Atorney

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G.R. No. L-40502 November 29, 1976

VIRGINIA GARCIA FULE, an !"N"RA#LE $EVER" A. %ALVAR, &re'((n) *+)e, Co+ro F(r' In'ane o La)+na, #ran/ V, petitioners, vs.!E !"N"RA#LE C"UR "F A&&EAL$, &RECI"$A #. GARCIA an AGU$INA #.GARCIA, respondents.

These two interrelated cases bring to Us the question of what the word "resides" in Section 1,Rule 73 of the Revised Rules f !ourt, referring to the situs of the settleent of the estate of

deceased persons, eans. #dditionall$, the rule in the appointent of a special adinistratoris sought to be reviewed.

n %a$ &, 1'73, (irginia ). *ule filed with the !ourt of *irst +nstance of aguna, at !alaba,presided over b$ -udge Severo #. %alvar, a petition for letters of adinistration, doceted asSp. /roc. 0o. &7!, alleging, inter alia, "that on #pril &2, 1'73, #ado ). )arcia, a propertyowner of Calamba, Laguna, died intestate in the !it$ of %anila, leaving real estate andpersonal properties in !alaba, aguna, and in other places, within the urisdiction of the4onorable !ourt." #t the sae tie, she ovedex partefor her appointent as special adinistratri5 over the estate. n even date, %a$ &,1'73, -udge %alvar granted the otion.

# otion for reconsideration was filed b$ /reciosa 6. )arcia on %a$ , 1'73, contending thatthe order appointing (irginia ). *ule as special adinistratri5 was issued without urisdiction,since no notice of the petition for letters of adinistration has been served upon all personsinterested in the estate8 there has been no dela$ or cause for dela$ in the proceedings for theappointent of a regular adinistrator as the surviving spouse of #ado ). )arcia, she shouldbe preferred in the appointent of a special adinistratri58 and, (irginia ). *ule is a debtor ofthe estate of #ado ). )arcia. /reciosa 6. )arcia, therefore, pra$ed that she be appointedspecial adinistratri5 of the estate, in lieu of (irginia ). *ule, and as regular adinistratri5after due hearing.

9hile this reconsideration otion was pending resolution before the !ourt, /reciosa 6. )arciafiled on %a$ &', 1'73 a otion to reove (irginia ). *ule as special adinistratri5 alleging,

besides the urisdictional ground raised in the otion for reconsideration of %a$ , 1'73 thather appointent was obtained through erroneous, isleading and:or incopleteisrepresentations8 that (irginia ). *ule has adverse interest against the estate8 and that shehas shown herself unsuitable as adinistratri5 and as officer of the court.

+n the eantie, the notice of hearing of the petition for letters of adinistration filed b$(irginia ). *ule with the !ourt of *irst +nstance of !alaba, aguna, was published on %a$ 17,&;, and 31, 1'73, in the Bayanihan,a weel$ publication of general circulation in Southernu

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4owever, b$ -ul$ &, 1'73, -udge %alvar and alread$ issued an order, received b$ /reciosa 6.)arcia onl$ on -ul$ 31, 1'73, den$ing the otion of /reciosa 6. )arcia to reconsider the orderof %a$ &, 1'73, appointing (irginia ). *ule as special adinistratri5, and aditting thesuppleentation petition of %a$ 1,1'73.

n #ugust 31, 1'73, /reciosa 6. )arcia oved to disiss the petition, because ?1@ urisdictionover the petition or over the parties in interest has not been acquired b$ the court8 ?&@ venuewas iproperl$ laid8 and ?3@ (irginia ). *ule is not a part$ in interest as she is not entitled toinherit fro the deceased #ado ). )arcia.

n Septeber &, 1'73, /reciosa 6. )arcia filed a suppleental otion to substitute (irginia). *ule as special adinistratri5, reasoning that the said (irginia ). *ule aditted beforebefore the court that she is a fullblooded sister of /ablo ). #lcalde, an illegitiate son of#ndrea #lcalde, with who the deceased #ado ). )arcia has no relation.

Three otions were filed b$ /reciosa 6. )arcia on 0oveber 1;, 1'73, one, to enoin thespecial adinistratri5 fro taing possession of properties in the hands of third persons whichhave not been deterined as belonging to #ado ). )arcia8 another, to reove the specialadinistratri5 for acting outside her authorit$ and against the interest of the estate8 and stillanother, filed in behalf of the inor #gustina 6. )arcia, to disiss the petition for want ofcause of action, urisdiction, and iproper venue.

n 0oveber &, 1'73, -udge %alvar resolved the pending onibus otion of (irgina ). *uleand the otion to disiss filed b$ /reciosa 6. )arcia. Resolving the otion to disiss, -udge%alvar ruled that the powers of the special adinistratri5 are those provided for in Section &,Rule B of the Rules of !ourt, 1subect onl$ to the previous qualification ade b$ the courtthat the adinistration of the properties subect of the areting agreeent with the!anlubang Sugar /lanters !ooperative %areting #ssociation should reain with the latter8and that the special adinistratri5 had alread$ been authori

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directing Raon %ercado to deliver to the court all certificates of title in his possession in thenae of /reciosa 6. )arcia, whether qualified with the word "single" or "arried to #ado)arcia."

Auring the hearing of the various incidents of this case ?Sp. /roc. &7!@ before -udge%alvar, &(irginia ). *ule presented the death certificate of #ado ). )arcia showing that hisresidence at the tie of his death was Cue

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9e disiss the appeal in G.R. No. L-4!"!2and the petition for certiorari in G.R. No. L-426!for the reasons and considerations hereinafter stated.

1. Section 1, Rule 73 of the Revised Rules of !ourt provides> " #f the $e%e$ent i& an inhabitantof the 'hilippine& at the time of hi& $eath, whether a citi

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doicile. 1B0o particular length of tie of residence is required though8 however, theresidence ust be ore than teporar$. 11

3. Aivergent clais are aintained b$ (irginia ). *ule and /reciosa 6. )arcia on the residenceof the deceased #ado ). )arcia at the tie of his death. +n her original petition for letters ofadinistration before the !ourt of *irst +nstance of !alaba, aguna, (irginia ). *ule easel$stated "?t@hat on #pril &2,1'73, #ado ). )arcia, a property owner of Calamba, Laguna, diedintestate in the !it$ of %anila, leaving real estate and personal properties in !alaba, aguna,and in other places within the urisdiction of this 4onorable !ourt." /reciosa 6. )arcia assailed

the petition for failure to satisf$ the urisdictional requireent and iproper la$ing of venue.*or her, the quoted stateent avers no doicile or residence of the deceased #ado ).)arcia. To sa$ that as "propert$ owner of !alaba, aguna," he also resides in !alaba,aguna, is, according to her, non &e+uitur. n the contrar$, /reciosa 6. )arcia clais that, asappearing in his death certificate presented b$ (irginia ). *ule herself before the !alabacourt and in other papers, the last residence of #ado ). )arcia was at 11 !arel #venue,!arel Subdivision, Cue

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relation whatsoever with #ado ). )arcia, or that, she is a ere illegitiate sister of thelatter, incapable of an$ successional rights. 1'n this point, 9e rule that /reciosa 6. )arciaisprima fa%ieentitled to the appointent of special adinistratri5. +t needs be ephasi

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E"GRACIA$ #ERNAR", ee+or o /e e'ae e'ae o /e eea'e EU$E#I"CA&ILI8 an /e (n'(+e /e(r', name AR%AN" CA&ILI an ARUR" #ERNAR",E AL.,petitioners, vs.!"N. C"UR "F A&&EAL$ an !E !EIR$ "F !E LAE !ER%"GENA RE:E$, nameFRANCI$C" RE:E$, E AL., an *"$E I$I"R", E AL.,respondents.

This is a petition b$ %ertiorarifor the review of the decision of the !ourt of #ppeals affiringthat of the !ourt of *irst +nstance of 6ulacan holding that the probate court in Special/roceeding 11B1 had urisdiction to deterine the validit$ of the deed of donation in question

and to pass upon the question of title or ownership of the properties entioned therein.

The facts are briefl$ stated in the appealed decision of the !ourt of #ppeals as follows>

Eusebio !apili and 4erogena Re$es were husband and wife. The first died on -ul$ &7, 1'Dand a testate proceeding for the settleent of his estate was instituted in the !ourt of the *ist+nstance of 6ulacan. 4is will was aditted to probate on ctober ', 1'D, disposing of hisproperties in favor of his widow8 his cousins #rando, Ursula, and 6uenaventura, all surnaed!apili8 and #rturo, Aeogracias and Eduardo, all surnaed 6ernardo. 4erogena Re$es herselfdied on #pril &;, 1'D'. Upon petition of Aeogracias 6ernardo, e5ecutor of the estate of thedeceased Eusebio !apili, she was substituted b$ her collateral relatives and intestate heirs,nael$, %arcos, (icente, *rancisco and Aoinga, all surnaed Re$es8 and -ose, !onstancia,

Ra$unda and Elena, all surnaed +sidoro.

n -une 1&, 1'D', the e5ecutor filed a proect of partition in the testate proceeding inaccordance with the ters of the will, adudicating the estate of Eusebio !apili aong thetestaentar$ heirs with the e5ception of 4erogena Re$es, whose share was alloted to hercollateral relatives aforeentioned. n -une 12, 1'D' these relatives filed an opposition to thee5ecutor=s proect of partition and subitted a counterproect of partition of their own,claiing 1:& of the properties entioned in the will of the deceased Eusebio !apili on thetheor$ that the$ belonged not to the latter alone but to the conugal partnership of thespouses.

The probate court, in two orders dated -une &;, 1'D' and *ebruar$ 1B, 1'2B, respectivel$, set

the two proects of partition for hearing, at which evidence was presented b$ the parties,followed b$ the subission of eoranda discussing certain legal issues. +n the eorandufor the e5ecutor and the instituted heirs it was contended> ?1@ that the properties disposed ofin the will of the deceased Eusebio !apili belonged to hi e5clusivel$ and not to the conugalpartnership, because 4erogena Re$es had donated to hi her half share of such partnership8?&@ that the collateral heirs of 4erogena Re$es had no lawful standing or grounds to questionthe validit$ of the donation8 and ?3@ that even assuing that the$ could question the validit$ ofthe donation, the sae ust be litigated not in the testate proceeding but in a separate civilaction.

