Home

Search

Contact Us

Help

Sign Out

JURISPRUDENCE

Cited In

Cross Reference

SyllabusDecision

90 PHIL 37-49
JUANA JUAN VDA. DE MOLO vs. LUZ MOLO, ET AL.

EN BANC
[G.R. No. L-2538. September 21, 1951.]
Testate

Estate

of

the

Deceased

MARIANO MOLOY

LEGASPI.

JUAN

DE MOLO,petitioner-

VDA.

appellee, vs.

LUZ,

GLICERIA

JUANA
and

CORNELIO MOLO, oppositor-appellants.

Claro M. Recto and Serafin C. Dizon, for
appellants.
Delgado & Flores, for appellee.
SYLLABUS
1. WILLS; REVOCATION BY SUBSEQUENT
WILL; EFFECT OF VOID REVOCATORY CLAUSE.
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 annuling the previous will, inasmuch as
said revocatory clause is void (Samson vs. Naval, 41
Phil., 838).

2. ID.; PROBATE; DEPENDENT RELATIVE

REVOCATION. 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 where it is founded on the
mistaken belief that the later will has been validly
executed and would be given due effect. The earlier
will can still be admitted to probate under the principle
of "dependent relative revocation". The theory on
which this principle is predicated is that the testator did
not intend to die intestate. And this intention is clearly
manifest where he executed two wills on two different
occasions and instituted his wife as his universal heir.

DECISION

BAUTISTA ANGELO, J :
p

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 oppositorsappellants 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 latter will
contains a clause which expressly revokes the 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
executed by the deceased on August 17, 1918, 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
as 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
1918.
"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 byMolo himself.
"VI. The lower court erred in not holding
thatMolo's will

of

1918

was

subsequently

revoked by the decedent's will of 1939."

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 which in
their opinion indicate that petitioner connived with
witness Canuto Perez in an effort to defeat and
frustrate the probate of the 1939 will because of her
knowledge that said will was intrinsically defective in
that "the one and only testamentary disposition thereof
was a 'disposicin 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 deceased.

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 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
rehearing has also been explained, and it appears that
petitioner has failed because his whereabouts could
not be found. Whether this is true or not is not 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 take 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 the
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 strength 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 "disposicin captatoria", which knowledge she
may easily acquire through consultation with a lawyer,
there was no need for her to go through the ordeal 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 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 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 to 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 of
estoppel which would prevent her from seeking the
probate of the 1918 will simply because her effort to
obtain the allowance of the 1939 will has failed
considering that in both the 1918 and 1939 wills she
was instituted 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 for being zealous
in protecting her interest.
The next contention of appellants refers to the
revocatory clause contained in the 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 will 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 in that case is
here controlling.
There is merit in this contention. We have
carefully read the facts involved in the Samson case
and 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 why 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

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 there are many cases which uphold the
view entertained by counsel for oppositors, and that
view appears to be controlling in 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 on the subject of
revocation of wills. But the impression we gathered
from a review and 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
prior 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 of a will. Accordingly,
where, under the statutes, attestation is

necessary to the making of a valid will, an

unattested nontestamentary 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 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 (1935) 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 abandoning it as now suggested by
counsel for the oppositors.

It is true that our law on the matter (sec. 623,

Code of Civil Procedure) provides that a will may be
revoked "by some will, codicil, or other writing
executed as provided 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 contend 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
revocatory clause contained in said will, himself
deliberately destroyed the original of the 1918 will, and
that for this 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 (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 left to mere inference or conjecture.

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 some reason. The
doctrine is not 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 the 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 the new
testamentary disposition, upon whose validity
the revocation depends, is equivalent to the
non-fulfillment of a suspensive condition, and
hence prevents the revocation of the original
will. But a mere intent to make at some time a
will in 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. 233.)

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 occasions 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 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.
Paras, C.J., Feria, Pablo, Bengzon,
Tuason and Jugo, JJ., concur.
Reyes, J., concurs in the result.


|||

(Vda. de Molo v. Molo, G.R. No. L-2538, [September 21, 1951], 90 PHIL 37-

49)

PHILIPPINE JURISPRUDENCE - FULL TEXT

The Lawphil Project - Arellano Law Foundation
G.R. No. L-53546 June 25, 1992
JESUS FRAN, ET AL. vs. HON. BERNARDO LL. SALAS, ET AL.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION

G.R. No. L-53546 June 25, 1992

THE HEIRS OF THE LATE JESUS FRAN and CARMEN MEJIA
RODRIGUEZ, petitioners,
vs.
HON. BERNARDO LL. SALAS, CONCEPCION MEJIA ESPINA and MARIA
MEJIA GANDIONGCO, respondents.

DAVIDE, JR., J.:

This is a petition for certiorari and prohibition under Rule 65 of the Revised
Rules of Court, with prayer for a writ of preliminary injunction, to annul and set
aside, for having been issued without jurisdiction or with grave abuse of
discretion amounting to lack of jurisdiction, the following Orders of the
respondent Judge in Special Proceedings No. 3309-R of Branch VIII of the
then Court of First Instance (now Regional Trial Court) of Cebu entitled "In The
Matter of the Petition for Probate of the Last Will and Testament of Remedios
Mejia Vda. de Tiosejo:"

1. The Order of 26 February 1980 setting for hearing private

respondents' Omnibus Motion for Reconsideration 1 which was filed
six (6) years, ten (10) months and eighteen (18) days after the probate judgment was
rendered and six (6) years and twenty-one (21) days after the testate proceedings
was declared closed and terminated; and

2. The Order of 2 June 1980 finding the signature of the testatrix

in the last will and testament to be a forgery and (a) declaring the
testatrix as having died intestate; (b) declaring the testamentary
dispositions in said last will and testament as null and void; (c)
setting aside the order dated 10 September 1973 declaring the
testate proceedings closed and terminated; (d) revoking the
appointment of Jesus Fran as executor while appointing
respondent Concepcion M. Espina as administratrix; and (e)
ordering the conversion of the proceedings to one of
intestacy. 2 This Order effectively annulled and set aside the probate judgment of
13 November 1972.

Petitioners would also have this Court nullify all other actions of
respondent Judge in said Sp. Proc. No. 3309-R; restore the status
quo therein prior to the issuance of the foregoing orders; and
permanently enjoin respondent Judge from reopening said proceedings.
The following facts are not controverted:
Remedios M. Vda. de Tiosejo, a widow, died on 10 July 1972 in Cebu City
with neither descendants nor ascendants; she left real and personal properties
located in Cebu City, Ormoc City and Puerto Bello, Merida, Leyte. Earlier, on
23 April 1972, she executed a last will and testament 3 wherein she bequeathed to her
collateral relatives (brothers, sisters, nephews and nieces) all her properties, and designated Rosario
Tan or, upon the latter's death, Jesus Fran, as executor to serve without bond. Instrumental witnesses
to the will were Nazario Pacquiao, Alcio Demerre and Primo Miro.

On 15 July 1972, Jesus Fran filed a petition with the Court of First instance of
Cebu for the probate of Remedios' last will and testament. 4 The case was raffled to
the original Branch VIII thereof which was then presided over by Judge Antonio D. Cinco. The petition
alleged that Rosario Tan is not physically well and, therefore, will not be assuming the position of
administratrix. Tan signed a waiver in favor of Jesus Fran on the third page of the said petition. The
probate court issued an order setting the petition for hearing on 18 September 1972. Meanwhile, on
31 July 1972, the court appointed petitioner Jesus Fran as special administrator.

On 10 August 1972, the private respondents, who are sisters of the deceased,
filed a manifestation 5 alleging that they needed time to study the petition because some heirs
who are entitled to receive their respective shares have been intentionally omitted therein, and
praying that they be given ample time to file their opposition, after which the hearing be reset to
another date.

Private respondents did not file any opposition. Instead, they filed on 18
September 1972 a "Withdrawal of Opposition to the Allowance of Probate (sic)
of the Will" wherein they expressly manifested, with their "full knowledge and

consent that . . . they have no objection of (sic) the allowance of the . . . will of
the late Remedios Mejia Vda. de Tiosejo," and that they have "no objection to
the issuance of letters testamentary in favor of petitioner, Dr. Jesus Fran." 6
No other party filed an opposition. The petition thus became uncontested.
During the initial hearing, petitioner Fran introduced the requisite evidence to
establish the jurisdictional facts.
Upon a determination that the court had duly acquired jurisdiction over the
uncontested petition for probate, Judge Cinco issued in open court an order
directing counsel for petitioner to present evidence proving the authenticity
and due execution of the will before the Clerk of Court who was, accordingly,
so authorized to receive the same.
The reception of evidence by the Clerk of Court immediately followed.
Petitioner Fran's first witness was Atty. Nazario R. Pacquiao, one at the
subscribing witnesses to the will. The original of the will, marked as Exhibit
"F", and its English translation, marked as Exhibit "F-Translation", were
submitted to the Clerk of Court. 7 Petitioner Fran was the second and also the last witness.
He enumerated the names of the surviving heirs of the deceased.

On 13 November 1972, the probate court rendered a decision admitting to

probate the will of the testatrix, Remedios Mejia Vda. de Tiosejo, and
appointing petitioner Fran as executor thereof. 8 The dispositive portion of the decision reads:
WHEREFORE, in view of all the foregoing, judgment is hereby
rendered declaring the last will and testament of the deceased
Remedios Mejia Vda. de Tiosejo marked as Exhibit F as admitted
to probate. Dr. Jesus Fran is hereby appointed as executor of the
will. Let letters testamentary be issued in favor of Dr. Jesus Fran.
The special administrator's bond put up by Dr. Jesus Fran as
special administrator duly approved by this Court shall serve and
be considered as the executor's bond considering that the special
administrator and executor are one and the same person.
The requisite notice to creditors was issued, but despite the expiration of the
period therein fixed, no claim was presented against the estate.
On 4 January 1973, petitioner Fran filed an Inventory of the Estate; 9 copies
thereof were furnished each of the private respondents.

Subsequently, a Project of Partition based on the dispositions made in the will

and signed by all the devisees and legatees, with the exception of Luis Fran,
Remedios C. Mejia and respondent Concepcion M. Espina, was submitted by
the executor for the court's approval. 10 Said legatees and devisees submitted
certifications wherein they admit receipt of a copy of the Project of Partition together with the notice of
hearing, and state that they had no objection to its approval. 11

The notice of hearing referred to in these certifications is the 6 August 1973

notice issued by the Clerk of Court setting the hearing on the Project of
Partition for 29 August 1973. 12
After the hearing on the Project of Partition, the court issued its Order of 10
September 1973 13 approving the same, declaring the parties therein as the only heirs entitled to
the estate of Remedios Mejia Vda. de Tiosejo, directing the administrator to deliver to the said parties
their respective shares and decreeing the proceedings closed. The dispositive portion thereof reads:

WHEREFORE, the signers (sic) to the project of partition are

declared the only, heirs entitled to the estate; the project of
partition submitted is ordered approved and the administrator is
ordered to deliver to each one of them their respective aliquot
parts as distributed in the said project of partition. It is understood
that if there are expenses incurred or to be incurred as expenses
of partition, Section 3 of Rule 90 shall be followed.
Let this proceedings be now declared closed.
SO ORDERED.
Thereafter, the aforesaid Branch VIII of the Court of First Instance of Cebu
was converted to a Juvenile and Domestic Relations Court. On November
1978, by virtue of Presidential Decree No. 1439, Branch XVII (Davao City) of
the Court of First Instance of Cebu, presided over by herein respondent
Judge, was officially transferred to Cebu City and renumbered as Branch VIII.
On 1 October 1979, private respondents filed with the new Branch VIII an
Omnibus Motion for Reconsideration of the probate judgment of 13 November
1972 and the Order of partition of 10 September 1973, in said motion, they
ask the court to declare the proceedings still open and admit their opposition
to the allowance of the will, 14 which they filed on 1 October 1979. They allege that: (a) they
were not furnished with a copy of the will; (b) the will is a forgery; (c) they were not notified of any
resolution or order on their manifestation requesting time within which to file their opposition, or of the
order authorizing the clerk of court to receive the evidence for the petitioner, or of the order closing the
proceedings; (d) the reception of evidence by the clerk of court was void per the ruling in Lim Tanhu
vs. Ramolete; 15 (e) the project of partition contains no notice of hearing and they were not notified
thereof; (f) the petitioner signed the project of partition as administrator and not as executor, thereby
proving that the decedent died intestate; (g) the petitioner did not submit any accounting as required
by law; and (h) the petitioner never distributed the estate to the devisees and legatees.

In a detailed opposition 16 to the above Omnibus Motion for Reconsideration, petitioner Fran
refuted all the protestations of private respondents. Among other reasons, he stresses therein that: (a)
private respondents are in estoppel to question the will because they filed their Withdrawal Of
Opposition To The Allowance of Will which states that after thoroughly studying the petition, to which
was attached a copy of the English translation of the will, they have no objection to its allowance; the
order directing the clerk of court to receive the evidence was dictated in open court in the presence of
private respondents; private respondent Maria M. Gandiongco signed the Project of Partition and
private respondent Concepcion M. Espina submitted a certification stating therein that she received
the notice of hearing therefor and has no objection to its approval; (b) except for some properties,
either covered by a usufruct under the will or agreed upon by the parties to be held in common by

reason of its special circumstance, there was an actual distribution of the estate in accordance with
the Project of Partition; insofar as private respondents are concerned, they not only received their
respective shares, they even purchased the shares of the other devisees. To top it all, private
respondents' children, namely Rodrigo M. Gandiongco, Jr. and Victor Espina, mortgaged their
respective shares in favor of a bank

Notwithstanding petitioners' objections, respondent Judge issued on 26

February 1980 an Order setting for hearing the said Omnibus Motion for
Reconsideration on 8 April 1980 so that "the witnesses and the exhibits (may
be) properly ventilated." 17
On 25 March 1980, petitioners filed a Motion to Dismiss the Omnibus and to
Reconsider the 26 February 1980 Order setting it for hearing on 17 April
1980, 18 but the respondent Judge prematurely denied it for lack of merit in his Order of 31 March
1980. 19

Consequently, on 8 April 1980, the instant petition was filed challenging the
jurisdiction of the lower court in taking cognizance of the Omnibus Motion for
Reconsideration considering that the probate judgment and the order
approving the Project of Partition and terminating the proceedings had long
become final and had in fact been executed. Private respondents had long
lost their right to appeal therefrom. The Omnibus Motion for Reconsideration
cannot likewise be treated as a petition for relief from judgment for under Rule
38 of the Revised Rules of Court, the same must be filed within sixty (60) days
from receipt of notice of the judgment/order and within six (6) months from the
date of said judgment. Therefore, this remedy can no longer be availed of.
On 8 April 1980, the date the instant petition was filed, respondent Judge
proceeded with the hearing of the Omnibus Motion for Reconsideration. He
received the testimonies of private respondents and one Romeo O. Varena,
an alleged handwriting expert from the Philippine Constabulary, who averred
that the signature of the testatrix on the will is a forgery. The respondent Judge
likewise issued an Order on the same date stating that unless he received a
restraining order from this Court within twenty (20) days therefrom, he will
reopen Sp. Proc. No. 3309-R.
On 14 April 1980, petitioners filed a Supplemental Petition asking this Court to
restrain respondent Judge from reopening the case. 20
In their voluminous Comments and Opposition to the petition and
Supplemental Petition, 21 private respondents not only amplify in great detail the grounds
raised in their Omnibus Motion for Reconsideration, they also squarely raise for the first time the
following issues.

(a) The probate court never acquired jurisdiction over the case
since petitioner Jesus Fran failed to submit to the court the
original of the will.

(b) They were deprived of the opportunity to examine the will as

petitioner Jesus Fran did not attach it to the petition; what was
attached was only the English translation of the will.
(c) Even assuming that the probate judge could validly delegate
the reception of evidence to the Clerk of Court, the proceeding
before the latter would still be void as he failed to take an oath of
office before entering upon his duties as commissioner and failed
to render a report on the matters submitted to him.
(d) Respondent Maria M. Vda. de Gandiongco was defrauded
into (sic) signing the Project of Partition and respondent
Concepcion M. Espina, her certification, when they were misled
by petitioner Fran into believing that the Agreement of Petition to
be submitted to the court is the Extra Judicial Partition they
signed on 7 May 1973.
(e) Petitioner Fran is guilty of fraud in urdervaluing the estate of
the late Remedios M. Vda. de Tiosejo by reporting properties
worth only P400,000.00 when in truth and in fact the estate has
an aggregate value of P2,094,333.00.
In the Resolution dated 2 June 1980, We issued a restraining order enjoining
respondent Judge from reopening Sp. Proc. No. 3309-R. 22
However, on the same date, before the restraining order was served on him;
respondent Judge issued the impugned order declaring the testamentary
dispositions of the will void, finding the signature of the late Remedios M. Vda.
de Tiosejo to be a forgery, decreeing the reopening of Sp. Proc. No. 3309-R
and converting the same into an intestate proceeding. 23
Hence, on 6 June 1980, petitioners filed their Second Supplemental
Petition 24 asking this Court to declare as null and void the Order of 2 June 1980 and, pending such
declaration, to restrain respondent Judge from enforcing the same. Private respondents filed their
Comment and Opposition to the Second Supplemental Petition on 9 July 1980.

Thereafter, as mandated in the resolution of 30 June 1980, 25 this Court gave due
course to this case and required the parties to file their respective Memoranda, which private
respondents complied with on 16 August 1980; 26 petitioners filed theirs on 27 August
1980. 27Consequently, the parties continued to file several pleadings reiterating substantially the same
allegations and arguments earlier submitted to this Court.

On 22 March 1984, counsel for petitioners filed a manifestation informing this

Court of the death of petitioner Fran on 29 February 1984 and enumerating
therein his surviving heirs. On 2 April 1984, this Court resolved to have said
heirs substitute him in this case.

Over a year later, respondent Maria M. Vda. de Gandiongco filed an

affidavit, 28 sworn to before the acting Clerk of Court of the Regional Trial Court in Cebu City,
disclosing the following material facts: (a) she signed the Omnibus Motion for Reconsideration dated 1
October 1979 without knowing or reading the contents thereof; (b) she saw the will of the late
Remedios M. Vda. de Tiosejo written in the Cebuano dialect after the same was executed by the
latter; the said will bearing the authentic signature of Remedios was the very one presented to the
probate court by petitioner's counsel; (c) she received the notice of hearing of the petition for probate
and because she was convinced that the signature of the testatrix was genuine, she, together with
Concepcion M. Espina, withdrew her opposition; (d) she received her share of the estate of the late
Remedios M. Vda. de Tiosejo which was distributed in accordance with the provisions of the latter's
will; and (e) she did not authorize Atty. Numeriano Estenzo or other lawyers to present a motion to this
Court after 25 February 1981 when Estenzo withdrew as counsel for private respondents. She then
asks this Court to consider as withdrawn her Opposition to the Allowance of the Will, her participation
in the Omnibus Motion for Reconsideration and her Opposition to this petition.

Due to this development, We required private respondent Concepcion M.

Espina to comment on the affidavit of private respondent Maria M. Vda. de
Gandiongco.
On 17 August 1985, private respondents filed a joint manifestation 29 wherein they
claim that Maria M. Vda. de Gandiongco does not remember, executing the affidavit. A few weeks
before the affidavit was filed, particularly on 17 June 1985, Maria M. Vda. de Gandiongco was
confined in the hospital; she could not recall having signed, during this period, any affidavit or
recognized her sisters and other relatives.

On 19 September 1985, respondent Maria M. Vda. de Gandiongco, through

special counsel, filed a Manifestation/Motion with a second Affidavit attached
thereto 30 confessing that she signed the Joint Manifestation dated 16 August 1985 "without
knowing or being informed of its contents, and only upon Mrs. Concepcion Espina's request." She
reiterated her desire to withdraw from the Omnibus Motion for Reconsideration filed in Sp. Proc. No,
3309-R as well as from the instant petition.

Despite the valiant attempt of private respondent Concepcion M. Espina to

influence and control the action of Maria Gandiongco, there is nothing in the
records that would cast any doubt on the irrevocability of the latter's decision
to withdraw her participation in the Omnibus Motion for Reconsideration and
Opposition to this case. That decision, however, is not a ground for dropping
her as a private respondent as the respondent Judge had already issued the
abovementioned Order of 2 June 1980.
The petition and the supplemental petitions are impressed with merit.
We do not hesitate to rule that the respondent Judge committed grave abuse
of discretion amounting to lack of jurisdiction when he granted the Omnibus
Motion for Reconsideration and thereafter set aside the probate judgment of
13 November 1972 in Sp. Proc. No. 3309-R, declared the subject will of the
testatrix a forgery, nullified the testamentary dispositions therein and ordered
the conversion of the testate proceedings into one of intestacy.
It is not disputed that private respondents filed on the day of the initial hearing
of the petition their "Withdrawal of Opposition To Allowance of Probate (sic)

Will" wherein they unequivocally state that they have no objection to the
allowance of the will. For all legal intents and purposes, they became
proponents of the same.
After the probate court rendered its decision on 13 November 1972, and there
having been no claim presented despite publication of notice to creditors,
petitioner Fran submitted a Project of Partition which private respondent Maria
M. Vda. de Gandiongco voluntarily signed and to which private respondent
Espina expressed her conformity through a certification filed with the probate
court. Assuming for the sake of argument that private respondents did not
receive a formal notice of the decision as they claim in their Omnibus Motion
for Reconsideration, these acts nevertheless constitute indubitable proof of
their prior actual knowledge of the same. A formal notice would have been an
idle ceremony. In testate proceedings, a decision logically precedes the
project of partition, which is normally an implementation of the will and is
among the last operative acts to terminate the proceedings. If private
respondents did not have actual knowledge of the decision, they should have
desisted from performing the above acts and instead demanded from
petitioner Fran the fulfillment of his alleged promise to show them the will. The
same conclusion refutes and defeats the plea that they were not notified of the
order authorizing the Clerk of Court to receive the evidence and that the Clerk
of Court did not notify them of the date of the reception of evidence. Besides,
such plea must fail because private respondents were present when the court
dictated the said order.
Neither do We give any weight to the contention that the reception of evidence
by the Clerk of Court is null and void per the doctrine laid, down in LimTanhu
vs. Ramolete. 31 In the first place, Lim Tanhu was decided on 29 August 1975, nearly four (4)
years after the probate court authorized the Clerk of Court to receive the evidence for the petitioner in
this case. A month prior to Lim Tanhu, or on 30 July 1975, this Court, in Laluan vs.
Malpaya, 32 recognized and upheld the practice of delegating the reception of evidence to Clerks of
Court. Thus:

No provision of law or principle of public policy prohibits a court

from authorizing its clerk of court to receive the evidence of a
party litigant. After all, the reception of evidence by the clerk of
court constitutes but a ministerial task the taking down of the
testimony of the witnesses and the marking of the pieces of
documentary evidence, if any, adduced by the party present. This
task of receiving evidence precludes, on the part of the clerk of
court the exercise of judicial discretion usually called for when the
other party who is present objects to questions propounded and
to the admission of the documentary evidence proffered. 33 More
importantly, the duty to render judgment on the merits of the case still rests with the
judge who is obliged to personally and directly prepare the decision based upon the
evidence reported. 34

But where the proceedings before the clerk of court and the concomitant result
thereof, i.e., the judgment rendered by the court based on the evidence presented in
such limited proceedings, prejudice the substantial rights of the aggrieved party, then
there exists, sufficient justification to grant the latter complete opportunity to thresh
out his case in court. 35

Monserrate vs. Court of Appeals, 36 decided on 29 September 1989, reiterated this

rule. Lim Tanhu then cannot be used as authority to nullify the order of the probate court authorizing
the Clerk of Court to receive the evidence for the rule is settled that "when a doctrine of this Court is
overruled and a different view is adopted, the new doctrine should be applied prospectively, and
should not apply to parties who had relied on the old doctrine and acted on the faith thereof." 37 It may
also be emphasized in this connection that Lim Tanhu did not live long; it was subsequently overruled
in Gochangco vs. Court of First Instance of Negros Occidental, 38 wherein this Court, en banc,
through Justice, now Chief Justice, Andres R. Narvasa, in reference to what the trial court termed as
"the doctrinal rule laid down in the recent case of Lim Tan Hu(sic) vs. Ramolete," ruled:

Now, that declaration does not reflect long observed and

established judicial practice with respect to default cases. It is not
quite consistent, too, with the several explicitly authorized
instances under the Rules where the function of receiving
evidence and even of making recommendatory findings of facts
on the basis thereof may be delegated to commissioners,
inclusive of the Clerk of Court. These instances are set out in
Rule 33, . . . ; Rule 67 and 69, . . . ; Rule 86, . . . ; Rule 136, . . . .
In all these instances, the competence of the clerk of court is
assumed. Indeed, there would seem, to be sure, nothing
intrinsically wrong in allowing presentation of evidence ex
parte before a Clerk of Court. Such a procedure certainly does
not foreclose relief to the party adversely affected who, for valid
cause and upon appropriate and seasonable application, may
bring about the undoing thereof or the elimination of prejudice
thereby caused to him; and it is, after all, the Court itself which is
duty bound and has the ultimate responsibility to pass upon the
evidence received in this manner, discarding in the process such
proofs as are incompetent and then declare what facts have
thereby been established. In considering and analyzing the
evidence preparatory to rendition of judgment on the merits, it
may not unreasonably be assumed that any serious error in
the ex-partepresentation of evidence, prejudicial to any absent
party, will be detected and duly remedied by the Court, and/or
may always, in any event, be drawn to its attention by any
interested party.
xxx xxx xxx
It was therefore error for the Court a quo to have declared the
judgment by default to be fatally flawed by the fact that the
plaintiff's evidence had been received not by the Judge himself
but by the clerk of court.

The alternative claim that the proceedings before the Clerk of Court were
likewise void because said official did not take an oath is likewise untenable.
The Clerk of Court acted as such when he performed the delegated task of
receiving evidence. It was not necessary for him to take an oath for that
purpose; he was bound by his oath of office as a Clerk of Court. Private
respondents are obviously of the impression that by the delegation of the
reception of evidence to the Clerk of Court, the latter became
a commissioner as defined under Rule 33 of the Rules of Court entitled Trial
by Commissioner. This is not correct; as this Court said in Laluan:
The provisions of Rule 33 of the Rules of Court invoked by both
parties properly relate to the reference by a court of any or all of
the issues in a case to a person so commissioned to act or report
thereon. These provisions explicitly spell out the rules governing
the conduct of the court, the commissioner, and the parties
before, during, and after the reference proceedings. Compliance
with these rules of conduct becomes imperative only when the
court formally orders a reference of the case to a commissioner.
Strictly speaking then, the provisions of Rule 33 find no
application to the case at bar where the court a quo merely
directed the clerk of court to take down the testimony of the
witnesses presented and to mark the documentary evidence
proferred on a date previously set for hearing.
Belatedly realizing the absence of substance of the above grounds, private
respondents now claim in their Comments to the Petition and the
Supplemental Petition that the trial court never acquired jurisdiction over the
petition because only the English translation of the will and not a copy of
the same was attached to the petition; the will was not even submitted to
the court for their examination within twenty (20) days after the death of the
testatrix; and that there was fraud in the procurement of the probate judgment
principally because they were not given any chance to examine the signature
of the testatrix and were misled into signing the withdrawal of their opposition
on the assurance of petitioner Fran and their sister, Rosario M. Tan, that the
will would be shown to them during the trial. These two grounds easily serve
as the bases for the postulation that the decision is null and void and so,
therefore, their omnibus motion became all the more timely and proper.
The contentions do not impress this Court.
In Santos vs. Castillo 39 and Salazar vs. Court of First Instance of Laguna, 40 decided six (6)
months apart in 1937, this Court already ruled that it is not necessary that the original of the will be
attached to the petition. In the first, it ruled: "The original of said document [the will] must be
presented or sufficient reasons given to justify the nonpresentation of said original and the
acceptance of the copy or duplicate thereof." 41 In the second case, this Court was more emphatic in
holding that:

The law is silent as to the specific manner of bringing the

jurisdictional allegations before the court, but practice and
jurisprudence have established that they should be made in the
form of an application and filed with the original of the will
attached thereto. It has been the practice in some courts to permit
attachment of a mere copy of the will to the application, without
prejudice to producing the original thereof at the hearing or when
the court so requires. This precaution has been adopted by some
attorneys to forestall its disappearance, which has taken place in
certain cases. 42
That the annexing of the original will to the petition is not a jurisdictional
requirement is clearly evident in Section 1, Rule 76 of the Rules of Court
which allows the filing of a petition for probate by the person named therein
regardless of whether or not he is in possession of the will, or the same is lost
or destroyed. The section reads in full as follows:
Sec. 1. Who may petition for the allowance of will. Any
executor, devisee, or legatee named in a will, or any other person
interested in the estate, may, at any time after the death of the
testator, petition the court having jurisdiction to have the will
allowed, whether the same be in his possession or not, or is lost
or destroyed.
In the instant case, a copy of the original will and its English translation were
attached to the petition as Annex "A" and Annex "A-1", respectively, and made
integral parts of the same. It is to be presumed that upon the filing of the
petition the Clerk of Court, or his duly authorized subordinate, examined the
petition and found that the annexes mentioned were in fact attached thereto. If
they were not, the petition cannot be said to have been properly presented
and the Clerk of Court would not have accepted it for docketing. Under
Section 6, Rule 136 of the Rules of Court, the Clerk of Court shall receive and
file all pleadings and other papers properly presented, endorsing on each
such paper the time when it was filed. The presumption of regularity in the
performance of official duty militates against private respondents' claim that
Annex "A" of the petition was not in fact attached thereto.
The certification of the Assistant Clerk of Court issued on 8 April
1980, 43 or SIX (6) months after the filing of the motion for reconsideration, to the effect that as per
examination of the records of Sp. Proc. No. 3309-R, "the copy of the Will mentioned in the petition as
Annex "A" is not found to be attached as of this date in the said petition; only the English Translation
of said Will is attached thereof (sic) as Annex "A-1" does not even save the day for private
respondents. It is not conclusive because it fails to state the fact that as hereafter shown, the pages of
the records which correspond to the four (4) pages of Annex "A" were missing or were detached
therefrom. As emphatically asserted by the petitioners in their Reply to the Comments of private
respondents, 44 duly supported by a certification of the former Clerk of Court of the original Branch VIII
of the court below, 45 and which private respondents merely generally denied in their motion for
reconsideration with comments and opposition to consolidated reply, 46 the four-page xerox copy of

will, marked as Annex "A" of the petition, became, as properly marked by the personnel of the original
Branch VIII of the court below upon the filing of the petition, pages 5, 6, 7 and 8 while the translation
thereof, marked as Annex "A-1", became pages 9, 10, 11 and 12 of the records. The markings were
done in long hand. The records of the case were thereafter sent to the Clerk of Court, 14th Judicial
District, Cebu City on 9 February 1978. These records, now in the possession of the respondent
Judge, show that said pages 5, 6, 7 and 8 in long are missing. As a consequence thereof, petitioners
filed with the Executive Judge of the court below an administrative complaint.

