought the release of the CPPA to the
respondents, the latter's declaration as heirs of
Antonio, and the propriety of Ramon's
disinheritance, the suit partakes of the nature of a
special proceeding and not an ordinary action for
declaration of nullity. Hence, jurisdiction pertains to a
probate or intestate court and not to the RTC acting
as an ordinary court.
On March 15, 2007, the RTC issued an
Order19red denying the petitioners' Motion to Dismiss
on grounds: chanroblesvirtuallawlibrary
In the case at bar , an examination of the
Complaint would disclose that the action delves
mainly on the question of ownership of the
properties described in the Complaint which can
be properly settled in an ordinary civil action.
And as pointed out by the defendants, the action
seeks to declare the nullity of the Agreement,
Waiver, Affidavit of Extra-Judicial Settlement, Deed
of Absolute Sale, Transfer Certificates of Title, which
were all allegedly executed by defendant Ramon
Ching to defraud the plaintiffs. The relief of
establishing the status of the plaintiffs which
could have translated this action into a special
proceeding was nowhere stated in the Amended
Complaint. With regard [to] the prayer to declare
the plaintiffs as the rightful owner[s] of the CPPA
and that the same be immediately released to
them, in itself poses an issue of ownership
which must be proved by plaintiffs by
substantial evidence. And as emphasized by the
plaintiffs, the Amended Complaint was intended to
implead Metrobank as a co-defendant.
As regards the issue of disinheritance, the court
notes that during the Pre-trial of this case, one of the
issues raised by the defendants Ramon Ching and
Po Wing Properties is: Whether or not there can be
disinheritance in intestate succession? Whether or
not defendant Ramon Ching can be legally
disinherited from the estate of his father? To the
mind of the Court , the issue of disinheritance,
which is one of the causes of action in the
Complaint, can be fully settled after a trial on the
merits. And at this stage, it has not been
sufficiently established whether or not there is a
will.20red (Emphasis supplied.)
The above Order, and a subsequent Order dated
May 16, 2007 denying the petitioners' Motion for
51
Reconsideration, became the subjects of a petition
for certiorari filed with the CA. The petition, docketed
as CA-G.R. SP No. 99856, raised the issue of
whether or not the RTC gravely abused its discretion
when it denied the petitioners' Motion to Dismiss
despite the fact that the Amended Complaint sought
to establish the status or rights of the respondents
which subjects are within the ambit of a special
proceeding.
On December 14, 2009, the CA rendered the now
assailed Decision21red denying the petition
for certiorari on grounds: chanroblesvirtuallawlibrary
Our in-depth assessment of the condensed
allegations supporting the causes of action of the
amended complaint induced us to infer that nothing
in the said complaint shows that the action of
the private respondents should be threshed out
in a special proceeding, it appearing that their
allegations were substantially for the
enforcement of their rights against the alleged
fraudulent acts committed by the petitioner
Ramon Ching. The private respondents also
instituted the said amended complaint in order
to protect them from the consequence of the
fraudulent acts of Ramon Ching by seeking to
disqualify Ramon Ching from inheriting from
Antonio Ching as well as to enjoin him from
disposing or alienating the subject properties,
including the P4 Million deposit with Metrobank.
The intestate or probate court has no jurisdiction to
adjudicate such issues, which must be submitted to
the court in the exercise of its general jurisdiction as
a regional trial court. Furthermore, we agree with
the trial court that the probate court could not
take cognizance of the prayer to disinherit
Ramon Ching, given the undisputed fact that
there was no will to be contested in a probate
court.
The petition at bench apparently cavils the subject
amended complaint and complicates the issue of
jurisdiction by reiterating the grounds or defenses
set up in the petitioners' earlier pleadings.
Notwithstanding, the jurisdiction of the court over
the subject matter is determined by the
allegations of the complaint without regard to
whether or not the private respondents
(plaintiffs) are entitled to recover upon all or
some of the causes of action asserted therein. In
this regard, the jurisdiction of the court does not
depend upon the defenses pleaded in the answer
or in the motion to dismiss, lest the question of
jurisdiction would almost entirely depend upon
the petitioners (defendants).22red Hence, we focus
our resolution on the issue of jurisdiction on the
allegations in the amended complaint and not on the
defenses pleaded in the motion to dismiss or in the
subsequent pleadings of the petitioners.
In fine, under the circumstances of the present case,
there being no compelling reason to still subject
the action of the petitioners in a special
proceeding since the nullification of the subject
documents could be achieved in the civil case,
the lower court should proceed to evaluate the
evidence of the parties and render a decision
thereon upon the issues that it defined during the
pre-trial in Civil Case No. 02-
105251.23red (Emphasis supplied)
The petitioners' Motion for Reconsideration was
denied by the CA through a Resolution 24red issued
on July 8, 2010.
The Issue
The instant Petition for Review on Certiorari25red is
anchored on the issue of:
Whether or not the RTC should have granted the
Motion to Dismiss filed by the PETITIONERS on the
alleged ground of the RTC's lack of jurisdiction over
the subject matter of the Amended Complaint, to wit,
(a) filiations with Antonio of Ramon, Jaime and
Joseph; (b) rights of  common-law wives, Lucina and
Mercedes, to be considered as heirs of Antonio; (c)
determination of the extent of Antonio's estate; and
(d) other matters which can only be resolved in a
special proceeding and not in an ordinary civil
action.