9herefore, the parties respectfull$ pra$ that the foregoing stipulation of facts be aditted andapproved b$ this 4onorable !ourt, without preudice to the parties adducing other evidence toprove their case not covered b$ this stipulation of facts. wph/.01t

The oppositors and heirs of 4erogena Re$es, on their part, argued that the deed of donationitself was deterinative of the original conugal character to the properties, aside fro thelegal presuption laid down in #rticle 12B of the !ivil !ode, and that since the donation wasnull and void the deceased Eusebio !apili did not becoe owner of the share of his wife andtherefore could not validl$ dispose of it in his will.

n Septeber 1;, 1'2B, the probate court, the 4onorable %. %eia presiding, issued an orderdeclaring the donation void without aing an$ specific finding as to its uridical nature, thatis, whether it was inter vivos or ortis causa, for the reason that, considered under the firstcategor$, it falls under #rticle 133 of the !ivil !ode, which prohibits donations betweenspouses during the arriage8 and considered under the second categor$, it does not copl$

with the foralities of a will as required b$ #rticle 7& in relation to #rticle BD of the sae!ode, there being no attestation clause. +n the sae order the court disapproved both proectsof partition and directed the e5ecutor to file another," dividing the propert$ entioned in thelast will and testaent of the deceased Eusebio !apili and the properties entioned in thedeed of donation, E5hibit 6, between the instituted heirs of the deceased Eusebio !apili andthe legal heirs of the deceased 4erogena Re$es, upon the basis that the said properties wereconugal properties of the deceased spouses." n Septeber &7, 1'2B, the e5ecutor filed aotion for new trial, reiterating and ephasi

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Eusebio !apili and taing e5ception to the court=s declaration of the nullit$ of the donation"without stating facts or provision of law on which it was based." The otion for new trial wasdenied in an order dated ctober 3, 1'2B.

n appeal to the !ourt of #ppeals the order appealed fro being affired, petitioners filed thispresent petition for review b$ %ertiorari.

The petitionersappellants contend that the appellate court erred in not declaring that theprobate court, having liited and special urisdiction, had generall$ no power to adudicate

title and erred in appl$ing the e5ception to the rule.

+n a line of decisions, this !ourt consistentl$ held that as a general rule, question as to title topropert$ cannot be passed upon on testate or intestate proceedings,"1e5cept where one ofthe parties pra$s erel$ for the inclusion or e5clusion fro the inventor$ of the propert$, inwhich case the probate court a$ pass provisionall$ upon the question without preudice to itsfinal deterination in a separate action.&4owever, we have also held that when the partiesinterested are all heirs of the deceased, it is optional to the to subit to the probate court aquestion as to title to propert$, and when so subitted, said probate court a$ definitel$ pass

udgent thereon ?/ascual v. /ascual, 73 /hil. D218 %analac v. capo, et al., 73 /hil. 221@8and that with the consent of the parties, atters affecting propert$ under udicialadinistration a$ be taen cogni

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interested ?the petitioners and the widow, represented b$ dents@ are all heirs claiing titleunder the testator.

/etitioners contend additionall$ that the$ have never subitted theselves to the urisdictionof the probate court, for the purpose of the deterination of the question of ownership of thedisputed properties. This is not borne b$ the aditted facts. n the contrar$, it is undisputedthat the$ were the ones who presented the proect of partition claiing the questionedproperties as part of the testator=s asset. The respondents, as representatives or substitutes ofthe deceased widow opposed the proect of partition and subitted another. #s the !ourt of

#ppeals said, "+n doing so all of the ust be deeed to have subitted the issue forresolution in the sae proceeding. !ertainl$, the petitioners can not be heard to insist, as the$do, on the approval of their proect of partition and, thus, have the court tae it for grantedthat their theor$ as to the character of the properties is correct, entirel$ without regard to theopposition of the respondents". +n other words, b$ presenting their proect of partitionincluding therein the disputed lands ?upon the clai that the$ were donated b$ the wife to herhusband@, petitioners theselves put in issue the question of ownership of the properties Hwhich is well within the copetence of the probate court H and ust because of an oppositionthereto, the$ can not thereafter withdraw either their appearance or the issue fro the

urisdiction of the court. !ertainl$, there is here a waiver where the parties who raise theobection are the ones who set the court in otion.DThe$ can not be peritted to coplain ifthe court, after due hearing, adudges question against the.2

*inall$, petitionersappellants clai that appellees are estopped to raise the question ofownership of the properties involved because the widow herself, during her lifetie, not onl$did not obect to the inclusion of these properties in the inventor$ of the assets of herdeceased husband, but also signed an e5traudicial partition of those inventoried properties.6ut the ver$ authorities cited b$ appellants require that to constitute estoppel, the actor usthave nowledge of the facts and be appraised of his rights at the tie he perfors the actconstituting estoppel, because silence without nowledge wors no estoppel.7+n the presentcase, the deceased widow acted as she did because of the deed of donation she e5ecuted infavor of her husband not nowing that such deed was illegal, if intervivos, and ineffectual ifortiscausa, as it has not been e5ecuted with the required foralities siilar to a will.

94ERE*RE, the decision of the !ourt of #ppeals being in accordance with law, the sae ishereb$ affired with costs against appellants. So ordered.

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G.R. No. L-172 %a 0, 1949

LU; %AR

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FRANCI$C" E #"R*A a' Ee+or o /e E'ae o /e eea'e *"$EFAANGC",petitioner, vs.#IENVENI" A. AN, a' *+)e o /e Co+r o F(r' In'ane o R(>a, an *"$E E#"R*A,respondents.

This is a petition forman$amu& to copel respondent -udge 6ienvenido #. Tan to approve andadit the record on appeal filed before hi and to give due course to the appeal. The factsinvolved as gathered fro the record a$ be briefl$ stated as follows. n ctober &D, 1';B,petitioner *rancisco de 6ora filed a petition in the lower court for the probate of the ast 9ill

and Testaent of his deceased wife -osefa Tangco. The will was probated on #pril &, 1';1, andnaed *rancisco de 6ora as e5ecutor thereof. ne of the heirs who is now one of therespondents herein -ose de 6ora appealed the case to the !ourt of #ppeals but later hisotion for disissal of the appeal as granted. #ll the records of the case were destro$ed orlost during the last /acific war but were on -anuar$ 1, 1';2, reconstituted. n %arch &2 of that$ear *rancisco de 6ora qualified as e5ecutor and adinistrator.

Aue to the ph$sical inabilit$ of *rancisco de 6ora to full$ adinister the estate he being quitewea and unable to see, on #ugust &D, 1'D1, on petition of %atilde de 6ora, one of the heirs,the lower court appointed !risanto de 6ora, another heir, as coadinistrator. !risantoqualified as coadinistrator on #ugust &', 1'D1.

n #pril ', 1'D&, the trial court according to petitioner, without petition of or notice to an$oneappointed respondent -ose de 6ora as coadinistrator, this, after holding in abe$anceconsideration of *rancisco de 6ora=s aended account dated %arch &D, 1'D&. *rancisco,%atilde and !risanto oved for reconsideration of the appointent of -ose de 6ora but b$order of #ugust 1;, 1'D&, respondent -udge indirectl$ denied the otion for reconsideration,and acting upon an allegedex-parte petition of the heirs -ose, !risanto, !a$etano and %atilde,all surnaed Ae 6ora, revoed the appointent of !risanto as coadinistrator and directedadinistrator -ose de 6ora to coent on the aended account filed b$ *rancisco de 6ora.

n -ul$ &&, 1'D&, *rancisco, %atilde and !risanto filed a notice of appeal fro the orderappointing -ose de 6ora as coadinistrator and the order den$ing the otion forreconsideration and later the$ filed the corresponding record on appeal. 6$ order of Aeceber

&7, 1'D&, respondent -udge Tan disapproved the record on appeal and refused to give duecourse to the appeal on the ground that the appointent of -ose de 6ora as coadinistratorwas interlocutor$ in nature and so was not appealable. 4ence, this petition forman$amu&, asalread$ stated, to copel respondent -udge to approve the record on appeal and to give duecourse to the appeal.

#n order appointing a regular adinistrator is appealable ?See S$ 4ong Eng(&. S$ iac Su$, /hil., D';@. n the other hand, according to Rule 1BD, section 1 ?e@ an order appointing aspecial adinistrator is not appealable. Respondents contend that a coadinistrator is not aregular or general adinistrator, and his duties and functions rather partae those of a specialadinistrator8 consequentl$, his appointent is not subect to appeal. 9e cannot share thisview. The powers and functions of a special adinistrator are quite liited. Under Rule 1,section 1, a special adinistrator is appointed onl$ when there is a dela$ in granting letters

testaentar$ or of adinistration occasioned b$ an appeal fro allowance or disallowance ofa will or fro an$ other cause, and such special adinistrator is authori

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G.R. No'. L-2193-9 %a 29, 1970

VICENE URIARE, petitioner, vs.!E C"UR "F FIR$ IN$ANCE "F NEGR"$ "CCIENAL ?12/ *+((a ('r(@ !E

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C"UR "F FIR$ IN$ANCE "F %ANILA, #RANC! IV, *UAN URIARE ;A%AC"NA an!IGINI" URIARE, respondents.

n ctober 3, 1'23 petitioner (icente Uriarte filed an original petition for %ertiorari Hdoceted as ).R. &1'3 H against the respondents -uan Uriarte Iaacona, 4iginio Uriarte,and the !ourts of *irst +nstance of 0egros ccidental and of %anila, 6ranch +(, who will bereferred to hereinafter as the 0egros !ourt and the %anila !ourt, respectivel$ H pra$ing>

... that after due proceedings udgent be rendered annulling the orders of 1' #pril 1'23

?#nne5 =4=@ and 11 -ul$ 1'23 ?#nne5 =+=@ of respondent 0egros court disissing the firstinstituted Special /roceeding 0o. 23;;, supra, and the order of 1 -ul$ 1'23 ?#nne5 =J=@ ofrespondent %anila court den$ing petitioner=s omnibu& otion to intervene and to disiss thelaterinstituted Special /roceeding 0o. D13'2, &upra, both special proceedings pertaining tothe settleent of the sae estate of the sae deceased, and consequentl$ annulling allproceedings had in Special /roceeding 0o. D13'28 &upra, of the respondent %anila court as alltaen without urisdiction.

