FIRST DIVISION

[G.R. No. L-62952. October 9, 1985.]

SOFIA J. NEPOMUCENO, petitioner, vs. THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG CARMELITA
JUGO, respondents.

DECISION

GUTIERREZ, JR., J p:

This is a petition for certiorari to set aside that portion of the decision of the respondent Court of Appeals (now
Intermediate Appellate Court) dated June 3, 1982, as amended by the resolution dated August 10, 1982, declaring as null
and void the devise in favor of the petitioner and the resolution dated December 28, 1982 denying petitioner's motion for
reconsideration.
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly signed by him at the
end of the Will on page three and on the left margin of pages 1, 2 and 4 thereof in the presence of Celestina Alejandro,
Myrna C. Cortez, and Leandro Leaño, who in turn, affixed their signatures below the attestation clause and on the left
margin of pages 1, 2 and 4 of the Will in the presence of the testator and of each other and the Notary Public. The Will was
acknowledged before the Notary Public Romeo Escareal by the testator and his three attesting witnesses.
In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his sole and only
executor of his estate. It is clearly stated in the Will that the testator was legally married to a certain Rufina Gomez by
whom he had two legitimate children, Oscar and Carmelita, but since 1952, he had been estranged from his lawfully
wedded wife and had been living with petitioner as husband and wife. In fact, on December 5, 1952, the testator Martin
Jugo and the petitioner herein, Sofia J. Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The
testator devised to his forced heirs, namely, his legal wife Rufina Gomez and his children Oscar and Carmelita his entire
estate and the free portion thereof to herein petitioner. The Will reads in part: LibLex
"Art. III. That I have the following legal heirs, namely: my aforementioned legal wife, Rufina
Gomez, and our son, Oscar, and daughter Carmelita, both surnamed Jugo, whom I declare and admit to be
legally and properly entitled to inherit from me; that while I have been estranged from my above-named wife
for so many years, I cannot deny that I was legally married to her or that we have been separated up to the
present for reasons and justifications known fully well by them;
"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 may love and 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
comport 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;"
On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament of the deceased
Martin Jugo in the Court of First Instance of Rizal, Branch XXXIV, Caloocan City and asked for the issuance to her of
letters testamentary.
On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an opposition alleging inter
alia that the execution of the Will was procured by undue and improper influence on the part of the petitioner; that at the
time of the execution of the Will, the testator was already very sick and that petitioner having admitted her living in
concubinage with the testator, she is wanting in integrity and thus letters testamentary should not be issued to her.
On January 6, 1976, the lower court denied the probate of the Will on the ground that as the testator admitted in his
Will to cohabiting with the petitioner from December 1952 until his death on July 16, 1974, the Will's admission to probate
will be an idle exercise because on the face of the Will, the invalidity of its intrinsic provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of Rizal denying the
probate of the Will. The respondent court declared the Will to be valid except that the devise in favor of the petitioner is
null and void pursuant to Article 739 in relation with Article 1028 of the Civil Code of the Philippines. The dispositive
portion of the decision reads:
"WHEREFORE, the decision a quo is hereby set aside, the will in question declared valid except
the devise in favor of the appellant which is declared null and void. The properties so devised are instead
passed on in intestacy to the appellant in equal shares, without pronouncement as to costs."
On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction of Clerical Error"
praying that the word "appellant" in the last sentence of the dispositive portion of the decision be changed to "appellees" so
as to read: "The properties so devised are instead passed on intestacy to the appellees in equal shares, without
pronouncement as to costs." The motion was granted by the respondent court on August 10, 1982.
On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by the respondent court in a
resolution dated December 28, 1982. Cdpr
The main issue raised by the petitioner is whether or not the respondent court acted in excess of its jurisdiction
when after declaring the last Will and Testament of the deceased Martin Jugo validly drawn, it went on to pass upon the
intrinsic validity of the testamentary provision in favor of herein petitioner.
The petitioner submits that the validity of the testamentary provision in her favor cannot be passed upon and
decided in the probate proceedings but in some other proceedings because the only purpose of the probate of a Will is to
establish conclusively as against everyone that a Will was executed with the formalities required by law and that the testator
has the mental capacity to execute the same. The petitioner further contends that even if the provisions of paragraph 1 of
Article 739 of the Civil Code of the Philippines were applicable, the declaration of its nullity could only be made by the
proper court in a separate action brought by the legal wife for the specific purpose of obtaining a declaration of the nullity
of the testamentary provision in the Will in favor of the person with whom the testator was allegedly guilty of adultery or
concubinage.
The respondents on the other hand contend that the fact that the last Will and Testament itself expressly admits
indubitably on its face the meretricious relationship between the testator and the petitioner and the fact that petitioner
herself initiated the presentation of evidence on her alleged ignorance of the true civil status of the testator, which led
private respondents to present contrary evidence, merits the application of the doctrine enunciated in Nuguid v. Felix
Nuguid, et al. (17 SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et al (G.R. No. L-39247, June 27, 1975).
