LAW 311: SPECIAL PROCEEDINGS RULE 76

Republic of the Philippines Occidental, wherein this Court, en banc, through Justice, now Chief Justice,
SUPREME COURT Andres R. Narvasa, in reference to what the trial court termed as “the doctrinal rule
Manila 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
THIRD DIVISION 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
G.R. No. L-53546 June 25, 1992
delegated to commissioners, inclusive of the Clerk of Court. These instances are
set out in Rule 33, x x x; Rules 67 and 69, x x x; Rule 86, x x x; Rule 136, x x x. In
THE HEIRS OF THE LATE JESUS FRAN and CARMEN MEJIA all these instances, the competence of the clerk of court is assumed.
RODRIGUEZ, petitioners,
vs.
Same; Same; Same; Clerk of Court need not take oath before receiving
HON. BERNARDO LL. SALAS, CONCEPCION MEJIA ESPINA and MARIA
evidence ex parte.—The alternative claim that the proceedings before the Clerk
MEJIA GANDIONGCO, respondents.
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
Wills and Testaments; Due Process; Formal notice an idle ceremony where task of receiving evidence. It was not necessary for him to take an oath for that
adverse party had actual knowledge. — After the probate court rendered its purpose; he was bound by his oath of office as a Clerk of Court. Private
decision on 13 November 1972, and there having been no claim presented despite respondents are obviously of the impression that by the delegation of the reception
publication of notice to creditors, petitioner Fran submitted a Project of Partition of evidence to the Clerk of Court, the latter became a commissioner as defined
which private respondent Maria M. Vda. de Gandiongco voluntarily signed and to under Rule 33 of the Rules of Court entitled Trial by Commissioner.
which private respondent Espina expressed her conformity through a certification
filed with the probate court. Assuming for the sake of argument that private
Same; It is not necessary to attach original will to petition for probate.—In
respondents did not receive a formal notice of the decision as they claim in their
Santos vs. Castillo and Salazar vs. Court of First Instance of Laguna, decided six
Omnibus Motion for Reconsideration, these acts nevertheless constitute
(6) months apart in 1937, this Court already ruled that it is not necessary that the
indubitable proof of their prior actual knowledge of the same. A formal notice would
original of the will be attached to the petition. In the first, it ruled: “The original of
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 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
among the last operative acts to terminate the proceedings. If private respondents
thereof.”
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 Same; Failure to attach original of will to petition not critical where will itself
refutes and defeats the plea that they were not notified of the order authorizing the was adduced in evidence.—It is not likewise disputed that the original of the will
Clerk of Court to receive the evidence and that the Clerk of Court did not notify was submitted in evidence and marked as Exhibit “F”. It forms part of the records
them of the date of the reception of evidence. Besides, such plea must fail of the special proceedings—a fact which private respondents admit in their
because private respondents were present when the court dictated the said order. Omnibus Motion for Reconsideration.

Same; Evidence; Due Process; Clerks of Court are now authorized to receive Same; Judgments; Due Process; Fraud as ground for relief must be based
evidence ex parte. Contrary rule in Lim Tanhu vs. Ramolete abandoned.—Lim on extrinsic fraud.—Granting for the sake of argument that the non-fulfillment of
Tanhu then cannot be used as authority to nullify the order of the probate court said promise constitutes fraud, such fraud is not of the kind which provides
authorizing the Clerk of Court to receive the evidence for the rule is settled that sufficient justification for a motion for reconsideration or a petition for relief from
“when a doctrine of this Court is overruled and a different view is adopted, the new judgment under Rule 37 and Rule 38, respectively, of the Rules of Court, or even a
doctrine should be applied prospectively, and should not apply to parties who had separate action for annulment of judgment. It is settled that for fraud to be invested
relied on the old doctrine and acted on the faith thereof.” It may also Heir of the with such sufficiency, it must be extrinsic or collateral to the matters involved in the
Late be emphasized in this connection that Lim Tanhu did not live long; it was issues raised during the trial which resulted in such judgment.
subsequently overruled in Gochangco vs. Court of First Instance of Negros