*or the preservation of the rights of the parties pending these proceedings, petitioner pra$s forthe issuance of a writ of preliinar$ inunction enoining respondents %anila court, -uan UriarteIaacona and 4iginio Uriarte fro proceeding with Special /roceeding 0o. D13'2, &upra, untilfurther orders of this !ourt.

Reasons in support of said petition are stated therein as follows>

2. Respondent 0egros court erred in disissing its Special /roceeding 0o. 23;;, supra, andfailing to declare itself =the court first taing cogni

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grounds> ?1@ that, as the deceased -uan Uriarte $ )oite had left a last will, there was no legalbasis to proceed with said intestate proceedings, and ?&@ that petitioner (icente Uriarte had nolegal personalit$ and interest to initiate said intestate proceedings, he not being anacnowledged natural son of the decedent. # cop$ of the /etition for /robate and of thealleged 9ill were attached to the %otion to Aisiss.

/etitioner opposed the aforesaid otion to disiss contending that, as the 0egros !ourt wasfirst to tae cogni

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Under the -udiciar$ #ct of 1'; KSection ;;, paragraph ?e@L, !ourts of *irst +nstance haveoriginal e5clusive urisdiction over "all atters of probate," that is, over special proceedings forthe settleent of the estate of deceased persons H whether the$ died testate or intestate.9hile their urisdiction over such subect atter is be$ond question, the atter of (enue, orthe particular !ourt of *irst +nstance where the special proceeding should be coenced, isregulated b$ forer Rule 7D, Section 1 of the Rules of !ourt, now Section 1, Rule 73 of theRevised Rules of !ourt, which provides that the estate of a decedent inhabitant of the/hilippines at the tie of his death, whether a citi

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so b$ laches. +t is enough to consider in this connection that petitioner new of the e5istence ofa will e5ecuted b$ -uan Uriarte $ )oite since Aeceber 1', 1'21 when 4iginio Uriarte filed hisopposition to the initial petition filed in Special /roceeding 0o. 23;;8 that petitioner liewisewas served with notice of the e5istence ?presence@ of the alleged last will in the /hilippines andof the filing of the petition for its probate with the %anila !ourt since #ugust &, 1'2& when

-uan Uriarte Iaacona filed a otion for the disissal of Special /roceeding 0o. 23;;. #llthese notwithstanding, it was onl$ on #pril 1D, 1'23 that he filed with the %anila !ourt inSpecial /roceeding 0o. D13'2 an nibus otion asing for leave to intervene and for thedisissal and annulent of all the proceedings had therein up to that date8 thus enabling the

%anila !ourt not onl$ to appoint an adinistrator with the will anne5ed but also to adit saidwill to probate ore than five onths earlier, or ore specificall$, on ctober 31, 1'2&. Toallow hi now to assail the e5ercise of urisdiction over the probate of the will b$ the %anila!ourt and the validit$ of all the proceedings had in Special /roceeding 0o. D13'2 would put apreiu on his negligence. %oreover, it ust be reebered that this !ourt is not inclined toannul proceedings regularl$ had in a lower court even if the latter was not theproper(enue therefor, if the net result would be to have the sae proceedings repeated in soeother court of siilar urisdiction8 ore so in a case lie the present where the obectionagainst said proceedings is raised too late.

+n his order of #pril 1', 1'23 disissing Special /roceeding 0o. 23;;, -udge *ernande< of the0egros !ourt said that he was "not inclined to sustain the contention of the petitioner that

inasuch as the herein petitioner has instituted !ivil !ase 0o. 21;& for copulsor$acnowledgent b$ the decedent such action ustifies the institution b$ hi of thisproceedings. +f the petitioner is to be consistent with the authorities cited b$ hi in support ofhis contention, the proper thing for hi to do would be to intervene in the testate estateproceedings entitled Special /roceedings 0o. D13'2 in the !ourt of *irst +nstance of %anilainstead of aintaining an independent action, for indeed his supposed interest in the estate ofthe decedent is of his doubtful character pending the final decision of the action forcopulsor$ acnowledgent."

9e believe in connection with the above atter that petitioner is entitled to prosecute !ivil!ase 0o. 21;& until it is finall$ deterined, or intervene in Special /roceeding 0o. D13'2 of the%anila !ourt, if it is still open, or to as for its reopening if it has alread$ been closed, so as tobe able to subit for deterination the question of his acnowledgent as natural child of the

deceased testator, said court having, in its capacit$ as a probate court, urisdiction to declarewho are the heirs of the deceased testator and whether or not a particular part$ is or shouldbe declared his acnowledged natural child ?++ %oran on Rules of !ourt, 1'D7 Ed., p. ;728!onde vs. #ba$a, 13 /hil. &;'8 Severino vs. Severino, ;; /hil. 3;38 ope< vs. ope

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A%ANA EU$E#I", *UAN EU$E#I", ELFIN EU$E#I", VICENE EU$E#I", an CARL"$EU$E#I",oppositorsappellants.

This case instituted on 0oveber 12, 1'D3, when Eugenio Eusebio filed with the !ourt of *irst+nstance of Ri

7here e&tate of $e%ea&e$ per&on& &ettle$. H +f the decedent is an inhabitant of the /hilippinesat the tie of his death, whether a citi

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The aforeentioned house and lot were bought b$ the decedent because he had been advicedto do so "due to his illness", in the ver$ words of herein appellee. +t is not iprobable H in fact,its is ver$ liel$ H that said advice was given and followed in order that the patient could benear his doctor and have a ore effective treatent. +t is well settled that "doicile is notcoonl$ changed b$ presence in a place erel$ for one=s own health", even if coupled with"nowledge that one will never again be able, on account of illness, to return hoe." ?The!onflict of aws, b$ 6eale, (ol. +, pp. 17&1738 see, also, Shenton (&.#bbott, %d., 1D., #. &d.'B28 U.S. (&.Jnight, A. !. %ont., &'1 *ed. 1&'@.

#gain, the decedent did not part with, or alienate, his house in San *ernando, /apanga.%oreover, soe of his children, who used to live with hi in San *ernando, /apanga,reained in that unicipalit$. Then, again, in the deed E5hibit &, b$ virtue of which saidpropert$ at 0o. '# EspaFa E5tention, Cue

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e5aination of petitioner herein, said counsel tried to elicit the relation between the decedentand the appellants. #s, the appellee obected thereto, the court said, addressing appellants=counsel> "9our &tan$ until now i& to +ue&tion the 8uri&$i%tion of the %ourt. . . . +t $ou are tr$ingto establish the status of the oppositors, # will &u&tain the ob8e%tion, unle&& you want to &ubmitto the 8uri&$i%tion of the %ourt" ?p. 7, t.s.n.@. Thereupon, appellants= counsel refused to do so,stating> "+ will insist on $ stand." Then, too, at the conclusion of the hearing, the courtreected E5hibits 1 and &, for the reason that appellants " refu&e to &ubmit to the 8uri&$i%tion ofthi& %ourt and the$ aintain that these proceedings should be$i&mi&&e$." Thus, appellantsspeciall$ ade of record that the$ were not subitting theselves to the urisdiction of the

court, e5cept for the purpose only of a&&ailing the sae, and the court felt that appellantswere not gi(ing up their &tan$, which was, and is, a fact.

#t an$ rate, appellants were entitled to establish facts tending to prove, not onl$ their right toobect to appellee=s petition, but, also, that venue had been laid iproperl$. Such facts were>?a@ their alleged relationship with the decedent, 3 which, if true, entitle the to proceed hiunder the !ivil !ode of the /hilippines8 and ?b@ his alleged residence is /apanga. +n otherwords, the lower court should have aditted E5hibits 1 and & in evidence and given theretothe proper effect, in connection with the issue under consideration.

#ppellee, however, ass> "9hat will happen if this case be disissed in the !ourt of *irst+nstance of Cue

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appoint an adinistrator of the estate of the deceased, the venue having been laid iproperl$8and that it should, accordingl$, have sustained appellants= opposition and disissed appellee=spetition.

9herefore, the order appealed fro is hereb$ reversed and appellee=s petition is disissed,with costs against the appellee. +t is so ordered.

G.R. No. L-27 %ar/ 29, 1947

CRE$ENCIA !ERNANE;,plaintiffappellee, vs.;ACARIA$ ANAL,defendantappellant.

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+n consequence of this ruling, counsel for the defendant and intervenors did not call an$ orewitnesses but onl$ announced that he had witnesses read$ to prove that a parol partitionaong the five brother and sisters had been ade, entioning the naes of si5 suchwitnesses. !ounsel for the plaintiff again obected asserting that "under the Rules of !ourtagreeent affecting real estate a$ not be proved e5cept b$ eans of writing subscribed b$the person against who the proof is offered. "Upon this obection, the court ruled that underRules 7; and 1&3 of the Rules of !ourt ?Statute of *rauds@ as well as under article 1&; of the!ivil !ode, parol evidence of partition was inadissible, adding that to decide the case it hadenough with the testion$ and evidence offered b$ the parties.

Thereafter the court handed down its decision declaring that the resale of the land b$ Iacarias#ndal in favor of %aria and #quilina 4ernande< was illegal and in bad faith. +t, however, did notsee to have found as a fact the allegation that the resale was siulated. The court thenade this udgent>

?a@ declarando $ sin valor alguno el docuento de reventaotorgado por el deandadoIacarias #ndal en &2 de ar

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effect, but onl$ aes ineffective the action for specific perforance. ?#lirol and!ariFo (&.%onserrat, &upra.@ +n the United States, even in those states where the affirativeview of the question has been followed, "the weight of authorit$ upholds the rule that an oralpartition is effective when several possession is taen under it b$ the respective parties to theagreeent." ?&7 !.-., &B2.@

n general principle, independent and in spite of the statute of frauds, courts of equit$ haveenforced oral partition when it has been copletel$ or partl$ perfored.

Regardless of whether a parol partition or agreeent to partition is valid and enforceable atlaw, equit$ will in proper cases, where the parol partition has actuall$ been consuated b$the taing of possession in severalt$ and the e5ercise of ownership b$ the parties of therespective portions set off to each, recogni

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that donation a$ be(ali$ onl$ when ade in a public docuent. #rticle 1;2 of the %ortgageaw aes nown its intention to have the e5ecution of a public instruent and its registrationin the registr$ indispensable to the validit$ of the contract b$ using this phrase> "in order thatvoluntar$ ortgages a$ be legall$ created in a valid anner." #rticle 172D of the !ivil !odealso eplo$s for the sae purpose siilar e5pression with reference to the e5ecution of apublic docuent> "in order that ortgage a$ be validl$ constituted." #nd with respect to theforalities of last wills and testaents, section 21 of #ct 0o. 1'B aes this ephaticstateent> "0o will shall be valid to pass upon an$ estate real or personal nor change or affectthe sae, unless it be written etc." ther e5aples ight be entioned.