It is not likewise disputed that the original of the will was submitted in evidence
and marked as Exhibit "F". It forms part of the records of the special
proceedings a fact which private respondents admit in their Omnibus
Motion for Reconsideration, thus:
9. That an examination of the alleged will of our deceased sister
has revealed that the signatures at the left hand margin of Exhibit
"F", are written by (sic) different person than the signature
appearing at the bottom of said alleged will . . . 47
The availability of the will since 18 September 1972 for their examination
renders completely baseless the private respondents' claim of fraud on
petitioner Fran's part in securing the withdrawal of their opposition to the
probate of the will. If indeed such withdrawal was conditioned upon Fran's
promise that the private respondents would be shown the will during the trial,
why weren't the appropriate steps taken by the latter to confront Fran about
this promise before certifications of conformity to the project of partition were
filed?
Granting for the sake of argument that the non-fulfillment of said promise
constitutes fraud, such fraud is not of the kind which provides sufficient
justification for a motion for reconsideration or a petition for relief from
judgment under Rule 37 and Rule 38, respectively, of the Rules of Court, or
even a separate action for annulment of judgment. It is settled that for fraud to
be invested with, sufficiency, it must be extrinsic or collateral to the matters
involved in the issues raised during the trial which resulted in such
judgment. 48
In Our jurisdiction, the following courses of action are open to an aggrieved
party to set aside or attack the validity of a final judgment:
(1) Petition for relief under Rule 38 of the Rules of Court which
must be filed within sixty (60) days after learning of the decision,
but not more than six (6) months after such decision is entered;
(2) By direct action, via a special civil action for certiorari, or by
collateral attack, assuming that the decision is void for want of
jurisdiction;

(3) By an independent civil action under Article 1114 of the Civil

Code, assuming that the decision was obtained through fraud and
Rule 38 can not be applied. 49
It is not difficult to see that private respondents had lost their right to file a
petition for relief from judgment, it appearing that their omnibus motion for
reconsideration was filed exactly six (6) years, ten (10) months and twenty-two
(22) days after the rendition of the decision, and six (6) years, one (1) month
and thirteen (13) days after the court issued the order approving the Project of
Partition, to which they voluntarily expressed their conformity through their
respective certifications, and closing the testate proceedings.
Private respondents did not avail of the other two (2) modes of attack.
The probate judgment of 13 November 1972, long final and undisturbed by
any attempt to unsettle it, had inevitably passed beyond the reach of the court
below to annul or set the same aside, by mere motion, on the ground that the
will is a forgery. Settled is the rule that the decree of probate is conclusive with
respect to the due execution of the will 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. 50 We wish also to advert to the related doctrine which
holds that final judgments are entitled to respect and should not be disturbed; otherwise, there would
be a wavering of trust in the courts. 51 In Lee Bun Ting vs. Aligaen, 52 this Court had the occasion to
state the rationale of this doctrine, thus:

Reasons of public policy, judicial orderliness, economy and

judicial time and the interests of litigants, as well as the peace
and order of society, all require that stability be accorded the
solemn and final judgments of the courts or tribunals of
competent jurisdiction.
This is so even if the decision is incorrect 53 or, in criminal cases, the penalty imposed is
erroneous. 54

Equally baseless and unmeritorious is private respondents' contention that the

order approving the Project of Partition and closing the proceedings is null and
void because the Project of Partition did not contain a notice of hearing and
that they were not notified of the hearing thereon. In truth, in her own
certification 55 dated 5 September 1973, private respondent Concepcion M. Espina admitted that
she "received a copy of the Project of Partition and the Notice of Hearing in the above-entitled
proceeding, and that she has no objection to the approval of the said Project of Partition." The notice
of hearing she referred to is the Notice of Hearing For Approval of Project of Partition issued on 6
August 1973 by the Clerk of Court. 56Private respondent Espina was lying through her teeth when she
claimed otherwise.

The non-distribution of the estate, which is vigorously denied by the

petitioners, is not a ground for the re-opening of the testate proceedings. A
seasonable motion for execution should have been filed. In De Jesus vs.

Daza, 57 this Court ruled that if the executor or administrator has possession of the share to be
delivered, the probate court would have jurisdiction within the same estate proceeding to order him to
transfer that possession to the person entitled thereto. This is authorized under Section 1, Rule 90 of
the Rules of Court. However, if no motion for execution is filed within the reglementary period, a
separate action for the recovery of the shares would be in order. As We see it, the attack of 10
September 1973 on the Order was just a clever ploy to give asemblance of strength and substance to
the Omnibus Motion for Reconsideration by depicting therein a probate court committing a series of
fatal, substantive and procedural blunders, which We find to be imaginary, if not deliberately
fabricated.

WHEREFORE, the instant petition and supplemental petitions are GRANTED.

The Order of respondent Judge of 2 June 1980 and all other orders issued by
him in Sp. Proc. No. 3309-R, as well as all other proceedings had therein in
connection with or in relation to the Omnibus Motion for Reconsideration, are
hereby ANNULLED and SET ASIDE.
The restraining order issued on 2 June 1980 is hereby made PERMANENT.
Costs against private respondent Concepcion M. Espina.
SO ORDERED.
Gutierrez, Jr., Bidin and Romero, JJ., concur.
Feliciano, J., took no part.

Footnotes
1 Rollo, 13.
2 Rollo, 475-486.
3 Id., 370-373.
4 Rollo, 14-16.
5 Id., 18-19.
6 Rollo, 20.
7 Xerox copies thereof are on pages 370-373 and 388-391
of Rollo.
8 Rollo, 394-403.
9 Annex "J" to Consolidated Reply to Respondents' Comment,
etc.; Id., 410-415.

10 Id., 21-26.
11 Rollo, 27; 29. More specifically, private respondent
Concepcion Espina's certification, dated 5 September 1973,
reads: "The undersigned, legatee and heir of the deceased
Remedios Mejia vda. de Tiosejo, hereby certify (sic) that she
received a copy of the Project of Partition and the Notice of
Hearing in the above-entitled proceeding, and that she has no
objection to the approval of the said Project of Partition.
12 Annex "H" to Consolidated Reply to Respondents' Comment,
etc.; Id., 406.
13 Id., 28-29.
14 Rollo, 30-36.
15 66 SCRA 425 [1975].
16 Rollo, 37-50.
17 Rollo, 13.
18 Id., 51-78.
19 Id., 81.
20 Rollo, 87-95.
21 Id., 119-157; 240-290.
22 Rollo, 320.
23 Id., 474-486.
24 Id., 459-472.
25 Rollo, 449.
26 Id., 779-971.
27 Id., 985-1027.
28 Id., 1369-1370, with the English translation at 1371-1372.
29 Rollo, 1375-1376.

30 Rollo. 1425-1430.
31 Supra.
32 65 SCRA 494 [1975].
33 Citing Wack Wack Golf and Country Club, Inc. vs. Court of
Appeals, 106 Phil. 501 [1959].
34 Citing The Province of Pangasinan vs. Palisoc, 6 SCRA 299
[1962].
35 At pages 499-500.
36 178 SCRA 153. [1989].
37 People vs. Jabinal, 55 SCRA 607 [1974].
38 157 SCRA 40 [1988].
39 64 Phil. 211 [1937].
40 64 Phil. 785 [1937].
41 Underscoring supplied for emphasis.
42 Underscoring supplied for emphasis.
43 Annex "1" of Comments; Rollo, 158.
44 Rollo, 255, et seq.
45 Annex "C" of the Reply.
46 Rollo, op. cit., 624, et seq.
47 Rollo, 31-32.
48 Anuran vs. Aquino, 38 Phil. 29 [1918]; Garchitorena vs. Sotelo,
74 Phil. 25 [1942]; Ramos vs. Albano, 92 Phil. 834 [1953].
49 Anuran vs. Aquino, supra.; Banco Espaol-Filipino vs.
Palanca, 37 Phil. 921 [1918]; Garchitorena vs. Sotelo, supra.;
Santiago vs. Ceniza, 5 SCRA 494 [1962].
50 Manahan vs. Manahan, 58 Phil. 448, 451 [1933], citing several
cases.

51 Yuseco vs. Court of Appeals, 68 SCRA 484 [1975]; San Juan

vs. Cuento, 160 SCRA 277 [1988].
52 76 SCRA 416 [1977], see also Turqueza vs. Hernando, 97
SCRA 483 [1980].
53 Balais vs. Balais, 159 SCRA 37 [1988]; San Juan vs.
Cuento, supra.
54 Castillo vs. Donato, 137 SCRA 210 [1985]; Icao vs. Apalisok,
180 SCRA 680 [1989].
55 Annex "F" of Petition; Rollo, 27.
56 Id., 501.
57 77 Phil. 152 [1946]; see also Torres vs. Encarnacion, 89 Phil.
678 [1951].
The Lawphil Project - Arellano Law Foundation

Today is Tuesday, August 09, 2016

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

03554 May 28, 1993

O CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA CAB

AROSA, HELEN CABALLERO, SANTOS CABALLERO, PABLO CABALLERO, VICTOR
A RAGA, QUIRICA RAGA, RUPERTO ABAPO, represented herein by his Attorney-in-F
A * ABAPO VELANO, and CONSESO CANEDA, represented herein by his heirs, JESU
NATIVIDAD CANEDA and ARTURO CANEDA, petitioners,

URT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate of

respondents.

ma & Associates for petitioners.

montad, Jr. for private respondents.

DO, J.:

for resolution by this Court in the present petition for review on certiorari is the issue of whe
estation clause contained in the last will and testament of the late Mateo Caballero complie
nts of Article 805, in relation to Article 809, of the Civil Code.

s show that on December 5, 1978, Mateo Caballero, a widower without any children and a
years of his life, executed a last will and testament at his residence in Talisay, Cebu before
itnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa. The said te
ed by his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the pr
will. 1 It was declared therein, among other things, that the testator was leaving by way of legacies and devises his real and personal p

aviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not appear to be r

hs later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special Pr
R before Branch II of the then Court of First Instance of Cebu seeking the probate of his las
The probate court set the petition for hearing on August 20, 1979 but the same and subseq
hearings were postponed for one reason to another. On May 29, 1980, the testator passed
petition could finally be heard by the probate court. 3 On February 25, 1981, Benoni Cabrera, on of the legatee

ppointment as special administrator of the testator's estate, the estimated value of which was P24,000.00, and he was so appointed by t

of March 6, 1981.

, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second p
the Matter of the Intestate Estate of Mateo Caballero" and docketed as Special Proceeding
efore Branch IX of the aforesaid Court of First Instance of Cebu. On October 18, 1982, here
had their said petition intestate proceeding consolidated with Special Proceeding No. 3899
f the Court of First Instance of Cebu and opposed thereat the probate of the Testator's will
nt of a special administrator for his estate. 5

brera died on February 8, 1982 hence the probate court, now known as Branch XV of the R
of Cebu, appointed William Cabrera as special administrator on June 21, 1983. Thereafter
t issued an order for the return of the records of Special Proceeding No. 3965-R to the arch
proceeding for the probate of the will had to be heard and resolved first. On March 26, 198
eraffled and eventually assigned to Branch XII of the Regional Trial Court of Cebu where it
nclusion of the probate proceedings. 6

se of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as oppos
o the allowance of the testator's will on the ground that on the alleged date of its execution,
as already in the poor state of health such that he could not have possibly executed the sam
likewise reiterated the issue as to the genuineness of the signature of the testator therein.

er hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty. Filoteo
at the testator executed the will in question in their presence while he was of sound and dis
hat, contrary to the assertions of the oppositors, Mateo Caballero was in good health and w
uenced in any way in the execution of his will. Labuca also testified that he and the other wi
nd signed the will in the presence of the testator and of each other. The other two attesting w
resented in the probate hearing as the had died by then. 8

1988, the probate court rendered a decision declaring the will in question as the last will an
of the late Mateo Caballero, on the ratiocination that:

. . . The self-serving testimony of the two witnesses of the oppositors cannot overcom
positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who clearly told the
that indeed Mateo Caballero executed the Last Will and Testament now marked Exhi
December 5, 1978. Moreover, the fact that it was Mateo Caballero who initiated the p
his Will during his lifetime when he caused the filing of the original petition now marke
"D" clearly underscores the fact that this was indeed his Last Will. At the start, counse
oppositors manifested that he would want the signature of Mateo Caballero in Exhibit
examined by a handwriting expert of the NBI but it would seem that despite their avow
intention for the examination of this signature of Mateo Caballero in Exhibit "C", nothi

out of it because they abandoned the idea and instead presented Aurea Caballero an
Caballero Campo as witnesses for the oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament of
Caballero and that it was executed in accordance with all the requisites of the law. 9

d by the said judgment of the probate court, petitioners elevated the case in the Court of Ap
V No. 19669. They asserted therein that the will in question is null and void for the reason t
clause is fatally defective since it fails to specifically state that the instrumental witnesses t
the testator signing the will in their presence and that they also signed the will and all the p
he presence of the testator and of one another.

r 15, 1991, respondent court promulgated its decision

10

affirming that of the trial court, and ruling that the at

Mateo Caballero substantially complies with Article 805 of the Civil Code, thus:

The question therefore is whether the attestation clause in question may be considere
having substantialy complied with the requirements of Art. 805 of the Civil Code. Wha
in the attestation clause which the oppositors claim to be defective is "we do certify th
testament was read by him and the attestator, Mateo Caballero, has published unto u
foregoing will consisting of THREE PAGES, including the acknowledgment, each pag
numbered correlatively in letters of the upper part of each page, as his Last Will and
Testament, and he has signed the same and every page thereof, on the spaces provi
his signature and on the left hand margin in the presence of the said testator and in th
presence of each and all of us (emphasis supplied).

To our thinking, this is sufficient compliance and no evidence need be presented to in

meaning that the said will was signed by the testator and by them (the witnesses) in t
presence of all of them and of one another. Or as the language of the law would have
testator signed the will "in the presence of the instrumental witnesses, and that the la
witnessed and signed the will and all the pages thereof in the presence of the testato
one another." If not completely or ideally perfect in accordance with the wordings of A
(sic) the phrase as formulated is in substantial compliance with the requirement of the

moved for the reconsideration of the said ruling of respondent court, but the same was den
olution of January 14, 1992, 12 hence this appeal now before us. Petitioners assert that respondent court has ruled upon s

ccord with the law and settled jurisprudence on the matter and are now questioning once more, on the same ground as that raised befor
y of the attestation clause in the last will of Mateo Caballero.

e present petition to be meritorious, as we shall shortly hereafter, after some prefatory obse
eel should be made in aid of the rationale for our resolution of the controversy.

s been defined as a species of conveyance whereby a person is permitted, with the formal

by law, to control to a certain degree the disposition of his estate after his death.

wills which a testator may execute.

res that:

14

13

Under the C

the first kind is the ordinary or attested will, the execution of which is governed by Articles 804 to 8

Art. 805. Every will, other than a holographic will, must be subscribed at the end there
testator himself or by the testator's name written by some other person in his presenc
his express direction, and attested and subscribed by three or more credible witnesse
presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental w
of the will, shall also sign, as aforesaid, each and every page thereof, except the last,
left margin, and all the pages shall be numbered correlatively in letters placed on the
of each page.

The attestation should state the number of pages used upon which the will is written,
fact that the testator signed the will and every page thereof, or caused some other pe
write his name, under his express direction, in the presence of the instrumental witne
that the latter witnessed and signed the will and all the pages thereof in the presence
testator and of one another.

If the attestation clause is in a language not known to the witness, it shall be interpret
them.

, the ordinary will must be acknowledged before a notary public by a testator and the attest

ence it is likewise known as notarial will. Where the attestator is deaf or deaf-mute, Article 807 requires that he must personally read the
e, he should designate two persons who would read the will and communicate its contents to him in a practicable manner. On the other h
the will should be read to him twice; once, by anyone of the witnesses thereto, and then again, by the notary public before whom it is ac

kind of will is the holographic will, which Article 810 defines as one that is entirely written, da
he testator himself. This kind of will, unlike the ordinary type, requires no attestation by witn
equirement in both kinds of will is that they should be in writing and must have been execut
or dialect known to the testator. 17

n the case of an ordinary or attested will, its attestation clause need not be written in a lang
wn to the testator since it does not form part of the testamentary disposition. Furthermore,
used in the attestation clause likewise need not even be known to the attesting witnesses. 1

icle 805 merely requires that, in such a case, the attestation clause shall be interpreted to said witnesses.

ion clause refers to that part of an ordinary will whereby the attesting witnesses certify that
has been executed before them and to the manner of the execution the same. 19 It is a separate

facts surrounding the conduct of execution and once signed by the witnesses, it gives affirmation to the fact that compliance with the ess
20
red by law has been observed. It is made for the purpose of preserving in a permanent form a record of the facts that attended the ex

o that in case of failure of the memory of the attesting witnesses, or other casualty, such facts may still be proved.

21

third paragraph of Article 805, such a clause, the complete lack of which would result in the

22

should state (1) the number of the pages used upon which the will is written; (2) that the testator signed, or expressly caused another
thereof in the presence of the attesting witnesses; and (3) that theattesting witnesses witnessed the signing by the testator of the will an
said witnesses also signed the will and every page thereof in the presence of the testator and of one another.

se of the law in requiring the clause to state the number of pages on which the will is written
against possible interpolation or omission of one or some of its pages and to prevent any in
n the pages; 23 whereas the subscription of the signature of the testator and the attesting witnesses is made for the purpose of aut

d thus indicates that the will is the very same instrument executed by the testator and attested to by the witnesses.

24

attesting and subscribing to the will, the witnesses thereby declare the due execution of th
in the attestation clause. 25 The attestation clause, therefore, provide strong legal guaranties for the due execution of a will a
26

27

eof. As it appertains only to the witnesses and not to the testator, it need be signed only by them. Where it is left unsigned, it would
28
e will as it would be possible and easy to add the clause on a subsequent occasion in the absence of the testator and its witnesses.

t, the Code Commission commented on the reasons of the law for requiring the formalities
the execution of wills, in the following manner:

The underlying and fundamental objectives permeating the provisions on the law on w
Project consists in the liberalization of the manner of their execution with the end in v
giving the testator more freedom in expressing his last wishes, but with sufficient safe
and restrictions to prevent the commission of fraud and the exercise of undue and im
pressure and influence upon the testator.

This objective is in accord with the modern tendency with respect to the formalities in
execution of wills. . . . 29

mination of the last will and testament of Mateo Caballero shows that it is comprised of three
h have been numbered correlatively, with the left margin of each page thereof bearing the re
of the testator and the three attesting witnesses. The part of the will containing the testame
s is expressed in the Cebuano-Visayan dialect and is signed at the foot thereof by the testa
clause in question, on the other hand, is recited in the English language and is likewise sig
f by the three attesting witnesses hereto. 30 Since it is the proverbial bone of contention, we reproduce it again for fa

We, the undersigned attesting Witnesses, whose Residences and postal addresses a
the Opposite of our respective names, we do hereby certify that the Testament was re
and the testator, MATEO CABALLERO; has published unto us the foregoing Will con
THREE PAGES, including the Acknowledgment, each page numbered correlatively in
letters on the upper part of each page, as his Last Will and Testament and he has the

and every page thereof, on the spaces provided for his signature and on the left hand
in the presence of the said testator and in the presence of each and all of us.

oted that Article 805 requires that the witness should both attest and subscribe to the will in
of the testator and of one another. "Attestation" and "subscription" differ in meaning. Attesta
es, while subscription is the act of the hand. The former is mental, the latter mechanical, an
l is to know that it was published as such, and to certify the facts required to constitute an a
cation; but to subscribe a paper published as a will is only to write on the same paper the n
ses, for the sole purpose of identification. 31

a vs. Rizal, 32 we clarified that attestation consists in witnessing the testator's execution of the will in order to see and take note men

which the statute requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscriptio
' names upon the same paper for the purpose of identification of such paper as the will which was executed by the testator. As it involve
no means, therefore, of ascertaining by a physical examination of the will whether the witnesses had indeed signed in the presence of th
less this is substantially expressed in the attestation.

ded by petitioners that the aforequoted attestation clause, in contravention of the express
nts of the third paragraph of Article 805 of the Civil Code for attestation clauses, fails to spe
act that the attesting witnesses the testator sign the will and all its pages in their presence a
itnesses, likewise signed the will and every page thereof in the presence of the testator and
agree.

rly apparent upon a careful reading of the attestation clause herein assailed is the fact that
t the testator indeed signed the will and all its pages in the presence of the three attesting w
as well the number of pages that were used, the same does not expressly state therein the
ce that said witnesses subscribed their respective signatures to the will in the presence of
d of each other.

e "and he has signed the same and every page thereof, on the spaces provided for his sign
hand margin," obviously refers to the testator and not the instrumental witnesses as it is im
by the words "as his Last Will and Testament." On the other hand, although the words "in th
of the testator and in the presence of each and all of us" may, at first blush, appear to likewi
o the witnesses, it must, however, be interpreted as referring only to the testator signing in t
of the witnesses since said phrase immediately follows the words "he has signed the same
of, on the spaces provided for his signature and on the left hand margin." What is then clea
the final logical analysis , is the statement that the witnesses signed the will and every pag
ence of the testator and of one another.

nsidered view that the absence of that statement required by law is a fatal defect or imperfe
t necessarily result in the disallowance of the will that is here sought to be admitted to prob
are correct in pointing out that the aforestated defect in the attestation clause obviously ca
zed as merely involving the form of the will or the language used therein which would warra

of the substantial compliance rule, as contemplated in the pertinent provision thereon in th

it:

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressu
influence, defects and imperfections in the form of attestation or in the language used
shall not render the will invalid if it is not proved that the will was in fact executed and
in substantial compliance with all the requirements of article 805" (Emphasis supplied

ay be true that the attestation clause is indeed subscribed at the end thereof and at the left
by the three attesting witnesses, it certainly cannot be conclusively inferred therefrom that
ixed their respective signatures in the presence of the testator and of each other since, as p
bserved, the presence of said signatures only establishes the fact that it was indeed signed
rove that the attesting witnesses did subscribe to the will in the presence of the testator and
execution of a will is supposed to be one act so that where the testator and the witnesses s
ys or occasions and in various combinations, the will cannot be stamped with the imprimatu

e that the further comment of former Justice J.B.L. Reyes 34 regarding Article 809, wherein he urged caution

e substantial compliance rule therein, is correct and should be applied in the case under consideration, as well as to future cases with si

. . . The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered; whe
signatures appear in each and every page; whether the subscribing witnesses are thr
will was notarized. All theses are facts that the will itself can reveal, and defects or ev
omissions concerning them in the attestation clause can be safely disregarded. But th
number of pages, and whether all persons required to sign did so in the presence of e
must substantially appear in the attestation clause, being the only check against perju
probate proceedings. (Emphasis ours.)

ss once more that under Article 809, the defects and imperfections must only be with respe
attestation or the language employed therein. Such defects or imperfections would not ren
uld it be proved that the will was really executed and attested in compliance with Article 805
wever, the manner of proving the due execution and attestation has been held to be limited
ation of the will itself without resorting to evidence aliunde, whether oral or written.

ing considerations do not apply where the attestation clause totally omits the fact that the a
signed each and every page of the will in the presence of the testator and of each other. 35 I

fect is not only in the form or language of the attestation clause but the total absence of a specific element required by Article 805 to be s
estation clause of a will. That is precisely the defect complained of in the present case since there is no plausible way by which we can re
station clause statement, or an implication thereof, that the attesting witness did actually bear witness to the signing by the testator of the
at said instrumental witnesses also signed the will and every page thereof in the presence of the testator and of one another.

re, the rule on substantial compliance in Article 809 cannot be revoked or relied on by respo
supposes that the defects in the attestation clause can be cured or supplied by the text of t
ation of matters apparent therefrom which would provide the data not expressed in the atte
rom which it may necessarily be gleaned or clearly inferred that the acts not stated in the o
uirements were actually complied within the execution of the will. In other words, defects m
by intrinsic evidence supplied by the will itself.

e at bar, contrarily, proof of the acts required to have been performed by the attesting witnes
d by only extrinsic evidence thereof, since an overall appreciation of the contents of the will
soever from with such facts may be plausibly deduced. What private respondent insists on
s of his witnesses alleging that they saw the compliance with such requirements by the inst
oblivious of the fact that he is thereby resorting to extrinsic evidence to prove the same an
y be doing by the indirection what in law he cannot do directly.

the advent of the Civil Code on August 30, 1950, there was a divergence of views as to whi
interpretation should be followed in resolving issues centering on compliance with the lega
required in the execution of wills. The formal requirements were at that time embodied prim
8 of Act No. 190, the Code of Civil Procedure. Said section was later amended by Act No. 2
ons respecting said formalities found in Act. No. 190 and the amendment thereto were prac
d and adopted in the Civil Code.

advance the liberal or substantial compliance rule. This was first laid down in the case of Ab

where it was held that the object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to
ills and testaments and to guarantee their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way
ends. Nonetheless, it was also emphasized that one must not lose sight of the fact that it is not the object of the law to restrain and curt
ake a will, hence when an interpretation already given assures such ends, any other interpretation whatsoever that adds nothing but dem
37
y unnecessary, useless and frustrative of the testator's last will, must be disregarded. The subsequent cases of Avera vs. Garcia, Ald
39
40
41
42
n vs. Abella, Pecson vs. Coronel, Fernandez vs. Vergel de Dios, et al., and Nayve vs. Mojal, et al. all adhered to this position.

view which advocated the rule that statutes which prescribe the formalities that should be o
on of wills are mandatory in nature and are to be strictly construed was followed in the sub
the Matter of the Estate of Saguinsin, 43 In re Will of Andrada, 44 Uy Coque vs. Sioca, 45 In re Estate of Neumark, 46

s. Gorecho, et al., 48 provided the Court with the occasion to clarify the seemingly conflicting decisions in the aforementioned ca

n, the attestation clause had failed to state that the witnesses signed the will and each and every page thereof on the left margin in the pr
in question was disallowed, with these reasons therefor:

In support of their argument on the assignment of error above-mentioned, appellants

series of cases of this court beginning with (I)n the Matter of the (E)state of Saguinsin
41 Phil., 875), continuing with In re Will of Andrada [1921], 42 Phil., 180), Uy Coque v
L. Sioca [1922], 43 Phil., 405), and In re Estate of Neumark ([1923], 46 Phil., 841), an

with Sano vs. Quintana ([1925], 48 Phil., 506). Appellee counters with the citation of a
cases beginning with Abangan vs. Abangan ([1919], 40 Phil., 476), continuing throug
vs. Roque ([1922], 43 Phil., 378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil.,
culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis,
to contrast and, if possible, conciliate the last two decisions cited by opposing counse
those of Sano vs. Quintana,supra, and Nayve vs. Mojal and Aguilar, supra.