The petitioners argue that only a probate court has
the authority to determine (a) who are the heirs of a
decedent; (b) the validity of  a waiver of  hereditary
rights; (c) the status of each heir; and (d) whether
the property in the inventory is conjugal or the
exclusive property of  the deceased
spouse.26red Further, the extent of Antonio's estate,
the status of the contending parties and the
respondents' alleged entitlement as heirs to receive
the proceeds of Antonio's CPPA now in Metrobank's
custody are matters which are more appropriately
the subjects of a special proceeding and not of an
ordinary civil action.
The respondents opposed27red the instant petition
claiming that the petitioners are engaged in forum
52
shopping. Specifically, G.R. Nos. 175507 28red and
183840,29red both involving the contending parties in
the instant petition were filed by the petitioners and
are currently pending before this Court. Further,
in Mendoza v. Hon. Teh,30red the SC declared that
whether a particular matter should be resolved by
the RTC in the exercise of  its general jurisdiction  or
its limited probate jurisdiction, is not a jurisdictional
issue but a mere question of procedure. Besides, the
petitioners, having validly submitted themselves to
the jurisdiction of the RTC and having actively
participated in the trial of the case, are already
estopped from challenging the RTC's jurisdiction
over the respondents' Complaint and Amended
Complaint.31red
The Court's Ruling
We resolve to deny the instant petition.
The petitioners failed to comply with a lawful order of
this Court directing them to file their reply to the
respondents' Comment/Opposition to the instant
Petition. While the prescribed period to comply
expired on March 15, 2011, the petitioners filed their
Manifestation that they will no longer file a reply only
on October 10, 2011 or after the lapse of almost
seven months.
Further, no reversible errors were committed by the
RTC and the CA when they both ruled that the
denial of the petitioners' second motion to dismiss
Civil Case No. 02-105251 was proper.
Even without delving into the procedural allegations
of the respondents that the petitioners engaged in
forum shopping and are already estopped from
questioning the RTC's jurisdiction after having validly
submitted to it when the latter participated in the
proceedings, the denial of the instant Petition is still
in order.Although the respondents' Complaint and
Amended Complaint sought, among others, the
disinheritance of Ramon and the release in favor of
the respondents of the CPPA now under
Metrobank's custody, Civil Case No. 02-105251
remains to be an ordinary civil action, and not a
special proceeding pertaining to a settlement court.
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.32red A special proceeding is a
remedy by which a party seeks to establish a status,
a right, or a particular fact.33red It is distinguished
from an ordinary civil action where a party sues
another for the enforcement or protection of a right,
or the prevention or redress of a wrong. 34red To
initiate a special proceeding, a petition and not a
complaint should be filed.
Under Article 916 of the NCC, disinheritance can be
effected only through a will wherein the legal cause
therefor shall be specified. This Court agrees with
the RTC and the CA that while the respondents in
their Complaint and Amended Complaint sought the
disinheritance of Ramon, no will or any instrument
supposedly effecting the disposition of Antonio's
estate was ever mentioned. Hence, despite the
prayer for Ramon's disinheritance, Civil Case No.
02-105251 does not partake of the nature of a
special proceeding and does not call for the probate
court's exercise of its limited jurisdiction.
The petitioners also argue that the prayers in the
Amended Complaint, seeking the release in favor of
the respondents of the CPPA under Metrobank's
custody and the nullification of the instruments
subject of the complaint, necessarily require the
determination of the respondents' status as
Antonio's heirs.
It bears stressing that what the respondents prayed
for was that they be declared as the rightful owners
of the CPPA which was in Mercedes' possession
prior to the execution of the Agreement and Waiver.
The respondents also prayed for the alternative relief
of securing the issuance by the RTC of a hold order
relative to the CPPA to preserve Antonio's deposits
with Metrobank during the pendency of the case. It
can thus be said that the respondents' prayer
relative to the CPPA was premised on Mercedes'
prior possession of and their alleged collective
ownership of the same, and not on the declaration of
their status as Antonio's heirs. Further, it also has to
be emphasized that the respondents were parties to
the execution of the Agreement 35red and
36
Waiver red prayed to be nullified. Hence, even
without the necessity of being declared as heirs of
Antonio, the respondents have the standing to seek
for the nullification of the instruments in the light of
their claims that there was no consideration for their
execution, and that Ramon exercised undue
influence and committed fraud against them.
Consequently, the respondents then claimed that the
Affidavit of Extra-Judicial Settlement of Antonio’s
estate executed by Ramon, and the TCTs issued
53
upon the authority of the said affidavit, are null and
void as well. Ramon's averment that a resolution of
the issues raised shall first require a declaration of
the respondents' status as heirs is a mere defense
which is not determinative of which court shall
properly exercise jurisdiction.
In Marjorie Cadimas v. Marites Carrion and Gemma
Hugo,37red the Court
declared: chanroblesvirtuallawlibrary
which need not be threshed out in a special
proceeding.
WHEREFORE, the instant petition is DENIED. The
petitioners' (a) Opposition to the respondents' Motion
to Admit Substitution of Party;38red and (b)
Manifestation39red through counsel that they will no
longer file a reply to the respondents'
Comment/Opposition to the instant petition
are NOTED.