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LAW 311: SPECIAL PROCEEDINGS RULE 76
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:"
Judgments; Various methods to attack validity of a judgment.—In Our
jurisdiction, the following courses of action are open to an aggrieved party to set 1. The Order of 26 February 1980 setting for hearing private
aside or attack the validity of a final judgment: (1) Petition for relief under Rule 38 respondents' Omnibus Motion for Reconsideration 1 which was
of the Rules of Court which must be filed within sixty (60) days after learning of the filed six (6) years, ten (10) months and eighteen (18) days after
decision, but not more than six (6) months after such decision is entered; (2) By the probate judgment was rendered and six (6) years and twenty-
direct action, via a special civil action for certiorari, or by collateral attack, one (21) days after the testate proceedings was declared closed
assuming that the decision is void for want of jurisdiction; (3) By an independent and terminated; and
civil action under Article 1114 of the Civil Code, assuming that the decision was
obtained through fraud and Rule 38 can not be applied. 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
Same; Wills and testaments; A probate judgment long closed cannot be testatrix as having died intestate; (b) declaring the testamentary
attacked by mere motion for reconsideration.—The probate judgment of 13 dispositions in said last will and testament as null and void; (c)
November 1972, long final and undisturbed by any attempt to unsettle it, had setting aside the order dated 10 September 1973 declaring the
inevitably passed beyond the reach of the court below to annul or set the same testate proceedings closed and terminated; (d) revoking the
aside, by mere motion, on the ground that the will is a forgery. Settled is the rule appointment of Jesus Fran as executor while appointing
that the decree of probate is conclusive with respect to the due execution of the respondent Concepcion M. Espina as administratrix; and (e)
will and it cannot be impugned on any of the grounds authorized by law, except ordering the conversion of the proceedings to one of
that of fraud, in any separate or independent action or proceeding. We wish also to intestacy. 2 This Order effectively annulled and set aside the
advert to the related doctrine which holds that final judgments are entitled to probate judgment of 13 November 1972.
respect and should not be disturbed; otherwise, there would be a wavering of trust
in the courts. Petitioners would also have this Court nullify all other actions of
respondent Judge in said Sp. Proc. No. 3309-R; restore the status
Same; Same; Where part of estate not distributed, recourse is not to re-open quo therein prior to the issuance of the foregoing orders; and permanently
probate proceedings, but motion for execution or action for reconveyance.— enjoin respondent Judge from reopening said proceedings.
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 The following facts are not controverted:
for execution should have been filed. In De Jesus vs. Daza, this Court ruled that if
the executor or administrator has possession of the share to be delivered, the Remedios M. Vda. de Tiosejo, a widow, died on 10 July 1972 in Cebu City with
probate ourt would have jurisdiction within the same estate proceeding to order neither descendants nor ascendants; she left real and personal properties located
him to transfer that possession to the person entitled thereto. This is authorized in Cebu City, Ormoc City and Puerto Bello, Merida, Leyte. Earlier, on 23 April
under Section 1, Rule 90 of the Rules of Court. However, if no motion for execution 1972, she executed a last will and testament wherein she bequeathed to her
is filed within the reglementary period, a separate action for the recovery of the collateral relatives (brothers, sisters, nephews and nieces) all her properties, and
shares would be in order. 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,
DAVIDE, JR., J.: Alcio Demerre and Primo Miro.

This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules On 15 July 1972, Jesus Fran filed a petition with the Court of First instance of
of Court, with prayer for a writ of preliminary injunction, to annul and set aside, for Cebu for the probate of Remedios' last will and testament. 4 The case was raffled
having been issued without jurisdiction or with grave abuse of discretion amounting to the original Branch VIII thereof which was then presided over by Judge Antonio
to lack of jurisdiction, the following Orders of the respondent Judge in Special D. Cinco. The petition alleged that Rosario Tan is not physically well and,
Proceedings No. 3309-R of Branch VIII of the then Court of First Instance (now 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