In the case of Sano vs. Quintana, supra, it was decided that an attestation clause wh
not recite that the witnesses signed the will and each and every page thereof on the l
in the presence of the testator is defective, and such a defect annuls the will. The cas
Coque vs. Sioca, supra, was cited, but the case of Nayve vs. Mojal and Aguilar, supra
mentioned. In contrast, is the decision in Nayve vs. Mojal and Aguilar, supra, wherein
held that the attestation clause must estate the fact that the testator and the witnesse
reciprocally saw the signing of the will, for such an act cannot be proved by the mere
of the will, if it is not stated therein. It was also held that the fact that the testator and
witnesses signed each and every page of the will can be proved also by the mere exa
of the signatures appearing on the document itself, and the omission to state such ev
does not invalidate the will.

It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit

inconsistency in doctrine. Yet here, unless aided impossible to reconcile the Mojal an
Quintana decisions. They are fundamentally at variance. If we rely on one, we affirm.
on the other, we reverse.

In resolving this puzzling question of authority, three outstanding points may be ment
the first place, the Mojal, decision was concurred in by only four members of the cour
than a majority, with two strong dissenting opinions; the Quintana decision was concu
seven members of the court, a clear majority, with one formal dissent. In the second p
Mojal decision was promulgated in December, 1924, while the Quintana decision was
promulgated in December, 1925; the Quintana decision was thus subsequent in point
And in the third place, the Quintana decision is believed more nearly to conform to th
applicable provisions of the law.

The right to dispose of property by will is governed entirely by statute. The law of the
here found in section 61 of the Code of Civil Procedure as amended by Act No. 2645
section 634 of the same Code, as unamended. It is in part provided in section 61, as
that "No will . . .shall be valid . . . unless . . .." It is further provided in the same section
attestation shallstate the number of sheets or pages used, upon which the will is writt
the fact that the testator signed the will and every page thereof, or caused some othe
to write his name, under his express direction, in the presence of three witnesses, an

witnessed and signed the will and all pages thereof in the presence of the testator an
other." Codal section 634 provides that "The will shall be disallowed in either of the fo
case: 1. If not executed and attested as in this Act provided." The law not alone caref
use of the imperative, but cautiously goes further and makes use of the negative, to e
legislative intention. It is not within the province of the courts to disregard the legislati
purpose so emphatically and clearly expressed.

We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to t
necessary, modify the decision in the case of Nayve vs. Mojal and Aguilar, supra. (Em
the original text).

he Gumban clarificatory pronouncement, there were decisions of the Court that once more
he seeming diversity of views that was earlier threshed out therein. The cases of Quinto vs.

odriguez vs. Alcala,

53

50

Enchevarria vs. Sarmiento,

54

51

and Testate Estate of Toray

55

52

went the way of the ruling as restated in Gumban. Bu

56

57

58

Rey vs. Cartagena, De Ticson vs. De Gorostiza, Sebastian vs. Panganiban, Rodriguez vs. Yap, Grey vs. Fabia, Leynez v
60
61
r vs. Martir, Alcala vs. De Villa, Sabado vs.
63
64
endoza vs. Pilapil, and Lopez vs. Liboro, veered away from the strict interpretation rule and established a trend toward an applicati

Commission, cognizant of such a conflicting welter of views and of the undeniable inclinatio
nstruction, recommended the codification of the substantial compliance rule, as it believed
cord with the modern tendency to give a liberal approach to the interpretation of wills. Said
hat is now Article 809 of the Civil Code, with this explanation of the Code Commission:

The present law provides for only one form of executing a will, and that is, in accorda
the formalities prescribed by Section 618 of the Code of Civil Procedure as amended
No. 2645. The Supreme Court of the Philippines had previously upheld the strict com
with the legal formalities and had even said that the provisions of Section 618 of the C
Civil Procedure, as amended regarding the contents of the attestation clause were m
and non-compliance therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405).
decisions necessarily restrained the freedom of the testator in disposing of his proper

However, in recent years the Supreme Court changed its attitude and has become m
in the interpretation of the formalities in the execution of wills. This liberal view is enun
the cases ofRodriguez vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs. Leynez, G
46097, October 18, 1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940; and Alca
G.R. No. 47351, April 18, 1941.

In the above mentioned decisions of our Supreme Court, it has practically gone back
original provisions of Section 618 of the Code of Civil Procedure before its amendme
No. 2645 in the year 1916. To turn this attitude into a legislative declaration and to att

main objective of the proposed Code in the liberalization of the manner of executing w
article 829 of the Project is recommended, which reads:

"Art. 829. In the absence of bad faith, forgery, or fraud, or undue and impro
pressure and influence, defects and imperfections in the form of attestation
language used therein shall not render the will invalid if it is proved that the
in fact executed and attested in substantial compliance with all the require
article 829."65

led liberal rule, the Court said in Gil vs. Murciano, 66 "does not offer any puzzle or difficulty, nor does it open the

The later decisions do tell us when and where to stop; they draw the dividing line with precision. They do not allow evidence aliunde to fi
ment or supply missing details that should appear in the will itself. They only permit a probe into the will, an exploration into its confines,
etermine the existence or absence of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banis

s be stated that the rule, as it now stands, is that omissions which can be supplied by an ex
tself, without the need of resorting to extrinsic evidence, will not be fatal and, corresponding
ct the allowance to probate of the will being assailed. However, those omissions which cann
xcept by evidence aliunde would result in the invalidation of the attestation clause and ultim
elf.67

ORE, the petition is hereby GRANTED and the impugned decision of respondent court is he
D and SET ASIDE. The court a quo is accordingly directed to forthwith DISMISS its Specia
g No. 3899-R (Petition for the Probate of the Last Will and Testament of Mateo Caballero) a
pecial Proceeding No. 3965-R (In the matter of the Intestate Estate of Mateo Caballero) as
hereafter duly proceed with the settlement of the estate of the said decedent.

RED.

C.J., Padilla, Regalado, and Nocon, JJ., concur.

es

* The first name of this representative party petitioner is also spelled "Armistica" in the
corresponding allegation of the petition.
1 Original Record, 1-3.
2 Exhibit C; Folder of Exhibits in Special Proceeding No. 3899-R, 7-8.

3 Original Record, 1-3, 7, 24, 32.

4 Ibid., 32-34.
5 Ibid., 68-69, 157.
6 Ibid., 98, 116, 143, 148, 157-159.
7 TSN, July 3, 1986, 3-5, 13-17, 23-27; July 18, 1986, 5-10.
8 TSN, October 9, 1984, 11-26; January 4, 1985, 2; April 22, 1985, 10-18.
9 Original Record, 339-340; per Judge J. Militante.

10 Justice Cesar D. Francisco, ponente, with Justices Reynato S. Puno and Jaime D
concurring.
11 Rollo, 9.
12 Ibid., 33.
13 Rivera vs. Palmanori, 40 Phil. 116 (1919); Art. 810, Civil Code.
14 Report of the Code of Commission, 103-105.
15 Art. 806, Civil Code.
16 Art. 808, id.
17 Art. 804, id.
18 3 Tolentino, Civil Code of the Philippines, 68 (1979 ed.).
19 Testate Estate of Paula Toray, 87 Phil. 139 (1950).
20 Vda. de Ramos, et al. vs. Court of Appeals et al., 81 SCRA 393 (1978).
21 Leynez vs. Leynez, 68 Phil. 745 (1939).
22 In re Estate of Neumarix, 46 Phil, 841 (1923).

23 In The Matter of the Estate of Sanguisin, 41 Phil. 875 (1920); In re Will of Andrada

180 (1921).
24 Testate Estate of Paula Toray, supra.
25 Gonzales vs. Gonzales de Carungcong, 90 Phil. 444 (1951).
26 Echevierria vs. Sarmiento, 66 Phil. 611 (1938).
27 Abangan vs. Abangan, 40 Phil. 476 (1919).
28 Cagro vs. Cagro, 92 Phil. 1032 (1953).
29 Report of the Code Commission, 103.

30 Exhibits C to C-18; Folder of Exhibits in Special Proceeding No. 3899-R; Original R

6.
31 Hill vs. Davis, 167 P. 465, 466, 64 Okl. 253, L.R.A. 1918B 687.
32 118 SCRA 195 (1982).
33 Andalis vs. Pulgueras, 59 Phil. 643 (1934).

34 Lawyer's Journal, November 30, 1950, 556, cited in Tolentino, op. cit., supra, note
112.

35 Uy Coque vs. Sioca, 43 Phil. 405 (1922); Gumban vs. Gorecho, 50 Phil. 30 (1927
vs. Morata, 54 Phil. 481 (1930); Rodriguez vs. Alacala, 55 Phil. 150 (1930); Testate E
Paula Toray, supra; Gil vs. Marciano, 88 Phil. 261 (1951).
36 40 Phil, 476 (1919).
37 42 Phil. 145 (1921).
38 43 Phil. 378 (1922).
39 43 Phil. 494 (1922).
40 45 Phil. 216 (1923).
41 46 Phil. 922 (1924).

42 47 Phil. 152 (1924).

43 41 Phil. 875 (1920).
44 42 Phil. 180 (1921).
45 43 Phil. 405 (1922).
46 46 Phil. 841 (1923).
47 48 Phil. 506 (1925).
48 50 Phil. 30 (1927).
49 54 Phil. 481 (1930).
50 55 Phil. 150 (1930).
51 66 Phil. 611 (1933).
52 87 Phil. 139 (1950).
53 53 Phil. 104 (1929).
54 56 Phil. 282 (1931).
55 57 Phil. 437 (1932).
56 59 Phil. 653 (1934).
57 68 Phil. 126 (1939).
58 68 Phil. 128 (1939).
59 68 Phil. 745 (1939).
60 70 Phil. 89 (1940).
61 71 Phil. 561 (1940).
62 72 Phil. 531 (1941).

63 72 Phil. 546 (1941).

64 81 Phil., 429 (1948).
65 Report of the Code Commission, 104-105.
66 88 Phil. 260, 281 (1951).
67 Tolentino, op. cit., supra, note 17 at 111.

Arellano Law Foundation

SECOND DIVISION

[G.R. No. 116668. July 28, 1997]

ERLINDA A. AGAPAY, petitioner, vs. CARLINA (CORNELIA) V.

PALANG and HERMINIA P. DELA CRUZ,respondents.
DECISION
ROMERO, J.:

Before us is a petition for review of the decision of the Court of Appeals in CAG.R. CV No. 24199 entitled Erlinda Agapay v. Carlina (Cornelia) Palang and
Herminia P. Dela Cruz dated June 22, 1994 involving the ownership of two parcels of
land acquired during the cohabitation of petitioner and private respondents legitimate
spouse.
Miguel Palang contracted his first marriage on July 16, 1949 when he took
private respondent Carlina (or Cornelia) Vallesterol as a wife at the Pozorrubio
Roman Catholic Church in Pangasinan. A few months after the wedding, in October
1949, he left to work in Hawaii. Miguel and Carlinas only child, Herminia Palang, was
born on May 12, 1950.
Miguel returned in 1954 for a year. His next visit to the Philippines was in 1964
and during the entire duration of his year-long sojourn he stayed in Zambales with
his brother, not in Pangasinan with his wife and child. The trial court found evidence
that as early as 1957, Miguel had attempted to divorce Carlina in Hawaii. When he
returned for good in 1972, he refused to live with private respondents, but stayed
alone in a house in Pozorrubio, Pangasinan.
[1]

On July 15, 1973, the then sixty-three-year-old Miguel contracted his second
marriage with nineteen-year-old Erlinda Agapay, herein petitioner. Two months
[2]

earlier, on May 17, 1973, Miguel and Erlinda, as evidenced by the Deed of Sale,
jointly purchased a parcel of agricultural land located at San Felipe, Binalonan,
Pangasinan with an area of 10,080 square meters. Consequently, Transfer
Certificate of Title No. 101736 covering said rice land was issued in their names.
A house and lot in Binalonan, Pangasinan was likewise purchased on
September 23, 1975, allegedly by Erlinda as the sole vendee. TCT No. 143120
covering said property was later issued in her name.
On October 30, 1975, Miguel and Cornelia Palang executed a Deed of Donation
as a form of compromise agreement to settle and end a case filed by the latter. The
parties therein agreed to donate their conjugal property consisting of six parcels of
land to their only child, Herminia Palang.
[3]

[4]

Miguel and Erlindas cohabitation produced a son, Kristopher A. Palang, born on

December 6, 1977. In 1979, Miguel and Erlinda were convicted of Concubinage
upon Carlinas complaint. Two years later, on February 15, 1981, Miguel died.
[5]

On July 11, 1981, Carlina Palang and her daughter Herminia Palang de la Cruz,
herein private respondents, instituted the case at bar, an action for recovery of
ownership and possession with damages against petitioner before the Regional Trial
Court in Urdaneta, Pangasinan (Civil Case No. U-4265). Private respondents sought
to get back the riceland and the house and lot both located at Binalonan,
Pangasinan allegedly purchased by Miguel during his cohabitation with petitioner.
Petitioner, as defendant below, contended that while the riceland covered by
TCT No. 101736 is registered in their names (Miguel and Erlinda), she had already
given her half of the property to their son Kristopher Palang. She added that the
house and lot covered by TCT No. 143120 is her sole property, having bought the
same with her own money. Erlinda added that Carlina is precluded from claiming
aforesaid properties since the latter had already donated their conjugal estate to
Herminia.
After trial on the merits, the lower court rendered its decision on June 30, 1989
dismissing the complaint after declaring that there was little evidence to prove that
the subject properties pertained to the conjugal property of Carlina and Miguel
Palang. The lower court went on to provide for the intestate shares of the parties,
particularly of Kristopher Palang, Miguels illegitimate son. The dispositive portion of
the decision reads:

WHEREFORE, premises considered, judgment is hereby rendered1) Dismissing the complaint, with costs against plaintiffs;
2) Confirming the ownership of defendant Erlinda Agapay of the residential lot
located at Poblacion, Binalonan, Pangasinan, as evidenced by TCT No. 143120,
Lot 290-B including the old house standing therein;
3) Confirming the ownership of one-half (1/2) portion of that piece of agricultural
land situated at Balisa, San Felipe, Binalonan, Pangasinan, consisting of 10,080
square meters and as evidenced by TCT No. 101736, Lot 1123-A to Erlinda
Agapay;

4) Adjudicating to Kristopher Palang as his inheritance from his deceased father,

Miguel Palang, the one-half (1/2) of the agricultural land situated at Balisa, San
Felipe, Binalonan, Pangasinan, under TCT No. 101736 in the name of Miguel
Palang, provided that the former (Kristopher) executes, within 15 days after this
decision becomes final and executory, a quit-claim forever renouncing any claims
to annul/reduce the donation to Herminia Palang de la Cruz of all conjugal
properties of her parents, Miguel Palang and Carlina Vallesterol Palang, dated
October 30, 1975, otherwise, the estate of deceased Miguel Palang will have to be
settled in another separate action;
5) No pronouncement as to damages and attorneys fees.
SO ORDERED.

[6]

On appeal, respondent court reversed the trial courts decision. The Court of
Appeals rendered its decision on July 22, 1994 with the following dispositive portion:

WHEREFORE, PREMISES CONSIDERED, the appealed decision is hereby

REVERSED and another one entered:
1. Declaring plaintiffs-appellants the owners of the properties in question;
2. Ordering defendant-appellee to vacate and deliver the properties in question to
herein plaintiffs-appellants;
3. Ordering the Register of Deeds of Pangasinan to cancel Transfer Certificate of
Title Nos. 143120 and 101736 and to issue in lieu thereof another certificate of title
in the name of plaintiffs-appellants.
No pronouncement as to costs.

[7]

Hence, this petition.

Petitioner claims that the Court of Appeals erred in not sustaining the validity of
two deeds of absolute sale covering the riceland and the house and lot, the first in
favor of Miguel Palang and Erlinda Agapay and the second, in favor of Erlinda
Agapay alone. Second, petitioner contends that respondent appellate court erred in
not declaring Kristopher A. Palang as Miguel Palangs illegitimate son and thus
entitled to inherit from Miguels estate. Third, respondent court erred, according to
petitioner, in not finding that there is sufficient pleading and evidence that Kristoffer
A. Palang or Christopher A. Palang should be considered as party-defendant in Civil
Case No. U-4625 before the trial court and in CA-G.R. No. 24199.
[8]

After studying the merits of the instant case, as well as the pertinent provisions
of law and jurisprudence, the Court denies the petition and affirms the questioned
decision of the Court of Appeals.
The first and principal issue is the ownership of the two pieces of property
subject of this action. Petitioner assails the validity of the deeds of conveyance over

the same parcels of land. There is no dispute that the transfers of ownership from
the original owners of the riceland and the house and lot, Corazon Ilomin and the
spouses Cespedes, respectively, were valid.
The sale of the riceland on May 17, 1973, was made in favor of Miguel and
Erlinda. The provision of law applicable here is Article 148 of the Family Code
providing for cases of cohabitation when a man and a woman who
are not capacitated to marry each other live exclusively with each other as husband
and wife without the benefit of marriage or under a void marriage. While Miguel and
Erlinda contracted marriage on July 15, 1973, said union was patently void because
the earlier marriage of Miguel and Carlina was still susbsisting and unaffected by the
latters de facto separation.
Under Article 148, only the properties acquired by both of the parties through
their actual joint contribution of money, property or industry shall be owned by
them in common in proportion to their respective contributions. It must be stressed
that actual contribution is required by this provision, in contrast to Article 147 which
states that efforts in the care and maintenance of the family and household, are
regarded as contributions to the acquisition of common property by one who has no
salary or income or work or industry. If the actual contribution of the party is not
proved, there will be no co-ownership and no presumption of equal shares.
[9]

In the case at bar, Erlinda tried to establish by her testimony that she is engaged
in the business of buy and sell and had a sari-sari store but failed to persuade us
that she actually contributed money to buy the subject riceland. Worth noting is the
fact that on the date of conveyance, May 17, 1973, petitioner was only around twenty
years of age and Miguel Palang was already sixty-four and a pensioner of the U.S.
Government. Considering her youthfulness, it is unrealistic to conclude that in 1973
she contributedP3,750.00 as her share in the purchase price of subject property,
there being no proof of the same.
[10]

[11]

Petitioner now claims that the riceland was bought two months before Miguel
and Erlinda actually cohabited. In the nature of an afterthought, said added assertion
was intended to exclude their case from the operation of Article 148 of the Family
Code. Proof of the precise date when they commenced their adulterous cohabitation
not having been adduced, we cannot state definitively that the riceland was
purchased even before they started living together. In any case, even assuming that
the subject property was bought before cohabitation, the rules of co-ownership would
still apply and proof of actual contribution would still be essential.
Since petitioner failed to prove that she contributed money to the purchase price
of the riceland in Binalonan, Pangasinan, we find no basis to justify her co-ownership
with Miguel over the same. Consequently, the riceland should, as correctly held by
the Court of Appeals, revert to the conjugal partnership property of the deceased
Miguel and private respondent Carlina Palang.
Furthermore, it is immaterial that Miguel and Carlina previously agreed to donate
their conjugal property in favor of their daughter Herminia in 1975. The trial court
erred in holding that the decision adopting their compromise agreement in effect
partakes the nature of judicial confirmation of the separation of property between
spouses and the termination of the conjugal partnership. Separation of property
between spouses during the marriage shall not take place except by judicial order or
without judicial conferment when there is an express stipulation in the marriage
[12]

settlements. The judgment which resulted from the parties compromise was not
specifically and expressly for separation of property and should not be so inferred.
[13]

With respect to the house and lot, Erlinda allegedly bought the same
for P20,000.00 on September 23, 1975 when she was only 22 years old. The
testimony of the notary public who prepared the deed of conveyance for the property
reveals the falsehood of this claim. Atty. Constantino Sagun testified that Miguel
Palang provided the money for the purchase price and directed that Erlindas name
alone be placed as the vendee.
[14]

The transaction was properly a donation made by Miguel to Erlinda, but one
which was clearly void and inexistent by express provision of law because it was
made between persons guilty of adultery or concubinage at the time of the donation,
under Article 739 of the Civil Code. Moreover, Article 87 of the Family Code
expressly provides that the prohibition against donations between spouses now
applies to donations between persons living together as husband and wife without a
valid marriage, for otherwise, the condition of those who incurred guilt would turn
out to be better than those in legal union.
[15]

[16]

The second issue concerning Kristopher Palangs status and claim as an

illegitimate son and heir to Miguels estate is here resolved in favor of respondent
courts correct assessment that the trial court erred in making pronouncements
regarding Kristophers heirship and filiation inasmuch as questions as to who are the
heirs of the decedent, proof of filiation of illegitimate children and the determination
of the estate of the latter and claims thereto should be ventilated in the proper
probate court or in a special proceeding instituted for the purpose and cannot be
adjudicated in the instant ordinary civil action which is for recovery of ownership and
possession.
[17]

As regards the third issue, petitioner contends that Kristopher Palang should be
considered as party-defendant in the case at bar following the trial courts decision
which expressly found that Kristopher had not been impleaded as party defendant
but theorized that he had submitted to the courts jurisdiction through his
mother/guardian ad litem. The trial court erred gravely.Kristopher, not having been
impleaded, was, therefore, not a party to the case at bar. His mother, Erlinda, cannot
be called his guardian ad litem for he was not involved in the case at bar. Petitioner
adds that there is no need for Kristopher to file another action to prove that he is the
illegitimate son of Miguel, in order to avoid multiplicity of suits. Petitioners grave
error has been discussed in the preceeding paragraph where the need for probate
proceedings to resolve the settlement of Miguels estate and Kristophers
successional rights has been pointed out.
[18]

[19]

WHEREFORE, the instant petition is hereby DENIED. The questioned decision

of the Court of Appeals is AFFIRMED. Costs against petitioner.
SO ORDERED.
Regalado, (Chairman), Puno, and Mendoza, JJ., concur.
Torres, Jr., J., on leave.

[1]

From the Decision of the trial court in Civil Case No. U-4265, page 2, citing Exhibit E of the
Records; Rollo, p. 29.

[2]

At the Methodist Church of Binalonan.

[3]

Civil Case No. U-2501, CFI Branch 9, Urdaneta, Pangasinan.

[4]

The judicially-confirmed settlement reads in part:

COME NOW the parties in the above-entitled case, assisted by their respective counsel, and to this
Honorable Court respectfully submit this COMPROMISE AGREEMENT.
1. That defendant hereby admits all the material allegations in the complaint;
2. That the parties have mutually agreed that, for their mutual interest and that of their only child,
Herminia B. Palang, all their present conjugal properties, real and personal, be conveyed or
transfered (sic) to their said daughter, except some personal properties such as the car
mentioned in the complaint which shall remain in the possession of the defendant; x x x
[5]

Criminal Case No. U-0509. Miguel Palang, then seventy years of age, was sentenced to a minimum
indeterminate penalty of three months and eleven days of Arresto Mayor and a maximum of
one year, eight months and twenty-one days of Prision Correccional. Erlinda Agapay was
sentenced to four years and two months of destierro.

[6]

Penned by Judge Manuel D. Villanueva, Rollo, pp. 28-36.

[7]

Per Justice Eugenio S. Labitoria, with the concurrence of Justices Emeterio C. Cui and Fermin A.
Martin, Jr. in CA-G.R. CV No. 24199, Carlina (Cornelia) V. Palang and Herminia P. Dela Cruz
v. Erlinda A. Agapay, Rollo, pp. 78-90.

[8]

Petition, p. 8; Rollo, p. 15.

[9]

TOLENTINO, I CIVIL CODE OF THE PHILIPPINES COMMENTARIES AND JURISPRUDENCE 500

(1990 editition).

[10]

TSN, February 3, 1988, p. 78; per Decision of the Court of Appeals, Rollo, p. 86.

[11]

The entire property was bought for P7,500.00. Exhibit C; Decision of the trial court, Rollo, p. 29.

[12]

Decision of the trial court, p. 5; Rollo, p. 32.

[13]

Article 134 of the Family Code.

[14]

TSN, October 1, 1986, pp.13-16.

[15]

The law states: Every donation or grant of gratuitous advantage direct or indirect, between the
spouses during the marriage shall be void, except moderate gifts which the spouses may give
each other on the occasion of any family rejoicing. The prohibition shall also apply to persons
living together as husband and wife without a valid marriage.

[16]

TOLENTINO, supra. page

376
citing Buenaventura v. Bautista,
Matabuena v. Cervantes, 38 SCRA 284.

[17]

Decision of the Court of Appeals, Rollo, p. 89.

[18]

Decision, p. 8; Rollo, p. 35.

[19]

Petition, p. 11; Rollo, p. 18.

SECOND DIVISION

[G.R. No. 124099. October 30, 1997]

50

O.G.

3679

and

MANUEL G. REYES, MILA G. REYES, DANILO G. REYES, LYN

AGAPE, MARITES AGAPE, ESTABANA GALOLO, and CELSA
AGAPE, petitioners, vs. COURT OF APPEALS AND JULIO
VIVARES,respondents.
DECISION
TORRES, JR., J.:

Unless legally flawed, a testators intention in his last will and testament is its life
and soul which deserves reverential observance.
The controversy before us deals with such a case.
Petitioners Manuel G. Reyes, Mila G. Reyes, Danilo G. Reyes, Lyn Agape,
Marites Agape, Estebana Galolo and Celsa Agape, the oppositors in Special
Proceedings No. 112 for the probate of the will of Torcuato J. Reyes, assail in this
petition for review the decision of the Court of Appeals dated November 29, 1995,
the dispositive portion of which reads:
[1]

WHEREFORE, premises considered, the judgment appealed from allowing or

admitting the will of Torcuato J. Reyes to probate and directing the issuance of
Letter Testamentary in favor of petitioner Julio A. Vivares as executor without
bond is AFFIRMED but modified in that the declaration that paragraph II of the
Torcuato Reyes' last will and testament, including subparagraphs (a) and (b) are
null and void for being contrary to law is hereby SET ASIDE, said paragraphs (a)
and (b) are declared VALID. Except as above modified, the judgment appealed
from is AFFIRMED.
SO ORDERED."

[2]

The antecedent facts:

On January 3, 1992, Torcuato J. Reyes executed his last will and testament
declaring therein in part, to wit:

xxx
II. I give and bequeath to my wife Asuncion Oning R. Reyes the following
properties to wit:
a. All my shares of our personal properties consisting among others of jewelries,
coins, antiques, statues, tablewares, furnitures, fixtures and the building;
b. All my shares consisting of one half (1/2) or 50% of all the real estates I own in
common with my brother Jose, situated in Municipalities of Mambajao, Mahinog,
Guinsiliban, Sagay all in Camiguin; real estates in Lunao, Ginoong, Caamulan,
Sugbongcogon, Boloc-Boloc, Kinoguinatan, Balingoan, Sta. Ines, Caesta,
Talisayan, all in the province of Misamis Oriental.
[3]

The will consisted of two pages and was signed by Torcuato Reyes in the
presence of three witnesses: Antonio Veloso, Gloria Borromeo, and Soledad
Gaputan. Private respondent Julio A. Vivares was designated the executor and in his
default or incapacity, his son Roch Alan S. Vivares.
Reyes died on May 12, 1992 and on May 21, 1992, private respondent filed a
petition for probate of the will before the Regional Trial Court of Mambajao,
Camiguin. The petitioner was set for hearing and the order was published in the
Mindanao Daily Post, a newspaper of general circulation, once a week for three
consecutive weeks. Notices were likewise sent to all the persons named in the
petition.
On July 21, 1992, the recognized natural children of Torcuato Reyes with
Estebana Galolo, namely Manuel, Mila, and Danilo all surnamed Reyes, and the
deceaseds natural children with Celsa Agape, namely Lyn and Marites Agape, filed
an opposition with the following allegations: a) that the last will and testament of
Reyes was not executed and attested in accordance with the formalities of law; and
b) that Asuncion Reyes Ebarle exerted undue and improper influence upon the
testator at the time of the execution of the will. The opposition further averred that
Reyes was never married to and could never marry Asuncion Reyes, the woman he
claimed to be his wife in the will, because the latter was already married to Lupo
Ebarle who was still then alive and their marriage was never annulled. Thus
Asuncion can not be a compulsory heir for her open cohabitation with Reyes was
violative of public morals.
On July 22, 1992, the trial court issued an ordering declaring that it had acquired
jurisdiction over the petition and, therefore, allowed the presentation of
evidence. After the presentation of evidence and submission of the respective
memoranda, the trial court issued its decision on April 23, 1993.
The trial court declared that the will was executed in accordance with the
formalities prescribed by law. It, however, ruled that Asuncion Reyes, based on the
testimonies of the witnesses, was never married to the deceased Reyes, and,
therefore, their relationship was an adulterous one. Thus:

The admission in the will by the testator to the illicit relationship between him and
ASUNCION REYES EBARLE who is somebody elses, wife, is further bolstered,
strengthened, and confirmed by the direct testimonies of the petitioner himself and
his two attesting witnesses during the trial.
In both cases, the common denominator is the immoral meretrecious, adulterous
and adulterous and illicit relationship existing between the testator and the devisee
prior to the death of the testator, which constituted the sole and primary
consideration for the devise or legacy, thus making the will intrinsically invalid.
[4]

The will of Reyes was admitted to probate except for paragraph II (a) and (b) of
the will which was declared null and void for being contrary to law and
morals. Hence, Julio Vivares filed an appeal before the Court of Appeals with the
allegation that the oppositors failed to present any competent evidence that Asuncion
Reyes was legally married to another person during the period of her cohabitation
with Torcuato Reyes.