Section 1 of Rule 7; contains no such e5press or clear declaration that the required publicinstruents is to be constitutive of a contract of partition or an inherent eleent of itseffectiveness as between the parties. #nd this !ourt had no apparent reason, in adopting thisrule, to ae the efficac$ of a partition as between the parties dependent on the e5ecution ofa public instruent and its registration. n the other hand, the opposite theor$ is not withoutreasonable support. 9e can thin of possible factors against the proposition that a publicdocuent and its registration were conteplated as necessar$ ingredients to give life to acontract of partition so that without the no oral partition can bind the parties.

1. +n the first place, the Rules of !ourt of which the rule under consideration fors a part wereproulgated b$ the -udicial Aepartent under authorit$ to deal with atters of procedure

e5clusivel$. *or this court to prescribe what is to be a binding agreeent between coheirs inthe settleent of their private affairs which in no wa$ affect the rights of third parties would beto transcends its ruleaing power. 9e bring out this liitation upon the authorit$ of thiscourt to ae rules, as an aid to interpretation, as a ethod of arriving at the conclusion thatsection 1 of Rule 7; was eant to be reedial and not a rule of substantive law of farreachingiportance and serious uridical and practical iplications. +t is to be presued that thefraers of the Rules of !ourt reali

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intrinsic for, recogni

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The coplaint alleged inter alia that %ariano ). 6autista died intestate on Aeceber D, 1';7and that his properties had alread$ been e5traudiciall$ partitioned aong his heirs8 that)ertrudes )arcia liewise died intestate on #ugust 31, 1'D2 leaving as her legitiate heirsplaintiffs and defendants8 that said )ertrudes )arcia, during her lifetie, ade several deedsof donation of soe of her properties in favor of all the defendants, but did not provide thatthe properties donated would not be subect to collation, so that the donees are legall$ boundto bring into the ass of the estate b$ wa$ of collation the value of the properties received b$the in order that the net hereditar$ estate a$ be divided equall$ aong the heirs8 and thatthe deceased )ertrudes )arcia left outstanding obligations to the Rehabilitation *inance

!orporation and the ).#. %achineries, +nc.

n a otion to disiss filed b$ defendants alleging, aong other things, that the action waspreature because it is aditted in the coplaint that the deceased left certain debts, thelower court disissed the coplaint on that ground without preudice and without costs. *rothe order of disissal, plaintiffs appealed to this !ourt, urging that their action for partitionand liquidation a$ be aintained, notwithstanding that there are pending obligations of theestate, subect to the taing of adequate easures either for the pa$ent or securit$ of itscreditors.

9e are inclined to hold at the lower court that until all the debts of the estate in question arepaid, appellants= action for partition and liquidation is preature.

There is no question that the law allows the partition of the estate of a deceased person b$ theheirs, e5traudiciall$ or through an ordinar$ action for petition, without the filing of a specialproceeding and the appointent of an adinistrator for the purpose of the settleent of saidestate, but this the$ a$ do onl$ "if the decedent left no debts and the heirs and legatees areall of age or the inors are represented b$ their udicial guardians" ?sec. 1, Rule 7;@. Thereason is that were the deceased dies without pending obligations, there is no necessit$ forthe appointent of an adinistrator to adinister the estate for the and to deprive the realowners of their possession to which the$ are iediatel$ entitled ?6ondad (&. 6ondad, 3;/hil., &3&8 *ule (&. *ule, ;2 /hil., 3178 %acalinao (&. (alde

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before the nown debts of the estate are settled and paid and pending the e5piration for thefiling of other clais, the issue can, upon otion of the heirs, be set for hearing, tried, anddefinitel$ settled.

9herefore, the order appealed fro is affired, with costs against appellants.

G.R. No. L-790 %ar/ 0, 1977

GERRUE$ L. EL R"$ARI", petitioner, vs."R"EA ". C"NANAN an %ARIL"U EL R"$ARI", respondents.

Review of the order of the !ourt of *irst +nstance of Ri

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Septeber 1&, 1'2' at #ntipolo, Ri

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The contention of the petitioner that #rticle 3;3 is applicable in the instant case finds no basisfor =the said article is applicable in cases where there are no other concurring intestate heirs ofthe adopted child. ...

6ased on the foregoing, therefore, the petitioner not being included as intestate heir of thedeceased cannot be considered as a coowner of or have an$ right over the properties soughtto be partitioned and under the provisions of Section 1, Rule e 2' in re action to Section &, Rule3 of the Revised Rules of !ourt, such action ust be coenced or instituted b$ the part$ ininterest.

94ERE*RE, in view of the foregoing findings, the !ourt hereb$ A+S%+SSES T4E /ET+T+09+T4UT /R0U0!E%E0T #S T !STS ?pp, 1B1&, rec.@.

n -ul$ 1B, 1'73, petitioner filed a notice of appeal, record on appeal and appeal bond ?seerespondents coents, p. 1, rec.@.

+. 9E rule that on purel$ urisdictional consideration, the instant petition should bedisissed.

+ndeed, in a litan$ of precedents dating as far bac as the 1'3 case of 5tulo (&. 'a&iono *$a.$e Gar%ia ?22 /hil. B&@ and reaffired in #suncion and !astro vs, Ae la !ru< ?0o. 7DD,

0oveber &3, 1'DD, '7 /hil. '1B@ andGutierre: (&. Cru: ?).R. 0o. &1B&7, -ul$ &B, 1'2, &;S!R# 2'@, 9E uniforl$ held that for the court to acquire urisdiction in a petition for suar$settleent of estate under the rules, the requireent that the aount of the estate involvedshould not e5ceed /1B,BBB,BB ?/2,BBB.BB under the old rules@ is urisdictional.

+n the instant case, both parties ointl$ affired that the value of the realt$ left b$ thedeceased *eli5 del Rosario is in the aggregate aount of /33,BBB.BB which, as the court a+uo correctl$ found, is obviousl$ "over and above the value allowed under the rules."

++. 4owever, b$ virtue of the transcendental iplications of the holding of the court a +uo in thesense that once wholl$ sustained, said holding would preclude petitioner fro refiling theproper action H a consequence which, on the ground of equit$ and fair pla$, 9e cannot allow

to befall on petitioner H 9e deeed it essential, for the guidance of the parties especiall$herein, petitioner, to point out the deerits of the appealed verdict.

1. 9hich of the following articles of the 0ew !ivil !ode will appl$, #rticle 3;3 on the one hand,or #rticles 3;1, '7 and '7' on the other8 and

&. 9hether the aterial data rule enuciated b$ Rule ;1, Section 2 the 0ew Rules of !ourtshould be followed, ex %athe$ra, in the present case>

#. The lower court found the following the new provisions of the 0ew !ivil !ode gernae tothe instant case>

#rt. 3;1. The adoption shall>

?1@ )ive to the adopted person the sae rights and duties as if he were a legitiate child ofthe adopted8

?&@ Aissolve the authorit$ vested in the parents b$ nature8

?3@ %ae the adopted person a legal heir of the adopted8

?;@ Entitle the adopted person to use the adopter=s surnae."

#rt. '7. Succession pertains, in the first place, to the decending direct line.

#rt. '7'. egitiate children and their decendants suceed the parents and the otherascendants, without distinction as to se5 or age, and even if the$ should coe fro differentarriages.

9E opine that the governing provision is the hereinafter quoted article 3;3 of the 0ew !ivil!ode, in relation to #rticles '3 and 1BBB of said law, which directs that>

#rt. 3;3. +f the adopter is survived b$ legitiate parents or ascendants and b$ an adoptedperson. the latter shall not have ore successional rights than an acnowledged natural child.

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#rticle 3;3 of the 0ew !ivil !ode is qualification to #rticle 3;1 which gives an adopted childthe sae rights and duties as though he were a legitiate child. The reason for this is that>

?+@t is unuest to e5clude the adopter=s parents fro the inheritance in facor of an adoptedperson ?Report of the !ode !oission, p. '&@.

+t is ost unfair to accord ore successional rights to the adopted, who is onl$ relatedartificiall$ b$ fiction of law to the deceased, than those who are naturall$ related to hi b$blood in the direct ascending line.

The applicabilit$ of #rticle 3;3 does not e5clude the surviving parent of the deceased adopter,not onl$ because a contrar$ view would defeat the intent of the fraers of the law, but alsobecause in intestate succession, where legitiate parents or ascendants concur with thesurviving spouse of the deceased, the latter does not necessaril$ e5clude the forer fro theinheritance. This is affired b$ #rticle '3 of the 0ew !ivil !ode which states>

+f the testator leaves no legitiate descendants, but leaves legitiate ascendants, thesurviving spouse shall have a right to onefourth ?onl$@ of the hereditar$ estate.

This fourth shall be taen fro the free portion.

#rticle 3;3 does not require that the concurring heirs should be the aodpted child and thelegitiate parents or ascendants onl$. The language of the law is clear, and a contrar$ viewcannot be presued.

+t is, thus, UR view that #rticle 3;3 should be ade to appl$, consonant with the cardinal rulein statutor$ construction that all the provisions of the 0ew !ivil !ode ust be reconciled andgiven effect.

Under #rticle 3;3, an adopted child surviving with legitiate parents of the deceased adopter,has the sae successional rights as an acnowledged natural child, which is coprehended inthe ter "illegitiate children". !onsequentl$ , the respective shares of the surviving spouse,ascendant and adopted child should be deterined b$ #rticle 1BBB of the 0ew !ivil !ode,

which reads>

#rt. 1BBB. +f legitiate ascendants, the surviving spouse and illegitiate children are left, theascendants shall be entitled to onehalf of the inheritance, and the other half shall be dividedbetween the surviving spouse and the illegitiate children so that such widow or widower shallhave onefourth of the estate, the illegitiate children the other fourth.

6. #nent the other issue, respondents, in their coent of -une &', 1'73, ephasi

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enable the appellate %ourt to $etermine if the appeal i& &till within it& 8uri&$i%tion an$ nothingmore?(illanueva vs. !ourt of #ppeals, 2 S!R# &&B, ephasis supplied@.