Respondents also submit that the admission of the testator of the illicit relationship between him and the petitioner put in
issue the legality of the devise.
We agree with the respondents.
The respondent court acted within its jurisdiction when after declaring the Will to be validly drawn, it went on to
pass upon the intrinsic validity of the Will and declared the devise in favor of the petitioner null and void.
The general rule is that in probate proceedings, the court's area of inquiry is limited to an examination and
resolution of the extrinsic validity of the Will. The rule is expressed thus: LLphil
xxx xxx xxx
". . . It is elementary that a probate decree finally and definitively settles all questions concerning
capacity of the testator and the proper execution and witnessing of his last Will and testament, irrespective of
whether its provisions are valid and enforceable or otherwise." (Fernandez v. Dimagiba, 21 SCRA 428).
"The petition below being for the probate of a Will, the court's area of inquiry is limited to the
extrinsic validity thereof. The testator's testamentary capacity and the compliance with the formal requisites
or solemnities prescribed by law are the only questions presented for the resolution of the court. Any inquiry
into the intrinsic validity or efficacy of the provisions of the will or the legality of any devise or legacy is
premature.
xxx xxx xxx
"True or not, the alleged sale is no ground for the dismissal of the petition for probate. Probate is
one thing; the validity of the testamentary provisions is another. The first decides the execution of the
document and the testamentary capacity of the testator; the second relates to descent and distribution."
(Sumilang v. Ramagosa 21 SCRA 1369).
xxx xxx xxx
 "To establish conclusively as against everyone, and once for all, the facts that a will was executed
with the formalities required by law and that the testator was in a condition to make a will, is the only
purpose of the proceedings under the new code for the probate of a will. (Sec. 625). The judgment in such
proceedings determines and can determine nothing more. In them the court has no power to pass upon the
validity of any provisions made in the will. It can not decide, for example, that a certain legacy is void and
another one valid. . . ." (Castañeda v. Alemany, 3 Phil. 426)
The rule, however, is not inflexible and absolute. Given 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.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as universal heir
and completely preterited her surviving forced heirs. A will of this nature, no matter how valid it may appear extrinsically,
would be null and void. Separate or latter proceedings to determine the intrinsic validity of the testamentary provisions
would be superfluous.
Even before establishing the formal validity of the will, the Court in Balanay, Jr. v. Martinez (64 SCRA 452)
passed upon the validity of its intrinsic provisions.
Invoking "practical considerations", we stated:
"The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will,
before ruling on its allowance or formal validity, and in declaring it void.
"We are of the opinion that in view of certain unusual provisions of the will, which are of dubious
legality, and because of the motion to withdraw the petition for probate (which the lower court assumed to
have been filed with the petitioner's authorization), the trial court acted correctly in passing upon the will's
intrinsic validity even before its formal validity had been established. The probate of a will might become an
idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that
the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue
(Nuguid v. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang v. Ramagosa, L-23135,
December 26, 1967, 21 SCRA 1369; Cacho v. Udan, L-19996, April 30, 1965, 13 SCRA 693).
There appears to be no more dispute at this time over the extrinsic validity of the Will. Both parties are agreed that
the Will of Martin Jugo was executed with all the formalities required by law and that the testator had the mental capacity
to execute his Will. The petitioner states that she completely agrees with the respondent court when in resolving the
question of whether or not the probate court correctly denied the probate of Martin Jugo's last Will and Testament, it ruled:
"This being so, the will is declared validly drawn." (Page 4, Decision, Annex A of Petition.)
On the other hand the respondents pray for the affirmance of the Court of Appeals' decision in toto.
The only issue, therefore, is the jurisdiction of the respondent court to declare the testamentary provision in favor
of the petitioner as null and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra):
"We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained.
On the contrary, this litigation will be protracted. And for aught that appears in the record, in the event of
probate or if the court rejects the will, probability exists that the case will come up once again before us on
the same issue of the intrinsic validity or nullity of the will. Result. waste of time, effort, expense, plus added
anxiety. These are the practical considerations that induce us to a belief that we might as well meet head-on
the issue of the validity of the provisions of the will in question. (Section 2, Rule 1, Rules of Court. Case, et
al. v. Jugo, et al., 77 Phil. 517, 522). After all, there exists a justiciable controversy crying for solution.
We see no useful purpose that would be served if we remand the nullified provision to the proper court in a
separate action for that purpose simply because, in the probate of a will, the court does not ordinarily look into the intrinsic
validity of its provisions. cdphil
Article 739 of the Civil Code provides:
"The following donations shall be void:
(1) Those made between persons who were guilty of adultery or concubinage at the time of the
donation;
(2) Those made between persons found guilty of the same criminal offense, in consideration thereof;
 (3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office.
"In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse
of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in
the same action.
Article 1028 of the Civil Code provides:
"The prohibitions mentioned in Article 739, concerning donations inter vivos shall apply to
testamentary provisions."