On November 29, 1995, the Court of Appeals promulgated the assailed decision
which affirmed the trial courts decision admitting the will for probate but the
modification that paragraph II including subparagraphs (a) and (b) were declared
valid. The appellee court stated:

Considering that the oppositors never showed any competent, documentary or

otherwise during the trial to show that Asuncion Oning Reyes marriage to the
testator was inexistent or void, either because of a pre-existing marriage or
adulterous relationship, the trial court gravely erred in striking down paragraph II
(a) and (b) of the subject Last Will and Testament, as void for being contrary to law
and morals. Said declarations are not sufficient to destroy the presumption of
marriage. Nor is it enough to overcome the very declaration of the testator that
Asuncion Reyes is his wife.
[5]

Dissatisfied with the decision of the Court of Appeals, the oppositors filed this
petition for review.
Petitioners contend that the findings and conclusion of the Court of Appeals was
contrary to law, public policy and evidence on record. Torcuato Reyes and Asuncion
Oning Reyes were collateral relatives up to the fourth civil degree. Witness Gloria
Borromeo testified that Oning Reyes was her cousin as her mother and the latters
father were sister and brother. They were also nieces of the late Torcuato
Reyes. Thus, the purported marriage of the deceased Reyes and Oning Reyes was
void ab initio as it was against public policy pursuant to Article 38 (1) of the Family
Code. Petitioners further alleged that Oning Reyes was already married to Lupo
Ebarle at the time she was cohabiting with the testator hence, she could never
contact any valid marriage with the latter.Petitioners argued that the testimonies of
the witnesses as well as the personal declaration of the testator, himself, were
sufficient to destroy the presumption of marriage. To further support their contention,
petitioners attached a copy of the marriage certificate of Asuncion Reyes and Lupo
Ebarle.
[6]

The petition is devoid of merit.

As a general rule, courts in probate proceedings are limited to pass only upon
the extrinsic validity of the will sought to be probated. Thus, the court merely
inquires on its due execution, whether or not it complies with the formalities
prescribed by law, and the testamentary capacity of the testator. It does not
determine nor even by implication prejudge the validity or efficacy of the wills
provisions. The intrinsic validity is not considered since the consideration thereof
usually comes only after the will has been proved and allowed. There are, however,
notable circumstances wherein the intrinsic validity was first determined as when the
defect of the will is apparent on its face and the probate of the will may become a
useless ceremony if it is intrinsically invalid. The intrinsic validity of a will may be
passed upon because practical considerations demanded it as when there is
preterition of heirs or the testamentary provisions are doubtful legality. Where the
parties agree that the intrinsic validity be first determined, the probate court may also
do so. Parenthetically, the rule on probate is not inflexible and absolute. Under
exceptional circumstances, the probate court is not powerless to do what the
situation constrains it to do and pass upon certain provisions of the will.
[7]

[8]

[9]

[10]

[11]

[12]

The case at bar arose from the institution of the petition for the probate of the will
of the late Torcuato Reyes. Perforce, the only issues to be settled in the said
proceeding were: (1) whether or not the testator had animus testandi; (2) whether or
not vices of consent attended the execution of the will; and (3) whether or not the
formalities of the will had been complied with. Thus, the lower court was not asked to
rule upon the intrinsic validity or efficacy of the provisions of the will. As a result, the
declaration of the testator that Asuncion Oning Reyes was his wife did not have to be
scrutinized during the probate proceedings. The propriety of the institution of Oning
Reyes as one of the devisees/legatees already involved inquiry on the wills intrinsic
validity and which need not be inquired upon by the probate court.
The lower court erroneously invoked the ruling in Nepomuceno vs. Court of
Appeals (139 SCRA 206) in the instant case. In the case aforesaid, the testator
himself, acknowledged his illicit relationship with the devisee, to wit:

Art. IV. That since 1952, I have been living, as man and wife, with one Sofia J.
Nepomuceno, whom I declare and avow to be entitled to my love an [sic] affection,
for all the things which she has done for me, now and in the past; that while Sofia
J. Nepomuceno has with my full knowledge and consent, did comfort and
represent myself as her own husband, in truth and in fact, as well as in the eyes of
the law, I could not bind her to me in the holy bonds of matrimony because of my
aforementioned previous marriage.
Thus, the very tenor of the will invalidates the legacy because the testator
admitted he was disposing of the properties to a person with whom he had been
living in concubinage. To remand the case would only be a waste of time and
money since the illegality or defect was already patent. This case is different from
the Nepomuceno case. Testator Torcuato Reyes merely stated in his will that he was
bequeathing some of his personal and real properties to his wife, Asuncion Oning
Reyes. There was never an open admission of any illicit relationship. In the case of
Nepomuceno, the testator admitted that he was already previously married and that
he had an adulterous relationship with the devisee.
[13]

We agree with the Court of Appeals that the trial court relied on uncorroborated
testimonial evidence that Asuncion Reyes was still married to another during the time
she cohabited with the testator. The testimonies of the witnesses were merely
hearsay and even uncertain as to the whereabouts or existence of Lupo Ebarle, the
supposed husband of Asuncion. Thus:

The foregoing testimony cannot go against the declaration of the testator that
Asuncion Oning Reyes is his wife. In Alvarado v. City Government of Tacloban
(supra) the Supreme Court stated that the declaration of the husband is competent
evidence to show the fact of marriage.
Considering that the oppositors never showed any competent evidence,
documentary or otherwise during the trial to show that Asuncion Oning Reyes
marriage to the testator was inexistent or void, either because of a pre-existing
marriage or adulterous relationship, the trial court gravely erred in striking down
paragraph II (a) and (b) of the subject Last Will and Testament, as void for being

contrary to law and morals. Said declarations are not sufficient to destroy the
presumption of marriage. Nor is it enough to overcome the very declaration of the
testator that Asuncion Reyes is his wife.
[14]

In the elegant language of Justice Moreland written decades ago, he said-

A will is the testator speaking after death. Its provisions have substantially the
same force and effect in the probate court as if the testator stood before the court in
full life making the declarations by word of mouth as they appear in the will. That
was the special purpose of the law in the creation of the instrument known as the
last will and testament. Men wished to speak after they were dead and the law, by
the creation of that instrument, permitted them to do so. xxx All doubts must be
resolved in favor of the testators having meant just what he said. (Santos vs.
Manarang, 27 Phil. 209).
Petitioners tried to refute this conclusion of the Court of Appeals by presenting
belatedly a copy of the marriage certificate of Asuncion Reyes and Lupo
Ebarle. Their failure to present the said certificate before the probate court to support
their position that Asuncion Reyes had an existing marriage with Ebarle constituted a
waiver and the same evidence can no longer be entertained on appeal, much less in
this petition for review. This Court would no try the case a new or settle factual
issues since its jurisdiction is confined to resolving questions of law which have been
passed upon by the lower courts. The settled rule is that the factual findings of the
appellate court will not be disturbed unless shown to be contrary to the evidence on
the record, which petitioners have not shown in this case.
[15]

Considering the foregoing premises, we sustain the findings of the appellate

court it appearing that it did not commit a reversible error in issuing the challenged
decision.
ACCORDINGLY, decision appealed from dated November 29, 1995, is hereby
AFFIRMED and the instant petition for review is DENIED for lack of merit.
SO ORDERED.
Regalado, (Chairman), Romero, Puno, and Mendoza, JJ., concur.

[1]

Penned by Associate Justice Jose C. dela Rama, concurred in by Associate Justices Jaime M.
Lantin (Chairman), and Eduardo G. Montenegro.

[2]

Rollo, p. 29.

[3]

Exhibit F, Records, p. 4.

[4]

Decision, Records, p. 141.

[5]

Decision, Rollo, p. 29.

[6]

Annex A, Rollo, p. 103.

[7]

Ajero vs. Court of Appeals, 236 SCRA 488; Cayetano vs. Leonidas, 129 SCRA 522.

[8]

Palacios vs. Palacios, 106 Phil. 739.

[9]

Nepomuceno vs. Court of Appeals, 139 SCRA 206; Nuguid vs. Nuguid, 17 SCRA 499.

[10]

Balanay vs. Martinez, 64 SCRA 452; Cayetano vs. Leonidas, 129 SCRA 522.

[11]

Nuguid vs. Nuguid, supra.

[12]

Nepomuceno vs. Court of Appeals, supra.

[13]

Ibid.

[14]

CA decision, Rollo, p. 29.

[15]

Mercado vs. Court of Appeals, 234 SCRA 98, G.R. No. 108802. July 12, 1994.

THIRD DIVISION

[G.R. No. 108947. September 29, 1997]

ROLANDO SANCHEZ, FLORIDA MIERLY SANCHEZ, ALFREDO T.

SANCHEZ and MYRNA T. SANCHEZ,petitioners, vs. THE
HONORABLE COURT OF APPEALS, ROSALIA S. LUGOD,
ARTURO S. LUGOD, EVELYN LUGOD-RANISES and
ROBERTO S. LUGOD, respondents.
DECISION
PANGANIBAN, J.:

Is a petition for certiorari, in lieu of appeal, the proper remedy to correct orders of
a probate court nullifying certain deeds of sale and, thus, effectively passing upon
title to the properties subject of such deeds? Is a compromise agreement partitioning
inherited properties valid even without the approval of the trial court hearing the
intestate estate of the deceased owner?
The Case
These questions are answered by this Court as it resolves the petition for review
on certiorari before us assailing the November 23, 1992 Decision of the Court of
Appeals in CA-G.R. SP No. 28761 which annulled the decision of the trial
court and which declared the compromise agreement among the parties valid and
binding even without the said trial courts approval. The dispositive portion of the
assailed Decision reads:
[1]

[2]

[3]

[4]

WHEREFORE, for the reasons hereinabove set forth and discussed, the
instant petition is GRANTED and the challenged decision as well as the
subsequent orders of the respondent court are ANNULLED and SET
ASIDE. The temporary restraining order issued by this Court on October
14, 1992 is made PERMANENT. The compromise agreement dated
October 30, 1969 as modified by the memorandum of agreement of April

13, 1970 is DECLARED valid and binding upon herein parties. And
Special Proceedings No. 44-M and 1022 are deemed CLOSED and
TERMINATED.
SO ORDERED.

[5]

The Antecedent Facts

The facts are narrated by the Court of Appeals as follows:

[Herein private respondent] Rosalia S. Lugod is the only child of spouses

Juan C. Sanchez and Maria Villafranca while [herein private respondents]
Arturo S. Lugod, Evelyn L. Ranises and Roberto S. Lugod are the
legitimate children of [herein private respondent] Rosalia.
[Herein petitioners] Rolando, Florida Mierly, Alfredo and Myrna, all
surnamed Sanchez, are the illegitimate children of Juan C. Sanchez.
Following the death of her mother, Maria Villafranca, on September 29,
1967, [herein private respondent] Rosalia filed on January 22, 1968, thru
counsel, a petition for letters of administration over the estate of her mother
and the estate of her father, Juan C. Sanchez, who was at the time in state
of senility (Annex B, Petition).
On September 30, 1968, [herein private respondent] Rosalia, as
administratrix of the intestate estate of her mother, submitted an inventory
and appraisal of the real and personal estate of her late mother (Annex C,
Petition).
Before the administration proceedings in Special Proceedings No. 44-M
could formally be terminated and closed, Juan C. Sanchez, [herein private
respondent] Rosalias father, died on October 21, 1968.
On January 14, 1969, [herein petitioners] as heirs of Juan C. Sanchez, filed a
petition for letters of administration (Special Proceedings No. 1022) over the
intestate estate of Juan C. Sanchez, which petition was opposed by (herein private
respondent) Rosalia.
[6]

On October 30, 1969, however, [herein private respondent] Rosalia and

[herein petitioners] assisted by their respective counsels executed a
compromise agreement (Annex D, Petition) wherein they agreed to divide
the properties enumerated therein of the late Juan C. Sanchez.
On November 3, 1969, petitioner Rosalia was appointed by [the trial
court], and took her oath as the administratrix of her fathers intestate estate.

On January 19, 1970, [herein petitioners] filed a motion to require

administratrix, [herein private respondent] Rosalia, to deliver deficiency of
24 hectares and or to set aside compromise agreement (Annex E, Petition).
Under date of April 13, 1970, (herein private respondent) Rosalia and
[herein petitioners] entered into and executed a memorandum of agreement
which modified the compromise agreement (Annex F. Petition)
On October 25, 1979, or nine years later, [herein petitioners] filed, thru
counsel, a motion to require [herein private respondent] Rosalia to submit a
new inventory and to render an accounting over properties not included in
the compromise agreement (Annex G, Petition).They likewise filed a
motion to defer the approval of the compromise agreement (Annex
H, Ibid), in which they prayed for the annulment of the compromise
agreement on the ground of fraud.
On February 4, 1980, however, counsel for [herein petitioners] moved to
withdraw his appearance and the two motions he filed, Annex G and H
(Annex I, Petition).
On February 28, 1980, the [trial] court issued an order directing [herein
private respondent] Rosalia to submit a new inventory of properties under
her administration and an accounting of the fruits thereof, which prompted
[herein private respondent] Rosalia to file a rejoinder on March 31, 1980
(Annex K, Petition).
On May 12, 1980, [herein petitioners], thru new counsel, filed a motion to
change administratrix (Annex L, Petition) to which [herein private
respondent] Rosalia filed an opposition (AnnexM, Ibid).
The parties were subsequently ordered to submit their respective position
papers, which they did (Annexes N and O, Petition). On September 14,
1989, former counsel of (herein petitioners) entered his re-appearance as
counsel for (herein petitioners).
On the bases of memoranda submitted by the parties, the [trial court], this
time presided by Judge Vivencio A. Galon, promulgated its decision on
June 26, 1991, the dispositive portion of which states:
WHEREFORE, premises considered, judgment is hereby rendered as follows by
declaring and ordering:
1.That the entire intestate estate of Maria Villafranca Sanchez under Special
Proceedings No.44-M consists of all her paraphernal properties and one-half (1/2)
of the conjugal properties which must be divided equally between Rosalia Sanchez
de Lugod and Juan C. Sanchez;
2.That the entire intestate estate of Juan C. Sanchez under Special Proceedings No.
1022 consists of all his capital properties, one-half (1/2) from the conjugal

partnership of gains and one-half (1/2) of the intestate estate of Maria Villafranca
under Special Proceedings No. 44-M;
3.That one-half (1/2) of the entire intestate estate of Juan C. Sanchez shall be
inherited by his only legitimate daughter, Rosalia V. Sanchez de Lugod while the
other one-half (1/2) shall be inherited and be divided equally by, between and
among the six (6) illegitimate children, namely:Patricia Alburo, Maria Ramuso
Sanchez, Rolando Pedro T. Sanchez, Florida Mierly T. Sanchez, Alfredo T.
Sanchez and Myrna T. Sanchez;
4.That all the Deed (sic) of Absolute Sales executed by Juan C. Sanchez and Maria
Villafranca in favor of Rosalia Sanchez Lugod, Arturo S. Lugod, Evelyn S. Lugod
and Roberto S. Lugod on July 26, 1963 and June 26, 1967 are all declared
simulated and fictitious and must be subject to collation and partition among all
heirs;
5.That within thirty (30) days from finality of this decision, Rosalia Sanchez
Lugod is hereby ordered to prepare a project of partition of the intestate estate of
Juan C. Sanchez under Special Proceedings No. 1022 and distribute and deliver to
all heirs their corresponding shares. If she fails to do so within the said thirty (30)
days, then a Board of Commissioners is hereby constituted, who are all entitled to
honorarium and per diems and other necessary expenses chargeable to the estate to
be paid by Administratrix Rosalia S. Lugod, appointing the Community
Environment and Natural Resources Officer (CENRO) of Gingoog City as
members thereof, with the task to prepare the project of partition and deliver to all
heirs their respective shares within ninety (90) days from the finality of said
decision;
6.That within thirty (30) days from receipt of this decision, Administratrix Rosalia
Sanchez Vda. de Lugod is hereby ordered to submit two (2) separate certified true
and correct accounting, one for the income of all the properties of the entire
intestate estate of Maria Villafranca under Special Proceedings No. 44-M, and
another for the properties of the entire intestate estate of Juan C. Sanchez under
Special Proceedings No. 1022 duly both signed by her and both verified by a
Certified Public Accountant and distribute and deliver to her six (6) illegitimate
brothers and sisters in equal shares, one -half (1/2) of the net income of the estate
of Juan C. Sanchez from October 21, 1968 up to the finality of this decision;
7.For failure to render an accounting report and failure to give cash advances to the
illegitimate children of Juan C. Sanchez during their minority and hour of need
from the net income of the estate of Juan C. Sanchez, which adversely prejudiced
their social standing and pursuit of college education, (the trial court) hereby orders
Rosalia Sanchez Vda. de Lugod to pay her six (6) illegitimate brothers and sisters
the sum of Five Hundred Thousand (P500,000.00) Pesos, as exemplary damages,

and also the sum of One Hundred Fifty Thousand (P150,000.00) Pesos for
attorneys fees;
8.Upon release of this decision and during its pendency, should appeal be made,
the Register of Deeds and Assessors of the Provinces and Cities where the
properties of Juan C. Sanchez and Maria Villafranca are located, are all ordered to
register and annotate in the title and/or tax declarations, the dispositive portion of
this decision for the protection of all heirs and all those who may be concerned.
SO ORDERED.
[Herein private respondent] Rosalia filed a motion for reconsideration
dated July 17, 1991 (Annex P, Petition) on August 6, 1991.
On August 13, 1991, [herein petitioners] filed a motion for execution and
opposition to [herein private respondent] Rosalias motion for
reconsideration (Annex Q, Petition).
On September 3, 1991, [the trial court] issued an Omnibus Order (Annex S,
Petition) declaring, among other things, that the decision at issue had
become final and executory.
[Herein private respondent] Rosalia then filed a motion for reconsideration
of said Omnibus Order (Annex T, Petition). Said [herein private
respondent] was allowed to file a memorandum in support of her motion
(Annex V, Petition).
On June 26, 1991, [the trial court] issued and Order denying petitioner Rosalias motion for
reconsideration (Annex W, Petition).
[7]

Thereafter, private respondents elevated the case to the Court of Appeals via a
petition for certiorari and contended:
I

The [trial court] has no authority to disturb the compromise agreement.

II

The [trial court] has arbitrarily faulted [herein private respondent] Rosalia S.
Lugod for alleged failure to render an accounting which was impossible.
III

The [trial court] acted without jurisdiction in derogation of the constitutional

rights of [herein private respondents] Arturo S. Lugod, Evelyn L. Ranises and
Roberto S. Lugod when [the trial court] decided to annul the deed of sale
between the said [herein private respondents] and Juan C. Sanchez without
affording them their day in court.

IV

[The trial court judge] defied without rhyme or reason well-established and
entrenched jurisprudence when he determined facts sans any evidence thereon.
V

[The trial court] grossly misinterpreted [herein private respondent] Rosalia S.

Lugods right to appeal.
[8]

For claritys sake, this Court hereby reproduces verbatim the compromise
agreement of the parties:
[9]

COMPROMISE AGREEMENT

COME NOW, the parties in the above-entitled case, motivated by their

mutual desire to preserve and maintain harmonious relations between and
among themselves, for mutual valuable considerations and in the spirit of
good will and fair play, and, for the purpose of this Compromise
Agreement, agree to the following:
1. That the deceased Juan C. Sanchez who died intestate on October 21, 1968 was
legally married to Maria Villafranca de Sanchez, who predeceased her on
September 29, 1967, out of whose wedlock Rosalia Sanchez Lugod, Oppositor
herein, was born, thus making her the sole and only surviving legitimate heir of her
deceased parents;
2. That the said deceased Juan C. Sanchez, left illegitimate children, IntervenorsOppositors and Petitioners, respectively, herein namely;
(1) Patricio Alburo, born out of wedlock on March 17, 1926 at
Cebu City, Philippines, to Emilia Alburo;
(2) Maria Ramoso Sanchez, born out of wedlock on May 9, 1937
at Gingoog, Misamis Oriental, now, Gingoog City, to Alberta
Ramoso;
(3) (a) Rolando Pedro Sanchez, born on May 19, 1947,
(b) Florida Mierly Sanchez, born on February 16, 1949,
(c) Alfredo Sanchez, born on July 21, 1950,and
(d) Myrna Sanchez, born on June 16, 1952, all born out of
wedlock to Laureta Tampus in Gingoog City, Philippines.

3. That the deceased Juan C. Sanchez left the following properties, to wit:
I. SEPARATE CAPITAL OF JUAN C. SANCHEZ
NATURE, DESCRIPTION AND AREA ASSESSED VALUE
(1) Agricultural Land. Covered by Tax. Decl. No. 06458, Cad. Lot
No. 1041 C-2, located at Murallon, Gingoog City and
bounded on the North by Lot Nos. 1033, 1035, 1036, 1037,
1039, 1040, 1042 & 1043; South by Lot No. 1080, 1088,
1087 & 1084; East by Lot Nos. 1089, 1061 & 2319; West by
Lot Nos. 954, 1038, 1057 & 1056, containing an area of ONE
HUNDRED EIGHTY THREE THOUSAND SIX
HUNDRED SEVENTY TWO (183, 672) sq. ms. more or
less.
P21,690.00
II. CONJUGAL PROPERTY OF JUAN C. SANCHEZ AND MARIA
VILLAFRANCA DE SANCHEZ
(1) Agricultural Land. Covered by Tax Decl. No. 06447, Cad. Lot No.
2745, C-7 located at Agay-ayan, Gingoog City and bounded on the
North by Lot Nos. 2744, 2742, 2748; South by Lot No. 2739; East by
Lot No. 2746; West by Lot No. 2741, containing an area of
FOURTEEN THOUSAND SEVEN HUNDRED (14,700) sq. ms.
more or less.
P1,900.00
(2) Agricultural Land. Covered by Tax Decl. No. 06449, Cad, Lot No.
3271 C-7 located at Panyangan, Lanao, Gingoog City and bounded
on the North by Lot No. 3270; South by Lot Nos. 2900 & 3462; East
by Panyangan River & F. Lumanao; and Part of Lot 3272; and West
by Samay Creek, containing an area of ONE HUNDRED FOUR
THOUSAND SIX HUNDRED (104,600) sq. ms. more or less.
P11,580.0
0
(3) Agricultural Land. Covered by Tax Decl. No. 06449, Cad. Lot No.
2319, Case 2, located at Murallon, Gingoog City and bounded on the
North by Lot No. 1061; South by Hinopolan Creek; East by Lot No.
1044; and West by Lot No. 1041, containing an area of THREE
THOUSAND TWO HUNDRED TWENTY FIVE (3,225) sq. ms.
more or less.

(4) Agricultural Land. Covered by Tax Decl. No. 06452, Cad. Lot No.
3272, C-7 Part 4 located at Panyangan, Lunao, Gingoog City and
bounded on the North by Lot Nos. 3270 & 3273; East by Panyangan
River; South by Panyangan River; and West by Lot Nos. 3270 &
3271, containing an area of FIFTY FIVE THOUSAND SIX
HUNDRED (55,600) sq. ms. more or less, being claimed by Damian
Querubin.
P2.370.00
(5) Agricultural Land. Covered by Tax Decl. No. 06453, Cad. Lot No.
3270 Case 7, located at Sunog, Lunao, Gingoog City and bounded on
the North by Samay Creek & Lot 3267; South by Lot Nos. 3271 &
3272; East by Lot Nos. 3269 & 3273; and West by Samay Creek,
containing an area of FOUR HUNDRED EIGHT THREE
THOUSAND SIX HUNDRED (483,600) sq. ms. more or less.
P61,680.0
0
(6) Agricultural Land. Covered by Tax Decl. No. 06457, Cad. Lot No.
3273, C-7 Part 2 located at Panyangan, Lunao, Gingoog City and
bounded on the North by Lot No. 3269; South by Lot No. 3272; East
by Panyangan River; and West by Lot No. 3270, contaning an area of
THIRTY FOUR THOUSAND THREE HUNDRED (34,300) sq. ms.
more or less, being claimed by Miguel Tuto.
P3,880.00
(7) Agricultural Land. Covered by Tax Decl. No. 12000, Cad. Lot No.
2806, Case 7 located at Agayayan, Gingoog City and bounded on the
North by Agayayan River; South by Victoriano Barbac; East by
Isabelo Ramoso; and West by Restituto Baol, contaning an area of
SIX THOUSAND SIX HUNDRED SEVENTY SIX (6,676) sq. ms.
more or less.
P380.00
(8) Agricultural Land. Covered by Tax Decl. No. 12924, Cad. Lot No.
1206 C-1 located at Cahulogan, Gingoog City and bounded on the
NW., by Lot No. 1209; SW., by Lot No. 1207; East by
National Highway; and West by Lot No. 1207; containing an area of
FOUR THOUSAND FIVE HUNDRED THIRTEEN (4,513) sq. ms.
more or less.