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LAW 311: SPECIAL PROCEEDINGS RULE 76
issued an order setting the petition for hearing on 18 September 1972. Meanwhile, will. Let letters testamentary be issued in favor of Dr. Jesus Fran.
on 31 July 1972, the court appointed petitioner Jesus Fran as special The special administrator's bond put up by Dr. Jesus Fran as
administrator. special administrator duly approved by this Court shall serve and
be considered as the executor's bond considering that the special
On 10 August 1972, the private respondents, who are sisters of the deceased, filed administrator and executor are one and the same person.
a manifestation alleging that they needed time to study the petition because some
heirs who are entitled to receive their respective shares have been intentionally The requisite notice to creditors was issued, but despite the expiration of the
omitted therein, and praying that they be given ample time to file their opposition, period therein fixed, no claim was presented against the estate.
after which the hearing be reset to another date.
On 4 January 1973, petitioner Fran filed an Inventory of the Estate where copies
Private respondents did not file any opposition. Instead, they filed on 18 thereof were furnished each of the private respondents.
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 Subsequently, a Project of Partition based on the dispositions made in the will and
that . . . they have no objection of (sic) the allowance of the . . . will of the late signed by all the devisees and legatees, with the exception of Luis Fran, Remedios
Remedios Mejia Vda. de Tiosejo," and that they have "no objection to the issuance C. Mejia and respondent Concepcion M. Espina, was submitted by the executor for
of letters testamentary in favor of petitioner, Dr. Jesus Fran." 6 the court's approval.  Said legatees and devisees submitted certifications wherein
they admit receipt of a copy of the Project of Partition together with the notice of
No other party filed an opposition. The petition thus became uncontested. hearing, and state that they had no objection to its approval. 

During the initial hearing, petitioner Fran introduced the requisite evidence to The notice of hearing referred to in these certifications is the 6 August 1973 notice
establish the jurisdictional facts. issued by the Clerk of Court setting the hearing on the Project of Partition for 29
August 1973. 
Upon a determination that the court had duly acquired jurisdiction over the
uncontested petition for probate, Judge Cinco issued in open court an order After the hearing on the Project of Partition, the court issued its Order of 10
directing counsel for petitioner to present evidence proving the authenticity and September 1973 approving the same, declaring the parties therein as the only
due execution of the will before the Clerk of Court who was, accordingly, so heirs entitled to the estate of Remedios Mejia Vda. de Tiosejo, directing the
authorized to receive the same. administrator to deliver to the said parties their respective shares and decreeing
the proceedings closed. The dispositive portion thereof reads:
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 WHEREFORE, the signers (sic) to the project of partition are
witnesses to the will. The original of the will, marked as Exhibit "F", and its English declared the only, heirs entitled to the estate; the project of
translation, marked as Exhibit "F-Translation", were submitted to the Clerk of partition submitted is ordered approved and the administrator is
Court. 7 Petitioner Fran was the second and also the last witness. He enumerated ordered to deliver to each one of them their respective aliquot
the names of the surviving heirs of the deceased. parts as distributed in the said project of partition. It is understood
that if there are expenses incurred or to be incurred as expenses
On 13 November 1972, the probate court rendered a decision admitting to probate of partition, Section 3 of Rule 90 shall be followed.
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: Let this proceedings be now declared closed.

WHEREFORE, in view of all the foregoing, judgment is hereby SO ORDERED.

rendered declaring the last will and testament of the deceased
Remedios Mejia Vda. de Tiosejo marked as Exhibit F as admitted Thereafter, the aforesaid Branch VIII of the Court of First Instance of Cebu was
to probate. Dr. Jesus Fran is hereby appointed as executor of the converted to a Juvenile and Domestic Relations Court. On November 1978, by