In Article III of the disputed Will, executed on August 15, 1968, or almost six years before the testator's death on
July 16, 1974, Martin Jugo stated that respondent Rufina Gomez was his legal wife from whom he had been estranged "for
so many years." He also declared that respondents Carmelita Jugo and Oscar Jugo were his legitimate children. In Article
IV, he stated that he had been living as man and wife with the petitioner since 1952. Testator Jugo declared that the
petitioner was entitled to his love and affection. He stated that Nepomuceno represented Jugo as her own husband but "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."
There is no question from the records about the fact of a prior existing marriage when Martin Jugo executed his
Will. There is also no dispute that the petitioner and Mr. Jugo lived together in an ostensible marital relationship for 22
years until his death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted a marriage before the
Justice of the Peace of Victoria, Tarlac. The man was then 51 years old while the woman was 48. Nepomuceno now
contends that she acted in good faith for 22 years in the belief that she was legally married to the testator. prcd
The records do not sustain a finding of innocence or good faith. As argued by the private respondents:
"First. The last will and testament itself expressly admits indubitably on its face the meretricious
relationship between the testator and petitioner, the devisee.
"Second. Petitioner herself initiated the presentation of evidence on her alleged ignorance of the true
civil status of the testator, which led private respondents to present contrary evidence.
"In short, the parties themselves dueled on the intrinsic validity of the legacy given in the will to
petitioner by the deceased testator at the start of the proceedings.
"Whether or not petitioner knew that testator Martin Jugo, the man he had lived with as man and
wife, as already married was an important and specific issue brought by the parties before the trial court, and
passed upon by the Court of Appeals.
"Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner who opted
to present evidence on her alleged good faith in marrying the testator. (Testimony of Petitioner, TSN of
August 1, 1982, pp. 56-57 and pp. 62-64).
"Private respondents, naturally, presented evidence that would refute the testimony of petitioner on
the point.
"Sebastian Jugo, younger brother of the deceased testator, testified at length on the meretricious
relationship of his brother and petitioner. (TSN of August 18, 1975).
"Clearly, the good faith of petitioner was by option of the parties made a decisive issue right at the
inception of the case.
"Confronted by the situation, the trial court had to make a ruling on the question.
"When the court a quo held that the testator Martin Jugo and petitioner 'were deemed guilty of
adultery or concubinage', it was a finding that petitioner was not the innocent woman she pretended to be."
xxx xxx xxx
"3' If a review of the evidence must be made nonetheless, then private respondents respectfully offer
the following analysis:
"FIRST: The secrecy of the marriage of petitioner with the deceased testator in a town in
Tarlac where neither she nor the testator ever resided. If there was nothing to hide
 from, why the concealment? Of course, it maybe argued that the marriage of the
deceased with private respondent Rufina Gomez was likewise done in secrecy. But it
should be remembered that Rufina Gomez was already in the family way at that time
and it would seem that the parents of Martin Jugo were not in favor of the marriage so
much so that an action in court was brought concerning the marriage. (Testimony of
Sebastian Jugo, TSN of August 18, 1975, pp. 29-30).
"SECOND: Petitioner was a sweetheart of the deceased testator when they were still both
single. That would be in 1922 as Martin Jugo married respondent Rufina Gomez on
November 29, 1923 (Exh. 3). Petitioner married the testator only on December 5, 1952.
There was a space of about 30 years in-between. During those 30 years, could it be
believed that she did not even wonder why Martin Jugo did not marry her nor contact
her anymore after November, 1923 — facts that should impel her to ask her groom
before she married him in secrecy, especially so when she was already about 50 years
old at the time of marriage.
"THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by itself conclusive
demonstration that she knew that the man she had openly lived for 22 years as man and
wife was a married man with already two children.
"FOURTH: Having admitted that she knew the children of respondent Rufina Gomez, is it
possible that she would not have asked Martin Jugo whether or not they were ms
illegitimate or legitimate children and by whom? That is un-Filipino.
"FIFTH: Having often gone to Pasig to the residence of the parents of the deceased testator, is
it possible that she would not have known that the mother of private respondent Oscar
Jugo and Carmelita Jugo was respondent Rufina Gomez, considering that the houses of
the parents of Martin Jugo (where he had lived for many years) and that of respondent
Rufina Gomez were just a few meters away?
"Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say the least,
inherently improbable, for they are against the experience in common life and the ordinary instincts and
promptings of human nature that a woman would not bother at all to ask the man she was going to marry
whether or not he was already married to another, knowing that her groom had children. It would be a story
that would strain human credulity to the limit if petitioner did not know that Martin Jugo was already a
married man in view of the irrefutable fact that it was precisely his marriage to respondent Rufina Gomez
that led petitioner to break off with the deceased during their younger years."
Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between persons
who are living in adultery or concubinage. It is the donation which becomes void. The giver cannot give even assuming that
the recipient may receive. The very wordings of the Will invalidate the legacy because the testator admitted he was
disposing the properties to a person with whom he had been living in concubinage. prcd
WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals, now
Intermediate Appellate Court, is AFFIRMED. No costs.
SO ORDERED.
|||  (Nepomuceno v. Court of Appeals, G.R. No. L-62952, [October 9, 1985], 223 PHIL 418-429)
 FIRST DIVISION