*ro the docet and process slip of this case, it is shown that the date of notice of the !ourt of*irst +nstance decision is -ul$ 3, 1'73 and that the e5pir$ date to file petition for certiorari withthe Supree !ourt is Aeceber 1;, 1'73. /etitioner filed her notice of appeal, appeal bondand record on appeal on -ul$ 1B, 1'73 H or still ver$ uch within the regleentar$ period toperfect an appeal. #nd although this is not entioned in the record on appeal. #nd althoughthis is not entioned in the record on appeal, it is, nevertheless, a fact of record, the veracit$

of which this !URT does not doubt.

/erforce, there being substantial copliance with the requireent of the Rules of !ourt, 9Eresolve this issue in favor of petitioner.

The liberal interpretation of the aterial data rule aied at serving the ends of substantialustice has found aplification in the recent cases of 'imental, et al. (&. Court of ppeal&, etal., 3';&3 and 3'2;, -une &7, 1'7D, 2; S!R# ;7D8 Republi% of the 'hilippine& (&. Court of

ppeal&,

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#ccording, to the facts found b$ the !ourt of #ppeals, Teodoro Tolete died intestate in -anuar$,1';D. 4e left for parcels of land, lots 0os. 1&BB2, 11''27, 1;3D& and 1&172 of the cadastralsurve$ of San %anuel, /angasinan 4e left as heirs his widow, eoncia de eon, and severalnephews and nieces, children of deceased brothers and sisters. n -ul$ &D, 1';2, without an$

udicial proceedings, his widow e5ecuted an affidavit stating that "the deceased TeodoroTolete left no children or respondent neither ascendants or acnowledged natural childrenneither brother, sisters, nephews or nieces, but the, widow eoncia de eon, the legitiatewife of the deceased, the one and onl$ person to inherit the above properties" ?Record on#ppeal, p. '@. This affidavit was registered in the ffice of the Register of Aeeds of /angasinan.

n the sae da$, she e5ecuted a deed of sale of all the above parcels of land in favor of6enn$ Sapilo for the su of /1B,BBB. This sale was also registered in the ffice of theRegister of Aeeds of /angasinan. n -une 17, 1'DB, 6enn$ Sapilo, in turn, sold the saidparcels of land to 4onorato Salacup for /DB,BBB and this sale was also registered in the fficeof the Register of Aeeds of /angasinan ?See #nne5es "#", "6", "!", attached to the coplaint@.

+n %arch, 1'DB, *elisa Sinopera instituted proceedings for the adinistration of the estate ofTeodoro Tolete ?Special /roceeding 0o. 32';, /angasinan@, and having secured herappointent as adinistratri5, brought the present action on -une &B, 1'DB. 0otice of li&

pen$en&was filed in the ffice of the Register of Aeeds and said notice was recorded oncertificates of title covering the said properties on -une &2, 1'DB. This notice, however, wassubsequent to the registration of the deed of sale, in favor of 4onorato Salacup, which too

place on -une 17, 1'DB.

The coplaint alleges that the widow eoncia de eon, had no right to e5ecute the affidavit ofadudication and that 4onorato Salacup acquired no rights to the lands sold to hi, and thatneither had 6enn$ Sapilo acquired an$ right to the said properties. Sapilo and Salacup filedan aended answer alleging that the coplaint states no cause of action8 that if such a causee5ists the sae is barred b$ the statute of liitations8 that defendants are innocentpurchasers for value8 and that the coplaint is alicious, frivolous and spurious, intended toharass and inconvenience the defendants.

#fter trial the !ourt of *irst +nstance rendered udgent for the plaintiff, *elisa Sinopera,declaring that the affidavit of adudication E5hibit "#", the deed of sale E5hibit "6", and thedeed of sale E5hibit "!", are all null and void8 declaring plaintiff owner of onehalf portion ofthe four parcels of land in question, and finall$ declaring that the usufructuar$ rights ofeoncia de eon to said properties are terinated. The case was appealed to the !ourt of#ppeals. This court held that the annulent of the affidavit of adudication, E5hibit "#", b$ thetrial court was correct but that the annulent of the deeds E5hibits "6" and "!", insofar asonehalf of the properties, conve$ed is concerned, and in adudicating onehalf of the sae tothe heirs of the deceased, is preature. 4ence, it odified the udgent, declaring thatE5hibits "6" and "!" are null and void onl$ insofar as the properties thereb$ conve$ed e5ceedthe portion that the responds to eoncia de eon. Therefore, it ordered the defendants todeliver to the plaintiff, in her capacit$ as adinistratri5 of the estate of Teodoro Tolete, fordisposition according to the law, onehalf of the lands described in the coplaint, but reservedto 4onorato Salacup the right to clai and secure adudication in his favor of whatever portionof said properties a$ correspond to eoncia de eon and also his right to bring an action for

the daages that he a$ have suffered against eoncia de eon and 6enn$ Sapilo.

6enn$ Sapilo and 4onorato Salacup have appealed to this !ourt b$ certiorari and haveassigned the following errors in their brief>

+. The !ourt of #ppeals erred in affiring that respondent *elisa Sinopera=s right ofaction to recover her and her coheirs= participation to the lands in question hadnot prescribed at the tie the action to recover was filed.

++. The !ourt of #ppeals erred in not finding that the petitioners are innocentpurchasers for value.

+++. The !ourt of #ppeals erred in aiing the lower court=s denial of petitioner=s

otion for new trial.

+n support of the first assignent of error, it is argued that as the action was instituted alostfour $ears after the affidavit of adudication, E5hibit "#", was registered in the ffice of theRegister of Aeeds f /angasinan, the right of action of the adinistratri5 has prescribed andlapsed because the sae was not brought within the period of two $ears as /rescribed inSection ; of Rule 7; of the Rules of !ourt, and as decided in the cases of %c%icing(&.S$!onbieng, &1 /hil., &11 and Raire< (&.)ur, ;& /hil., DD 2'.

Section ; of Rule 7; provides, in part, as follows>

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SE!. ;. Liability of $i&tributee& an$ e&tate. H +f it shall appear at an$ tie within two$ears after the settleent and distribution of an estate in accordance with theprovisions of either of the first two sections of this rule, that an heir or other has beenundul$ deprived of his lawful participation of the such heir or such other person a$copel the settleent estate in the courts in the anner hereinafter provided for thepurpose of satisf$ing such lawful participation. . . .

Section 1, which is entioned in Section ;, reads as follows>

SE!. 1. >xtra8u$%ial &ettlement by agreement between the heir&. H +f the decedent leftno debts and the heirs and legatees are all of age, or the inors are represented b$their udicial guardians, the parties a$, without securing letters of adinistration,divide the estate aong theselves as the$ see fit b$ eans of a public instruentfiled in the office of the register of deeds, and should the$ disagree, the$ a$ do so inan ordinar$ action of partition. +f there is onl$ one heir or one legatee, he a$adudicate to hiself the entire estate b$ eans of an affidavit filed in the office of theregister of deeds. +t shall be presued that the decedent left no debts if no creditor filesa petition for letters of adinistration within two $ears after the death of the decedent.

+t will be noted that the provision ne5t abovequoted contains two parts, the first referring to acase in which there are two or ore heirs interested in the estate of a deceased person, and

the second in which there is onl$ one heir. The section was taen fro Section D'2 of the old!ode of !ivil /rocedure ?#ct 0o. 1'B, as aended b$ #ct 0o. &331@. Said Section D'2 asaended, was as follows>

SE!. D'2. ettlement of Certain #nte&tate& 7ithout Legal 'ro%ee$ing&. H 9henever allthe heirs of a person who died intestate are of lawful age and legal capacit$ and thereare no debts due fro the estate, or all the debts have been paid the heirs a$, b$agreeent dul$ e5ecuted in writing b$ all of the, and not otherwise, apportion anddivide the estate aong theselves, as the$ a$ see fit, without proceedings in court.

9e notice two significant provisions in Sections 1 and ; of Rule 7;. +n Section 1, it is requiredthat if there are two or ore heirs, both or all of the should tae part in the e5traudicial

settleent. This requireent is ade ore iperative in the old law ?Section D'2, #ct 0o.1'B@ b$ the addition of the clause "and not otherwise." 6$ the title of Section ;, the"distributees and estate" are indicates the persons to answer for rights violated b$ thee5traudicial settleent. n the other hand, it is also significant that no ention is adee5pressl$ of the effect of the e5traudicial settleent on persons who did not tae part thereinor had no notice or nowledge thereof. There cannot be an$ doubt that those who too part orhad nowledge of the e5traudicial settleent are bound thereb$. #s to the the law is clearthat if the$ clai to have been in an$ anner deprived of their lawful right or share in theestate b$ the e5traudicial settleent, the$ a$ deand their rights or interest within theperiod of two $ears, and both the distributes and estate would be liable to the for such rightsor interest. Evidentl$, the$ are the persons in accordance with the provision, a$ see toreed$, the preudice to their rights within the two$ear period. 6ut as to those who did nottae part in the settleent or had no notice of the death of the decedent or of the settleent,

there is no direct or e5press provision is unreasonable and unust that the$ also be required toassert their clais within the period of two $ears. To e5tend the effects of the settleent tothe, to those who did not tae part or had no nowledge thereof, without any expre&& legal

pro(i&ion to that effe%t, would be violative of the fundaental right to due process of law. +nthe case of Raire< (&.)ur, &upra, cited b$ the appellants in this case, we held>

+t will be noted that while the law ?see. 7D;@ provides that the order of distribution a$be had upon the application of the e5ecutor or adinistrator, or of a person interestedin the estate, no provision is ade for notice, b$ publication or otherwise, of suchapplication. The proceeding, therefore, is to all intents and purposes ex parte. #s will beseen our law is ver$ vague and incoplete8 and certainl$ it cannot be held that apurel$ ex parteproceeding, had without notice b$ personal service or b$ publication, b$

which the court undertaes to distribute the propert$ of deceased persons, can beconclusive upon inor heirs who are not represented therein.

The procedure outlined in Section 1 of Rule 7; of e5traudicial settleent, or b$ affidavit, isan ex parteproceeding. +t cannot b$ an$ reason or logic be contended that such settleent ordistribution would affect third persons who had no nowledge either of the death of thedecedent or of the e5traudicial settleent or affidavit, especiall$ as no ention of such effectis ade, either directl$ or b$ iplication. 9e have e5ained the two cases cited b$ appellantsand there is no siilarit$ at all between the circustances on which the ruling therein hadbeen predicated and those of the case at bar.