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LAW 311: SPECIAL PROCEEDINGS RULE 76
virtue of Presidential Decree No. 1439, Branch XVII (Davao City) of the Court of On 25 March 1980, petitioners filed a Motion to Dismiss the Omnibus and to
First Instance of Cebu, presided over by herein respondent Judge, was officially Reconsider the 26 February 1980 Order setting it for hearing on 17 April
transferred to Cebu City and renumbered as Branch VIII. 1980, 18 but the respondent Judge prematurely denied it for lack of merit in his
Order of 31 March 1980. 19
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 Consequently, on 8 April 1980, the instant petition was filed challenging the
Order of partition of 10 September 1973, in said motion, they ask the court to jurisdiction of the lower court in taking cognizance of the Omnibus Motion for
declare the proceedings still open and admit their opposition to the allowance of Reconsideration considering that the probate judgment and the order approving
the will, 14 which they filed on 1 October 1979. They allege that: (a) they were not the Project of Partition and terminating the proceedings had long become final and
furnished with a copy of the will; (b) the will is a forgery; (c) they were not notified had in fact been executed. Private respondents had long lost their right to appeal
of any resolution or order on their manifestation requesting time within which to file therefrom. The Omnibus Motion for Reconsideration cannot likewise be treated as
their opposition, or of the order authorizing the clerk of court to receive the a petition for relief from judgment for under Rule 38 of the Revised Rules of Court,
evidence for the petitioner, or of the order closing the proceedings; (d) the the same must be filed within sixty (60) days from receipt of notice of the
reception of evidence by the clerk of court was void per the ruling in  Lim Tanhu vs. judgment/order and within six (6) months from the date of said judgment.
Ramolete; 15 (e) the project of partition contains no notice of hearing and they Therefore, this remedy can no longer be availed of.
were not notified thereof; (f) the petitioner signed the project of partition as
administrator and not as executor, thereby proving that the decedent died On 8 April 1980, the date the instant petition was filed, respondent Judge
intestate; (g) the petitioner did not submit any accounting as required by law; and proceeded with the hearing of the Omnibus Motion for Reconsideration. He
(h) the petitioner never distributed the estate to the devisees and legatees. received the testimonies of private respondents and one Romeo O. Varena, an
alleged handwriting expert from the Philippine Constabulary, who averred that the
In a detailed opposition 16 to the above Omnibus Motion for Reconsideration, signature of the testatrix on the will is a forgery. The respondent Judge likewise
petitioner Fran refuted all the protestations of private respondents. Among other issued an Order on the same date stating that unless he received a restraining
reasons, he stresses therein that: (a) private respondents are in estoppel to order from this Court within twenty (20) days therefrom, he will reopen Sp. Proc.
question the will because they filed their Withdrawal Of Opposition To The No. 3309-R.
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 On 14 April 1980, petitioners filed a Supplemental Petition asking this Court to
its allowance; the order directing the clerk of court to receive the evidence was restrain respondent Judge from reopening the case. 20
dictated in open court in the presence of private respondents; private respondent
Maria M. Gandiongco signed the Project of Partition and private respondent In their voluminous Comments and Opposition to the petition and Supplemental
Concepcion M. Espina submitted a certification stating therein that she received Petition, 21 private respondents not only amplify in great detail the grounds raised
the notice of hearing therefor and has no objection to its approval; (b) except for in their Omnibus Motion for Reconsideration, they also squarely raise for the first
some properties, either covered by a usufruct under the will or agreed upon by the time the following issues.
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 (a) The probate court never acquired jurisdiction over the case
shares, they even purchased the shares of the other devisees. To top it all, private since petitioner Jesus Fran failed to submit to the court the original
respondents' children, namely Rodrigo M. Gandiongco, Jr. and Victor Espina, of the will.
mortgaged their respective shares in favor of a bank
(b) They were deprived of the opportunity to examine the will as
Notwithstanding petitioners' objections, respondent Judge issued on 26 February petitioner Jesus Fran did not attach it to the petition; what was
1980 an Order setting for hearing the said Omnibus Motion for Reconsideration on attached was only the English translation of the will.
8 April 1980 so that "the witnesses and the exhibits (may be) properly
ventilated." 17 (c) Even assuming that the probate judge could validly delegate
the reception of evidence to the Clerk of Court, the proceeding