P740.00
(9) Agricultural Land. Covered by Tax Decl. No. 12925, Cad. Lot No.
5554, located at Tinaytayan, Pigsalohan, Gingoog City and bounded
on the North by Lot Nos. 5559 & 5558; South by Lot No. 3486; East
by Lot No. 5555; and West by Lot No. 5355, containing an area of
EIGHTEEN THOUSAND FIVE HUNDRED TWENTY EIGHT
(18,528) sq. ms. more or less.
P320.00
(10) Agricultural Land. Covered by Tax Decl. No. 12926, Cad. Lot No.
5555 C-7 located at Tinaytayan, Pigsalojan, Gingoog City and
bounded on the North by Tinaytayan Creek & Lot Nos. 5557 & 5558;
South by Lot Nos. 3486, 3487, 3488, 3491 & 3496; East by Cr. & Lot
No. 3496; and West by Lot No. 5554, containing an area of
SEVENTY SEVEN THOUSAND SEVEN HUNDRED SEVENTY
SIX (77,776) sq. ms. more or less.
P1,350.00
(11) A Commercial Land. Covered by Tax Decl. No. 06454, Cad. Lot No.
61-C-1 located at Guno-Condeza Sts., Gingoog City and bounded on
the North by Lot 64; South by Road-Lot 613 Condeza St; East by Lot
Nos. 63, and 62; West by Road-Lot 614-Guno St., containing an area
of ONE THOUSAND FORTY TWO (1,042) sq. ms. more or less.
P9,320.00
(12) A Commercial Land. Covered by Tax Decl. No. 06484, Lot No. 5,
Block 2, located at Cabuyoan, Gingoog City and bounded on the
North by Lot No. 4, block 2; South by Lot No. 8, block 2; East by Lot
No. 6, block 2, West by Subdivision Road, containing an area of
FOUR HUNDRED (400) sq. ms. more or less.
P12,240.00
(13) A Commercial Land. Covered by Tax Decl. No. 15798, Block No. 7A-16-0 located at Cabuyoan, Gingoog City and bounded on the North
by Lot No. 7-A-16-0; South by Lot No. 7-16-0; East by Lot No. 7-A18-Road; West by Lot No. 8, PSU-120704-Julito Arengo vs. Restituto
Baol, containing an area of TWO HUNDRED SIXTEEN (216) sq.
ms. more or less.
P1,050.00

(14) Agricultural Land. Covered by Tax, Decl. No. 06789, Cad. Lot No.
5157-C-7, located at Kiogat, Agayayan, Gingoog City and bounded
on the North by Lot No. 5158, 5159, 5156; South by SE-Steep Bank;
East by NW, by Lot No. 5158, Villafranca, containing an area of
NINETY SIX THOUSAND TWO HUNDRED (96,200) sq. ms. more
or less.
P3,370.00
III. PERSONAL ESTATE (CONJUGAL)
NATURE AND DESCRIPTION LOCATION APPRAISAL
1. Fifty (50) shares of stock
Rural Bank of Gingoog, Inc.
at P100.00 per share P5,000.00
2. Four (4) shares of Preferred Stock
with San Miguel Corporation 400.00
4. That, the parties hereto have agreed to divide the above-enumerated properties in
the following manner, to wit:
(a) To Patricio Alburo, Maria Ramoso Sanchez, Roland Pedro T. Sanchez,
Florida Mierly Sanchez, Alfredo T. Sanchez and Myrna T. Sanchez, in
equal pro-indiviso shares, considering not only their respective areas
but also the improvements existing thereon, to wit:
Agricultural Land. Covered by Tax Decl. No. 06453, Cad. Lot
No. 3270 Case 7, located at Sunog, Lunao, Gingoog City and
bounded on the North by Samay Creek & Lot 3267; South by
Lot Nos. 3271 and 3272; East by Lot Nos. 3269 & 3273; and
West by Samay Creek, containing an area of FOUR
HUNDRED EIGHTY THREE THOUSAND SIX HUNDRED
(483,600) sq. ms. and assessed in the sum of P61,680.00.
(b) To Rosalia Sanchez Lugod all the rest of the properties, both real and
personal, enumerated above with the exception of the following:
(1) Two Preferred Shares of Stock in the San Miguel Corporation,
indicated in San Miguel Corporation Stock Certificate No.
30217, which two shares she is ceding in favor of Patricio
Alburo;
(2) The house and lot designated as Lot No. 5, Block 2 together with
the improvements thereon and identified as parcel No. II-12,

lot covered by Tax Decl. No. 15798 identified as Parcel No. II13 in the above enumerated, and Cad. Lot No. 5157-C-7
together with the improvements thereon, which is identified as
parcel No. II-14 of the above-enumeration of properties, which
said Rosalia S. Lugod is likewise ceding and renouncing in
favor of Rolando Pedro, Florida Mierly, Alfredo and Myrna, all
surnamed Sanchez, in equal pro-indiviso shares;
5. That Rolando Pedro, Florida Mierly, Alfredo and Myrna, all surnamed Sanchez
hereby acknowledge to have received jointly and severally in form of advances
after October 21, 1968 the aggregate sum of EIGHT THOUSAND FIVE
HUNDRED THIRTY-THREE PESOS (P8,533.94) and NINETY-FOUR
CENTAVOS;
6. That the parties hereto likewise acknowledge and recognize in the indebtedness
of the deceased Juan G. Sanchez and his deceased wife Maria Villafranca Sanchez
to the Lugod Enterprises, Inc., in the sum of P43,064.99;
7. That the parties hereto shall be responsible for the payment of the estate and
inheritance taxes proportionate to the value of their respective shares as may be
determined by the Bureau of Internal Revenue and shall likewise be responsible for
the expenses of survey and segregation of their respective shares;
8. That Patricio Alburo, Maria Ramoso Sanchez, Roland Pedro Sanchez, Florida
Mierly Sanchez, Alfredo Sanchez and Myrna Sanchez hereby waive, relinquish and
renounce, jointly and individually, in a manner that is absolute and irrevocable, all
their rights and interests, share and participation which they have or might have in
all the properties, both real and personal, known or unknown and/or which may not
be listed herein, or in excess of the areas listed or mentioned herein, and/or which
might have been, at one time or another, owned by, registered or placed in the
name of either of the spouses Juan C. Sanchez or Maria Villafranca de Sanchez or
both, and which either one or both might have sold, ceded, transferred, or donated
to any person or persons or entity and which parties hereto do hereby confirm and
ratify together with all the improvements thereon, as well as all the produce and
proceeds thereof, and particularly of the properties, real and personal listed herein,
as well as demandable obligations due to the deceased spouses Juan C. Sanchez,
before and after the death of the aforementioned spouses Juan C. Sanchez and
Maria Villafranca de Sanchez, in favor of oppositor Rosalia S. Lugod;
9. That the expenses of this litigation including attorneys fees shall be borne
respectively by the parties hereto;
10. That Laureta Tampus for herself and guardian ad-litem of her minor children,
namely: Florida Mierly, Alfredo, and Myrna, all surnamed Sanchez, hereby declare
that she has no right, interest, share and participation whatsoever in the estate left

by Juan C. Sanchez and/or Maria Villafranca de Sanchez, or both, and that she
likewise waives, renounces, and relinquishes whatever rigid, share, participation or
interest therein which she has or might have in favor of Rosalia S. Lugod;
11. That, the parties hereto mutually waive and renounce in favor of each other any
whatever claims or actions, arising from, connected with, and as a result of Special
Proceedings Nos. 44-M and 1022 of the Court of First Instance of Misamis
Oriental, Rosalia S. Lugod, warranting that the parcel of land ceded to the other
parties herein contains 48 hectares and 36 acres.
12. That, Rosalia S. Lugod shall assume as she hereby assumes the payment to
Lugod Enterprises, Inc., of the sum of P51,598.93 representing the indebtedness of
the estate of Juan C. Sanchez and Maria Villafranca de Sanchez and the advances
made to Rolando Pedro, Mierly, Alfredo, and Myrna all surnamed Sanchez,
mentioned in paragraphs 5 and 6 hereof and, to give effect to this Agreement, the
parties hereto agree to have letters of administration issued in favor of Rosalia S.
Lugod without any bond.
That Rosalia S. Lugod likewise agrees to deliver possession and enjoyment of the
parcel of land herein ceded to petitioners and intervenors immediately after the
signing of this agreement and that the latter also mutually agree among themselves
to have the said lot subdivided and partitioned immediately in accordance with the
proportion of one sixth (1/6) part for every petitioner and intervenor and that in the
meantime that the partition and subdivision is not yet effected, the administrations
of said parcel of land shall be vested jointly with Laureta Tampos, guardianad
litem of petitioners and Maria Ramoso, one of the intervenors who shall see to it
that each petitioner and intervenor is given one sixth (1/6) of the net proceeds of all
agricultural harvest made thereon.
WHEREFORE, it is most respectfully prayed that the foregoing compromise
agreement be approved.
Medina, Misamis Oriental, October 30, 1969.
(Sgd.) (Sgd.)
PATRICIO ALBURO ROSALIA S. LUGOD
Intervenor-Oppositor Oppositor
(Sgd.)
MARIA RAMOSO SANCHEZ ASSISTED BY:
Intervenor-Oppositor
(Sgd.)
ASSISTED BY: PABLO S. REYES
R-101-Navarro Bldg.

(Sgd.) Don A. Velez St.

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

The Clerk of Court

Court of First Instance
Branch III, Medina, Mis. Or.
Greetings:
Please set the foregoing compromise agreement for the approval of the
Honorable Court today, Oct. 30, 1969.
(Sgd.) (Sgd.) (Sgd.)
PABLO S. REYES TEOGENES VELEZ, JR. REYNALDO L. FERNANDEZ
The Memorandum of Agreement dated April 13, 1970, which the parties entered
into with the assistance of their counsel, amended the above compromise. (It will be
reproduced later in our discussion of the second issue raised by the petitioners.)
The Court of Appeals, in a Resolution dated September 4, 1992, initially
dismissed private respondents petition. Acting, however, on a motion for
reconsideration and a supplemental motion for reconsideration dated September 14,
[10]

1992 and September 25, 1992, respectively, Respondent Court thereafter

reinstated private respondents petition in a resolution dated October 14, 1992.
[11]

[12]

In due course, the Court of Appeals, as earlier stated, rendered its assailed
Decision granting the petition, setting aside the trial courts decision and declaring the
modified compromise agreement valid and binding.
Hence, this appeal to this Court under Rule 45 of the Rules of Court.
The Issues
In this appeal, petitioners invite the Courts attention to the following issues:
I

The respondent court grossly erred in granting the petition

for certiorari under Rule 65 considering that the special civil action
ofcertiorari may not be availed of as a substitute for an appeal and that, in
any event, the grounds invoked in the petition are merely alleged errors of
judgment which can no longer be done in view of the fact that the decision
of the lower court had long become final and executory.
II

Prescinding from the foregoing, the respondent court erred in annulling the
decision of the lower court for the reason that a compromise agreement or
partition, as the court construed the same to be, executed by the parties on
October 30, 1969 was void and unenforceable the same not having been
approved by the intestate court and that the same having been seasonably
repudiated by petitioners on the ground of fraud.
III

The respondent court grossly erred in ignoring and disregarding findings of

facts of the lower court that the alleged conveyances of real properties
made by the spouses Juan C. Sanchez and Maria Villafranca just before
their death in favor of their daughter and grandchildren, private
respondents herein, are tainted with fraud or made in contemplation of
death, hence, collationable.
IV

In any event, the respondent court grossly erred in treating the lower courts
declaration of fictitiousness of the deeds of sale as a final adjudication of
annulment.
V

The respondent court grossly erred in declaring the termination of the

intestate proceedings even as the lower court had not made a final and
enforceable distribution of the estate of the deceased Juan C. Sanchez.

VI

Prescinding from the foregoing, the respondent court grossly erred in not at
least directing respondent Rosalia S. Lugod to deliver the deficiency of
eight (8) hectares due petitioners under the compromise agreement and
memorandum of agreement, and in not further directing her to include in
the inventory properties conveyed under the deeds of sale found by the
lower court to be part of the estate of Juan C. Sanchez.
[13]

The salient aspects of some issues are closely intertwined; hence, they are
hereby consolidated into three main issues specifically dealing with the following
subjects: (1) the propriety of certiorari as a remedy before the Court of Appeals, (2)
the validity of the compromise agreement, and (3) the presence of fraud in the
execution of the compromise and/or collation of the properties sold.
The Courts Ruling
The petition is not meritorious.
First Issue: Propriety of Certiorari
Before the Court of Appeals
Since private respondents had neglected or failed to file an ordinary appeal
within the reglementary period, petitioners allege that the Court of Appeals erred in
allowing private respondents recourse to Rule 65 of the Rules of Court. They
contend that private respondents invocation of certiorari was procedurally defective.
They further argue that private respondents, in their petition before the Court of
Appeals, alleged errors of the trial court which, being merely errors of judgment and
not errors of jurisdiction, were not correctable by certiorari. This Court disagrees.
[14]

[15]

Doctrinally entrenched is the general rule that certiorari is not a substitute for a
lost appeal. However, Justice Florenz D. Regalado lists several exceptions to this
rule, viz.: (1) where the appeal does not constitute a speedy and adequate remedy
(Salvadades vs. Pajarillo, et al., 78 Phil. 77), as where 33 appeals were involved
from orders issued in a single proceeding which will inevitably result in a proliferation
of more appeals (PCIB vs. Escolin, et al., L-27860 and 27896, Mar. 29, 1974); (2)
where the orders were also issued either in excess of or without jurisdiction (Aguilar
vs. Tan, L-23600, Jun 30, 1970, Cf. Bautista, et al. vs. Sarmiento, et al., L-45137,
Sept. 231985); (3) for certain special consideration, as public welfare or public policy
(See Jose vs. Zulueta, et al. -16598, May 31, 1961 and the cases cited therein); (4)
where in criminal actions, the court rejects rebuttal evidence for the prosecution as,
in case of acquittal, there could be no remedy (People vs. Abalos, L029039, Nov. 28,
1968); (5) where the order is a patent nullity (Marcelo vs. De Guzman, et al., L29077, June 29, 1982); and (6) where the decision in the certiorari case will avoid
future litigations (St. Peter Memorial Park, Inc. vs. Campos, et al., L-38280, Mar. 21,
1975). Even in a case where the remedy of appeal was lost, the Court has issued
the writ of certiorari where the lower court patently acted in excess of or outside its
jurisdiction, as in the present case.
[16]

[17]

A petition for certiorari under Rule 65 of the Rules of Court is appropriate and
allowable when the following requisites concur: (1) the writ is directed against a
tribunal, board or officer exercising judicial or quasi-judicial functions; (2) such
tribunal, board or officer has acted without or in excess of jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no
appeal or any plain, speedy and adequate remedy in the ordinary course of law.
After a thorough review of the case at bar, we are convinced that all these
requirements were met.
[18]

As a probate court, the trial court was exercising judicial functions when it issued
its assailed resolution. The said court had jurisdiction to act in the intestate
proceedings involved in this case with the caveat that, due to its limited jurisdiction, it
could resolve questions of title only provisionally. It is hornbook doctrine that in a
special proceeding for the probate of a will, the question of ownership is an
extraneous matter which the probate court cannot resolve with finality. This
pronouncement no doubt applies with equal force to an intestate proceeding as in
the case at bar. In the instant case, the trial court rendered a decision declaring as
simulated and fictitious all the deeds of absolute sale which, on July 26, 1963 and
June 26, 1967, Juan C. Sanchez and Maria Villafranca executed in favor of their
daughter, Rosalia Sanchez Lugod; and grandchildren, namely, Arturo S. Lugod,
Evelyn S. Lugod and Roberto S. Lugod. The trial court ruled further that the
properties covered by the said sales must be subject to collation.Citing Article 1409
(2) of the Civil Code, the lower court nullified said deeds of sale and determined with
finality the ownership of the properties subject thereof. In doing so, it clearly
overstepped its jurisdiction as a probate court. Jurisprudence teaches:
[19]

[20]

[A] probate court or one in charge of proceedings whether testate or

intestate cannot adjudicate or determine title to properties claimed to be a
part of the estate and which are claimed to belong to outside parties. All
that the said court could do as regards said properties is to determine
whether they should or should not be included in the inventory or list of
properties to be administered by the administrator. If there is not dispute,
well and good, but if there is, then the parties, the administrator, and the
opposing parties have to resort to an ordinary action for a final
determination of the conflicting claims of title because the probate court
cannot do so.
[21]

Furthermore, the trial court committed grave abuse of discretion when it

rendered its decision in disregard of the parties compromise agreement. Such
disregard, on the ground that the compromise agreement was not approved by the
court, is tantamount to an evasion of positive duty or to a virtual refusal to perform
the duty enjoined or to act in contemplation and within the bounds of law.
[22]

[23]

[24]

The foregoing issues clearly involve not only the correctness of the trial courts
decision but also the latters jurisdiction. They encompass plain errors of jurisdiction
and grave abuse of discretion, not merely errors of judgment. Since the trial court
exceeded its jurisdiction, a petition for certiorari is certainly a proper remedy. Indeed,
it is well-settled that (a)n act done by a probate court in excess of its jurisdiction may
be corrected by certiorari.
[25]

[26]

Consistent with the foregoing, the following disquisition by respondent appellate

court is apt:

As a general proposition, appeal is the proper remedy of petitioner Rosalia here

under Rule 109 of the Revised Rules of Court. But the availability of the ordinary
course of appeal does not constitute sufficient ground to [prevent] a party from
making use of the extraordinary remedy of certiorari where appeal is not an
adequate remedy or equally beneficial, speedy and sufficient (Echauz vs. Court of
Appeals, 199 SCRA 381). Here, considering that the respondent court has
disregarded the compromise agreement which has long been executed as early as
October, 1969 and declared null and void the deeds of sale with finality, which, as
a probate court, it has no jurisdiction to do, We deem ordinary appeal is
inadequate. Considering further the [trial courts] granting of [herein petitioners]
motion for execution of the assailed decision, [herein private respondent] Rosalias
resort to the instant petition [for review on certiorari] is all the more warranted
under the circumstances.
[27]

[28]

We thus hold that the questioned decision and resolutions of the trial court may
be challenged through a special civil action for certiorari under Rule 65 of the Rules
of Court. At the very least, this case is a clear exception to the general rule that
certiorari is not a substitute for a lost appeal because the trial courts decision and
resolutions were issued without or in excess of jurisdiction, which may thus be
challenged or attacked at any time. A void judgment for want of jurisdiction is no
judgment at all. It cannot be the source of any right nor the creator of any obligation.
All acts performed pursuant to it and all claims emanating from it have no legal
effect. Hence, it can never become final and any writ of execution based on it is void;
x x x it may be said to be a lawless thing which can be treated as an outlaw and slain
at sight, or ignored wherever and whenever it exhibits its head.
[29]

Second Issue: Validity of Compromise Agreement

Petitioners contend that, because the compromise agreement was executed
during the pendency of the probate proceedings, judicial approval is necessary to
shroud it with validity. They stress that the probate court had jurisdiction over the
properties covered by said agreement. They add that Petitioners Florida Mierly,
Alfredo and Myrna were all minors represented only by their mother/natural
guardian, Laureta Tampus.
[30]

These contentions lack merit. Article 2028 of the Civil Code defines a
compromise agreement as a contract whereby the parties, by making reciprocal
concessions, avoid a litigation or put an end to one already commenced. Being a
consensual contract, it is perfected upon the meeting of the minds of the
parties. Judicial approval is not required for its perfection. Petitioners argument that
the compromise was not valid for lack of judicial approval is not novel; the same was
raised in Mayuga vs. Court of Appeals, where the Court, through Justice Irene R.
Cortes, ruled:
[31]

[32]

It is alleged that the lack of judicial approval is fatal to the compromise. A

compromise is a consensual contract. As such, it is perfected upon the
meeting of the minds of the parties to the contract. (Hernandez v. Barcelon,
23 Phil. 599 [1912]; see also De los Reyes v. de Ugarte, 75 Phil. 505
[1945].) And from that moment not only does it become binding upon the
parties (De los Reyes v. De Ugarte,supra ), it also has upon them the effect
and authority of res judicata (Civil Code, Art. 2037), even if not judicially
approved (Menesesv. De la Rosa, 77 Phil. 34 [1946]; Vda. De Guilas v.
David, 132 Phil. 241, L-24280, 23 SCRA 762 [May 27, 1968];
Cochingyan v.Cloribel, L-27070-71 [April 22, 1977], 76 SCRA 361).
(Italics found in the original.)
In the case before us, it is ineludible that the parties knowingly and freely entered
into a valid compromise agreement. Adequately assisted by their respective
counsels, they each negotiated its terms and provisions for four months; in fact, said
agreement was executed only after the fourth draft. As noted by the trial court itself,
the first and second drafts were prepared successively in July, 1969; the third draft
on September 25, 1969; and the fourth draft, which was finally signed by the parties
on October 30, 1969, followed. Since this compromise agreement was the result of
a long drawn out process, with all the parties ably striving to protect their respective
interests and to come out with the best they could, there can be no doubt that the
parties entered into it freely and voluntarily. Accordingly, they should be bound
thereby. To be valid, it is merely required under the law to be based on real claims
and actually agreed upon in good faith by the parties thereto.
[33]

[34]

[35]

Indeed, compromise is a form of amicable settlement that is not only allowed but
also encouraged in civil cases. Article 2029 of the Civil Code mandates that a court
shall endeavor to persuade the litigants in a civil case to agree upon some fair
compromise.
[36]

In opposing the validity and enforcement of the compromise agreement,

petitioners harp on the minority of Florida Mierly, Alfredo and Myrna. Citing Article
2032 of the Civil Code, they contend that the courts approval is necessary in
compromises entered into by guardians and parents in behalf of their wards or
children.
[37]

However, we observe that although denominated a compromise agreement, the

document in this case is essentially a deed of partition, pursuant to Article 1082 of
the Civil Code which provides that [e]very act which is intended to put an end to
indivision among co-heirs and legatees or devisees is deemed to be a partition,
although it should purport to be a sale, an exchange, a compromise, or any other
transaction.
For a partition to be valid, Section 1, Rule 74 of the Rules of Court, requires the
concurrence of the following conditions: (1) the decedent left no will; (2) the decedent
left no debts, or if there were debts left, all had been paid; (3) the heirs and
liquidators are all of age, or if they are minors, the latter are represented by their
judicial guardian or legal representatives; and (4) the partition was made by means
of a public instrument or affidavit duly filed with the Register of Deeds. We find that
all the foregoing requisites are present in this case. We therefore affirm the validity of
the parties compromise agreement/partition in this case.
[38]

In any event, petitioners neither raised nor ventilated this issue in the trial court.
This new question or matter was manifestly beyond the pale of the issues or
questions submitted and threshed out before the lower court which are reproduced
below, viz.:

I Are the properties which are the object of the sale by the deceased spouses to
their grandchildren collationable?
II Are the properties which are the object of the sale by the deceased spouses to
their legitimate daughter also collationable?
III The first and second issues being resolved, how much then is the rightful share of the
four (4) recognized illegitimate children?
[39]

Furthermore, the 27-page Memorandum dated February 17, 1990 filed by

petitioners before the Regional Trial Court readily reveals that they never
questioned the validity of the compromise. In their comment before the Court of
Appeals, petitioners based their objection to said compromise agreement on the
solitary reason that it was tainted with fraud and deception, zeroing specifically on
the alleged fraud committed by private respondent Rosalia S. Lugod. The issue of
minority was first raised only in petitioners Motion for Reconsideration of the Court of
Appeals Decision; thus, it is as if it was never duly raised in that court at all.
Hence, this Court cannot now, for the first time on appeal, entertain this issue, for
to do so would plainly violate the basic rule of fair play, justice and due process. We
take this opportunity to reiterate and emphasize the well-settled rule that (a)n issue
raised for the first time on appeal and not raised timely in the proceedings in the
lower court is barred by estoppel. Questions raised on appeal must be within the
issues framed by the parties and, consequently, issues not raised in the trial court
cannot be raised for the first time on appeal.
[40]

[41]

[42]

[43]

[44]

[45]

[46]

The petitioners likewise assail as void the provision on waiver contained in No. 8
of the aforequoted compromise, because it allegedly constitutes a relinquishment by
petitioners of a right to properties which were not known. They argue that such
waiver is contrary to law, public policy, morals or good custom. The Court
disagrees. The assailed waiver pertained to their hereditary right to properties
belonging to the decedents estate which were not included in the inventory of the
estates properties. It also covered their right to other properties originally belonging
to the spouses Juan Sanchez and Maria Villafranca de Sanchez which have been
transferred to other persons. In addition, the parties agreed in the compromise to
confirm and ratify said transfers. The waiver is valid because, contrary to petitioners
protestation, the parties waived a known and existing interest -- their hereditary right
which was already vested in them by reason of the death of their father. Article 777
of the Civil Code provides that (t)he rights to the succession are transmitted from the
moment of death of the decedent. Hence, there is no legal obstacle to an heirs
waiver of his/her hereditary share even if the actual extent of such share is not
determined until the subsequent liquidation of the estate. At any rate, such waiver
is consistent with the intent and letter of the law advocating compromise as a vehicle
for the settlement of civil disputes.
[47]

[48]

[49]

Finally, petitioners contend that Private Respondent Rosalia T. Lugods alleged

fraudulent acts, specifically her concealment of some of the decedents properties,
attended the actual execution of the compromise agreement. This argument is
debunked by the absence of any substantial and convincing evidence on record
showing fraud on her part. As aptly observed by the appellate court:
[50]

[Herein petitioners] accuse [herein private respondent] Rosalia of fraud or

deception by alleging, inter alia, that the parcel of land given to them never
conformed to the stated area, i.e., forty-eight (48) hectares, as stated in the
compromise agreement. We find this argument unconvincing and
unmeritorious. [Herein petitioners] averment of fraud on the part of [herein
private respondent] Rosalia becomes untenable when We consider the
memorandum of agreement they later executed with [herein private
respondent] Rosalia wherein said compromise agreement was modified by
correcting the actual area given to [herein petitioners] from forty-eight (48)
hectares to thirty-six (36) hectares only. If the actual area allotted to them
did not conform to the 48 hectare area stated in the compromise agreement,
then why did they agree to the memorandum of agreement whereby their
share in the estate of their father was even reduced to just 36
hectares? Where is fraud or deception there? Considering that [herein
petitioners] were ably represented by their lawyers in executing these
documents and who presumably had explained to them the import and
consequences thereof, it is hard to believe their charge that they were
defrauded and deceived by [herein private respondent] Rosalia.
If the parcel of land given to [herein petitioners], when actually surveyed,
happened to be different in area to the stated area of 48 hectares in the compromise
agreement, this circumstance is not enough proof of fraud or deception on [herein
private respondent] Rosalias part. Note that Tax Declaration No. 06453 plainly
discloses that the land transferred to [herein petitioners] pursuant to the
compromise agreement contained an area of 48 hectares (Annex A, Supplemental
Reply). And when [herein petitioners] discovered that the land allotted to them
actually contained only 24 hectares, a conference between the parties took place
which led to the execution and signing of the memorandum of agreement wherein
[herein petitioners] distributive share was even reduced to 36 hectares. In the
absence of convincing and clear evidence to the contrary, the allegation of fraud
and deception cannot be successfully imputed to [herein private respondent]
Rosalia who must be presumed to have acted in good faith.
[51]

The memorandum of agreement freely and validly entered into by the parties on
April 13, 1970 and referred to above reads:

MEMORANDUM OF AGREEMENT
The parties assisted by their respective counsel have agreed as they hereby agree:

1. To amend the compromise agreement executed by them on October 30, 1969 so

as to include the following:
a. Correction of the actual area being given to the petitioners and intervenors, all
illegitimate children of the late Juan C. Sanchez, forty-eight (48) hectares, thirtysix (36) acres as embodied in the aforementioned compromise agreement to thirtysix (36) hectares only, thus enabling each of them to get six (6) hectares each.
b. That the said 36-hectare area shall be taken from that parcel of land which is
now covered by O.C.T. No. 146 (Patent No. 30012) and the adjoining areas thereof
designated as Lot A and Lot C as reflected on the sketch plan attached to the record
of this case prepared by Geodetic Engineer Olegario E. Zalles pursuant to the
Courts commission of March 10, 1970 provided, however, that if the said 36hectare area could not be found after adding thereto the areas of said lots A and C,
then the additional area shall be taken from what is designated as Lot B, likewise
also reflected in the said sketch plan attached to the records;
c. That the partition among the six illegitimate children of the late Juan C. Sanchez
(petitioners and intervenors) shall be effective among themselves in such a manner
to be agreed upon by them, each undertaking to assume redemption of whatever
plants found in their respective shares which need redemption from the tenants
thereof as well as the continuity of the tenancy agreements now existing and
covering the said shares or areas.
d. The subdivision survey shall be at the expense of the said petitioners and
intervenors prorata.
e. That the administratrix agrees to deliver temporary administration of the area
designated as Lot 5 of the Valles Sketch Plan pending final survey of the said 36hectare area.
Cagayan de Oro City, April 13, 1970.
(Sgd.)
LAURETA TAMPOS
For herself and as Guardian
ad-litem of Rolando, Mierly,
Alfredo and Myrna, all
surnamed Sanchez
Assisted by:
(Sgd.)
TEOGENES VELEZ, Jr.
Counsel for Petitioners

(Sgd.)
ROSALIA S. LUGOD
Administratrix
Assisted by:
(Sgd.)
PABLO S. REYES
Counsel for Administratrix
(Sgd.)
MARIA RABOSO SANCHEZ
Intervenor

[52]

Not only did the parties knowingly enter into a valid compromise agreement; they
even amended it when they realized some errors in the original. Such correction
emphasizes the voluntariness of said deed.
It is also significant that all the parties, including the then minors, had
already consummated and availed themselves of the benefits of their compromise.
This Court has consistently ruled that a party to a compromise cannot ask for a
rescission after it has enjoyed its benefits. By their acts, the parties are ineludibly
estopped from questioning the validity of their compromise agreement. Bolstering
this conclusion is the fact that petitioners questioned the compromise only nine
years after its execution, when they filed with the trial court their Motion to Defer
Approval of Compromise Agreement, dated October 26, 1979. In hindsight, it is not
at all farfetched that petitioners filed said motion for the sole reason that they may
have felt shortchanged in their compromise agreement or partition with private
respondents, which in their view was unwise and unfair. While we may sympathize
with this rueful sentiment of petitioners, we can only stress that this alone is not
sufficient to nullify or disregard the legal effects of said compromise which, by its very
nature as a perfected contract, is binding on the parties. Moreover, courts have no
jurisdiction to look into the wisdom of a compromise or to render a decision different
therefrom. It is a well-entrenched doctrine that the law does not relieve a party from
the effects of an unwise, foolish, or disastrous contract, entered into with all the
required formalities and with full awareness of what he was doing and a
compromise entered into and carried out in good faith will not be discarded even if
there was a mistake of law or fact, (McCarthy vs. Barber Steamship Lines, 45 Phil.
488) because courts have no power to relieve parties from obligations voluntarily
assumed, simply because their contracts turned out to be disastrous deals or unwise
investments. Volenti non fit injuria.
[53]

[54]

[55]

[56]

[57]

[58]

Corollarily, the petitioners contend that the Court of Appeals gravely abused its
discretion in deeming Special Proceedings Nos. 44-M and 1022 CLOSED and
TERMINATED, arguing that there was as yet no order of distribution of the estate
pursuant to Rule 90 of the Rules of Court. They add that they had not received their
full share thereto. We disagree. Under Section 1, Rule 90 of the Rules of Court, an
order for the distribution of the estate may be made when the debts, funeral charges,
and expenses of administration, the allowance to the widow, and inheritance tax, if
any, had been paid. This order for the distribution of the estates residue must contain
[59]

the names and shares of the persons entitled thereto. A perusal of the whole record,
particularly the trial courts conclusion, reveals that all the foregoing requirements
already concurred in this case. The payment of the indebtedness of the estates of
Juan C. Sanchez and Maria Villafranca in the amount of P51,598.93 was shouldered
by Private Respondent Rosalia, who also absorbed or charged against her share the
advances of Rolando T. Lugod in the sum of P8,533.94, in compliance with Article
1061 of the Civil Code on collation. Furthermore, the compromise of the parties,
which is the law between them, already contains the names and shares of the heirs
to the residual estate, which shares had also been delivered. On this point, we agree
with the following discussion of the Court of Appeals:
[60]

[61]

But what the (trial court) obviously overlooked in its appreciation of the
facts of this case are the uncontroverted facts that (herein petitioners) have
been in possession and ownership of their respective distributive shares as
early as October 30, 1969 and they have received other properties in
addition to their distributive shares in consideration of the compromise
agreement which they now assail.Proofs thereof are Tax Declarations No.
20984, 20985, 20986, 20987, 20988, 20989 and 20990 (Annexes B to H,
Supplemental Reply) in the respective names of (herein petitioners), all for
the year 1972. (Herein petitioners) also retained a house and lot, a
residential lot and a parcel of agricultural land (Annexes I, J and K, Ibid.)
all of which were not considered in the compromise agreement between the
parties. Moreover, in the compromise agreement per se, it is undoubtedly
stated therein that cash advances in the aggregate sum ofP8,533.94 were
received by (herein petitioners) after October 21, 1968 (Compromise
Agreement, par. 5)
[62]

All the foregoing show clearly that the probate court had essentially finished said
intestate proceedings which, consequently, should be deemed closed and
terminated. In view of the above discussion, the Court sees no reversible error on
the part of the Court of Appeals.
Third Issue: Fraud and Collation
Petitioners fault Respondent Court for not ordering Private Respondent Rosalia
T. Lugod to deliver to them the deficiency as allegedly provided under the
compromise agreement. They further contend that said court erred in not directing
the provisional inclusion of the alleged deficiency in the inventory for purposes of
collating the properties subject of the questioned deeds of sale. We see no such
error. In the trial court, there was only one hearing conducted, and it was held only
for the reception of the evidence of Rosalia S. Lugod to install her as administratix of
the estate of Maria Villafranca. There was no other evidence, whether testimonial or
otherwise, received, formally offered to, and subsequently admitted by the probate
court below; nor was there a trial on the merits of the parties conflicting claims. In
fact, the petitioners moved for the deferment of the compromise agreement on the
basis of alleged fraudulent concealment of properties -- NOT because of any
deficiency in the land conveyed to them under the agreements. Hence, there is no
hard evidence on record to back up petitioners claims.
[63]

[64]

[65]

In any case, the trial court noted Private Respondent Rosalias willingness to
reimburse any deficiency actually proven to exist.It subsequently ordered the
geodetic engineer who prepared the certification and the sketch of the lot in
question, and who could have provided evidence for the petitioners, to bring records
of his relocation survey. However, Geodetic Engineer Idulsa did not comply with the
courts subpoena duces tecum and ad testificandum. Neither did he furnish the
required relocation survey. No wonder, even after a thorough scrutiny of the
records, this Court cannot find any evidence to support petitioners allegations of
fraud against Private Respondent Rosalia.
[66]

[67]

Similarly, petitioners allegations of fraud in the execution of the questioned

deeds of sale are bereft of substance, in view of the palpable absence of evidence to
support them. The legal presumption of validity of the questioned deeds of absolute
sale, being duly notarized public documents, has not been overcome. On the other
hand, fraud is not presumed. It must be proved by clear and convincing evidence,
and not by mere conjectures or speculations. We stress that these deeds of sale did
not involve gratuitous transfers of future inheritance; these were contracts of sale
perfected by the decedents during their lifetime. Hence, the properties conveyed
thereby are not collationable because, essentially, collation mandated under Article
1061 of the Civil Code contemplates properties conveyed inter vivos by the decedent
to an heir by way of donation or other gratuitous title.
[68]

[69]

In any event, these alleged errors and deficiencies regarding the delivery of
shares provided in the compromise, concealment of properties and fraud in the
deeds of sale are factual in nature which, as a rule, are not reviewable by this Court
in petitions under Rule 45. Petitioners have failed to convince us that this case
constitutes an exception to such rule. All in all, we find that the Court of Appeals has
sufficiently addressed the issues raised by them. Indeed, they have not persuaded
us that said Court committed any reversible error to warrant a grant of their petition.
[70]

WHEREFORE, the petition is hereby DENIED and the assailed Decision of the
Court of Appeals is AFFIRMED.
SO ORDERED.
Narvasa, C.J. (Chairman), Romero, Melo and Francisco, JJ., concur.