[G.R. No. 54919. May 30, 1984.]

POLLY CAYETANO, petitioner, vs. HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of Branch XXXVIII, Court of First Instance of
Manila and NENITA CAMPOS PAGUIA, respondents.

Ermelo P. Guzman for petitioner.

Armando Z. Gonzales for private respondent.

SYLLABUS

1. REMEDIAL LAW; SPECIAL CIVIL ACTION; CERTIORARI; GRAVE ABUSE OF DISCRETION; GRANT OF MOTION TO WITHDRAW OPPOSITION TO
PROBATE OF WILL IN CASE AT BAR, NOT A CASE OF. — We find no grave abuse of discretion on the part of the respondent judge when he allowed withdrawal of petitioner's
opposition to the probate of the will. No proof was adduced to support petitioner's contention that the motion to withdraw was secured through fraudulent means and that Atty. Franco
Loyola was not his counsel of record. The records show that after the filing of the contested motion, the petitioner at a later date, filed a manifestation wherein he confirmed that the
Motion to Dismiss Opposition was his voluntary act and deed. Moreover, at the time the motion was filed, the petitioner's former counsel, Atty. Jose P. Lagrosa had long withdrawn from
the case and had been substituted by Atty. Franco Loyola who in turn filed the motion. The present petitioner cannot, therefore, maintain that the old man's attorney of record was Atty.
Lagrosa at the time of filing the motion. Since the withdrawal was in order, the respondent judge acted correctly in hearing the probate of the will ex-parte, there being no other
opposition to the same.

2. ID.; SPECIAL PROCEEDINGS; PROBATE OF WILL; PROBATE COURT, SCOPE OF AUTHORITY. — As a general rule, the probate court's authority is limited
only to the extrinsic validity of the will, the due execution thereof, the testatrix's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The
intrinsic validity of the will normally comes only after the court has declared that the will has been duly authenticated. However, where practical considerations demand that the intrinsic
validity of the will be passed upon, even before it is probated, the court should meet the issue (Maninang, v. Court of Appeals, 114 SCRA 478).