It is an elementary rule of procedural law that SO ORDERED.

jurisdiction of the court over the subject matter is
determined by the allegations of the complaint
irrespective of whether or not the plaintiff is entitled
to recover upon all or some of the claims asserted
therein. As a necessary consequence, the
jurisdiction of the court cannot be made to depend
upon the defenses set up in the answer or upon the
motion to dismiss, for otherwise, the question of
jurisdiction would almost entirely depend upon the
defendant. What determines the jurisdiction of the
court is the nature of the action pleaded as
appearing from the allegations in the complaint. The
averments in the complaint and the character of the
relief sought are the matters to be consulted.

In sum, this Court agrees with the CA that the

nullification of the documents subject of Civil Case
No. 02-105251 could be achieved in an ordinary civil
action, which in this specific case was instituted to
protect the respondents from the supposedly
fraudulent acts of Ramon . In the event that the RTC
will find grounds to grant the reliefs prayed for by the
respondents, the only consequence will be the
reversion of the properties subject of the dispute to
the estate of Antonio. Civil Case No. 02-105251 was
not instituted to conclusively resolve the issues
relating to the administration, liquidation and
distribution of Antonio's estate, hence, not the
proper subject of a  special proceeding for the
settlement of the estate of a deceased person 
under Rules 73-91 of  the Rules of Court.

The respondents' resort to an ordinary civil action

before the RTC may not be strategically sound,
because a settlement proceeding should thereafter
still follow, if their intent is to recover from Ramon
the properties alleged to have been illegally
transferred in his name. Be that as it may, the RTC,
in the exercise of its general jurisdiction, cannot be
restrained from taking cognizance of respondents'
Complaint and Amended Complaint as the issues
raised and the prayers indicated therein are matters

54

SECOND DIVISION
[G.R. No. 16763. December 22, 1921. ] "Mere general or reasonable influence over a
PASCUAL COSO, Petitioner-Appellant, v.
FERMINA FERNANDEZ DEZA ET AL., objectors-
appellees.
Eduardo Gutierrez Repide and Felix Socias
for Appellant.
Jose Varela Calderon and Benito Jimenez Zoboli
for Appellees.
SYLLABUS
1. WILLS; UNDUE INFLUENCE. — In the absence
of fraud or imposition, mere affection, even if
illegitimate, is not undue influence and does not
invalidate a will.
DECISION
OSTRAND, J.  :
This is an appeal from a decision of the Court of
First Instance of Manila setting aside a will on the
ground of undue influence alleged to have been
exerted over the mind of a testator by one Rosario
Lopez. The will gives the tercio de libre disposicion
to an illegitimate son had by the testator with said
Rosario Lopez, and also provides for the payment to
her of nineteen hundred Spanish duros by way of
reimbursement for expenses incurred by her in
taking care of the testator in Barcelona during the
years 1909 to 1916, when he is alleged to have
suffered from severe illness.
The evidence shows that the testator, a married man
and resident of the Philippine Islands, became
acquainted with Rosario Lopez in Spain in 1898 and
that he had illicit relations with her for many years
thereafter. After his return to the Philippines she
followed him, arriving in Manila in February, 1918,
and remained in close communication with him until
his death in February, 1919. There is no doubt that
she exercised some influence over him and the only
question for our determination is whether this
influence was of such a character as to vitiate the
will
The English and American rule in regard to undue
influence is thus stated in 40 Cyc., 1144-1149.
testator is not sufficient to invalidate a will; to have
that effect the influence must be ’undue.’ The rule as
to what constitutes ’undue influence’ has been
variously stated, but the substance of the different
statements is that, to be sufficient to avoid a will, the
influence exerted must be of a kind that so
overpowers and subjugates the mind of the testator
as to destroy his free agency and make him express
the will of another, rather than his own.
". . . such influence must be actually exerted on the
mind of the testator in regard to the execution of the
will in question, either at the time of the execution of
the will,, or so near thereto as to be still operative,
with the object of procuring a will in favor of
particular parties, and it must result in the making of
testamentary dispositions which the testator would
not otherwise have made . . .
". . . and while the same amount of influence may
become ’undue’ when exercised by one occupying
an improper and adulterous relation to testator, the
mere fact that some influence is exercised by a
person sustaining that relation does not invalidate a
will, unless it is further shown that the influence
destroys the testator’s free agency."cralaw virtua1aw
library
The burden is upon the parties challenging the will to
show that undue influence, in the sense above
expressed, existed at the time of its execution and
we do not think that this burden has been carried in
the present case. While it is shown that the testator
entertained strong affections for Rosario Lopez, it
does not appear that her influence so overpowered
and subjugated his mind as to "destroy his free
agency and make him express the will of another
rather than his own." He was an intelligent man, a
lawyer by profession, appears to have known his
own mind, and may well have been actuated only by
a legitimate sense of duty in making provisions for
the welfare of his illegitimate son and by a proper
feeling of gratitude in repaying Rosario Lopez for the
sacrifices she had made for him. Mere affection,
even if illegitimate, is not undue influence and does
not invalidate a will. No imposition or fraud has been
shown in the present case.
55
"Influence gained by kindness and affection will not
be regarded as ’undue,’ if no imposition or fraud be
practiced, even though it induces the testator to
make an unequal and unjust disposition of his
property in favor of those who have contributed to
his comfort and ministered to his wants, if such
disposition is voluntarily made." (Mackall v. Mackall,
135 U. S., 167.)