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LAW 311: SPECIAL PROCEEDINGS RULE 76
before the latter would still be void as he failed to take an oath of Over a year later, respondent Maria M. Vda. de Gandiongco filed an
office before entering upon his duties as commissioner and failed affidavit, 28 sworn to before the acting Clerk of Court of the Regional Trial Court in
to render a report on the matters submitted to him. Cebu City, disclosing the following material facts: (a) she signed the Omnibus
Motion for Reconsideration dated 1 October 1979 without knowing or reading the
(d) Respondent Maria M. Vda. de Gandiongco was defrauded into contents thereof; (b) she saw the will of the late Remedios M. Vda. de Tiosejo
(sic) signing the Project of Partition and respondent Concepcion written in the Cebuano dialect after the same was executed by the latter; the said
M. Espina, her certification, when they were misled by petitioner will bearing the authentic signature of Remedios was the very one presented to the
Fran into believing that the Agreement of Petition to be submitted probate court by petitioner's counsel; (c) she received the notice of hearing of the
to the court is the Extra Judicial Partition they signed on 7 May petition for probate and because she was convinced that the signature of the
1973. 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
(e) Petitioner Fran is guilty of fraud in urdervaluing the estate of
will; and (e) she did not authorize Atty. Numeriano Estenzo or other lawyers to
the late Remedios M. Vda. de Tiosejo by reporting properties
present a motion to this Court after 25 February 1981 when Estenzo withdrew as
worth only P400,000.00 when in truth and in fact the estate has an
counsel for private respondents. She then asks this Court to consider as withdrawn
aggregate value of P2,094,333.00.
her Opposition to the Allowance of the Will, her participation in the Omnibus
Motion for Reconsideration and her Opposition to this petition.
In the Resolution dated 2 June 1980, We issued a restraining order enjoining
respondent Judge from reopening Sp. Proc. No. 3309-R. 22
Due to this development, We required private respondent Concepcion M. Espina
to comment on the affidavit of private respondent Maria M. Vda. de Gandiongco.
However, on the same date, before the restraining order was served on him;
respondent Judge issued the impugned order declaring the testamentary
On 17 August 1985, private respondents filed a joint manifestation 29 wherein they
dispositions of the will void, finding the signature of the late Remedios M. Vda. de
claim that Maria M. Vda. de Gandiongco does not remember, executing the
Tiosejo to be a forgery, decreeing the reopening of Sp. Proc. No. 3309-R and
affidavit. A few weeks before the affidavit was filed, particularly on 17 June 1985,
converting the same into an intestate proceeding. 23
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
Hence, on 6 June 1980, petitioners filed their Second Supplemental relatives.
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
On 19 September 1985, respondent Maria M. Vda. de Gandiongco, through
same. Private respondents filed their Comment and Opposition to the Second
special counsel, filed a Manifestation/Motion with a second Affidavit attached
Supplemental Petition on 9 July 1980.
thereto30 confessing that she signed the Joint Manifestation dated 16 August 1985
"without knowing or being informed of its contents, and only upon Mrs. Concepcion
Thereafter, as mandated in the resolution of 30 June 1980, 25 this Court gave due Espina's request." She reiterated her desire to withdraw from the Omnibus Motion
course to this case and required the parties to file their respective Memoranda, for Reconsideration filed in Sp. Proc. No, 3309-R as well as from the instant
which private respondents complied with on 16 August 1980; 26 petitioners filed petition.
theirs on 27 August 1980. 27 Consequently, the parties continued to file several
pleadings reiterating substantially the same allegations and arguments earlier
Despite the valiant attempt of private respondent Concepcion M. Espina to
submitted to this Court.
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
On 22 March 1984, counsel for petitioners filed a manifestation informing this withdraw her participation in the Omnibus Motion for Reconsideration and
Court of the death of petitioner Fran on 29 February 1984 and enumerating therein Opposition to this case. That decision, however, is not a ground for dropping her
his surviving heirs. On 2 April 1984, this Court resolved to have said heirs as a private respondent as the respondent Judge had already issued the
substitute him in this case. abovementioned Order of 2 June 1980.