[1]

Rollo, pp. 48-60.

[2]

Fourteenth Division, composed of J. Luis L. Victor, ponente, and JJ. Fidel P. Purisima and Oscar M.
Herrera, acting chairman.

[3]

Rollo, pp. 85-117.

[4]

Penned by Judge Vivencio A. Galon.

[5]

Decision of the Court of Appeals, p. 13; rollo, p. 60.

[6]

Two other illegitimate children of Juan C. Sanchez, namely, Patricio Alburo and Maria Ramoso,
intervened in the intestate proceedings. However, they are not parties in the present
controversy before the Supreme Court.

[7]

Decision of the Court of Appeals, pp. 1-6; rollo, pp. 48-53.

[8]

Ibid., p. 6; rollo, p. 53.

[9]

Copied from the trial courts decision, pp. 7-13; rollo, pp. 91-97; Annex J, petition. See also Annex 2,
Comment dated July 2, 1993; rollo, pp. 159-167.

[10]

Record of the Court of Appeals, pp. 161-163.

[11]

Ibid., pp. 169-191.

[12]

Ibid., pp. 250-252.

[13]

Petition, pp. 15-16; rollo, pp. 23-24. See Memorandum for Petitioners, pp. 12-14; rollo, pp. 444-446.

[14]

Memorandum for Petitioners, p. 17; rollo, p. 449.

[15]

Ibid., pp. 19-20; rollo, pp. 451-452.

[16]

Remedial Law Compendium, Volume One, p. 708, (1997).

[17]

Philippine National Bank vs. Florendo, 206 SCRA 582, 589, February 26, 1992. See also Heirs of
Mayor Nemencio Galvez vs. Court of Appeals, 255 SCRA 672, 689, March 29, 1996.

[18]

Section 1, Rule 65, Rules of Court. See Cochingyan, Jr. vs. Cloribel, 76 SCRA 361, 385, April 22,
1977.

[19]

Jimenez vs. Intermediate Appellate Court, 184 SCRA 367, 371-372, April 17, 1990.

[20]

Ibid., p. 372.

[21]

Ortega vs. Court of Appeals, 153 SCRA 96, 102-103, August 14, 1987, per Paras, J. See also
Morales vs. CFI of Cavite, Br. V, 146 SCRA 373, 381-383, December 29, 1986.

[22]

See Julieta V. Esguerra vs. Court of Appeals and Sureste Properties, Inc., G.R. No. 119310, p. 21,
February 3, 1997; and Tac-an Dano vs. Court of Appeals, 137 SCRA 803, 813, July 29, 1985.

[23]

Decision of the Regional Trial Court, p. 14; rollo, p. 98.

[24]

Paredes vs. Civil Service Commission, 192 SCRA 84, 94, December 4, 1990, per Paras, J.; citing
Carson et al. vs. Judge Pantamosos, Jr., 180 SCRA 151, December 15, 1989, Intestate
Estate of Carmen de Luna vs. Intermediate Appellate Court, 170 SCRA 246, February 13,
1989, and People vs.Manuel, 11 SCRA 618, July 31, 1964. See also Cochingyan,
Jr. vs. Cloribel, supra, pp. 387-388.

[25]

See Cochingyan, Jr. vs. Cloribel, supra, p. 386.

[26]

Maninang vs. Court of Appeals, 114 SCRA 478, 485, June 19, 1982, per Melencio-Herrera, J.; citing
Llamas vs. Moscoso, 95 Phil. 599 (1954).

[27]

See Regional Trial Courts Omnibus Order Denying Second Motion for Reconsideration and
Denying Prayer for Voluntary Inhibition of Undersigned Trial Judge, Declaring Decision Dated
June 26, 1991 as Final and Executory, p. 6; rollo, p. 123.

[28]

Decision of the Court of Appeals, p. 13; rollo, p. 60.

[29]

Leonor vs. Court of Appeals, 256 SCRA 69, April 2, 1996, per Panganiban, J.

[30]

Memorandum for the Petitioners, pp. 23-28; rollo, pp. 455-460.

[31]

See Domingo vs. Court of Appeals, 255 SCRA 189, 199, March 20, 1996, per Kapunan, J., and
Go vs. Intermediate Appellate Court, 183 SCRA 82, 86-87, March 12, 1990, per Fernan, C.J.

[32]

154 SCRA 309, 320, September 28, 1987.

[33]

Decision of the Regional Trial Court, p. 14; rollo, p. 98.

[34]

Republic vs. Sandiganbayan, 173 SCRA 72, 83, May 4, 1989

[35]

Landoil Resources Corporation vs. Tensuan, 168 SCRA 569, 579, December 20, 1988.

[36]

Ibid.

[37]

Petitioners Memorandum, pp. 26-27; rollo, pp. 458-459.

[38]

Santiago Esquivel, et al. vs. i, G.R. No. L 8825, p. 5, April 20, 1956, 98 Phil. 1008, Unrep., per
Bautista Angelo, J. See also Gomez vs. Mariano, et al., 17 C.A.R. 1295, 1299, December 23,
1972, per Gaviola Jr., J.

[39]

Memorandum of Petitioners in the Regional Trial Court, p. 9; record of the Court of Appeals, p. 203.

[40]

See Record, pp. 195 to 221.

[41]

Record, pp. 355-374.

[42]

Petitioners Comment in the Court of Appeals, pp. 6-7; Record pp. 265-266.

[43]

Motion for Reconsideration, pp. 13-14; Record, pp. 366-367.

[44]

Manila Bay Club Corporation vs. Court of Appeals, 245 SCRA 715, 729, July 11, 1995, per
Francisco, J.

[45]

Medida vs. Court of Appeals, 208 SCRA 887, 893, May 8, 1992, per Regalado, J.; citing Vencilao,
et al. vs. Vano, et al., 182 SCRA 491, February 23, 1990, and Gevero, et al. vs. Intermediate
Appellate Court, et al., 189 SCRA 201, August 30, 1990.

[46]

Caltex (Philippines), Inc. vs. Court of Appeals, 212 SCRA 448, 461, August 10, 1992, per
Regalado, J.; citing Mejorada vs. Municipal Council of Dipolog, 52 SCRA 451, August 31,
1973, Sec. 18, Rule 46, Rules of Court, Garcia, et al. vs. Court of Appeals, et al., 102 SCRA
597, January 31, 1981, Matienzo vs. Servidad, 107 SCRA 276, September 10, 1981,
Aguinaldo Industries Corporation, etc. vs. Commissioner of Internal Revenue, et al., 112
SCRA 136, February 25, 1982, Dulos Realty & Development Corporation vs. Court of
Appeals, et al., 157 SCRA 425, January 28, 1988.

[47]

Memorandum for the Petitioners, pp. 28-30; rollo, pp. 460-462.

[48]

De Borja vs. Vda. de de Borja, 46 SCRA 577, 586, August 18, 1972, per Reyes, J.B.L., J.

[49]

See

[50]

Memorandum for Petitioners, pp. 30-31; rollo, pp. 462-463.

[51]

Decision of the Court of Appeals, pp. 8-9; rollo, pp. 55-56.

[52]

Annex 2, Comment dated July 2, 1993; rollo, pp. 168-169.

[53]

Decision of the Court of Appeals, p. 9; rollo, p. 56. See also Memorandum of Private Respondents,
pp. 21-22; rollo, pp. 319-320.

[54]

Republic vs. Sandiganbayan, supra.

[55]

Rollo, pp. 170-173. On said date, October 26, 1979, the minors had all well passed the age of
majority. See petition before the trial court, dated January 14, 1969, showing the ages then of
Florida Mierly at 19, Alfredo at 18 and Myrna at 16 (Rollo, p. 63).

[56]

Julieta V. Esguerra vs. Court of Appeals and Sureste Properties, Inc., supra, pp. 12-13, per
Panganiban, J.

[57]

Ibid., p. 12. See also Tanda vs. Aldaya, 89 Phil. 497, 503, (1951), per Tuason, J.

[58]

Villacorte vs. Mariano, 89 Phil. 341, 349, (1951), per Bengzon, J.

[59]

Memorandum for the Petitioners, pp. 36-37; rollo, pp. 468-469.

[60]

Decision of the Regional Trial Court, pp. 26-33; rollo, pp. 110-117.

[61]

Memorandum for Rosalia S. Lugod, p. 4; Annex O, Court of Appeals Petition, Record, p. 106. See
also Memorandum of Private Respondents, p. 21;rollo, p.319.

[62]

Decision of the Court of Appeals, p. 9; rollo, p. 56.

[63]

See Memorandum for the Petitioners, pp. 37-40; rollo, pp. 469-472.

[64]

See Memorandum for Private Respondents, pp. 32-36; rollo, pp. 329-333.

Republic vs. Sandiganbayan,

226
SCRA
McCarthy vs. Sandiganbayan, 45 Phil. 488, 498, (1923).

314,

321-322, supra,

and

[65]

Reply Memorandum, pp. 2-3; rollo, pp. 479-480.

[66]

Ibid., p.5; rollo, p. 482.

[67]

Ibid., pp. 5-6; rollo, pp. 482-483. The Certification and Sketch Plan Geodetic Engineer Idulsa
submitted to the trial court, pointed out by petitioners in their Memorandum dated March 17,
1994 (p. 12; rollo, p. 444), are not the relocation survey required of him by said court.

[68]

See Record of the Court of Appeals, pp. 150-154.

[69]

Favor vs. Court of Appeals, 194 SCRA 308, 313, February 21, 1991, per Cruz, J.

[70]

Maximino Fuentes vs. Court of Appeals, G.R. No. 109849, pp. 5-6, February 26, 1997.

THIRD DIVISION

[G. R. No. 123968. April 24, 2003]

URSULINA GANUELAS, METODIO GANUELAS and ANTONIO

GANUELAS, vs. HON. ROBERT T. CAWED, Judge of the
Regional Trial Court of San Fernando, La Union (Branch 29),
LEOCADIA G. FLORES, FELICITACION G. AGTARAP,
CORAZON G. SIPALAY and ESTATE OF ROMANA GANUELAS
DE LAROSA, represented by GREGORIO DELA ROSA,
Administrator, respondent.
DECISION
CARPIO-MORALES, J.:

The present petition for review under Rule 45 of the Rules of Court assails, on a
question of law, the February 22, 1996 decision of the Regional Trial Court of San
Fernando, La Union, Branch 29, in Civil Case No. 3947, an action for declaration of
nullity of a deed of donation.
[1]

The facts, as culled from the records of the case, are as follows:
On April 11, 1958, Celestina Ganuelas Vda. de Valin (Celestina) executed a
Deed of Donation of Real Property covering seven parcels of land in favor of her
niece Ursulina Ganuelas (Ursulina), one of herein petitioners.
[2]

The pertinent provision of the deed of donation reads, quoted verbatim:

xxx
That, for and in consideration of the love and affection which the DONOR has for
the DONEE, and of the faithful services the latter has rendered in the past to the

former, the said DONOR does by these presents transfer and convey, by way of
DONATION, unto the DONEE the property above, described, to become effective
upon the death of the DONOR; but in the event that the DONEE should die before
the DONOR, the present donation shall be deemed rescinded and of no further
force and effect.
x x x.

[3]

On June 10, 1967, Celestina executed a document denominated as Revocation

of Donation purporting to set aside the deed of donation. More than a month later or
on August 18, 1967, Celestina died without issue and any surviving ascendants and
siblings.
[4]

After Celestinas death, Ursulina had been sharing the produce of the donated
properties with private respondents Leocadia G. Flores, et al., nieces of Celestina.
In 1982, or twenty-four years after the execution of the Deed of Donation,
Ursulina secured the corresponding tax declarations, in her name, over the donated
properties, to wit: Tax Declarations Nos. 18108, 18109, 18110, 18111, 18112, 18113
and 18114, and since then, she refused to give private respondents any share in the
produce of the properties despite repeated demands.
Private respondents were thus prompted to file on May 26, 1986 with the RTC of
San Fernando, La Union a complaint against Ursulina, along with Metodio Ganuelas
and Antonio Ganuelas who were alleged to be unwilling plaintiffs. The complaint
alleged that the Deed of Donation executed by Celestina in favor of Ursulina was
void for lack of acknowledgment by the attesting witnesses thereto before notary
public Atty. Henry Valmonte, and the donation was a disposition mortis causa which
failed to comply with the provisions of the Civil Code regarding formalities of wills
and testaments, hence, it was void. The plaintiffs-herein private respondents thus
prayed that judgment be rendered ordering Ursulina to return to them as intestate
heirs the possession and ownership of the properties. They likewise prayed for the
cancellation of the tax declarations secured in the name of Ursulina, the partition of
the properties among the intestate heirs of Celestina, and the rendering by Ursulina
of an accounting of all the fruits of the properties since 1982 and for her to return or
pay the value of their shares.
[5]

The defendants-herein petitioners alleged in their Answer that the donation in

favor of Ursulina was inter vivos as contemplated under Article 729 of the Civil Code,
hence, the deed did not have to comply with the requirements for the execution of
a valid will; the Revocation of Donation is null and void as the ground mentioned
therein is not among those provided by law to be the basis thereof; and at any rate,
the revocation could only be legally enforced upon filing of the appropriate complaint
in court within the prescriptive period provided by law, which period had, at the time
the complaint was filed, already lapsed.
[6]

[7]

By Decision of February 22, 1996, the trial court, holding that the provision in the
Deed of Donation that in the event that the DONEE should predecease the DONOR,
the donation shall be deemed rescinded and of no further force and effect is an
explicit indication that the deed is a donation mortis causa, found for the plaintiffsherein private respondents, thus:
[8]

WHEREFORE the Court renders judgment declaring null and void the Deed of
Donation of Real Property executed by Celestina Ganuelas, and orders the partition
of the estate of Celestina among the intestate heirs.
SO ORDERED.

[9]

The trial court also held that the absence of a reservation clause in the deed
implied that Celestina retained complete dominion over her properties, thus
supporting the conclusion that the donation is mortis causa, and that while the deed
contained an attestation clause and an acknowledgment showing the intent of the
donor to effect a postmortem disposition, the acknowledgment was defective as only
the donor and donee appear to have acknowledged the deed before the notary
public, thereby rendering the entire document void.
[10]

[11]

Lastly, the trial court held that the subsequent execution by Celestina of the
Revocation of Donation showed that the donor intended the revocability of the
donation ad nutum, thus sustaining its finding that the conveyance was mortis causa.
[12]

On herein petitioners argument that the Revocation of Donation was void as the
ground mentioned therein is not one of those allowed by law to be a basis for
revocation, the trial court held that the legal grounds for such revocation as provided
under the Civil Code arise only in cases of donations inter vivos, but not in
donations mortis causa which are revocable at will during the lifetime of the donor.
The trial court held, in any event, that given the nullity of the disposition mortis
causa in view of a failure to comply with the formalities required therefor, the Deed of
Revocation was a superfluity.
[13]

Hence, the instant petition for review, petitioners contending that the trial court
erred:

I. . . . WHEN IT DECLARED NULL AND VOID THE DONATION

EXECUTED BY CELESTINA GANUELAS;
II. . . . WHEN IT UPHELD THE REVOCATION OF DONATION;
III. . . . IN RENDERING ITS DECISION ADVERSE TO PETITIONER
URSULINA GANUELAS.
[14]

Petitioners argue that the donation contained in the deed is inter vivos as the
main consideration for its execution was the donors affection for the donee rather
than the donors death; that the provision on the effectivity of the donationafter the
donors deathsimply meant that absolute ownership would pertain to the donee on
the donors death; and that since the donation is inter vivos, it may be revoked only
for the reasons provided in Articles 760, 764 and 765 of the Civil Code.
[15]

[16]

[17]

[18]

[19]

In a letter of March 16, 1998, private respondent Corazon Sipalay, reacting to

this Courts January 28, 1998 Resolution requiring private respondents to SHOW
CAUSE why they should not be disciplinarily dealt with or held in contempt for failure
to submit the name and address of their new counsel, explains that they are no
longer interested in pursuing the case and are willing and ready to waive whatever
[20]

rights they have over the properties subject of the donation. Petitioners, who were
required to comment on the letter, by Comment of October 28, 1998, welcome
private respondents gesture but pray that for the sake of enriching jurisprudence,
their [p]etition be given due course and resolved.
[21]

The issue is thus whether the donation is inter vivos or mortis causa.
Crucial in the resolution of the issue is the determination of whether the donor
intended to transfer the ownership over the properties upon the execution of the
deed.
[22]

Donation inter vivos differs from donation mortis causa in that in the former, the
act is immediately operative even if the actual execution may be deferred until the
death of the donor, while in the latter, nothing is conveyed to or acquired by the
donee until the death of the donor-testator. The following ruling of this Court
in Alejandro v. Geraldez is illuminating:
[23]

[24]

If the donation is made in contemplation of the donors death, meaning that the full
or naked ownership of the donated properties will pass to the donee only because
of the donors death, then it is at that time that the donation takes effect, and it is a
donation mortis causa which should be embodied in a last will and testament.
But if the donation takes effect during the donors lifetime or independently of the
donors death, meaning that the full or naked ownership (nuda proprietas) of the
donated properties passes to the donee during the donors lifetime, not by reason of
his death but because of the deed of donation, then the donation is inter vivos.
The distinction between a transfer inter vivos and mortis causa is important as
the validity or revocation of the donation depends upon its nature. If the donation
is inter vivos, it must be executed and accepted with the formalities prescribed by
Articles 748 and 749 of the Civil Code, except when it is onerous in which case
the rules on contracts will apply. If it is mortis causa,the donation must be in the form
of a will, with all the formalities for the validity of wills, otherwise it is void and cannot
transfer ownership.
[25]

[26]

[27]

The distinguishing characteristics of a donation mortis causa are the following:

1. It conveys no title or ownership to the transferee before the death of the

transferor; or, what amounts to the same thing, that the transferor should retain the
ownership (full or naked) and control of the property while alive;
2. That before his death, the transfer should be revocable by the transferor at will,
ad nutum; but revocability may be provided for indirectly by means of a reserved
power in the donor to dispose of the properties conveyed;
3. That the transfer should be void if the transferor should survive the transferee.

[28]

In the donation subject of the present case, there is nothing therein which
indicates that any right, title or interest in the donated properties was to be
transferred to Ursulina prior to the death of Celestina.

The phrase to become effective upon the death of the DONOR admits of no
other interpretation but that Celestina intended to transfer the ownership of the
properties to Ursulina on her death, not during her lifetime.
[29]

More importantly, the provision in the deed stating that if the donee should die
before the donor, the donation shall be deemed rescinded and of no further force
and effect shows that the donation is a postmortem disposition.
As stated in a long line of cases, one of the decisive characteristics of a
donation mortis causa is that the transfer should be considered void if the donor
should survive the donee.
[30]

More. The deed contains an attestation clause expressly confirming the donation
as mortis causa:

SIGNED by the above-named donor, Celestina Ganuelas, at the foot of this deed
of donation mortis causa, consisting of two (2) pages and on the left margin of
each and every page thereof in the joint presence of all of us who at her request and
in her presence and that of each other have in like manner subscribed our names as
witnesses. (Emphasis supplied)
[31]

To classify the donation as inter vivos simply because it is founded on

considerations of love and affection is erroneous. That the donation was prompted
by the affection of the donor for the donee and the services rendered by the latter is
of no particular significance in determining whether the deed constitutes a
transfer inter vivos or not, because a legacy may have an identical motivation. In
other words, love and affection may also underline transfers mortis causa.
[32]

[33]

In Maglasang v. Heirs of Cabatingan, the deeds of donation contained

provisions almost identical to those found in the deed subject of the present case:
[34]

That for and in consideration of the love and affection of the DONOR for the
DONEE, x x x the DONOR does hereby, by these presents, transfer, convey, by
way of donation, unto the DONEE the above-described property, together with the
buildings and all improvements existing thereon, to become effective upon the
death of the DONOR; PROVIDED, HOWEVER, that in the event that the DONEE
should die before the DONOR, the present donation shall be deemed automatically
rescinded and of no further force and effect. (Underscoring supplied)
In that case, this Court held that the donations were mortis causa, for the abovequoted provision conclusively establishes the donors intention to transfer the
ownership and possession of the donated property to the donee only after the
formers death. Like in the present case, the deeds therein did not contain any clear
provision that purports to pass proprietary rights to the donee prior to the donors
death.
As the subject deed then is in the nature of a mortis causa disposition, the
formalities of a will under Article 728 of the Civil Code should have been complied
with, failing which the donation is void and produces no effect.
[35]

As noted by the trial court, the attesting witnesses failed to acknowledge the
deed before the notary public, thus violating Article 806 of the Civil Code which
provides:

Art. 806. Every will must be acknowledged before a notary public by the
testator and the witnesses. The notary public shall not be required to retain a copy
of the will, or file another with the office of the Clerk of Court. (Emphasis
supplied)
The trial court did not thus commit any reversible error in declaring the Deed of
Donation to be mortis causa.
WHEREFORE, the petition is hereby DENIED for lack of merit.
SO ORDERED.
Panganiban, Sandoval-Gutierrez, and Corona, JJ., concur.
Puno, J., (Chairman), No part. Knows one of the parties.

[1]

Rollo at 39-51.

[2]

Exhibit A, Records at 36-37.

[3]

Id. at 37.

[4]

Exhibit B, Records at 38.

[5]

Records at 1-11.

[6]

Id. at 62-67, 82-87.

[7]

Art. 729. When the donor intends that the donation shall take effect during the lifetime of the donor,
though the property shall not be delivered till after the donors death, this shall be a
donation inter vivos. The fruits of the property from the time of the acceptance of the donation,
shall pertain to the donee, unless the donor provides otherwise.

[8]

Id. at 48.

[9]

Rollo at 13.

[10]

Ibid.

[11]

Id. at 50.

[12]

Id. at 49.

[13]

Id. at 50.

[14]

Id. at 18-19.

[15]

Id. at 20.

[16]

Id. at 31.

[17]

Art. 760. Every donation inter vivos, made by a person having no children or descendants,
legitimate or legitimated by subsequent marriage, or illegitimate, may be revoked or reduced
as provided in the next article, by the happening of any of these events:

(1) If the donor, after the donation, should have legitimate or legitimated or illegitimate children, even
though they be posthumous;

(2) If the child of the donor, whom the latter believed to be dead when he made the donation, should
turn out to be living;
(3) If the donor should subsequently adopt a minor child.
[18]

Art. 764. The donation shall be revoked at the instance of the donor, when the donee fails to comply
with any of the conditions which the former imposed upon the latter.

In this case, the property donated shall be returned to the donor, the alienations made by the donee
and the mortgages imposed thereon by him being void, with the limitations established, with
regard to third persons, by the Mortgage Law and the Land Registration laws.
This action shall prescribe after four years from the noncompliance with the condition, may be
transmitted to the heirs of the donor, and may be exercised against the donees heirs.
[19]

Art. 765. The donation may also be revoked at the instance of the donor, by reason of ingratitude in
the following cases:

(1) If the donee should commit some offense against the person, the honor or the property of the
donor, or of his wife or children under his parental authority;
(2) If the donee imputes to the donor any criminal offense, or any act involving moral turpitude, even
though he should prove it, unless the crime or the act has been committed against the donee
himself, his wife or children under his authority;
(3) If he unduly refuses him support when the donee is legally or morally bound to give support to the
donor.
[20]

Rollo at 90.

[21]

Id. at 97.

[22]

Gestopa v. Court of Appeals, 342 SCRA 105, 110 (2000) (citation omitted).

[23]

Puig v. Peaflorida, 15 SCRA 276, 282 (1965) (citation omitted).

[24]

78 SCRA 245, 253, citations omitted (1977).

[25]

Art. 748. The donation of a movable may be made orally or in writing.

An oral donation requires the simultaneous delivery of the thing or of the document representing the
right donated.
If the value of the personal property donated exceeds five thousand pesos, the donation and the
acceptance shall be made in writing. Otherwise, the donation shall be void.
[26]

Art. 749. In order that the donation of an immovable may be valid, it must be made in a public
document, specifying therein the property donated and the value of the charges which the
donee must satisfy.

The acceptance may be made in the same deed of donation or in a separate public document, but it
shall not take effect unless it is done during the lifetime of the donor.
If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic
form, and this step shall be noted in both instruments.
[27]

Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol. II, 1998 ed. at
538.

[28]

Austria-Magat v. Court of Appeals, G.R. No. 106755, February 1, 2002 (citation omitted).

[29]

Maglasang v. Heirs of Cabatingan, G.R. No. 131953, June 5, 2002.

[30]

Bonsato v. Court of Appeals, 95 Phil 482, 487 (1954); Alejandro v. Geraldez, 78 SCRA 245, 255
(1977); Reyes v. Mosqueda, 187 SCRA 661, 671 (1990); Austria-Magat v. Court of
Appeals, G.R. No. 106755, February 1, 2002; Maglasang v. Heirs of Cabatingan, G.R. No.
131953, June 5, 2002.

[31]

Exhibit A, Records at 37.