3. CIVIL LAW; WILLS AND SUCCESSION; INTRINSIC VALIDITY OF WILLS GOVERNED BY THE NATIONAL LAW OF THE DECEDENT; CASE AT BAR. —
It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Articles 16(2) and 1039 of the Civil Code, the national law of the decedent must
apply. In the case at bar, although on its face, the will appeared to have preterited the petitioner and thus, the respondent judge should have denied its probate outright, the private
respondents have sufficiently established that Adoracion Campos was, at the time of her death, an American citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A..
Therefore, the law governing Adoracion Campos' will is the law of Pennsylvania, U.S.A., which is the national law of the decedent. Under the Pennsylvania law, no legitimes are
provided for, and all the estate may be given away by the testatrix to a complete stranger.

4. REMEDIAL LAW; SPECIAL PROCEEDINGS; SETTLEMENT OF ESTATE; COURT OF FIRST INSTANCE OF THE PROVINCE WHERE THE ESTATE IS
LOCATED HAS JURISDICTION. — The settlement of the estate of Adoracion Campos was correctly filed with the Court of First Instance of Manila where she had an estate since it
 was alleged and proven the Adoracion at the time of her death was a citizen and permanent resident of Pennsylvania, United States of America and not a "usual resident of Cavite" as
alleged by the petitioner.

5. ID.; ID.; ID.; ID.; PETITIONER ESTOPPED FROM QUESTIONING JURISDICTION OF COURT IN CASE AT BAR. — Petitioner is now estopped from questioning
the jurisdiction of the probate court in the petition for relief. It is a settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief, against his opponent and
after failing to obtain such relief, repudiate or question that same jurisdiction (See Saulog Transit, Inc. v. Hon. Manuel Lazaro, et al., G.R. No. 63284, April 4, 1984).

DECISION

GUTIERREZ, JR., J p:

This is a petition for review on certiorari, seeking to annul the order of the respondent judge of the Court of First
Instance of Manila, Branch XXXVIII, which admitted to and allowed the probate of the last will and testament of Adoracion C.
Campos, after an ex-parte presentation of evidence by herein private respondent. LLjur
On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes Campos and her sisters,
private respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes Campos
was the only compulsory heir, he executed an Affidavit of Adjudication under Rule 74, Section I of the Rules of Court whereby
he adjudicated unto himself the ownership of the entire estate of the deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate of a will of the deceased,
Adoracion Campos, which was allegedly executed in the United States and for her appointment as administratrix of the estate of
the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death and was a permanent
resident of 4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in Manila on January 31, 1977 while
temporarily residing with her sister at 2167 Leveriza, Malate, Manila; that during her lifetime, the testatrix made her last will and
testament on July 10, 1975, according to the laws of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New Jersey as
executor; that after the testatrix' death, her last will and testament was presented, probated, allowed, and registered with the
Registry of Wills at the County of Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who was appointed after
Dr. Barzaga had declined and waived his appointment as executor in favor of the former, is also a resident of Philadelphia,
U.S.A., and that therefore, there is an urgent need for the appointment of an administratrix to administer and eventually distribute
the properties of the estate located in the Philippines. Cdpr
On January 11, 1978, an opposition to the reprobate of the will was filed by herein petitioner alleging among other
things, that he has every reason to believe that the will in question is a forgery; that the intrinsic provisions of the will are null and
void; and that even if pertinent American laws on intrinsic provisions are invoked, the same could not apply inasmuch as they
would work injustice and injury to him.
On December 1, 1978, however, the petitioner through his counsel, Atty. Franco Loyola, filed a Motion to Dismiss
Opposition (With Waiver of Rights or Interests) stating that he "has been able to verify the veracity thereof (of the will) and now
confirms the same to be truly the probated will of his daughter Adoracion." Hence, an ex-parte presentation of evidence for the
reprobate of the questioned will was made.
On January 10, 1979, the respondent judge issued an order to wit:
"At the hearing, it has been satisfactorily established that Adoracion C. Campos, in her lifetime, was a
citizen of the United States of America with a permanent residence at 4633 Ditman Street, Philadelphia, PA
19124, (Exhibit D); that when alive, Adoracion C. Campos executed a Last Will and Testament in the county of
Philadelphia, Pennsylvania, U.S.A., according to the laws thereat (Exhibits E-3 to E-3-b); that while in temporary
sojourn in the Philippines, Adoracion C. Campos died in the City of Manila (Exhibit C) leaving property both in
the Philippines and in the United States of America; that the Last Will and Testament of the late Adoracion C.
Campos was admitted and granted probate by the Orphan's Court Division of the Court of Common Pleas, the
probate court of the Commonwealth of Pennsylvania, County of Philadelphia, U.S.A., and letters of
administration were issued in favor of Clement J. McLaughlin, all in accordance with the laws of the said foreign
country on procedure and allowance of wills (Exhibits E to E-10); and that the petitioner is not suffering from any
disqualification which would render her unfit as administratrix of the estate in the Philippines of the late
Adoracion C. Campos.
"WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is hereby admitted to and
allowed probate in the Philippines, and Nenita Campos Paguia is hereby appointed Administratrix of the estate of
said decedent; let Letters of Administration with the Will annexed issue in favor of said Administratrix upon her
filing of a bond in the amount of P5,000.00 conditioned under the provisions of Section I, Rule 81 of the Rules of
Court.
 Another manifestation was filed by the petitioner on April 14, 1979, confirming the withdrawal of his opposition,
acknowledging the same to be his voluntary act and deed.
On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the order allowing the will be set aside on
the ground that the withdrawal of his opposition to the same was secured through fraudulent means. According to him, the
"Motion to Dismiss Opposition" was inserted among the papers which he signed in connection with two Deeds of Conditional
Sales which he executed with the Construction and Development Corporation of the Philippines (CDCP). He also alleged that the
lawyer who filed the withdrawal of the opposition was not his counsel-of-record in the special proceedings case.
The petition for relief was set for hearing but the petitioner failed to appear. He made several motions for postponement
until the hearing was set on May 29, 1980.
On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate and/or Set Aside the Order of January 10,
1979, and/or dismiss the case for lack of jurisdiction. In this motion, the notice of hearing provided:
"Please include this motion in your calendar for hearing on May 29, 1980 at 8:30 in the morning for
submission for reconsideration and resolution of the Honorable Court. Until this Motion is resolved, may I also
request for the future setting of the case for hearing on the Oppositor's motion to set aside previously filed."
The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the case was called for hearing on this
date, the counsel for petitioner tried to argue his motion to vacate instead of adducing evidence in support of the petition for relief.
Thus, the respondent judge issued an order dismissing the petition for relief for failure to present evidence in support thereof.
Petitioner filed a motion for reconsideration but the same was denied. In the same order, respondent judge also denied the motion
to vacate for lack of merit. Hence, this petition. cdll
Meanwhile, on June 6, 1982, petitioner Hermogenes Campos died and left a will, which, incidentally has been
questioned by the respondent, his children and forced heirs as, on its face patently null and void, and a fabrication, appointing
Polly Cayetano as the executrix of his last will and testament. Cayetano, therefore, filed a motion to substitute herself as petitioner
in the instant case which was granted by the court on September 13, 1982.
A motion to dismiss the petition on the ground that the rights of the petitioner Hermogenes Campos merged upon his
death with the rights of the respondent and her sisters, only remaining children and forced heirs was denied on September 12,
1983.
Petitioner Cayetano persists with the allegations that the respondent judge acted without or in excess of his jurisdiction
when:
"1) He ruled the petitioner lost his standing in court deprived the Right to Notice (sic) upon the filing of
the Motion to Dismiss opposition with waiver of rights or interests against the estate of deceased Adoracion C.
Campos, thus, paving the way for the ex-parte hearing of the petition for the probate of decedent will.
"2) He ruled that petitioner can waive, renounce or repudiate (not made in a public or authenticated