It may be further observed that under the Civil Law

the right of a person with legal heirs to dispose of his
property by will is limited to only a portion of his
estate, and that under the law in force in these
Islands before the enactment of the Code of Civil
Procedure, the only outside influences affecting the
validity of a will were duress, deceit, and fraud. The
present doctrine of undue influence originated in a
legal system where the right of the testator to
dispose of his property by will was nearly unlimited.
Manifestly. greater safeguards in. regard to
execution of wills may be warranted when the right
to so dispose of property is unlimited than when it is
restricted to the extent it is in this jurisdiction There
is, therefore, certainly no reason for giving the
doctrine of undue influence a wider scope here than
it enjoys in the United States.

For the reasons stated, the decision of the lower

court disallowing the will of Federico Gimenez Zoboli
is hereby reversed and it is ordered that the will be
admitted to probate. No costs will be allowed. So
ordered.

56
 this case be remanded to the
court a quo  for further and
concomitant proceedings. [4]
 
 
 
The assailed Resolution denied petitioner's Motion
LETICIA VALMONTE ORTEGA, G.R. No. 157451 for Reconsideration.
Petitioner,  
Present: The Facts
Panganiban, J.,  
Chairman, The facts were summarized in the assailed Decision
- versus - Sandoval-Gutierrez, of the CA, as follows:
Corona,  
Carpio Morales, and ' Garcia, JJ x x x: Like so many others before
JOSEFINA C. VALMONTE, Promulgated: him, Placido toiled and lived for a
' Respondent. long time in the United States until
December 16, 2005 he finally reached retirement. In
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- 1980, Placido finally came home to
-- -- -- x stay in the Philippines, and he lived
  in the house and lot located at
  #9200 Catmon St., San Antonio
DECISION Village, Makati, which he owned in
  common with his sister Ciriaca
  Valmonte and titled in their names in
PANGANIBAN, J.: TCT 123468. Two years after his
  arrival from the United States and at
  the age of 80 he wed Josefina who
T he law favors the probate of a will. Upon those was then 28 years old, in a
who oppose it rests the burden of showing why it ceremony solemnized by Judge
should not be allowed. In the present case, petitioner Perfecto Laguio, Jr. on February 5,
has failed to discharge this burden satisfactorily. For 1982. But in a little more than two
this reason, the Court cannot attribute any reversible years of wedded bliss, Placido died
error on the part of the appellate tribunal that on October 8, 1984 of a cause
allowed the probate of the will. written down as COR PULMONALE.
 
Placido executed a notarial last will
The Case and testament written in English and
  consisting of two (2) pages, and
Before the Court is a Petition for Review[1] under dated June 15, 1983 but
Rule 45 of the Rules of Court, seeking to reverse acknowledged only on August 9,
and set aside the December 12, 2002 1983. The first page contains the
Decision[2] and the March 7, 2003 Resolution[3] of entire testamentary dispositions and
the Court of Appeals (CA) in CA-GR CV No. 44296. a part of the attestation clause, and
The assailed Decision disposed as follows: was signed at the end or bottom of
  that page by the testator and on the
WHEREFORE, the appeal left hand margin by the three
is GRANTED, and the Decision instrumental witnesses. The second
appealed from page contains the continuation of
is REVERSED and SET ASIDE. In the attestation clause and the
its place judgment is rendered acknowledgment, and was signed
approving and allowing probate to by the witnesses at the end of the
the said last will and testament of attestation clause and again on the
Placido Valmonte and ordering the left hand margin. It provides in the
issuance of letters testamentary to body that:
the petitioner Josefina Valmonte. Let  