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The petition and the supplemental petitions are impressed with merit. litigant. After all, the reception of evidence by the clerk of court
constitutes but a ministerial task — the taking down of the
We do not hesitate to rule that the respondent Judge committed grave abuse of testimony of the witnesses and the marking of the pieces of
discretion amounting to lack of jurisdiction when he granted the Omnibus Motion documentary evidence, if any, adduced by the party present. This
for Reconsideration and thereafter set aside the probate judgment of 13 November task of receiving evidence precludes, on the part of the clerk of
1972 in Sp. Proc. No. 3309-R, declared the subject will of the testatrix a forgery, court the exercise of judicial discretion usually called for when the
nullified the testamentary dispositions therein and ordered the conversion of the other party who is present objects to questions propounded and to
testate proceedings into one of intestacy. 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
It is not disputed that private respondents filed on the day of the initial hearing of
prepare the decision based upon the evidence reported. 34
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. 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
After the probate court rendered its decision on 13 November 1972, and there
proceedings, prejudice the substantial rights of the aggrieved
having been no claim presented despite publication of notice to creditors, petitioner
party, then there exists, sufficient justification to grant the latter
Fran submitted a Project of Partition which private respondent Maria M. Vda. de
complete opportunity to thresh out his case in court. 35
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 Monserrate vs. Court of Appeals, 36 decided on 29 September 1989, reiterated
decision as they claim in their Omnibus Motion for Reconsideration, these acts this rule. Lim Tanhu then cannot be used as authority to nullify the order of the
nevertheless constitute indubitable proof of their prior actual knowledge of the probate court authorizing the Clerk of Court to receive the evidence for the rule is
same. A formal notice would have been an idle ceremony. In testate proceedings, settled that "when a doctrine of this Court is overruled and a different view is
a decision logically precedes the project of partition, which is normally an adopted, the new doctrine should be applied prospectively, and should not apply to
implementation of the will and is among the last operative acts to terminate the parties who had relied on the old doctrine and acted on the faith thereof." 37 It may
proceedings. If private respondents did not have actual knowledge of the decision, also be emphasized in this connection that  Lim Tanhu did not live long; it was
they should have desisted from performing the above acts and instead demanded subsequently overruled in Gochangco vs. Court of First Instance of Negros
from petitioner Fran the fulfillment of his alleged promise to show them the will. Occidental, 38 wherein this Court, en banc, through Justice, now Chief Justice,
The same conclusion refutes and defeats the plea that they were not notified of the Andres R. Narvasa, in reference to what the trial court termed as "the doctrinal rule
order authorizing the Clerk of Court to receive the evidence and that the Clerk of laid down in the recent case of  Lim Tan Hu (sic) vs. Ramolete," ruled:
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 Now, that declaration does not reflect long observed and
the said order. established judicial practice with respect to default cases. It is not
quite consistent, too, with the several explicitly authorized
Neither do We give any weight to the contention that the reception of evidence by instances under the Rules where the function of receiving
the Clerk of Court is null and void per the doctrine laid, down in Lim Tanhu vs. evidence and even of making recommendatory findings of facts on
Ramolete. 31 In the first place, Lim Tanhu was decided on 29 August 1975, nearly the basis thereof may be delegated to commissioners, inclusive of
four (4) years after the probate court authorized the Clerk of Court to receive the the Clerk of Court. These instances are set out in Rule 33, . . . ;
evidence for the petitioner in this case. A month prior to Lim Tanhu, or on 30 July Rule 67 and 69, . . . ; Rule 86, . . . ; Rule 136, . . . . In all these
1975, this Court, in Laluan vs. Malpaya, 32 recognized and upheld the practice of instances, the competence of the clerk of court is assumed.
delegating the reception of evidence to Clerks of Court. Thus: 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
No provision of law or principle of public policy prohibits a court
party adversely affected who, for valid cause and upon
from authorizing its clerk of court to receive the evidence of a party