instrument), or by way of a petition presented to the court but by way of a motion presented prior to an order for
the distribution of the estate — the law especially providing that repudiation of an inheritance must be presented,
within 30 days after it has issued an order for the distribution of the estate in accordance with the rules of Court.
"3) He ruled that the right of a forced heir to his legitime can be divested by a decree admitting a will to
probate in which no provision is made for the forced heir in complete disregard of Law of Succession.
"4) He denied petitioner's petition for Relief on the ground that no evidence was adduced to support the
Petition for Relief when no Notice nor hearing was set to afford petitioner to prove the merit of his petition — a
denial of the due process and a grave abuse of discretion amounting to lack of jurisdiction.
"5) He acquired no jurisdiction over the testate case, the fact that the Testator at the time of death was a
usual resident of Dasmariñas, Cavite, consequently Cavite Court of First Instance has exclusive jurisdiction over
the case (De Borja vs. Tan, G.R. No. L-7792, July 1955)."
The first two issues raised by the petitioner are anchored on the allegation that the respondent judge acted with grave
abuse of discretion when he allowed the withdrawal of the petitioner's opposition to the reprobate of the will.
We find no grave abuse of discretion on the part of the respondent judge. No proof was adduced to support petitioner's
contention that the motion to withdraw was secured through fraudulent means and that Atty. Franco Loyola was not his counsel of
record. The records show that after the filing of the contested motion, the petitioner at a later date, filed a manifestation wherein
he confirmed that the Motion to Dismiss Opposition was his voluntary act and deed. Moreover, at the time the motion was filed,
the petitioner's former counsel, Atty. Jose P. Lagrosa had long withdrawn from the case and had been substituted by Atty. Franco
Loyola who in turn filed the motion. The present petitioner cannot, therefore, maintain that the old man's attorney of record was
Atty. Lagrosa at the time of filing the motion. Since the withdrawal was in order, the respondent judge acted correctly in hearing
the probate of the will ex-parte, there being no other opposition to the same. LLpr
 The third issue raised deals with the validity of the provisions of the will. As a general rule, the probate court's authority
is limited only to the extrinsic validity of the will, the due execution thereof, the testatrix's testamentary capacity and the
compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the
court has declared that the will has been duly authenticated. However, where practical considerations demand that the intrinsic
validity of the will be passed upon, even before it is probated, the court should meet the issue. (Maninang v. Court of Appeals,
114 SCRA 478).
In the case at bar, the petitioner maintains that since the respondent judge allowed the reprobate of Adoracion's will,
Hermogenes C. Campos was divested of his legitime which was reserved by the law for him.
This contention is without merit.
Although on its face, the will appeared to have preterited the petitioner and thus, the respondent judge should have
denied its reprobate outright, the private respondents have sufficiently established that Adoracion was, at the time of her death, an
American citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of
the Civil Code which respectively provide:
Art. 16 par. (2).
xxx xxx xxx
"However, intestate and testamentary successions, both with respect to the order of succession and to the
amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the
national law of the person whose succession is under consideration, whatever may be the nature of the property
and regardless of the country wherein said property may be found."
Art. 1039.
"Capacity to succeed is governed by the law of the nation of the decedent."
the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the national law of the decedent.
Although the parties admit that the Pennsylvania law does not provide for legitimes and that all the estate may be given away by
the testatrix to a complete stranger, the petitioner argues that such law should not apply because it would be contrary to the sound
and established public policy and would run counter to the specific provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Article 16 (2) and
1039 of the Civil Code, the national law of the decedent must apply. This was squarely applied in the case of  Bellis v. Bellis (20
SCRA 358) wherein we ruled:
"It is therefore evident that whatever public policy or good customs may be involved in our system of
legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has
specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific
provisions must prevail over general ones.
xxx xxx xxx
"The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and
under the law of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the
provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine
Law on legitimes cannot be applied to the testacy of Amos G. Bellis."
As regards the alleged absence of notice of hearing for the petition for relief, the records will bear the fact that what was
repeatedly scheduled for hearing on separate dates until June 19, 1980 was the petitioner's petition for relief and not his motion to
vacate the order of January 10, 1979. There is no reason why the petitioner should have been led to believe otherwise. The court
even admonished the petitioner's failing to adduce evidence when his petition for relief was repeatedly set for hearing. There was
no denial of due process. The fact that he requested "for the future setting of the case for hearing . . ." did not mean that at the next
hearing, the motion to vacate would be heard and given preference in lieu of the petition for relief. Furthermore, such request
should be embodied in a motion and not in a mere notice of hearing. prcd
Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid of merit. Under Rule 73,
Section 1, of the Rules of Court, it is provided that:
"SECTION 1. Where estate of deceased persons settled. — If the decedent is an inhabitant of the
Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of
administration granted, and his estate settled, in the Court of First Instance in the province in which he resided at
the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in
which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise
jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the
 place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding,
except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record."
Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the Court of First Instance of
Manila where she had an estate since it was alleged and proven the Adoracion at the time of her death was a citizen and
permanent resident of Pennsylvania, United States of America an not a "usual resident of Cavite" as alleged by the petitioner.
Moreover, petitioner is now estopped from questioning the jurisdiction of the probate court in the petition for relief. It is a settled
rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief, against his opponent and after failing to
obtain such relief, repudiate or question that same jurisdiction. (See Saulog Transit, Inc. v. Hon. Manuel Lazaro, et al., G.R. No.
63284, April 4, 1984). LLphil
WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of merit.