[32]

Bonsato v. Court of Appeals, 95 Phil 482, 488 (1954).

[33]

Alejandro v. Geraldez, 78 SCRA 245, 256 (1977).

[34]

G.R. No. 131953, June 5, 2002.

[35]

National Treasurer v. Vda. de Meimban, 131 SCRA 264, 270 (1984); Puig v. Peaflorida, 15 SCRA
276, 287 (1965).

THIRD DIVISION

[G.R. No. 110427. February 24, 1997]

The Incompetent, CARMEN CAIZA, represented by her legal

guardian, AMPARO EVANGELISTA,petitioner, vs. COURT OF
APPEALS (SPECIAL FIRST DIVISION), PEDRO ESTRADA and
his wife, LEONORA ESTRADA, respondents.
DECISION
NARVASA, C.J.:

On November 20, 1989, being then ninety-four (94) years of age, Carmen Caiza,
a spinster, a retired pharmacist, and former professor of the College of Chemistry
and Pharmacy of the University of the Philippines, was declared incompetent by
judgment of the Regional Trial Court of Quezon City, Branch 107, in a guardianship
proceeding instituted by her niece, Amparo A. Evangelista. She was so adjudged
because of her advanced age and physical infirmities which included cataracts in
both eyes and senile dementia. Amparo A. Evangelista was appointed legal guardian
of her person and estate.
[1]

[2]

[3]

Caiza was the owner of a house and lot at No. 61 Tobias St., Quezon City. On
September 17, 1990, her guardian Amparo Evangelista commenced a suit in the
Metropolitan Trial Court (MetroTC) of Quezon City (Branch 35) to eject the spouses
Pedro and Leonora Estrada from said premises. The complaint was later amended
to identify the incompetent Caiza as plaintiff, suing through her legal guardian,
Amparo Evangelista.
[4]

The amended Complaint pertinently alleged that plaintiff Caiza was the absolute
owner of the property in question, covered by TCT No. 27147; that out of kindness,
she had allowed the Estrada Spouses, their children, grandchildren and sons-in-law
[5]

to temporarily reside in her house, rent-free; that Caiza already had urgent need of
the house on account of her advanced age and failing health, "so funds could be
raised to meet her expenses for support, maintenance and medical treatment;" that
through her guardian, Caiza had asked the Estradas verbally and in writing to vacate
the house but they had refused to do so; and that "by the defendants' act of
unlawfully depriving plaintiff of the possession of the house in question, they **
(were) enriching themselves at the expense of the incompetent, because, while they
** (were) saving money by not paying any rent for the house, the incompetent **
(was) losing much money as her house could not be rented by others." Also alleged
was that the complaint was "filed within one (1) year from the date of first letter of
demand dated February 3, 1990."
In their Answer with Counterclaim, the defendants declared that they had been
living in Caiza's house since the 1960's; that in consideration of their faithful service
they had been considered by Caiza as her own family, and the latter had in fact
executed a holographic will on September 4, 1988 by which she "bequeathed" to the
Estradas the house and lot in question.
Judgment was rendered by the MetroTC on April 13, 1992 in Caiza's favor, the
Estradas being ordered to vacate the premises and pay Caiza P5,000.00 by way of
attorney's fees.
[6]

But on appeal, the decision was reversed by the Quezon City Regional Trial
Court, Branch 96. By judgment rendered on October 21, 1992, the RTC held that
the "action by which the issue of defendants' possession should be resolved
is accion publiciana, the obtaining factual and legal situation ** demanding
adjudication by such plenary action for recovery of possession cognizable in the first
instance by the Regional Trial Court."
[7]

[8]

[9]

Caiza sought to have the Court of Appeals reverse the decision of October 21,
1992, but failed in that attempt. In a decision promulgated on June 2, 1993, the
Appellate Court affirmed the RTC's judgment in toto. It ruled that (a) the proper
remedy for Caiza was indeed an accion publiciana in the RTC, not an accion
interdictal in the MetroTC, since the "defendants have not been in the subject
premises as mere tenants or occupants by tolerance, they have been there as a sort
of adopted family of Carmen Caiza," as evidenced by what purports to be the
holographic will of the plaintiff; and (b) while "said will, unless and until it has passed
probate by the proper court, could not be the basis of defendants' claim to the
property, ** it is indicative of intent and desire on the part of Carmen Caiza that
defendants are to remain and are to continue in their occupancy and possession, so
much so that Caiza's supervening incompetency can not be said to have vested in
her guardian the right or authority to drive the defendants out."
[10]

[11]

[12]

Through her guardian, Caiza came to this Court praying for reversal of the
Appellate Court's judgment. She contends in the main that the latter erred in (a)
holding that she should have pursued an accion publiciana, and not an accion
interdictal; and in (b) giving much weight to "a xerox copy of an alleged holographic
will, which is irrelevant to this case."
[13]

In the responsive pleading filed by them on this Court's requirement, the

Estradas insist that the case against them was really not one of unlawful detainer;
they argue that since possession of the house had not been obtained by them by
any "contract, express or implied," as contemplated by Section 1, Rule 70 of the
[14]

Rules of Court, their occupancy of the premises could not be deemed one
"terminable upon mere demand (and hence never became unlawful) within the
context of the law." Neither could the suit against them be deemed one of forcible
entry, they add, because they had been occupying the property with the prior
consent of the "real owner," Carmen Caiza, which "occupancy can even ripen into
full ownership once the holographic will of petitioner Carmen Caiza is admitted to
probate." They conclude, on those postulates, that it is beyond the power of Caiza's
legal guardian to oust them from the disputed premises.
Carmen Caiza died on March 19, 1994, and her heirs -- the aforementioned
guardian, Amparo Evangelista, and Ramon C. Nevado, her niece and nephew,
respectively -- were by this Court's leave, substituted for her.
[15]

[16]

Three issues have to be resolved: (a) whether or not an ejectment action is the
appropriate judicial remedy for recovery of possession of the property in dispute; (b)
assuming desahucio to be proper, whether or not Evangelista, as Caiza's legal
guardian had authority to bring said action; and (c) assuming an affirmative answer
to both questions, whether or not Evangelista may continue to represent Caiza after
the latter's death.
I

It is axiomatic that what determines the nature of an action as well as which

court has jurisdiction over it, are the allegations of the complaint and the character of
the relief sought. An inquiry into the averments of the amended complaint in the
Court of origin is thus in order.
[17]

[18]

The amended Complaint alleges:

[19]

"6. That the plaintiff, Carmen Caiza, is the sole and absolute owner of a house and
lot at No. 61 Scout Tobias, Quezon City, which property is now the subject of this
complaint;
** ** **
9. That the defendants, their children, grandchildren and sons-in-law, were allowed
to live temporarily in the house of plaintiff, Carmen Caiza, for free, out of her
kindness;
10. That the plaintiff, through her legal guardian, has duly notified the defendants,
for them to vacate the said house, but the two (2) letters of demand were ignored
and the defendants refused to vacate the same. **
11. That the plaintiff, represented by her legal guardian, Amparo Evangelista, made
another demand on the defendants for them to vacate the premises, before
Barangay Captain Angelina A. Diaz of Barangay Laging Handa, Quezon City, but
after two (2) conferences, the result was negative and no settlement was reached. A
photocopy of the Certification to File Action dated July 4, 1990; issued by said
Barangay Captain is attached, marked Annex "D" and made an integral part hereof;

12. That the plaintiff has given the defendants more than thirty (30) days to vacate
the house, but they still refused to vacate the premises, and they are up to this time
residing in the said place;
13. That this complaint is filed within one (1) year from the date of first letter of
demand dated February 3, 1990 (Annex "B") sent by the plaintiff to the
defendants, by her legal guardian -- Amparo Evangelista;
14. By the defendants' act of unlawfully depriving the plaintiff of the possession of
the house in question, they are enriching themselves at the expense of the
incompetent plaintiff, because, while they are saving money by not paying any rent
for the house, the plaintiff is losing much money as her house could not be rented
by others;
15. That the plaintiff's health is failing and she needs the house urgently, so that
funds could be raised to meet her expenses for her support, maintenance and
medical treatment;
16. That because of defendants' refusal to vacate the house at No. 61 Scout Tobias,
Quezon City, the plaintiff, through her legal guardian, was compelled to go to court
for justice, and she has to spend P10,000.00 as attorney's fees."
Its prayer is quoted below:
[20]

"WHEREFORE, in the interest of justice and the rule of law, plaintiff, Carmen
Caiza, represented by her legal guardian. Amparo Evangelista, respectfully prays to
this Honorable Court, to render judgment in favor of plaintiff and against the
defendants as follows:
1. To order the defendants, their children, grandchildren, sons-in-law and other
persons claiming under them, to vacate the house and premises at No. 61 Scout
Tobias, Quezon City, so that its possession can be restored to the plaintiff, Carmen
Caiza: and
2. To pay attorney's fees in the amount of P10,000.00;
3. To pay the costs of the suit."
In essence, the amended complaint states:

1) that the Estradas were occupying Caiza's house by tolerance -- having been
"allowed to live temporarily ** (therein) for free, out of ** (Caiza's) kindness;"
2) that Caiza needed the house "urgently" because her "health ** (was) failing and
she ** (needed) funds ** to meet her expenses for her support, maintenance and
medical treatment;"

3) that through her general guardian, Caiza requested the Estradas several times,
orally and in writing, to give back possession of the house;
4) that the Estradas refused and continue to refuse to give back the house to Caiza,
to her continuing prejudice; and
5) that the action was filed within one (1) year from the last demand to vacate.
Undoubtedly, a cause of action for desahucio has been adequately set out. It is
settled that in an action for unlawful detainer, it suffices to allege that the defendant
is unlawfully withholding possession from the plaintiff is deemed sufficient, and a
complaint for unlawful detainer is sufficient if it alleges that the withholding of
possession or the refusal to vacate is unlawful without necessarily employing the
terminology of the law.
[21]

[22]

The Estradas' first proffered defense derives from a literal construction of Section
1, Rule 70 of the Rules of Court which inter alia authorizes the institution of an
unlawful detainer suit when "the possession of any land or building is unlawfully
withheld after the expiration or termination of the right to hold possession, by virtue
of any contract, express or implied." They contend that since they did not acquire
possession of the property in question "by virtue of any contract, express or implied"
-- they having been, to repeat, "allowed to live temporarily ** (therein) for free, out of
** (Caiza's) kindness" -- in no sense could there be an "expiration or termination of **
(their) right to hold possession, by virtue of any contract, express or implied." Nor
would an action for forcible entry lie against them, since there is no claim that they
had "deprived (Caiza) of the possession of ** (her property) by force, intimidation,
threat, strategy, or stealth."
The argument is arrant sophistry. Caiza's act of allowing the Estradas to occupy
her house, rent-free, did not create a permanent and indefeasible right of possession
in the latter's favor. Common sense, and the most rudimentary sense of fairness
clearly require that act of liberality be implicitly, but no less certainly, accompanied by
the necessary burden on the Estradas of returning the house to Caiza upon her
demand. More than once has this Court adjudged that a person who occupies the
land of another at the latter's tolerance or permission without any contract between
them is necessarily bound by an implied promise that he will vacate upon demand,
failing which a summary action for ejectment is the proper remedy against him. The
situation is not much different from that of a tenant whose lease expires but who
continues in occupancy by tolerance of the owner, in which case there is deemed to
be an unlawful deprivation or withholding of possession as of the date of the demand
to vacate. In other words, one whose stay is merely tolerated becomes a deforciant
illegally occupying the land or property the moment he is required to leave. Thus, in
Asset Privatization Trust vs. Court of Appeals, where a company, having lawfully
obtained possession of a plant upon its undertaking to buy the same, refused to
return it after failing to fulfill its promise of payment despite demands, this Court held
that "(a)fter demand and its repudiation, ** (its) continuing possession ** became
illegal and the complaint for unlawful detainer filed by the ** (plant's owner) was its
proper remedy."
[23]

[24]

[25]

[26]

It may not be amiss to point out in this connection that where there had been
more than one demand to vacate, the one-year period for filing the complaint for

unlawful detainer must be reckoned from the date of the last demand, the reason
being that the lessor has the option to waive his right of action based on previous
demands and let the lessee remain meanwhile in the premises. Now, the complaint
filed by Caiza's guardian alleges that the same was "filed within one (1) year from
the date of the first letter of demand dated February 3, 1990." Although this averment
is not in accord with law because there is in fact a second letter of demand to vacate,
dated February 27, 1990, the mistake is inconsequential, since the complaint was
actually filed on September 17, 1990, well within one year from the second (last)
written demand to vacate.
[27]

[28]

The Estradas' possession of the house stemmed from the owner's express
permission. That permission was subsequently withdrawn by the owner, as was her
right; and it is immaterial that the withdrawal was made through her judicial guardian,
the latter being indisputably clothed with authority to do so. Nor is it of any
consequence that Carmen Caiza had executed a will bequeathing the disputed
property to the Estradas; that circumstance did not give them the right to stay in the
premises after demand to vacate on the theory that they might in future become
owners thereof, that right of ownership being at best inchoate, no transfer of
ownership being possible unless and until the will is duly probated.
Thus, at the time of the institution of the action of desahucio, the Estradas had
no legal right to the property, whether as possessors by tolerance or sufferance, or
as owners. They could not claim the right of possession by sufferance, that had been
legally ended. They could not assert any right of possession flowing from their
ownership of the house; their status as owners is dependent on the probate of the
holographic will by which the property had allegedly been bequeathed to them -- an
event which still has to take place; in other words; prior to the probate of the will, any
assertion of possession by them would be premature and inefficacious.
In any case, the only issue that could legitimately be raised under the
circumstances was that involving the Estradas' possession by tolerance, i.e.,
possession de facto, not de jure. It is therefore incorrect to postulate that the proper
remedy for Caiza is not ejectment but accion publiciana, a plenary action in the RTC
or an action that is one for recovery of the right to possession de jure.
II

The Estradas insist that the devise of the house to them by Caiza clearly
denotes her intention that they remain in possession thereof, and legally
incapacitated her judicial guardian, Amparo Evangelista, from evicting them
therefrom, since their ouster would be inconsistent with the ward's will.
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" (ART. 838, id.). An owner's intention to confer title in the future to
persons possessing property by his tolerance, is not inconsistent with the former's
taking back possession in the meantime for any reason deemed sufficient. And that
in this case there was sufficient cause for the owner's resumption of possession is
apparent: she needed to generate income from the house on account of the physical
infirmities afflicting her, arising from her extreme age.
[29]

[30]

Amparo Evangelista was appointed by a competent court the general guardian

of both the person and the estate of her aunt, Carmen Caiza. Her Letters of
Guardianship dated December 19, 1989 clearly installed her as the "guardian over
the person and properties of the incompetent CARMEN CAIZA with full authority to
take possession of the property of said incompetent in any province or provinces in
which it may be situated and to perform all other acts necessary for the management
of her properties ** " By that appointment, it became Evangelista's duty to care for
her aunt's person, to attend to her physical and spiritual needs, to assure her wellbeing, with right to custody of her person in preference to relatives and friends. It
also became her right and duty to get possession of, and exercise control over,
Caiza's property, both real and personal, it being recognized principle that the ward
has no right to possession or control of his property during her incompetency. That
right to manage the ward's estate carries with it the right to take possession thereof
and recover it from anyone who retains it, and bring and defend such actions as
may be needful for this purpose.
[31]

[32]

[33]

[34]

[35]

[36]

Actually, in bringing the action of desahucio, Evangelista was merely discharging

the duty to attend to "the comfortable and suitable maintenance of the ward"
explicitly imposed on her by Section 4, Rule 96 of the Rules of Court, viz.:

"SEC. 4. Estate to be managed frugally, and proceeds applied to maintenance of

ward. A guardian must manage the estate of his ward frugally and without waste,
and apply the income and profits thereof, so far as maybe necessary, to the
comfortable and suitable maintenance of the ward and his family, if there be any;
and if such income and profits be insufficient for that purpose, the guardian may
sell or encumber the real estate, upon being authorized by order to do so, and apply
to such of the proceeds as may be necessary to such maintenance."
Finally, it may be pointed out in relation to the Estradas's defenses in the
ejectment action, that as the law now stands, even when, in forcible entry and
unlawful detainer cases, the defendant raises the question of ownership in his
pleadings and the question of possession cannot be resolved without deciding the
issue of ownership, the Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts nevertheless have the undoubted competence to
resolve. "the issue of ownership ** only to determine the issue of possession."
[37]

III

As already stated, Carmen Caiza passed away during the pendency of this
appeal. The Estradas thereupon moved to dismiss the petition, arguing that Caiza's
death automatically terminated the guardianship, Amaparo Evangelista lost all
authority as her judicial guardian, and ceased to have legal personality to represent
her in the present appeal. The motion is without merit.
While it is indeed well-established rule that the relationship of guardian and ward
is necessarily terminated by the death of either the guardian or the ward, the rule
affords no advantage to the Estradas. Amparo Evangelista, as niece of Carmen
Caiza, is one of the latter's only two (2) surviving heirs, the other being Caiza's
nephew, Ramon C. Nevado. On their motion and by Resolution of this Court of
June 20, 1994, they were in fact substituted as parties in the appeal at bar in place of
the deceased, in accordance with Section 17, Rule 3 of the Rules of Court, viz.:
[38]

[39]

[40]

"SEC. 18. Death of a party. After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal representative of
the deceased to appear and be substituted for the deceased within a period of thirty
(30) days, or within such time as may be granted. If the legal representative fails to
appear within said time, the court may order the opposing party to procure the
appointment of a legal representative of the deceased within a time to be specified
by the court, and the representative shall immediately appear for and on behalf of
the interest of the deceased. The court charges involved in procuring such
appointment, if defrayed by the opposing party, may be recovered as costs.The
heirs of the deceased may be allowed to be substituted for the deceased, without
requiring the appointment of an executor or administratorand the court may
appoint guardian ad litem for the minor heirs.
To be sure, an ejectment case survives the death of a party. Caiza's demise did
not extinguish the desahucio suit instituted by her through her guardian. That
action, not being a purely personal one, survived her death; her heirs have taken her
place and now represent her interests in the appeal at bar.
[41]

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals

promulgated on June 2, 1993 -- affirming the Regional Trial Court's judgment and
dismissing petitioner's petition for certiorari -- is REVERSED and SET ASIDE, and
the Decision dated April 13, 1992 of the Metropolitan Trial Court of Quezon City,
Branch 35, in Civil Case No. 3410 is REINSTATED and AFFIRMED. Costs against
private respondents.
SO ORDERED.
Davide, Jr., Melo, Francisco, and Panganiban, JJ., concur.

[1]

Petition, Annex "D", Rollo, pp. 41-43.

[2]

Presided over by Judge Delilah Vidallon-Magtolis

[3]

Docketed as SP. PROC. No. Q-89-2603 of Branch 107, entitled "Petition for Guardianship of the
Person and Estate of the Incompetent Carmen Caiza, Amparo A. Evangelista, Petitioner"

[4]

Docketed as Civil Case No. 3410 for Ejectment with Damages

[5]

Petition, Annex "K", Rollo, pp. 55-59

[6]

Petition, Annex "B," Rollo, pp. 33-35.

[7]

Docketed as Civil Case No. Q-92-12554

[8]

Presided Over by Judge Lucas P. Bersamin

[9]

Rollo, pp. 36-40

[10]

Rollo, pp. 27-32

[11]

Special First Division composed of Vailoces, J., ponente, with Lantin and Mabutas, Jr., JJ.,
concurring.

[12]

CA Decision, p. 4, Rollo, p. 30

[13]

Petition, p. 11, Rollo p. 18

[14]

Rollo, pp. 97-112

[15]

Manifestation dated March 25, 1994

[16]

Second Division Resolution dated June 20, 1994

[17]

Sumulong vs. Court of Appeals, 232 SCRA 372 [1994], citing Abrin vs. Campos, 203 SCRA 420
[1991]; Mariategui vs. Court of Appeals, 205 SCRA 337 [1992]; Abad vs. Court of First
Instance, 206 SCRA 567 [1992]; Del Castillo vs. Aguinaldo, 212 SCRA 169 [1992]; Santos vs.
Court of Appeals, 214 SCRA 162 [1992]; Ganadin vs. Ramos, 99 SCRA 6132 (1980);
Ramirez v. Chit, 21 SCRA 1364 [1967]; Mediran vs. Villanueva, 37 Phil. 752 [1918]

[18]

Sarmiento vs. Court of Appeals, 150 SCRA 108 [1995]

[19]

Rollo, pp. 56-57, underscoring in original text

[20]

Rollo, pp. 57-58

[21]

Sumulong vs. Court of Appeals, 232 SCRA 372 [1994], citing Maddamu vs. Judge of Municipal
Court of Manila, 74 Phil. 230 [1943]

[22]

Sumulong vs. Court of Appeals, supra, citing Co Tiamco vs. Diaz, 75 Phil. 672 [1946]; Valderama
Lumber Manufacturer's Co. vs. L.S. Sarmiento Co., 5 SCRA 287 [1962, Pangilinan vs.
Aguilar, 43 SCRA 136 [1972]

[23]

Yu vs. de Lara, 6 SCRA 785 [1962]; Pangilinan vs. Aguilar, 43 SCRA 136 [1972], Dakudao vs.
Consolacion, 122 SCRA 877 [1983]; Peran vs. Presiding Judge, Br. II, CFI, Sorsogon, 125
SCRA 78 [1983]; Banco de Oro Savings and Mortgage Bank vs. Court of Appeals, 182 SCRA
464 [1990]

[24]

Vda. de Catchuela vs. Francisco, 98 SCRA 172 [1980] citing Calubayan vs. Pascual, 21 SCRA 146,
148 [1967]

[25]

Odsigue vs. Court of Appeals, 233 SCRA 626 [1994]

[26]

229 SCRA 627, 636 [1994]

[27]

Sarmiento vs. Court of Appeals, 250 SCRA 108 [1995] citing Sarona, et al vs. Villegas, et al, 22
SCRA 1257 [1968]

[28]

Peas, Jr. vs. Court of Appeals, 233 SCRA 744 [1994] citing Racaza vs. Susana Realty, Inc. 18
SCRA. 1172 [1966].

[29]

ART. 828, Civil Code

[30]

ART. 838, Civil Code

[31]

Petition, Annex "E", Rollo, p. 44

[32]

Emphasis supplied

[33]

Francisco, The Revised Rules of Court in the Philippines, 1970 Ed., Vol. V-B, p. 457, citing Exparte Fletcher, 142 So. 30; 39 C.J.S. 86

[34]

Francisco, The Revised Rules of Court in the Philippines, 1970 Ed. Vol. V-B, p. 458, citing 39 C.J.S.
114-115.

[35]

Castillo v. Bustamante, 64 Phil. 839 [1937], cited in Moran, Comments on the Rules of Court, Vol. 3,
1980 ed., p. 570

[36]

Conchita Juachon vs. Felix Manalo, G.R. No. L-42, 77 Phil. 1092, [January 20, 1947 unreported],
cited in Moran, Comments on the Rules of court, 1979 Ed., Volume I, p. 176

[37]

Sec. 3, R.A. No. 7691, amending Sec. 33 of B.P. 129; SEE Wilmon Auto Supply Corp. vs. Court of
Appeals, 208 SCRA 108 [1992].

[38]

Francisco, The Revised Rules of Court in the Phils., Vol. V-B, 1970 Ed., citing 25 Am. Jur. 37

[39]

Second Division; SEE footnote 17, supra

[40]

Emphasis supplied

[41]

Vda. de Salazar vs. Court of Appeals, et al., 250 SCRA 305 (Nov. 23, 1995) citing Vda. de
Haberes vs. Court of Appeals, 104 SCRA 534 [1981]; Republic vs. Bagtas, 6 SCRA 242
[1962]; Florendo Jr. vs. Coloma, 129 SCRA 304 [1984].

56536

Today is Tuesday, August 09, 2016

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
October 31, 2006

CUA, petitioner,

. VARGAS, AURORA VARGAS, RAMON VARGAS, MARITES VARGAS, EDELINA VARG

ARGAS, respondents.

DECISION

J.:

etition for review under Rule 45 of the Rules of Court seeking the reversal of the decision 1 d
2002, and the resolution2 dated December 17, 2002, of the Court of Appeals in CA-G.R. SP
tled "Gloria A. Vargas, Aurora Vargas, Ramon Vargas, Marites Vargas, Edelina Vargas and
oseph Cua."

are as follows:

residential land with an area of 99 square meters located in San Juan, Virac, Catanduanes
the late Paulina Vargas. On February 4, 1994, a notarized Extra Judicial Settlement Among

ted by and among Paulina Vargas' heirs, namely Ester Vargas, Visitacion Vargas, Juan Var
Matienzo, Rosario V. Forteza, Andres Vargas, Gloria Vargas, Antonina Vargas and Florent
rtitioning and adjudicating unto themselves the lot in question, each one of them getting a s
ters. Florentino, Andres, Antonina and Gloria, however, did not sign the document. Only Es
Juan, Zenaida and Rosario signed it. The Extra Judicial Settlement Among Heirs was publ
duanes Tribune for three consecutive weeks.3

ber 15, 1994, an Extra Judicial Settlement Among Heirs with Sale 4 was again executed by
same heirs over the same property and also with the same sharings. Once more, only Est
Juan, Zenaida and Rosario signed the document and their respective shares totaling 55 sq
re sold to Joseph Cua, petitioner herein.

to Gloria Vargas, the widow of Santiago Vargas and one of respondents herein, she came
udicial Settlement Among Heirs with Sale dated November 16, 1994 only when the origina
e lot was being demolished sometime in May 1995. 5 She likewise claimed she was unaware
a Judicial Settlement Among Heirs dated February 4, 1994 involving the same property ha
n the Catanduanes Tribune.6

ing of the sale of the 55 square meters to petitioner, Gloria Vargas tried to redeem the prop
ng letter7 sent to petitioner on her behalf:

29th June 1995

Mr. Joseph Cua

Capilihan, Virac, Catanduanes

Sir:

This is in behalf of my client, Ms. Aurora Vargas, 8 (c/o Atty. Prospero V. Tablizo) one of the
heirs of the late Paulina Vargas, original owner of Lot No. 214 of Virac, Poblacion covered
No. 031-0031 in her name.

I understand that a document "Extra Judicial Settlement Among Heirs with Sale" was exec
some of my client's co-heirs and alleged representatives of other co-heirs, by virtue of whic
document you acquired by purchase from the signatories to the said document, five (5) sha
total area of fifty-five square meters of the above-described land.

This is to serve you notice that my client shall exercise her right of legal redemption of said
shares as well as other shares which you may likewise have acquired by purchase. And yo
hereby given an option to agree to legal redemption within a period of fifteen (15) days from

receipt hereof.

Should you fail to convey to me your agreement within said 15-day-period, proper legal act
be taken by my client to redeem said shares.

Thank you.