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appropriate and seasonable application, may bring about the Belatedly realizing the absence of substance of the above grounds, private
undoing thereof or the elimination of prejudice thereby caused to respondents now claim in their Comments to the Petition and the Supplemental
him; and it is, after all, the Court itself which is duty bound and has Petition that the trial court never acquired jurisdiction over the petition because
the ultimate responsibility to pass upon the evidence received in only the English translation of the will — and not a copy of the same — was
this manner, discarding in the process such proofs as are attached to the petition; the will was not even submitted to the court for their
incompetent and then declare what facts have thereby been examination within twenty (20) days after the death of the testatrix; and that there
established. In considering and analyzing the evidence was fraud in the procurement of the probate judgment principally because they
preparatory to rendition of judgment on the merits, it may not were not given any chance to examine the signature of the testatrix and were
unreasonably be assumed that any serious error in the ex- misled into signing the withdrawal of their opposition on the assurance of petitioner
parte presentation of evidence, prejudicial to any absent party, will Fran and their sister, Rosario M. Tan, that the will would be shown to them during
be detected and duly remedied by the Court, and/or may always, the trial. These two grounds easily serve as the bases for the postulation that the
in any event, be drawn to its attention by any interested party. decision is null and void and so, therefore, their omnibus motion became all the
more timely and proper.
xxx xxx xxx
The contentions do not impress this Court.
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 In Santos vs. Castillo 39 and Salazar vs. Court of First Instance of
plaintiff's evidence had been received not by the Judge himself but Laguna, 40 decided six (6) months apart in 1937, this Court already ruled that it is
by the clerk of court. 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
The alternative claim that the proceedings before the Clerk of Court were likewise reasons given to justify the nonpresentation of said original and the acceptance of
void because said official did not take an oath is likewise untenable. The Clerk of the copy or duplicate thereof." 41 In the second case, this Court was more
Court acted as such when he performed the delegated task of receiving evidence. emphatic in holding that:
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 The law is silent as to the specific manner of bringing the
impression that by the delegation of the reception of evidence to the Clerk of jurisdictional allegations before the court, but practice and
Court, the latter became a commissioner as defined under Rule 33 of the Rules of jurisprudence have established that they should be made in the
Court entitled Trial by Commissioner. This is not correct; as this Court said form of an application and filed with the original of the will attached
in Laluan: thereto. It has been the practice in some courts to permit
attachment of a mere copy of the will to the application, without
The provisions of Rule 33 of the Rules of Court invoked by both prejudice to producing the original thereof at the hearing or when
parties properly relate to the reference by a court of any or all of the court so requires. This precaution has been adopted by some
the issues in a case to a person so commissioned to act or report attorneys to forestall its disappearance, which has taken place in
thereon. These provisions explicitly spell out the rules governing certain cases. 42
the conduct of the court, the commissioner, and the parties before,
during, and after the reference proceedings. Compliance with That the annexing of the original will to the petition is not a jurisdictional
these rules of conduct becomes imperative only when the court requirement is clearly evident in Section 1, Rule 76 of the Rules of Court which
formally orders a reference of the case to a commissioner. Strictly allows the filing of a petition for probate by the person named therein regardless of
speaking then, the provisions of Rule 33 find no application to the whether or not he is in possession of the will, or the same is lost or destroyed. The
case at bar where the court a quo  merely directed the clerk of section reads in full as follows:
court to take down the testimony of the witnesses presented and
to mark the documentary evidence proferred on a date previously Sec. 1. Who may petition for the allowance of will. — Any
set for hearing. 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