57
LAST WILL AND 13
TESTAMENT OF describ
PLACIDO ed on
VALMONTE IN plan
THE NAME OF Psd-
THE LORD AMEN: 28575,
  LRC,
I, PLACIDO (GLRO)
VALMONTE, of ,
legal age, married situated
to Josefina in
Cabansag Makati,
Valmonte, and a Metro ,
resident of 9200 describ
Catmon Street, ed and
Makati, Metro , 83 covered
years of age and by TCT
being of sound and No.
disposing mind and 123468
memory, do hereby of the
declare this to be Registe
my last will and r of
testament: Deeds
  of
1. It is my will that I Pasig,
be buried in the Metro-
Catholic Cemetery, register
under the auspices ed
of the Catholic jointly
Church in as co-
accordance with the owners
rites and said with my
Church and that a deceas
suitable monument ed
to be erected and sister
provided my by (Ciriaca
executrix (wife) to Valmon
perpetuate my te),
memory in the having
minds of my family share
and friends; and
  share
2.      I give, devise alike;
and bequeath unto  
my loving wife, b.      2-
JOSEFINA C. storey
VALMONTE, one building
half (1/2) portion of standin
the follow-described g on the
properties, which above-
belongs to me as describ
[co-owner]: ed
  propert
a.      Lot 4- y, made
A, of
Block strong

58
 and nephew, and all
mixed others whatsoever
material and wherever
s used found, I give, devise
as my and bequeath to my
residen said wife, Josefina
ce and C. Valmonte;
my wife  
and 4.      I hereby
located appoint my wife,
at No. Josefina C.
9200 Valmonte as sole
Catmon executrix of my last
Street, will and testament,
Makati, and it is my will that
Metro said executrix be
also exempt from filing a
covered bond;
by Tax  
Declara IN WITNESS
tion No. WHEREOF, I have
A-025- hereunto set my
00482, hand this 15th day of
Makati, June 1983 in
Metro-, Quezon City,
jointly in Philippines.
the  
name of  
my The allowance to probate of this will
deceas was opposed by Leticia on the
ed grounds that:
sister,  
Ciriaca 1.                              
Valmon Petitioner failed
te and to allege all
myself assets of the
as co- testator,
owners, especially those
share found in the
and USA;
share  
alike or 2.                              
equal Petitioner failed
co- to state the
owners names, ages,
thereof; and residences
  of the heirs of
3.      All the rest, the testator; or
residue and to give them
remainder of my proper notice
real and personal pursuant to law;
properties, including  
my savings account 3.      Will was not
bank book in USA executed and
which is in the attested as
possession of my required by law

59
 and legal At the hearing, the petitioner
solemnities and Josefina testified and called as
formalities were witnesses the notary public Atty.
not complied Floro Sarmiento who prepared and
with; notarized the will, and the
  instrumental witnesses spouses
4.      Testator was Eugenio Gomez, Jr. and Feliza
mentally Gomez and Josie Collado. For the
incapable to opposition, the oppositor Leticia and
make a will at her daughter Mary Jane Ortega
the time of the testified.
alleged  
execution he According to Josefina after her
being in an marriage with the testator they lived
advance sate of in her parents house at Salingcob,
senility; Bacnotan, La Union but they came
  to every month to get his $366.00
5.      Will was monthly pension and stayed at the
executed under said Makati residence. There were
duress, or the times though when to shave off on
influence of fear expenses, the testator would travel
or threats; alone. And it was in one of his
  travels by his lonesome self when
6.      Will was the notarial will was made. The will
procured by was witnessed by the spouses
undue and Eugenio and Feliza Gomez, who
improper were their wedding sponsors, and
influence and by Josie Collado. Josefina said she
pressure on the had no knowledge of the existence
part of the of the last will and testament of her
petitioner and/or husband, but just serendipitously
her agents found it in his attache case after his
and/or death. It was only then that she
assistants; learned that the testator bequeathed
and/or to her his properties and she was
  named the executrix in the said will.
7.      Signature of To her estimate, the value of
testator was property both real and personal left
procured by by the testator is worth more or less
fraud, or trick, P100,000.00. Josefina declared too
and he did not that the testator never suffered
intend that the mental infirmity because despite his
instrument old age he went alone to the market
should be his which is two to three kilometers from
will at the time their home cooked and cleaned the
of affixing his kitchen and sometimes if she could
signature not accompany him, even traveled
thereto; to alone to claim his monthly
  pension. Josefina also asserts that
  her husband was in good health and
and she also opposed the that he was hospitalized only
appointment as Executrix of because of a cold but which
Josefina alleging her want of eventually resulted in his death.
understanding and integrity.  
  Notary Public Floro Sarmiento, the
notary public who notarized the