Very truly yours,

(Sgd.)
JUAN G. ATENCIA

offer to redeem was refused and after having failed to reach an amicable settlement at the
ia Vargas filed a case for annulment of Extra Judicial Settlement and Legal Redemption of
unicipal Trial Court (MTC) of Virac, Catanduanes against petitioner and consigned the amo
0 which is the amount of the purchase with the Clerk of Court on May 20, 1996. 10 Joining h
e her children with Santiago, namely, Aurora, Ramon, Marites, Edelina and Gemma, all sur

ntly, Carlos Gianan, Jr. and Gloria Arcilla, heirs of the alleged primitive owner of the lot in qu
andula, intervened in the case.11

nts claimed that as co-owners of the property, they may be subrogated to the rights of the p
sing him the price of the sale. They likewise alleged that the 30-day period following a writt
dors to their co-owners for them to exercise the right of redemption of the property had not
en notice was sent to them. In effect, they claimed that the Extra Judicial Settlement Among
tra Judicial Settlement Among Heirs with Sale were null and void and had no legal and bind

n the merits, the MTC rendered a decision 13 in favor of petitioner, dismissing the complaint
aint-in-intervention for lack of merit, and declaring the Deed of Extra Judicial Settlement Am
alid and binding. The MTC upheld the sale to petitioner because the transaction purportedl
fter the partition of the property among the co-owner heirs. The MTC opined that the other
ly dispose of their respective shares. Moreover, the MTC found that although there was a f
mply with the requirements under Article 1088 of the Civil Code 14 for a written notice of sale
on respondents by the vendors prior to the exercise of the former's right of redemption, this
by respondents' actual knowledge of the sale, which was more than 30 days before the filin
and their consignation of the purchase price with the Clerk of Court, so that the latter action
nally, the MTC ruled that respondents failed to establish by competent proof petitioner's ba
g the portion of the property owned by respondents' co-heirs. 15

, the Regional Trial Court (RTC), Branch 42, of Virac, Catanduanes affirmed the MTC decis
dated November 25, 1999. The matter was thereafter raised to the Court of Appeals (CA).

versed the ruling of both lower courts in the assailed decision dated March 26, 2002, declar
udicial Settlement Among Heirs and the Extra Judicial Settlement Among Heirs with Sale, d
, 1994 and November 15, 1994, respectively, were void and without any legal effect. The C
ant to Section 1, Rule 74 of the Rules of Court, 16 the extrajudicial settlement made by the o
binding upon respondents considering the latter never participated in it nor did they ever s
the same.
for reconsideration having been denied, petitioner filed the present petition for review.
are:

Whether heirs are deemed constructively notified and bound, regardless of their failure to p
therein, by an extrajudicial settlement and partition of estate when the extrajudicial settlem
partition has been duly published; and,

Assuming a published extrajudicial settlement and partition does not bind persons who did
participate therein, whether the written notice required to be served by an heir to his co-hei
connection with the sale of hereditary rights to a stranger before partition under Article 108
Civil Code17 can be dispensed with when such co-heirs have actual knowledge of the sale
the 30-day period within which a co-heir can exercise the right to be subrogated to the righ
purchaser shall commence from the date of actual knowledge of the sale.

argues, as follows:

acquisition by petitioner of the subject property subsequent to the extrajudicial partition wa

he partition was duly published. The publication of the same constitutes due notice to respo
es their implied acquiescence thereon. Respondents are therefore estopped from denying t
tion and sale at this late stage. Considering that the partition was valid, respondents no lon
redeem the property.

petitioner is a possessor and builder in good faith.

e MTC had no jurisdiction over the complaint because its subject matter was incapable of pe
The complaint should have been filed with the RTC.

here was a non-joinder of indispensable parties, the co-heirs who sold their interest in the s
ot having been impleaded by respondents.

appeal to the CA should have been dismissed as it was not properly verified by responden
ed to indicate that she was authorized to represent the other respondents (petitioners there
petition. Moreover, the verification was inadequate because it did not state the basis of the
r correctness of the material allegations in the petition.

n lacks merit.

dure outlined in Section 1 of Rule 74 is an ex parte proceeding. The rule plainly states, how
ho do not participate or had no notice of an extrajudicial settlement will not be bound thereb
tes a notice that has been sent out or issued before any deed of settlement and/or partition
a notice calling all interested parties to participate in the said deed of extrajudicial settleme
and not after such an agreement has already been executed 19 as what happened in the inst
blication of the first deed of extrajudicial settlement among heirs.

ation of the settlement does not constitute constructive notice to the heirs who had no know
e part in it because the same was notice after the fact of execution. The requirement of pub
the protection of creditors and was never intended to deprive heirs of their lawful participat
estate. In this connection, the records of the present case confirm that respondents never
e settlement documents, having discovered their existence only shortly before the filing of t
mplaint. Following Rule 74, these extrajudicial settlements do not bind respondents, and th
out their knowledge and consent is invalid insofar as they are concerned.

to say, though, that respondents' co-heirs cannot validly sell their hereditary rights to third p
e the partition of the estate. The heirs who actually participated in the execution of the extra
s, which included the sale to petitioner of their pro indiviso shares in the subject property, a
me. Nevertheless, respondents are given the right to redeem these shares pursuant to Articl
ode. The right to redeem was never lost because respondents were never notified in writing
by their co-heirs. Based on the provision, there is a need for written notice to start the peri
n, thus:

Should any of the heirs sell his hereditary rights to a stranger before the partition, any or al
heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of t
sale, provided they do so within the period of one month from the time they were no
writing of the sale by the vendor. (Emphasis supplied.)

mphasis that the period of one month shall be reckoned from the time that a co-heir is notifie
he vendor of the actual sale. Written notice is indispensable and mandatory,20 actual knowl
quired in some other manner by the redemptioner notwithstanding. It cannot be counted fro
nce notice is given of an impending or contemplated sale. The law gives the co-heir thirty da
ritten notice of the actual sale within which to make up his or her mind and decide to repurc

edemption.21

e Code does not prescribe any particular form of written notice nor any distinctive method fo
of redemption, the method of notification remains exclusive, there being no alternative pro
proceeds from the very purpose of Article 1088, which is to keep strangers to the family ou
if, as is often the case, the presence of outsiders be undesirable and the other heir or heir
in a position to repurchase the share sold. 23

e kept in mind that the obligation to serve written notice devolves upon the vendor co-heirs
re in the best position to know the other co-owners who, under the law, must be notified of
will remove all uncertainty as to the fact of the sale, its terms and its perfection and validity
doubt that the alienation is not definitive. 25 As a result, the party notified need not entertain d
may still contest the alienation. 26

g, therefore, that respondents' co-heirs failed to comply with this requirement, there is no le
nt to allowing respondents to redeem the shares sold to petitioner given the former's obviou
and capacity to do so.

ntenable is petitioner's contention that he is a builder in good faith. Good faith consists in th
that the land the latter is building on is one's own without knowledge of any defect or flaw i
ioner derived his title from the Extra Judicial Settlement Among Heirs With Sale dated Nove
was very much aware that not all of the heirs participated therein as it was evident on the fa
itself. Because the property had not yet been partitioned in accordance with the Rules of C
portion of the property could have been identified as yet and delineated as the object of the
the alienation made by respondents' co-heirs was limited to the portion which may be allot
e division upon the termination of the co-ownership. Despite this glaring fact, and over the p
ts, petitioner still constructed improvements on the property. For this reason, his claim of go
ence.

ssue of lack of jurisdiction, petitioner is estopped from raising the same for the first time on
actively participated in the proceedings below and sought affirmative ruling from the lower c
validity of the sale to him of a portion of the subject property embodied in the extrajudicial
rs. Having failed to seasonably raise this defense, he cannot, under the peculiar circumstan
be permitted to challenge the jurisdiction of the lower court at this late stage. While it is a ru
al question may be raised at any time, an exception arises where estoppel has already sup

ets in when a party participates in all stages of a case before challenging the jurisdiction of
cannot belatedly reject or repudiate its decision after voluntarily submitting to its jurisdiction
rmative relief against one's opponent or after failing to obtain such relief. The Court has, tim
wned upon the undesirable practice of a party submitting a case for decision and then accep

only if favorable, and attacking it for lack of jurisdiction when adverse. 28

s fourth argument, that there is a non-joinder of indispensable parties, similarly lacks merit.
ble party is a party-in-interest without whom there can be no final determination of an actio
to be joined as either plaintiff or defendant. 29 The party's interest in the subject matter of th
f sought is so inextricably intertwined with the other parties that the former's legal presence
eeding is an absolute necessity. Hence, an indispensable party is one whose interest will b
y the court's action in the litigation. In the absence of such indispensable party, there canno
of the controversy before the court which is effective, complete, or equitable. 30

to this, it must be kept in mind that the complaint filed by respondents ultimately prayed tha
redeem the shares in the property sold by their co-heirs. Significantly, the right of the other
ndivided share in the property to petitioner is not in dispute. Respondents concede that the
d within their hereditary rights in doing so to the effect that the latter completely and effective
d their interests in the property in favor of petitioner. Petitioner thus stepped into the shoes
to become a co-owner of the property with respondents. As a result, only petitioner's prese
required for a complete and final determination of the controversy because what responde
ogated to his rights as a purchaser.

itioner contends that the petition filed by respondents with the CA should have been dismis
he verification and certificate of non-forum shopping appended to it were defective, citing sp
of respondent Gloria Vargas to: (1) indicate that she was authorized to represent her co-res
on, and (2) state the basis of the alleged truth of the allegations.

al rule is that the certificate of non-forum shopping must be signed by all the plaintiffs or pet
d the signature of only one of them is insufficient. 31 Nevertheless, the rules on forum shoppin
ned to promote and facilitate the orderly administration of justice, should not be interpreted
eralness as to subvert their own ultimate and legitimate objective. Strict compliance with th
regarding the certificate of non-forum shopping merely underscores its mandatory nature in
n cannot be altogether dispensed with or its requirements completely disregarded. 32 Under
ces, the Court has relaxed the rule requiring the submission of such certification considerin
is obligatory, it is not jurisdictional.33

n all the petitioners share a common interest and invoke a common cause of action or defe
of only one of them in the certification against forum shopping substantially complies with th
co-respondents of respondent Gloria Vargas in this case were her children. In order not to
tice, the Court deems it sufficient that she signed the petition on their behalf and as their
tive.

ORE, the petition is DENIED for lack of merit. Costs against petitioner.

RED.

Chairperson, Sandoval-Gutierrez, Corona, and Garcia, JJ., concur.

CA Rollo, pp. 193-209.

Id. at 331.

Records (MTC), p. 5.

Id. at 170-172.

Transcript of Stenographic Notes (TSN) dated January 16, 1997, pp. 9-10; TSN dated Jan
1997, pp. 2-4.

TSN dated January 17, 1997, p. 4.

Records (MTC), p. 166.

Aurora Vargas is the daughter of Gloria Vargas.

After the conciliation proceedings between the parties failed, a Certification to File Action
issued by the Lupon Chairman of Barangay San Juan, Virac, Catanduanes on November 1

10

Records (MTC), p.176.

11

Id. at 34-57.

12

Records (RTC), pp. 86-87.

13

Records (MTC), pp. 380-396.

14

CIVIL CODE, Article 1088:

Should any of the heirs sell his hereditary rights to a stranger before the partition, any or al
heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of t
provided they do so within the period of one month from the time they were notified in writin

sale by the vendor.

15

Records (MTC), pp. 391-395.

16

RULES OF COURT, Section 1. Extra judicial settlement by agreement between heirs:

If the decedent left no will and no debts and the heirs are all of age, or the minors are repre
their judicial or legal representatives duly authorized for the purpose, the parties may, witho
securing letters of administration, divide the estate among themselves as they see fit by m
public instrument filed in the office of the register of deeds, and should they disagree, they
so in an ordinary action of partition. x x x The parties to an extrajudicial settlement, whethe
instrument or by stipulation in a pending action for partition, or the sole heir who adjudicate
entire estate to himself by means of an affidavit shall file, simultaneously with and as a con
precedent to the filing of the public instrument, or stipulation in the action for partition, or of
affidavit in the office of the register of deeds, a bond with the said register of deeds, in an a
equivalent to the value of the personal property involved as certified to under oath by the p
concerned and conditioned upon the payment of any just claim that may be filed under sec
this rule. x x x The fact of the extrajudicial settlement or administration shall be published in
newspaper of general circulation in the manner provided in the next succeeding section; bu
extrajudicial settlement shall be binding upon any person who has not participated therein
notice thereof.

17

Supra note 14.

18

RULES OF COURT, Rule 74, Section 1xxx

The fact of the extrajudicial settlement or administration shall be published in a newspaper

circulation in the manner provided in the next succeeding section; but no extrajudicial settle
shall be binding upon any person who has not participated therein or had no notice thereof

19

Pedrosa v. CA, G.R. No. 118680, March 5, 2001, 353 SCRA 620, 628.

20

Verdad v. CA, G.R. No. 109972, April 29, 1996, 256 SCRA 593.

Tolentino, Arturo M., "Commentaries and Jurisprudence on the Civil Code," Vol. III, pp. 60
(2001).

21

22

Garcia v. Calaliman, G.R. No. 26855, April 17, 1989, 172 SCRA 201.

Hermoso v. CA, G.R. No. 108580, December 29, 1998, 300 SCRA 516, quoting De Jesu
Manglapus, 41 Phil. 188 (1948).

23

24

De Ape v. CA, G.R. No. 133638, April 15, 2005, 456 SCRA 193.

Verdad v. CA, supra note 20, quoting Cabrera v. Villanueva, G.R. No. L-75069, April 15,
SCRA 672.

25

26

De Ape v. CA, supra note 24.

Ongsitco v. CA, G.R. No. 121527, March 29, 1996, 255 SCRA 703, quoting Pleasantville
Development Corporation v. CA, G.R. No. 79688, February 1, 1996, 253 SCRA 10, and Flo
Evangelista, G.R. No. L-25462, February 21, 1980, 96 SCRA 130.

27

28

David v. Cordova, G.R. No. 152992. July 28, 2005, 464 SCRA 384.

29

RULES OF COURT, Rule 3, Section 7-

Parties in interest without whom no final determination can be had of an action shall be join
as plaintiffs or defendants.

30

PNB v. Milita, G.R. Nos. 164801 and 165165, August 18, 2005, 467 SCRA 377.

Gonzales v. Balikatan Kilusang Bayan sa Pananalapi, Inc., G.R. No. 150859, March 28,
SCRA 111; Andres v. Cuevas, G.R. No. 150869, June 9, 2005, 460 SCRA 38.

31

32

San Miguel v. Aballa, G.R. No. 149011, June 28, 2005, 461 SCRA 392.

33

Olarte v. Office of the President, G.R. No. 165821, June 21, 2005, 460 SCRA 561.

HLC Construction and Development Corporation v. Emily Homes Subdivision Homeowne

Association, G.R. No. 139360, September 23, 2003, 411 SCRA 504.

34

hil Project - Arellano Law Foundation

Today is Tuesday, August 09, 2016

-23002

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
July 31, 1967

CION FELIX VDA. DE RODRIGUEZ, plaintiff-appellant,

O RODRIGUEZ., ET AL., defendants-appellees.

bbs and Ozaeta for plaintiff-appellant.

azar, Luna and Associates and Carolina C. Grio-Aquino for defendants-appellees.

B.L., J.:

appeal by Concepcion Felix Vda. de Rodriguez from the decision of the Court of First Insta
Civil Case No. 2565, which she commenced on May 28, 1962, to secure declaration, of nu
executed on January 24, 1934 and for recovery of certain properties.

of this case may be briefly stated as follows:

n Felix, widow of the late Don Felipe Calderon and with whom she had one living child, Co
contracted a second marriage on June 20, 1929, with Domingo Rodriguez, widower with fo
ous marriage, named Geronimo, Esmeragdo, Jose and Mauricio, all surnamed Rodriguez. T
this second marriage.

r marriage to Rodriguez, Concepcion Felix was the registered owner of 2 fishponds located
abagad, municipality of Bulacan, Bulacan province. with a total area of 557,711 square me
y OCT Nos. 605 and 807. Under date of January 24, 1934, Concepcion Felix appeared to h
a deed of sale conveying ownership of the aforesaid properties to her daughter, Concepcion
for the sum of P2,500.00, which the latter in turn appeared to have transferred to her mothe
by means of a document dated January 27, 1934. Both deeds, notarized by Notary Public
were registered in the office of the Register of Deeds of Bulacan on January 29, 1934, as a

nce of which, the original titles were cancelled and TCT Nos. 13815 and 13816 were issued
he spouses Domingo Rodriguez and Concepcion Felix.

6, 1953, Domingo Rodriguez died intestate, survived by the widow, Concepcion Felix, his c
Esmeragdo and Mauricio and grandchildren Oscar, Juan and Ana, surnamed Rodriguez, ch
e, who had predeceased him.

16, 1953, the above-named widow, children and grandchildren of the deceased entered int
al settlement of his (Domingo's) estate, consisting of one-half of the properties allegedly be
al partnership. Among the properties listed as conjugal were the two parcels of land in Bula
which, together with another piece of property, were divided among the heirs in this manner:

WHEREAS, the parties have furthermore agreed that the fishpond covered by TCT Nos. 13
13816 and 24109 of the Office of the Register of Deeds of Bulacan, containing an area of 5
sq. m., which is likewise the conjugal property of the deceased and his surviving spouse; 1
same or 278,985.5 sq. m. belongs to said Concepcion Felix Vda. de Rodriguez, as her sha
conjugal property; and 3/4 of the remaining half or 209,239.125 sq. m. are transferred in fu
ownership to Geronimo Rodriguez, Esmeragdo Rodriguez and Mauricio Rodriguez, share
alike, while the other 1/4 or 69,746.375 sq. m. of the said remaining half goes in equal sha
Oscar Rodriguez, Juan Rodriguez and Ana Rodriguez.

of this partition, TCT Nos. 13815 and 13816 were cancelled and TCT Nos. T-11431 and Td in the names of the said heirs of the deceased.

23, 1953, in a power of attorney executed by the children and grandchildren of Domingo Ro
n Felix Vda. de Rodriguez was named their attorney in-fact, authorized to manage their sha
(Exh. 4).

1954, the heirs ended their co-ownership by executing a deed of partition, dividing and seg
ctive shares in the properties, pursuant to a consolidation and subdivision plan (PCS-3702
e with which, Concepcion Felix Vda. de Rodriguez obtained TCT No. T-12910, for the portio
to her (Exh. L), while TCT No. T-12911 was issued to the other heirs, for their shares. This
quently replaced by TCT No. 16660 (Exh. M).

r 12, 1954, the Rodriguez children executed another document granting unto the widow life
ver one-third of the fishpond which they received as hereditary share in the estate of Domin
which grant was accepted by Concepcion Felix Vda. de Rodriguez.

contract dated December 15, 1961, the widow appeared to have leased from the Rodrigue
children the fishpond (covered by TCT No. 16660) for a period of 5 years commencing Aug

n annual rental of P7,161.37 (Exh. 5).

1wph1.t

is time, it seemed that the relationship between the widow and her stepchildren had turned
us, when she failed to deliver to them the balance of the earnings of the fishponds, in the am
her stepchildren endorsed the matter to their lawyer who, on May 16, 1962, sent a letter o
w for payment thereof. On, May 28, 1962, Concepcion Felix Vda. de Rodriguez filed the pr
e Court of First Instance of Manila naming as defendants, Geronimo Rodriguez, Esmeragd
Oscar Rodriguez, Concepcion Bautista Vda. de Rodriguez, as guardian of the minors Jua
and Antonio Diaz de Rivera and Renato Diaz de Rivera, as guardians of the minors Maria
Margarita, Mauricio, Jr. and Domingo (Children of Mauricio Rodriguez who had also died).

to declare null and void the deeds of transfer of plaintiff's properties to the conjugal partner
he alleged employment or exercise by plaintiff's deceased husband of force and pressure o
nveyances of the properties from plaintiff to her daughter and then to the conjugal partne
d her husband are both without consideration; that plaintiff participated in the extrajudicia
of estate (of the deceased Domingo Rodriguez) and in other subsequent deeds or instrum
he properties in dispute, on the false assumption that the said properties had become conju
he execution of the deeds of transfer in 1934; that laboring under the same false assumptio
o defendants, as income of the properties from 1956 to 1961, the total amount of P56,976.5
cause of action, she contended that she would claim for her share, as surviving widow, of 1
in controversy, should such properties be adjudged as belonging to the conjugal partnershi
ayed that the deeds of transfer mentioned in the complaint be declared fictitious and simula
udicial Settlement of Estate" be also declared null and void; that TCT No. 16660 of the Reg
Bulacan be cancelled and another one be issued in the name of plaintiff, Concepcion Felix V
defendants be ordered to pay plaintiff the sum of P56,976.58, with legal interest thereon fro
filing of the complaint, and for appropriate relief in connection with her alternative cause of

parate answers, defendants not only denied the material allegations of the complaint, but al
ive defenses lack of cause of action, prescription, estoppel and laches. As counterclaim, th
nt by the plaintiff of the unpaid balance of the earnings of the land up to August 15, 1962 in
for attorney's fees and expenses of litigation.

r 5, 1963, judgment was rendered for the defendants. In upholding the validity of the contra
d that although the two documents, Exhibits A and B, were executed for the purpose of con
eparate properties into conjugal assets of the marriage with Domingo Rodriguez, the conse
reto was voluntary, contrary to the allegations of plaintiff and her witness. The court also ru
en part in the questioned transactions, plaintiff was not the proper party to plead lack of con
e transfers; that contracts without consideration are not inexistent, but are only voidable, fo
e case of Concepcion vs. Sta. Ana (87 Phil. 787); that there was ratification or confirmation
he transfer of her property, by her execution (with the other heirs) of the extrajudicial settle

t being a voluntary party to the contracts, Exhibits A and B, plaintiff cannot recover the prop
under. Plaintiff's alternative cause of action was also rejected on the ground that action for
d of extrajudicial settlement should have been filed within 4 years from its execution (on Ma

ecision of the Court of First Instance, plaintiff duly appealed to this Court, insisting that the
es in issue were obtained through duress, and were inexistent, being simulated and withou
on.

with the trial Court that the evidence is not convincing that the contracts of transfer from Co
r daughter, and from the latter to her mother and stepfather were executed through violence
n. The charge is predicated solely upon the improbable and biased testimony of appellant's
n C. Martelino, whom the trial court, refused to believe, considering that her version of viole
nt was contradicted by Bartolome Gualberto who had lived with the Rodriguez spouses from
by the improbability of Rodriguez threatening his stepdaughter in front of the Notary Public
signature. Furthermore, as pointed out by the appealed decision, the charge of duress sho
h caution considering that Rodriguez had already died when the suit was brought, for dures
ot to be lightly paid at the door of men already dead. (Cf. Prevost vs. Gratz, 6 Wheat. [U.S.]
Longa, 51 Phil. 507).

ore decisive is that duress being merely a vice or defect of consent, an action based upon i
thin four years after it has ceased;1 and the present action was instituted only in 1962, twen
after the intimidation is claimed to have occurred, and no less than nine (9) years after the
(1953). On top of it, appellant entered into a series of subsequent transactions with appell
the contracts that she now tries to set aside. Therefore, this cause of action is clearly barre

s main stand in attacking the conveyances in question is that they are simulated or fictitious
or lack of consideration. We shall examine each purported defect separately.

e of simulation is untenable, for the characteristic of simulation is the fact that the apparent
desired or intended to produce legal effects or in way alter the juridical situation of the partie
erson, in order to place his property beyond the reach of his creditors, simulates a transfer o
e does not really intend to divest himself of his title and control of the property; hence, the d
but a sham. But appellant contends that the sale by her to her daughter, and the subseque
o appellant and her husband, the late Domingo Rodriguez, were done for the purpose of co
y from paraphernal to conjugal, thereby vesting a half interest in Rodriguez, and evading th
against donations from one spouse to another during coverture (Civil Code of 1889, Art. 13
n the appellant and her daughter must have intended the two conveyance to be real and ef
ould not intend to keep the ownership of the fishponds and at the same time vest half of th
The two contracts of sale then could not have been simulated, but were real and intended to

being the means to achieve the result desired.

he intention of the parties to circumvent by these contracts the law against donations betwe
ake them simulated ones.

his classic book, "La Simulacion de los Negocios Juridicos" (Sp. trans, 1926), pp. 95, 105,
e difference between simulated transactions and transactions in fraudem legis:

Otra figura que debe distinguirse de la simulacion es el fraus legis. Tambien aqui se da un
confusion que persiste aun en la jurisprudencia, apegada tenazmente a antiguos errores. S
Bahr el haber defendido con vigor la antitesis teorica que existe entre negocio fingido y ne
fraudulento y haber atacado la doctrina comun que hacia una mescolanza con los dos con

Se confunde dice (2) , el negocio in fraudem legis con el negocio simulado; aunque la
naturaleza de ambos sea totalmente diversa. El negocio fraudulento no es, en absolute, un
aparente. Es perfectamente serio: se quiere realmente. Es mas, se quiere tal como se ha
con todas las consecuencias que correspondent a la forma juridica elegida. Muchas veces
consecuencias con incomodas para una u otra de las partes, aunque serian mucho mas in
las consecuencias que lievaria consigo el acto prohibido.
xxx

xxx

xxx

El resultado de las precedentes investigaciones es el siguiente el negocio simulado quiere

una apariencia; el negocio fraudulente, una realidad; los negocios simulados son ficticios,
queridos; los negocios in fraudem son serios, reales, y realizados en tal forma por las part
consequir un resultado prohibido: la simulacion nunca es un medio para eludir la ley sino p
ocultar su violation. La transgresion del contenido verbal e inmediato de la norma se encub
manto de un negocio licito, lo cual no altera el caracter del contra legem agere. Tan verdad
si se ha redactado una contra-escritura que documentary y declara la verdadera naturalez
negocio realizado, no queda mas que aplicar pura y simplementela prohibicion.

Tambien el fraude quiere perjudicar la ley, pero emplea para ello medios diversos y sigue d
caminus. No oculta el acto exterior, sino que lo deja claro y visible, tratando de huir sesgad
de la aplicacion de la ley merced a una artistica y sabia combinacion de varios medios juri
reprobados.

nvokes our decision in Vasquez vs. Porta, 98 Phil. 490, but to no purpose. The mortgage a
e sale involved in that case were typical simulations merely apparent but not really intended
gal effects, as approved by the Court's finding that the alleged creditor and buyer at the for
himself ostensibly acknowledged by his inertia in allowing the doctor (alleged mortgagor d
ominical power thereon without any protest on his part." (cas. cit., p. 495). Not only this, bu

s wife, when her husband died, "found among his papers Porta's cancellation of the mortga
he draft of the complaint for foreclosure." Plainly, the precedent cited is here inapplicable.

wo conveyances from appellant to her daughter and from the latter to the spouses Rodrigu
xistent for lack of consideration? We do not find them to be so. In the first transaction, the p
is recited in the deed itself (Exh. A); in the second (Exh. B), the consideration set forth is P
e 1274 of the Civil Code of 1889 (in force when the deeds were executed) provided that

In onerous contracts the cause is understood to be, for each contracting party, the prestatio
promise of a thing or service by the other. (emphasis supplied.)

ach conveyance the buyer became obligated to pay a definite price in money, such underta
in themselves actual causa or consideration for the conveyance of the fishponds. That the
aid (assuming ad arguendo that Concepcion Martelino's testimony, to this effect is true) doe
sales inexistent for want of causa. As ruled in Enriquez de la Cavada vs. Diaz, 37 Phil. 982,
on (causa) need not pass from one (party) to the other at the time the contract is entered in
deration need not be paid at the time of the promise. The one promise is a consideration for

d invalidate the conveyances now under scrutiny is the fact that they were resorted to in ord
the legal prohibition against donations between spouses contained in Article 1334, paragr
ode of 1889, then prevailing. That illegal purpose tainted the contracts, for as held by the S
upreme in its decision of 2 April 1941.

ha de ser reputado ineficaz, por exigencias includibles del caracter social y moral del Dere
contrato que persiga un fin ilicito o immoral, sea cualquiera el medio empleado por los con
para lograr esa finalidad, no justificada por un interes digno de ser socialmente protegido.

urpose then becomes illegal causa within the terms of the old Civil Code, for as declared b
nish Court in its decision of 14 December 1940

toda vez que lo que caracteriza fundamentalmente la ilicitud de la causa es la lesion de un

general juridica 6 moral.

terated in the decision of 2 April 1941 when the Court ruled:

El concepto de la causa ilicita, tal como la desenvuelve y aplica con gran amplitud y flexibi
doctrina moderna, permite cobijar, no solo las convenciones ilicitas por razon de su objeto
motivo ... sino tambien multiples convenciones que no encerrando en si ningun elemento d
antijuricidad son ilicitas por el matiz immoral que reviste la operation en su conjunto x x x .

ely for herein appellant, in contracts invalidated by illegal subject matter or illegal causa, Ar
1306 of the Civil Code then in force apply rigorously the rule in pari delicto non oritur action
y to the guilty parties inter se. And appellant is clearly as guilty as her husband in the attem
legal interdiction of Article 1334 of the Code, already cited. Wherefore, her present action to
e the, conveyed properties was correctly repulsed by the Court below.

Art. 1306. If the act which constitutes the illicit consideration is neither a crime nor a misde
the following rules shall be observed:

1. When both parties are guilty, neither of them can recover what he may have given by vir
contract, or enforce the performance of the undertaking of the other party;
xxx

xxx

xxx

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

annot be denied that plaintiff-appellant had knowledge of the nullity of the contract for the tr
ties in 1934, because she was even a party thereto. And yet, her present action was filed o
962 and after the breaking up of friendly relations between her and defendants-appellees. A
enforce her right, for 28 years, cannot be justified by the lame excuse that she assumed th
as valid. Knowledge of the effect of that transaction would have been obtained by the exerc
gnorance which is the effect of inexcusable negligence, it has been said, is no excuse for la
un, etc., et al. vs. Co Cho, et al., G.R. No. L-5208, Feb. 28, 1955). Even assuming for the s
hat appellant held her peace, during the lifetime of her husband, out of legitimate fear for h
justification for her future to bring the proper action after his death in 1953. Instead, she en
agreements with herein appellees, the children of her husband by a prior marriage, of part
nd lease of their share in the fishponds, transactions that necessarily assumed that Rodrigu
ne-half of the litigated fishponds. In the circumstances, appellant's cause has become a sta
nd her conduct placed her in estoppel to question the Validity of the transfer of her propertie
al. vs. Galvan, et al., G.R. No. L-23507, May 24, 1967; Perez vs. Herranz, 7 Phil. 695-696)

he foregoing, the decision appealed from is affirmed. Costs against appellant Concepcion F
uez. So ordered.

Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.
n, C.J. and Dizon, J., are on leave.

Article 1301 of the Civil Code of 1889, in force when the assailed contracts were executed

See also Liguez vs. Court of Appeals, 102 Phil. 581582; Perez vs. Herranz, 7 Phil. 695.

hil Project - Arellano Law Foundation