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*ollowing the abovequoted decision of this !ourt in the case of Raire< (&.)ur, supra, weare of the opinion and so hold that the provisions of Section ; of Rule 7;, barring distributeesor heirs fro obecting to an e5traudicial partition after the e5piration of two $ears fro suche5traudicial partition, is applicable onl$ ?1@ to persons who have participated or taen part orhad notice of the e5traudicial partition, and, in addition, ?&@ when the provisions of Section 1of Rule 7; have been strictl$ coplied with, i.e., that all the persons or heirs of the decedenthave taen part in the e5traudicial settleent or are represented b$ theselves or throughguardians. The case at bar fails to copl$ with both requireents because not all the heirsinterested have participated in the e5traudicial settleent, the !ourt of #ppeals having found

that the decedent left aside fro his widow, nephews and nieces living at the tie of hisdeath.

The ne5t contention of appellants is that plaintiff=s action is barred b$ the statute of liitations.The origin of the /rovision ?Section ;, Rule 7;@, upon which this contention is predicated, whichis Section D'2 of #ct 0o. 1'B, fails to support the contention. +n the first /lace, there is nothingtherein, or in its source which shows clearl$ a statute of liitations and a bar of action againstthird person=s. +t is onl$ a bar against the parties who had taen part in the e5traudicialproceedings but not against third persons not /arties thereto. +n the second place, the statuteof liitations is contained in a different chapter of #ct 0o. 1'B, !hapter N, and if Section D'2of the #ct had been eant to be a statute of liitations, it would naturall$ have been includedin the chapter which defines the statute.

6ut even if Section ; of Rule 7; is a statute of liitations, it is still unavailing to thedefendants. The action is one based on fraud, as the widow of the deceased owner of the landshad declared in her affidavit of partition that the deceased left no nephews or niece, or otherheirs e5cept herself. /laintiff=s right which is based on fraud and which has a period of four$ears ?Section ;3, par. 3, #ct no. 1'B8 #rticle 11;2, !ivil !ode@, does not appear to have lapsedthe action was instituted. -udicial proceedings where instituted in %arch, 1'DB and theseproceedings ust have been instituted soon after the discover$ of fraud. +n an$ case, thedefendants have the burden of proof as to their clai of the statute of liitations, which istheir defense, and the$ have not proved that when the action was instituted, four $ears hadalread$ elapsed fro the date that the interested parties had actual nowledge of the fraud.

The second assignent of error, i.e., that the defendantsappellants are innocent purchasersfor value was reected as unfounded b$ the court of #ppeals. Said court said.

The clai that defendantsappellants did not have sufficient nowledge or notice of theclai of the heirs of Teodoro Tolete, deceased, over the land in question does not findsupport in the evidence of record. #s regards defendant 6enn$ Sapilo, it is anaditted fact that he is a nephew of eoncia de eon and he had been living with thelatter. 6oth 6enn$ Sapilo and the heirs of the deceased who are claiing the propert$are residents of San %anuel, /angasinan. +t is hard, therefore, to believe that 6enn$Sapilo did not now the e5istence of said heirs, and that he was not aware that the$were nephews and nieces, children of the deceased brothers, of the deceased Teodoro

Tolete. The fact furtherore that 6enn$ Sapilo accopanied his aunt eoncia de eonto Sison, /angasinan, when the later saw 0otar$ /ublic adislao (illail, who was the

forer=s uncle, to have hi prepare the affidavit of adudication E5hibit "#", and thedeed of conve$ance E5hibit "6" b$ which on the sae date she conve$ed to Sapilo allthe propert$ which she had adudicated to herself, both of which she acnowledgedbefore said notar$ public, coupled with the fact that there is no sufficient showing thatthe consideration for the conve$ance of /1B,BBB had in fact been paid, strengthens ourbelief that said 6enn$ Sapilo new that the deceased Teodoro Tolete had other heirswho a$ clai the propert$, and that the iediate conve$ance thereof to hi was astratege concocted to defeat the forer=s rights. #nd as regards 4onorato Salacup,while the clai that no notice ofli& pen$en& appeared annotated in the certificates oftitle issued to 6enn$ Sapilo when he acquired the propert$ ight be true, for hepurchased the propert$ on -une 17, 1'DB, and the notice of li& pen$en& was noted onsaid certificates of title on -une &2, 1'DB, nevertheless, he cannot clai that he was a

purchaser in good faith for value of the propert$. +t is wellsettled rule in this urisdictionthat a purchaser of registered lands who has nowledge of facts which should put hiupon inquir$ and investigate as to the possible defects of the title of the vendor andfails to ae such inquir$ and investigation cannot clai that he as a purchaser in goodfaith for value and he had acquired a valid title thereto. eung Mee (&. Strong %achiner$!o., 37 /hil., 2;;8 Aa$ao (&. Aia

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G.R. No. L-1573 $eember 0, 1947

&EREGRINA RE#"NG,petitioner, vs.FIEL I#ABE;, *+)e o F(r' In'ane o La)+na,respondent.

This is a petition for %ertiorariagainst the respondent udge of the !ourt of *irst +nstance ofaguna on the ground that the latter acted in e5cess of urisdiction or with grave abuse ofdiscretion in den$ing the petition for cancellation of the lien or annotation on the certificate oftitle issued to the petitioner, of a land e5traudiciall$ inherited b$ hi as the onl$ heir of her

predecessors in interest to the effect that the propert$ described in the title is subect to theclais of the creditors and other heirs of the deceased -ose Rebong and %aria Rebong withintwo $ears fro -ul$ ', 1';7, in accordance with sections 1 and ;, Rule 7; of the Rules of !ourt.

The petitioner based on her petition on section 11& of #ct 0o. ;'2 and offered to file a bond of/D,BBB, the estiated value of the above entioned propert$ to answer for such contingentclais.

The pertinent part of said section 11& of #ct 0o. ;'2 provides>

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SE!. 11&. ... #n$ registered owner or other person in interest a$ at an$ tie appl$ petition tothe court, upon the ground that the registered interests of an$ description, whether vested,contingent, e5pectant, or inchoate, have terinated and ceased8 or that new interests havearisen or been created which do not appear upon the certificate8 ... and the court shall have

urisdiction to hear and deterine the petition after notice to all parties in interest, and a$order the entr$ of a new certificate, the entr$ or cancellation of a eorandu upon acertificate or grant an$ other relief upon such ters and conditions, requiring securit$ ifnecessar$, as it a$ dee proper8 . . . .

#ccording to the above quoted provisions, the court "a$ order the entr$ of a new certificate,the entr$ or cancellation of a eorandu upon a certificate or grant an$ other relief uponsuch ters and conditions, requiring securit$ if necessar$," upon application of a registeredowner on "the ground that regi&tere$ intere&t& of any $e&%ription, whether vested, contingent,e5pectant, or inchoate, ha(e terminate$ an$ %ea&e$, or that new intere&t& ha(e ari&en or been%reate$ whi%h $o not appear upon the %ertifi%ate." #ppl$ing these provisions to the presentcase, it is evident that, since the registered or annotated contingent interest of the creditors orother heirs of the petitioner=s predecessors in interest, established b$ section ; of Rule 7; hasnot $et terinated or ceased, for the period of two fro -ul$ ', 1';7, have not $et elapsed, therespondent udge had no urisdiction or power to order the cancellation of said lien orannotation as pra$ed b$ the petitioner. 0either section ;, Rule 7;, of the Rules of !ourt, norsection 11& of #ct 0o. ;'2 authori

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who he had no issue but who had two children she had "adopted" according to the practiceof the +gorots then. 2+t is their children who, with soe others, are the petitioners in this case.

The facts are as siple as the ancient hills.

n Septeber ;, 1'37, ld %an Tupao e5ecuted what he called a "last will and testaent"the dispositive portion of which declared>

astl$, + appoint $ son 6#0A TU%/#, who + naed, that after departing fro this life, heshall be the one to carr$ or fulfill $ Testaent, and that he shall have the power to see anddispose all what + have stated, he shall not change what + have alread$ stated in $ Testaentso that there is truth in $ will. + will affi5 $ right thubar at the end of $ written naebecause + do not now how to read and write, after it has been read to e and affir all whatis $ 9in this &>BB o=cloc in the afternoon this ;th da$ of Septeber 1'37, before those whoare present and have heard what + have stated, /ico a Trinidad, 6enguet, ;th Septeber,1'37.

The contents of this docuent were read to the beneficiaries naed therein who at the tiewere alread$ occup$ing the portions respectivel$ allotted to the. +n ipleentation of thisdocuent, the$ then, on Septeber 7, 1'37, e5ecuted an agreeent providing as follows>

9e who are naed children and who will inherit fro our father TU%/#> 6#0A TU%/#,#%6+# #6+T, -SE and #6ET, and we also whose lands are included, SU!A#A 6UT+),

TU+0)#0 /UT and #0T40M %E0E!+ all of legal age and residing in the town of aTrinidad, Sub/rovince of 6enguet we sa$ in truth after swearing under oath in accordance tolaw that the testaent of our father TU%/# who is presentl$ ill b$ virtue of our right to inheritand also acnowledge or recogni

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aong the supposed beneficiaries of the will was nullified because it was a partitioninter(i(o&and had not been approved b$ the Airector of the 6ureau of 0on!hristian Tribes. +t wasliewise held that the land in dispute was acquired during ld %an Tupao=s first arriagealthough it was registered during his second arriage and so the petitioners were liable inrentals for the lots occupied b$ the, as well as attorne$=s fees. 3

#fter e5aining the ust$ records, we sustain the rulingade both b$ the trial court and the!ourt of #ppealsthat the will, not having been probated as required b$ law, was inoperative assuch. The settled principle, as announced in a long line of decisions in accordance with the

Rules of !ourt, is that no will shall pass either real or personal propert$ unless it is proved orallowed in court. 9

9e find, however, that the docuent a$ be sustained on the basis of #rticle 1BD2 of the !ivil!ode of 1'', which was in force at the tie the said docuent was e5ecuted b$ ld %an

Tupao in 1'37. The said article reads as follows>

#rt. 1BD2. +f the testator should ae a partition of his properties b$ an act inter (i(o&,or b$win, such partition shall stand in so far as it does not preudice the legitie of the forced heirs.

n this score, we agree with the trial court. The applicable decision islbela (&. lbela,10alsodecided b$ the !ourt of #ppeals, with -ustice -.6.. Re$es as theponente.