60
testator's will, testified that it was in
the first week of June 1983 when
the testator together with the three
witnesses of the will went to his
house cum law office and requested
him to prepare his last will and
testament. After the testator
instructed him on the terms and
dispositions he wanted on the will,
the notary public told them to come
back on June 15, 1983 to give him
time to prepare it. After he had
prepared the will the notary public
kept it safely hidden and locked in
his drawer. The testator and his
witnesses returned on the appointed
date but the notary public was out of
town so they were instructed by his
wife to come back on August 9,
1983, and which they did. Before the
testator and his witnesses signed
the prepared will, the notary public
explained to them each and every
term thereof in Ilocano, a dialect
which the testator spoke and
understood. He likewise explained
that though it appears that the will
was signed by the testator and his
witnesses on June 15, 1983, the day
when it should have been executed
had he not gone out of town, the
formal execution was actually on
August 9, 1983. He reasoned that
he no longer changed the
typewritten date of June 15, 1983
because he did not like the
document to appear dirty. The
notary public also testified that to his
observation the testator was
physically and mentally capable at
the time he affixed his signature on
the will.
 
The attesting witnesses to the will
corroborated the testimony of the
notary public, and testified that the
testator went alone to the house of
spouses Eugenio and Feliza Gomez
at GSIS Village, Quezon City and
requested them to accompany him
to the house of Atty. Floro
Sarmiento purposely for his
intended will; that after giving his
instructions to Atty. Floro Sarmiento,
they were told to return on June 15,
1983; that they returned on June 15,
1983 for the execution of the will but
were asked to come back instead on
August 9, 1983 because of the
absence of the notary public; that
the testator executed the will in
question in their presence while he
was of sound and disposing mind
and that he was strong and in good
health; that the contents of the will
was explained by the notary public
in the Ilocano and Tagalog dialect
and that all of them as witnesses
attested and signed the will in the
presence of the testator and of each
other. And that during the execution,
the testator's wife, Josefina was not
with them.
 
The oppositor Leticia declared that
Josefina should not inherit alone
because aside from her there are
other children from the siblings of
Placido who are just as entitled to
inherit from him. She attacked the
mental capacity of the testator,
declaring that at the time of the
execution of the notarial will the
testator was already 83 years old
and was no longer of sound mind.
She knew whereof she spoke
because in 1983 Placido lived in the
Makati residence and asked
Leticia's family to live with him and
they took care of him. During that
time, the testator's physical and
mental condition showed
deterioration, aberrations and
senility. This was corroborated by
her daughter Mary Jane Ortega for
whom Placido took a fancy and
wanted to marry.
 
Sifting through the evidence, the
court a quo held that [t] he evidence
adduced, reduces the opposition to
two grounds, namely:
 
1.       Non-compliance with
the legal solemnities
and formalities in the
execution and
attestation of the will;
and
 
2.       Mental incapacity of
the testator at the time
61
 of the execution of the
will as he was then in
an advanced state of
senility
'It then found these grounds extant
and proven, and accordingly
disallowed probate.[5]
 
 
Ruling of the Court of Appeals
 
Reversing the trial court, the appellate court
admitted the will of Placido Valmonte to probate. The
CA upheld the credibility of the notary public and the
subscribing witnesses who had acknowledged the
due execution of the will. Moreover, it held that the
testator had testamentary capacity at the time of the
execution of the will. It added that his 'sexual
exhibitionism and unhygienic, crude and impolite
ways' [6] did not make him a person of unsound
mind.
 
Hence, this Petition.[7]
 
 
Issues
Petitioner raises the following issues for our
consideration:
 
I.
Whether or not the findings of the
probate court are entitled to great
respect.
 
II.
 
Whether or not the signature of
Placido Valmonte in the subject will
was procured by fraud or trickery,
and that Placido Valmonte never
intended that the instrument should
be his last will and testament.
 
III.
 
Whether or not Placido Valmonte
has testamentary capacity at the
time he allegedly executed the
subject will.[8]
 
 
In short, petitioner assails the CA's allowance of the
probate of the will of Placido Valmonte.
 
This Court's Ruling
 
The Petition has no merit.
Main Issue:
Probate of a Will
 
At the outset, we stress that only questions of law
may be raised in a Petition for Review under Section
1 of Rule 45 of the Rules of Court. As an exception,
however, the evidence presented during the trial
may be examined and the factual matters resolved
by this Court when, as in the instant case, the
findings of fact of the appellate court differ from
those of the trial court.[9]
The fact that public policy favors the probate of a will
does not necessarily mean that every will presented
for probate should be allowed. The law lays down
the procedures and requisites that must be satisfied
for the probate of a will.[10] Verily, Article 839 of the
Civil Code states the instances when a will may be
disallowed, as follows:
Article 839. The will shall be
disallowed in any of the following
cases:
(1)        If the formalities required by
law have not been complied with;
 
(2)        If the testator was insane, or
otherwise mentally incapable of
making a will, at the time of its
execution;
 
(3)        If it was executed through
force or under duress, or the
influence of fear, or threats;
 
(4)        If it was procured by undue
and improper pressure and
influence, on the part of the
beneficiary or of some other person;
 
(5)        If the signature of the
testator was procured by fraud;
(6)        If the testator acted by
mistake or did not intend that the
62
 instrument he signed should be his
will at the time of affixing his
signature thereto.
 