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LAW 311: SPECIAL PROCEEDINGS RULE 76
testator, petition the court having jurisdiction to have the will 9. That an examination of the alleged will of our deceased sister
allowed, whether the same be in his possession or not, or is lost or has revealed that the signatures at the left hand margin of Exhibit
destroyed. "F", are written by (sic) different person than the signature
appearing at the bottom of said alleged will . . . 47
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 The availability of the will since 18 September 1972 for their examination renders
integral parts of the same. It is to be presumed that upon the filing of the petition completely baseless the private respondents' claim of fraud on petitioner Fran's
the Clerk of Court, or his duly authorized subordinate, examined the petition and part in securing the withdrawal of their opposition to the probate of the will. If
found that the annexes mentioned were in fact attached thereto. If they were not, indeed such withdrawal was conditioned upon Fran's promise that the private
the petition cannot be said to have been properly presented and the Clerk of Court respondents would be shown the will during the trial, why weren't the appropriate
would not have accepted it for docketing. Under Section 6, Rule 136 of the Rules steps taken by the latter to confront Fran about this promise before certifications of
of Court, the Clerk of Court shall receive and file all pleadings and other papers conformity to the project of partition were filed?
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 Granting for the sake of argument that the non-fulfillment of said promise
private respondents' claim that Annex "A" of the petition was not in fact attached constitutes fraud, such fraud is not of the kind which provides sufficient justification
thereto. 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
The certification of the Assistant Clerk of Court issued on 8 April annulment of judgment. It is settled that for fraud to be invested with, sufficiency, it
1980, 43 or SIX (6) months after the filing of the motion for reconsideration, to the must be extrinsic or collateral to the matters involved in the issues raised during
effect that as per examination of the records of Sp. Proc. No. 3309-R, "the copy of the trial which resulted in such judgment. 48
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 In Our jurisdiction, the following courses of action are open to an aggrieved party
thereof (sic) as Annex "A-1" does not even save the day for private respondents. It to set aside or attack the validity of a final judgment:
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 (1) Petition for relief under Rule 38 of the Rules of Court which
missing or were detached therefrom. As emphatically asserted by the petitioners in must be filed within sixty (60) days after learning of the decision,
their Reply to the Comments of private respondents, 44 duly supported by a but not more than six (6) months after such decision is entered;
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 (2) By direct action, via a special civil action for certiorari, or by
four-page xerox copy of will, marked as Annex "A" of the petition, became, as collateral attack, assuming that the decision is void for want of
properly marked by the personnel of the original Branch VIII of the court below jurisdiction;
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 (3) By an independent civil action under Article 1114 of the Civil
markings were done in long hand. The records of the case were thereafter sent to Code, assuming that the decision was obtained through fraud and
the Clerk of Court, 14th Judicial District, Cebu City on 9 February 1978. These Rule 38 can not be applied. 49
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 It is not difficult to see that private respondents had lost their right to file a petition
Executive Judge of the court below an administrative complaint. 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
It is not likewise disputed that the original of the will was submitted in evidence and rendition of the decision, and six (6) years, one (1) month and thirteen (13) days
marked as Exhibit "F". It forms part of the records of the special proceedings — a after the court issued the order approving the Project of Partition, to which they
fact which private respondents admit in their Omnibus Motion for Reconsideration, voluntarily expressed their conformity through their respective certifications, and
thus: closing the testate proceedings.

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LAW 311: SPECIAL PROCEEDINGS RULE 76
Private respondents did not avail of the other two (2) modes of attack. 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.
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 WHEREFORE, the instant petition and supplemental petitions are GRANTED. The
annul or set the same aside, by mere motion, on the ground that the will is a Order of respondent Judge of 2 June 1980 and all other orders issued by him in
forgery. Settled is the rule that the decree of probate is conclusive with respect to Sp. Proc. No. 3309-R, as well as all other proceedings had therein in connection
the due execution of the will and it cannot be impugned on any of the grounds with or in relation to the Omnibus Motion for Reconsideration, are hereby
authorized by law, except that of fraud, in any separate or independent action or ANNULLED and SET ASIDE.
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 The restraining order issued on 2 June 1980 is hereby made PERMANENT.
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: Costs against private respondent Concepcion M. Espina.

Reasons of public policy, judicial orderliness, economy and judicial SO ORDERED.

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. Gutierrez, Jr., Bidin and Romero, JJ., concur.
Feliciano, J., took no part.
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. 56 Private 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

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