+n this case, #gustin #lbela e5ecuted on -anuar$ 1', 1'3D, a deed of partition dividing twoparcels of land between hisdaughters, Eduarda and Restituta, who indicated their conforit$b$ signing the instruent. The too possession of their respective shares upon his death, butfourteen $ears later, Restituta eected Eduarda fro her lot, alleging title b$ purchase fro athird part$ and den$ing the e5istence of the partition. Eduarda sued for recover$ and wasupheld b$ the trial court on the basis of the deed of partition.

et -ustice -.6.. Re$es, who later becae a distinguished eber of this !ourt, tae over atthis point>

+n their arguent, appellants do not question the authenticit$ of the above docuent, but

argue against its validit$, on the grounds suari

Therefore the allegations of the plaintiffappellee, Eduarda #lbela, rest on a docuent whichdefies classification. +f it is a deed of partition, it is null and void because it is not ebodied ina public docuent8 if it is a siple donation of realt$, it is also null and void, because it is notin a public docuent and there is no acceptance8 if it is a donation %ortis !ausa, certainl$ it isnull and void because it does not follow the rules governing testaentar$ succession8 and ifever it is to be classified as a will, ore so, it is still null and void because it does not conforto the requireents of Section 21, #ct 1'B as aended b$ #ct &2;D.

0one of these obections is valid in law. The appellants evidentl$ fail to reali

!on estas palabras ?en acto entre vivos@ la le$ en el #rticulo 1BD2, coo en el 1BD7, quedespues e5ainareos, alude a las foralidades con que puede practicarse la particion, no alos efectos de esta, significando que para ella no e& pre%i&o +ue inter(engan la& forma&&olemne& +ue to$o te&tamento o acto de ultia voluntad en general re+uiere. Ni aun &era

pre%i&o guar$ar la& formali$a$e& e&pe%iale& $e la& $ona%ione&, porque no se trata de disponera titulo gratuito, sino de divider aquellos bienes de que $a anteriorente sedispuso en foralegal ?Ephasis supplied. p. !it., p. 23D@

+t was sufficient, therefore, that the partition E5hibit #, should be in writing. +t does not have tobe in a public docuent e5cept to affect third persons ?#rt. 1&B@, being valid between theparties who signed it in its present for.

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+f an$ invalidit$ could be alleged against the partition, it would lie in the absence of a previoustestaent preceding it ?egasto v. (er

1@ upon a written contract8

&@ Upon an obligation created b$ law8

3@ Upon a udgent.

#n$ foral defect of the deed, =E5h. =!=, was cured b$ the lapse of tie.

9hat the plaintiffs received had an aggregate area of less than 1:3 of the land of ld Tupao.+t covers about 11,BBB square eters while the total area was ore than 3D,BBB squareeters, Under the old !ivil !ode, it was within the free disposable portion of ones= estatedespite the e5istence of an$ forced heirs. ?See old !ivil !ode, #rt. B@

+n view of the foregoing considerations, the defendants are ordered to e5ecute a deed ofconve$ance in favor of the plaintiffs of the areas respectivel$ owned and occupied b$ theand to pa$ the costs.

Sucdad 6utiog is ordered to pa$ the defendants /12B.BB ore as a reasonable aount of hisadditional share in the e5penses of segregating his lot but the ?defendants@ are ordered toe5ecute a deed of conve$ance in his favor of the said lot owned b$ hi.

The e5penses of Surve$ and segregation ust be borne b$ the plaintiffs.

9e a$ add that the agreeent entered into b$ the parties in ipleentation of ld %anTupao=s "will" did not have to be approved b$ the Airector of the 6ureau of 0on!hristianTribes because the #dinistrative !ode of %indanao and Sulu was not e5tended to the

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%ountain /rovince. 11%oreover, the docuent was not a conve$ance of properties or propert$right. 12

+t reains to state that the propert$ in dispute having been registered in 1'17, thepresuption is that it was acquired during the second arriage and so cannot be claied b$the respondents as the conugal propert$ of their other and ld %an Tupao. 4ence, the$are not entitled to retain the entire land as their e5clusive inheritance or to collect rentals forthe lots occupied b$ the petitioners.

The trial udge, the 4on. *eliciano 6elonte, was correct in ordering the reconve$ance to thepetitioners of their respective shares. 9e affir his decision in toto.

4ow uch sipler was life aong the natives in the 0orth during the earl$ da$s, when rightand wrong were weighed according to the prial code of the ancient hills. Even so, thoughthat past is gone forever, ustice now, as it was then, is still for the deserving.

94ERE*RE, the decision of the !ourt of #ppeals is RE(ERSEA and that of the trial courtreinstated, with costs against the respondents.

S RAEREA.

G.R. No. L-263 "ober 12, 1967

I"NI$I" FERNANE;, EU$E#I" RE:E$ an LUI$A RE:E$,petitioners, vs.I$%AELA I%AGI#A,respondent.

G.R. No. L-2662 "ober 12, 1967

%ARIAN" RE:E$, CE$AR RE:E$, LE"N"R RE:E$ an &ACIENCIA RE:E$,petitioners, vs.I$%AELA I%AGI#A,respondent.

The heirs intestate of the late 6enedicta de los Re$es have petitioned for a review of thedecision of the !ourt of #ppeals ?in !#). R. 0o. 31&&1R@ affiring that of the !ourt of *irst+nstance of 6ulacan, in Special /roceeding 0o. 31 of said !ourt, aditting to probate thealleged last will and testaent of the deceased, and overruling the opposition to the probate.

+t appears fro the record that on -anuar$ 1', 1'DD, +saela Aiagiba, now respondent,subitted to the !ourt of *irst +nstance a petition for the probate of the purported will of thelate 6enedicta de los Re$es, e5ecuted on ctober &&, 1'3B, and anne5ed to the petition. Thewill instituted the petitioner as the sole heir of the estate of the deceased. The petition was set

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There being no controvers$ that the probate decree of the !ourt below was not appealed ontie, the sae had becoe final and conclusive. 4ence, the appellate courts a$ no longerrevoe said decree nor review the evidence upon which it is ade to rest. Thus, the appealbelatedl$ lodged against the decree was correctl$ disissed.

The alleged revocation iplied fro the e5ecution of the deeds of conve$ance in favor of thetestaentar$ heir is plainl$ irrelevant to and separate fro the question of whether thetestaent was dul$ e5ecuted. *or one, if the will is not entitled to probate, or its probate isdenied, all questions of revocation becoe superfluous in law, there is no such will and hence

there would be nothing to revoe. Then, again, the revocation invoed b$ the oppositorsappellants is not an e5press one, but erel$ iplied fro subsequent acts of the testatri5allegedl$ evidencing an abandonent of the original intention to bequeath or devise theproperties concerned. #s such, the revocation would not affect the will itself, but erel$ theparticular devise or legac$. nl$ the totaland ab&oluterevocation can preclude probate of therevoed testaent ?Trillana vs. !risostoo, &upra.@.

#s to the issue of estoppel, we have alread$ ruled in )uevara vs. )uevara, ' /hil. &;', thatthe presentation and probate of a will are requireents of public polic$, being priaril$designed to protect the testator=s, e5pressed wishes, which are entitled to respect as aconsequence of the decedent=s ownership and right of disposition within legal liits. Evidenceof it is the $utyiposed on a custodian of a will to deliver the sae to the !ourt, and the fine

and iprisonent prescribed for its violation ?Revised Rule 7D@. +t would be a non &e+uiturtoallow public polic$ to be evaded on the prete5t of estoppel. 9hether or not the orderoverruling the allegation of estoppel is still appealable or not, the defense is patentl$uneritorious and the !ourt of #ppeals correctl$ so ruled.

The last issue, that of revocation, is predicated on paragraph & of #rticle 'D7 of the !ivil !odeof 1'DB ?#rt. 2' of the !ode of 1'@, which recites>

#rt. 'D7. The legac$ or devise shall be without effect>

?1@ . . . .

?&@ +f the testator b$ an$ title or for an$ cause alienates the thing bequeathed or an$part thereof, it being understood that in the latter case the legac$ or devise shall bewithout effect onl$ with respect to the part thus alienated. +f after the alienation thething should again belong to the testator, even if it be b$ reason of nullit$ of thecontract, the legac$ or devise shall not thereafter be valid, unless the reacquisition shallhave been effected b$ virtue of the e5ercise of the right of repurchase8

555 555 555

+t is well to note that, unlie in the *rench and +talian !odes, the basis of the quoted provisionis a presued change of intention on the part of the testator. #s pointed out b$ %anresa in his!oentaries on #rticle 2' of the !ivil !ode ?(ol. 2, 7th Ed., p. 7;3@ H

Este caso se funda en la presunta voluntad del testador. Si este, despues de legar, sedesprende de la cosa por titulo lucrativo u oneroso, hace desaparecer su derecho sobraella, dando lugar a la presuncion de que ha cabiado de voluntad, $ no quiere que ellegado se cupla. %as para que pueda presuirse esa voluntad, es necesario queedien actos del testador que la indiquen. Si la perdida del derecho sobre la cosa hasido independiente de la voluntad del testador, el legado podraquedar sin efecto, asno en virtud del nuero & del articulo 2', que e5ige siepre actos voluntarios deenaenacion por parte del iso testador.

#s observed b$ the !ourt of #ppeals, the e5istence of an$ such change or departure fro theoriginal intent of the testatri5, e5pressed in her 1'3B testaent, is rendered doubtful b$ thecircustance that the subsequent alienations in 1';3 and 1';; were e5ecuted in favor of thelegatee herself, appellee Aiagiba. +n fact, as found b$ the !ourt of #ppeals in its decisionannulling these conve$ances ?affired in that point b$ this Supree !ourt inReye& (&. Court of

ppeal& an$ ?imagiba, D21 and D2&B, proulgated on -ul$ 31, 1'D;@, "no considerationwhatever was paid b$ respondent Aiagiba" on account of the transfers, thereb$ rendering iteven ore doubtful whether in conve$ing the propert$ to her legatee, the testatri5 erel$intended to copl$ in advance with what she had ordained in her testaent, rather than analteration or departure therefro.1Revocation being an e5ception, we believe, with the !ourtsbelow, that in the circustances of the particular case, #rticle 'D7 of the !ivil !ode of the/hilippines, does not appl$ to the case at bar.