In the present case, petitioner assails the validity of
Placido Valmonte's will by imputing fraud in its
execution and challenging the testator's state of
mind at the time.
 
 
Existence of Fraud in the
Execution of a Will
 
Petitioner does not dispute the due observance of the
formalities in the execution of the will, but maintains
that the circumstances surrounding it are indicative of
the existence of fraud. Particularly, she alleges that
respondent, who is the testator's wife and sole
beneficiary, conspired with the notary public and the
three attesting witnesses in deceiving Placido to sign
it. Deception is allegedly reflected in the varying dates
of the execution and the attestation of the will.
Petitioner contends that it was 'highly dubious for a
woman at the prime of her young life [to] almost
immediately plunge into marriage with a man who
[was] thrice her age x x x and who happened to be
[a] Fil-American pensionado,[11] thus casting doubt
on the intention of respondent in seeking the probate
of the will. Moreover, it supposedly 'defies human
reason, logic and common experience[12] for an old
man with a severe psychological condition to have
willingly signed a last will and testament.
 
We are not convinced. Fraud 'is a trick, secret
device, false statement, or pretense, by which the
subject of it is cheated. It may be of such character
that the testator is misled or deceived as to the
nature or contents of the document which he
executes, or it may relate to some extrinsic fact, in
consequence of the deception regarding which the
testator is led to make a certain will which, but for
the fraud, he would not have made.[13]
We stress that the party challenging the will bears
the burden of proving the existence of fraud at the
time of its execution.[14] The burden to show
otherwise shifts to the proponent of the will only
upon a showing of credible evidence of fraud.
[15] Unfortunately in this case, other than the self-
serving allegations of petitioner, no evidence of fraud
was ever presented.
 
It is a settled doctrine that the omission of some
relatives does not affect the due execution of a
will. [16] That the testator was tricked into signing it
was not sufficiently established by the fact that he had
instituted his wife, who was more than fifty years his
junior, as the sole beneficiary; and disregarded
petitioner and her family, who were the ones who had
taken 'the cudgels of taking care of [the testator] in his
twilight years.[17]
 
Moreover, as correctly ruled by the appellate court,
the conflict between the dates appearing on the will
does not invalidate the document, 'because the law
does not even require that a [notarial] will x x x be
executed and acknowledged on the same occasion.
[18] More important, the will must be subscribed by
the testator, as well as by three or more credible
witnesses who must also attest to it in the presence
of the testator and of one another.[19] Furthermore,
the testator and the witnesses must acknowledge
the will before a notary public.[20] In any event, we
agree with the CA that 'the variance in the dates of
the will as to its supposed execution and attestation
was satisfactorily and persuasively explained by the
notary public and the instrumental witnesses.[21]
The pertinent transcript of stenographic notes taken
on June 11, 1985, November 25, 1985, October 13,
1986, and October 21, 1987 -- as quoted by the CA
-- are reproduced respectively as follows:
 
Atty. Floro Sarmiento:
 
Q You typed this document exhibit
C, specifying the date June
15 when the testator and his
witnesses were supposed to
be in your office?
A Yes sir.
 
Q On June 15, 1983, did the testator
and his witnesses come to
your house?
A They did as of agreement but
unfortunately, I was out of
town.
xxxxxxxxx
 
Q The document has been
acknowledged on August 9,
1983 as per
acknowledgement
appearing therein. Was this
the actual date when the
document was
acknowledged?
A Yes sir.
 
63
Q What about the date when the
testator and the three
witnesses affixed their
respective signature on the
first and second pages of
exhibit C?
A On that particular date when it
was acknowledged, August
9, 1983.
 
Q Why did you not make the
necessary correction on the
date appearing on the body
of the document as well as
the attestation clause?
A Because I do not like anymore to
make some alterations so I
put it in my own handwriting
August 9, 1983 on the
acknowledgement. (tsn,
June 11, 1985, pp. 8-10)
 
Eugenio Gomez:
 
Q It appears on the first page Mr.
Witness that it is dated June
15, 1983, whereas in the
acknowledgement it is dated
August 9, 1983, will you
look at this document and
tell us this discrepancy in
the date?
A We went to Atty. Sarmiento
together with Placido
Valmonte and the two
witnesses; that was first
week of June and Atty.
Sarmiento told us to return
on the 15th of June but when
we returned, Atty.
Sarmiento was not there.
 