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0ot onl$ that, but even if it were applicable, the annulent of the conve$ances would notnecessaril$ result in the revocation of the legacies, if we bear in ind that the findings ade inthe decision decreeing the annulent of the subsequent 1';3 and 1';; deeds of sale werealso that

it was the oral influence, originating fro their confidential relationship, which was theonl$ cause for the e5ecution of E5hs. # and 6 ?the 1';3 and 1';; conve$ances@.?Aecision, D21 and D2&B@.

+f the annulent was due to undue influence, as the quoted passage iplies, then thetransferor was not e5pressing her own free will and intent in aing the conve$ances. 4ence,it can not be concluded, either, that such conve$ances established a decision on her part toabandon the original legac$.

True it is that the legal provision quoted prescribes that the recover$ of the alienated propert$"even if it be b$ reason of the nullit$ of the contract" does not revive the legac$8 but aspointed out b$ Scaevola ?!odigo !ivil, (ol. N(, ;th Ed., pp. 3&;3&D@ the "nullit$ of thecontract" can not be taen in an absolute sense.&!ertainl$, it could not be aintained, fore5aple, that if a testator=s subsequent alienation were avoided because the testator wasentall$ deranged at the tie, the revocator$ effect ordained b$ the article should still ensue.#nd the sae thing could be said if the alienation ?posterior to the will@ were avoided on

account of ph$sical or ental duress. Met, an alienation through undue influence in no wa$differs fro one ade through violence or intiidation. +n either case, the transferor is note5pressing his real intent,3and it can not be held that there was in fact an alienation that couldproduce a revocation of the anterior bequest.

+n view of the foregoing considerations, the appealed decision of the !ourt of #ppeals ishereb$ affired. !osts against appellants Re$es and *ernande

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n %a$ &', 1'; petitioner !onstantino #cain filed on the Regional Trial !ourt of !ebu !it$6ranch N+++, a petition for the probate of the will of the late 0eesio #cain and for the issuanceto the sae petitioner of letters testaentar$, doceted as Special /roceedings 0o. D'1 #!E6?Rollo, p. &'@, on the preise that 0eesio #cain died leaving a will in which petitioner and hisbrothers #ntonio, *lores and -ose and his sisters #nita, !oncepcion, Cuirina and aura wereinstituted as heirs. The will allegedl$ e5ecuted b$ 0eesio #cain on *ebruar$ 17, 1'2B waswritten in 6isa$a ?Rollo, p. &7@ with a translation in English ?Rollo, p. 31@ subi=tted b$petitioner without obection raised b$ private respondents. The will contained provisions onburial rites, pa$ent of debts, and the appointent of a certain #tt$. +gnacio ). (illagon

T4+RA> #ll $ shares that + a$ receive fro our properties. house, lands and one$ which +earned ointl$ with $ wife Rosa Aiongson shall all be given b$ e to $ brother SE)U0A#!#+0 *ilipino, widower, of legal age and presentl$ residing at 3D7! Sanciango Street, !ebu!it$. +n case $ brother Segundo #cain predeceased e, all the one$ properties, lands,houses there in 6anta$an and here in !ebu !it$ which constitute $ share shall be given toe to his children, nael$> #nita, !onstantino, !oncepcion, Cuirina, laura, *lores, #ntonio and

-ose, all surnaed #cain.

bviousl$, Segundo predeceased 0eesio. Thus it is the children of Segundo who areclaiing to be heirs, with !onstantino as the petitioner in Special /roceedings 0o. D'1 #!E6

#fter the petition was set for hearing in the lower court on -une &D, 1'; the oppositors?respondents herein (irginia #. *ernande

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?*@ #s an instituted heir, petitioner has the legal interest and standing to file the petition in Sp./roc. 0o. D'1 #!E6 for probate of the will of 0eesio #cain and

?)@ #rticle D; of the 0ew !ivil !ode is a bill of attainder. +t is therefore unconstitutional andineffectual.

The pivotal issue in this case is whether or not private respondents have been pretirited.

#rticle D; of the !ivil !ode provides>

#rt. D;. The preterition or oission of one, soe, or all of the copulsor$ heirs in the directline, whether living at the tie of the e5ecution of the will or born after the death of thetestator, shall annul the institution of heir8 but the devisees and legacies shall be valid insofaras the$ are not8 inofficious.

+f the oitted copulsor$ heirs should die before the testator, the institution shall he effectual,without preudice to the right of representation.

/reterition consists in the oission in the testator=s will of the forced heirs or an$one of theeither because the$ are not entioned therein, or, though entioned, the$ are neitherinstituted as heirs nor are e5pressl$ disinherited ?0uguid v. 0uguid, 17 S!R# ;DB K1'22L8%aninang v. !ourt of #ppeals, 11; S!R# ;7 K1'&L@. +nsofar as the widow is concerned,#rticle D; of the !ivil !ode a$ not appl$ as she does not ascend or descend fro thetestator, although she is a copulsor$ heir. Stated otherwise, even if the surviving spouse is acopulsor$ heir, there is no preterition even if she is oitted fro the inheritance, for she isnot in the $ire%t line. ?#rt. D;, !ivil code@ however, the sae thing cannot be said of the otherrespondent (irginia #. *ernande

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#s a general rule certiorari cannot be a substitute for appeal, e5cept when the questionedorder is an oppressive e5ercise of udicial authorit$ ?/eople v. (illanueva, 11B S!R# ;2DK1'1L8 (da. de !aldito v. Segundo, 117 S!R# D73 K1'&L8 !o !huan Seng v. !ourt of #ppeals,1& S!R# 3B K1';L8 and 6autista v. Sariento, 13 S!R# D7 K1'DL@. +t is a5ioatic thatthe reedies of certiorari and prohibition are not available where the petitioner has thereed$ of appeal or soe other plain, speed$ and adequate reed$ in the course of law ?AA!oendador !onstruction !orporation v. Sa$o ?11 S!R# D'B K1'&L@. The$ are, however,proper reedies to correct a grave abuse of discretion of the trial court in not disissing acase where the disissal is founded on valid grounds ?(da. de 6acang v. !ourt of #ppeals, 1&D

S!R# 137 K1'3L@.

Special /roceedings 0o. D'1 #!E6 is for the probate of a will. #s stated b$ respondent !ourt,the general rule is that the probate court=s authorit$ is liited onl$ to the e5trinsic validit$ ofthe will, the due e5ecution thereof, the testator=s testaentar$ capacit$ and the copliancewith the requisites or solenities prescribed b$ law. The intrinsic validit$ of the will norall$coes onl$ after the !ourt has declared that the will has been dul$ authenticated. Said courtat this stage of the proceedings is not called upon to rule on the intrinsic validit$ or efficac$ ofthe provisions of the will ?0uguid v. 0uguid, 17 S!R# ;;' K1'22L8 Suilang v.Raagosa, &upra8 %aninang v. !ourt of #ppeals, 11; S!R# ;7 K1'&L8 !a$etano v. eonides,1&' S!R# D&& K1';L8 and 0epouceno v. !ourt of #ppeals, 13' S!R# &B2 K1'DL@.

The rule, however, is not infle5ible and absolute. Under e5ceptional circustances, the probatecourt is not powerless to do what the situation constrains it to do and pass upon certainprovisions of the will ?0epouceno v. !ourt of #ppeals, &upra@. +n 0uguid v. 0uguid theoppositors to the probate oved to disiss on the ground of absolute preteriton The probatecourt acting on the otion held that the will in question was a coplete nullit$ and disissedthe petition without costs. n appeal the Supree !ourt upheld the decision of the probatecourt, induced b$ practical considerations. The !ourt said>

9e pause to reflect. +f the case were to be reanded for probate of the will, nothing will begained. n the contrar$, this litigation will be protracted. #nd for aught that appears in therecord, in the event of probate or if the court reects the will, probabilit$ e5ists that the casewill coe up once again before us on the sae issue of the intrinsic validit$ or nullit$ of thewill. Result> waste of tie, effort, e5pense, plus added an5iet$. These are the practicalconsiderations that induce us to a belief that we ight as well eet headon the issue of thevalidit$ of the provisions of the will in question. #fter all there e5ists a usticiable controvers$cr$ing for solution.

+n aguim&im (. Lin$ayag ?2 S!R# 7; K1'2&L@ the otion to disiss the petition b$ thesurviving spouse was grounded on petitioner=s lac of legal capacit$ to institute theproceedings which was full$ substantiated b$ the evidence during the hearing held inconnection with said otion. The !ourt upheld the probate court=s order of disissal.

+n Cayetano (. Leoni$e&, &upra one of the issues raised in the otion to disiss the petitiondeals with the validit$ of the provisions of the will. Respondent -udge allowed the probate ofthe will. The !ourt held that as on its face the will appeared to have preterited the petitioner

the respondent udge should have denied its probate outright. 9here circustances deandthat intrinsic validit$ of testaentar$ provisions be passed upon even before the e5trinsicvalidit$ of the will is resolved, the probate court should eet the issue. ?0epouceno v. !ourtof #ppeals,&upra8 0uguid v. 0uguid, &upra@.

+n the instant case private respondents filed a otion to disiss the petition in Sp. /roceedings0o. D'1 #!E6 of the Regional Trial !ourt of !ebu on the following grounds> ?1@ petitioner hasno legal capacit$ to institute the proceedings8 ?&@ he is erel$ a universal heir8 and ?3@ thewidow and the adopted daughter have been preterited ?Rollo, p. 1D@. +t was denied b$ thetrial court in an order dated -anuar$ &1, 1'D for the reason that "the grounds for the otionto disiss are atters properl$ to be resolved after a hearing on the issues in the course ofthe trial on the erits of the case ?Rollo, p. 3&@. # subsequent otion for reconsideration was

denied b$ the trial court on *ebruar$ 1D, 1'D ?Rollo, p. 1B'@.

*or private respondents to have tolerated the probate of the will and allowed the case toprogress when on its face the will appears to be intrinsicall$ void as petitioner and his brothersand sisters were instituted as universal heirs coupled with the obvious fact that one of theprivate respondents had been preterited would have been an e5ercise in futilit$. +t would haveeant a waste of tie, effort, e5pense, plus added futilit$. The trial court could have denied itsprobate outright or could have passed upon the intrinsic validit$ of the testaentar$provisions before the e5trinsic validit$ of the will was resolved ?!a$etano v. eonides, &upra80uquid v. 0uguid, &a