Q When you did not find Atty.
Sarmiento on June 15,
1983, did you again go
back?
A We returned on the 9th of August
and there we signed.
Q This August 9, 1983 where you
said it is there where you
signed, who were your
companions?
A The two witnesses, me and
Placido Valmonte. (tsn,
November 25, 1985, pp. 7-
8)
 
Felisa Gomez on cross-examination:
 
Q Why did you have to go to the
office of Atty. Floro
Sarmiento, three times?
 
xxxxxxxxx
 
A The reason why we went there
three times is that, the first
week of June was out first
time. We went there to talk
to Atty. Sarmiento and
Placido Valmonte about the
last will and testament. After
that what they have talked
what will be placed in the
testament, what Atty.
Sarmiento said was that he
will go back on the 15 th of
June. When we returned on
June 15, Atty. Sarmiento
was not there so we were
not able to sign it, the will.
That is why, for the third
time we went there on
August 9 and that was the
time we affixed our
signature. (tsn, October 13,
1986, pp. 4-6)
 
Josie Collado:
 
Q When you did not find Atty.
Sarmiento in his house on
June 15, 1983, what
transpired?
A The wife of Atty. Sarmiento told us
that we will be back on
August 9, 1983.
 
Q And on August 9, 1983 did you go
back to the house of Atty.
Sarmiento?
A Yes, Sir.
Q For what purpose?
A Our purpose is just to sign the will.
 
Q Were you able to sign the will you
mentioned?
A Yes sir. (tsn, October 21, 1987,
pp. 4-5)[22]
64
Notably, petitioner failed to substantiate her claim of
a 'grand conspiracy in the commission of a fraud.
There was no showing that the witnesses of the
proponent stood to receive any benefit from the
allowance of the will. The testimonies of the three
subscribing witnesses and the notary are credible
evidence of its due execution.[23] Their testimony
favoring it and the finding that it was executed in
accordance with the formalities required by law
should be affirmed,absent any showing of ill motives.
[24]
 
 
Capacity  to Make a Will
 
In determining the capacity of the testator to make a
will, the Civil Code gives the following guidelines:
 
Article 798. In order to make a will it
is essential that the testator be of
sound mind at the time of its
execution.
 
Article 799. To be of sound mind, it
is not necessary that the testator be
in full possession of all his reasoning
faculties, or that his mind be wholly
unbroken, unimpaired, or shattered
by disease, injury or other cause.
 
It shall be sufficient if the testator
was able at the time of making the
will to know the nature of the estate
to be disposed of, the proper objects
of his bounty, and the character of
the testamentary act.
 
Article 800. The law presumes that
every person is of sound mind, in
the absence of proof to the contrary.
 
The burden of proof that the testator
was not of sound mind at the time of
making his dispositions is on the
person who opposes the probate of
the will; but if the testator, one
month, or less, before making his
will was publicly known to be insane,
the person who maintains the
validity of the will must prove that
the testator made it during a lucid
interval.
 
 
According to Article 799, the three things that the
testator must have the ability to know to be
considered of sound mind are as follows: (1) the
nature of the estate to be disposed of, (2) the proper
objects of the testator's bounty, and (3) the character
of the testamentary act. Applying this test to the
present case, we find that the appellate court was
correct in holding that Placido had testamentary
capacity at the time of the execution of his will.
 
It must be noted that despite his advanced age, he
was still able to identify accurately the kinds of
property he owned, the extent of his shares in them
and even their locations. As regards the proper
objects of his bounty, it was sufficient that he
identified his wife as sole beneficiary. As we have
stated earlier, the omission of some relatives from
the will did not affect its formal validity. There being
no showing of fraud in its execution, intent in its
disposition becomes irrelevant.
Worth reiterating in determining soundness of mind
is Alsua-Betts v. CA, [25] which held thus:
 
"Between the highest degree of
soundness of mind and memory
which unquestionably carries with it
full testamentary capacity, and that
degrees of mental aberration
generally known as insanity or
idiocy, there are numberless
degrees of mental capacity or
incapacity and while on one hand it
has been held that mere weakness
of mind, or partial imbecility from
disease of body, or from age, will
not render a person incapable of
making a will; a weak or
feebleminded person may make a
valid will, provided he has
understanding and memory
sufficient to enable him to know
what he is about to do and how or to
whom he is disposing of his
property. To constitute a sound and
disposing mind, it is not necessary
that the mind be unbroken or
unimpaired or unshattered by
disease or otherwise. It has been
held that testamentary incapacity
does not necessarily require that a
person shall actually be insane or of
unsound mind."[26]
 
 
WHEREFORE, the Petition is DENIED , and the
assailed Decision and Resolution of the Court of
Appeals are AFFIRMED . Costs against petitioner.
 
65
SO ORDERED.

66