EN BANC

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

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE MOLO, petitioner-appellee, vs. LUZ, GLICERIA and
CORNELIO MOLO, 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 oppositors- appellants brought the
case on appeal to this Court for the reason that the value of the properties involved exceeds P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal, without leaving
any forced heir either in the descending or ascending line. He was survived, however, by his wife, the herein petitioner
Juana Juan Vda. de Molo, and by his nieces and nephew, the oppositors-appellants, Luz, Gliceria and Cornelio, all
surnamed Molo, who were the legitimate children of Candido Molo y Legaspi, deceased brother of the testator. Mariano
Molo y Legaspi left two wills, one executed on August 17, 1918, (Exhibit A) and another executed on June 20, 1939,
(Exhibit I). The 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 by
Molo himself.
"VI. The lower court erred in not holding that Molo's will of 1918 was subsequently revoked by the
decedent's will of 1939."
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 'disposición 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 "disposición 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 a previous will, having been disallowed, for the
reason that it was not executed in conformity with the provisions of section 618 of the Code of Civil
Procedure as to the making of wills, cannot produce the effect of annulling the previous will, inasmuch as
said revocatory clause is void." (41 Phil., 838.)
Apropos of this question, counsel for oppositors make the remark that, while they do not disagree with the
soundness of the ruling laid down in the Samson case, there is reason to abandon said ruling because it is archaic or
antiquated and runs counter to the modern trend prevailing in American jurisprudence. They maintain that said ruling is no
longer controlling but merely represents the point of view of the minority and should, therefore, be abandoned, more so if
we consider the fact that section 623 of our Code of Civil Procedure, which governs the revocation of wills, is of American
origin and as such should follow the prevailing trend of the majority view in the United States. A long line of authorities is
cited in support of this contention. And these authorities hold the view, that "an express revocation is immediately effective
upon the execution of the subsequent will, and does not require that it first undergo the formality of a probate proceeding".
(p 63, appellants' brief).
While 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.
|||  (Vda. de Molo v. Molo, G.R. No. L-2538, [September 21, 1951], 90 PHIL 37-49)
 THIRD DIVISION

[G.R. No. 53546. June 25, 1992.]

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

SYLLABUS

1. REMEDIAL LAW; SPECIAL PROCEEDINGS; RESPONDENT JUDGE COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF
JURISDICTION WHEN HE GRANTED THE OMNIBUS MOTION FOR RECONSIDERATION. — 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 date 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.

2. RECEPTION OF EVIDENCE BY THE CLERK OF COURT UPHELD; DOCTRINE LAID DOWN IN LIM TANHU V. RAMOLETE NOT APPLICABLE; NEW
DOCTRINE SHOULD BE APPLIED PROSPECTIVELY. — 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 Lim Tanhu v. Ramolete. 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, 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. 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. 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."  Monserrate vs. Court of
Appeals, 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."

3. CLERK OF COURT NEED NOT TAKE ANOTHER OATH OF OFFICE TO RECEIVE EVIDENCE. — 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 the mark the documentary evidence proffered on a date previously set for hearing."

4. ANNEXING OF THE ORIGINAL WILL TO THE PETITION NOT A JURISDICTIONAL REQUIREMENT. — In  Santos vs. Castillo and Salazar vs. Court of First
Instance of Laguna, 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 ." 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, by practice the
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." 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.

5. COURSES OF ACTION OPENED TO AN AGGRIEVED PARTY TO ATTACK A FINAL JUDGMENT; PRIVATE RESPONDENTS HAD LOST THE RIGHT TO
FILE A PETITION FOR RELIEF FROM JUDGMENT; REASON. — 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. 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.

6. DECREE OF PROBATE IS CONCLUSIVE AS TO DUE EXECUTION OF THE WILL; CAN BE IMPUGNED ONLY ON GROUNDS OF FRAUD. — The probate
judgment of 13 November 1972, long final and undistributed 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 in 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. 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. In Lee Bun Ting vs. Aligaen, 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."

7. NON-DISTRIBUTION OF THE ESTATE NOT A GROUND FOR THE RE-OPENING OF THE TESTATE 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 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 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, 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 a semblance 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.

DECISION

DAVIDE, JR., J p:

This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court, with payer 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. LLpr
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 administratix. 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 to 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. Petition Fran's first witness was Atty.
Nazario R. Pacquiao, one of 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 Petition 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 certificates 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 (Danao 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 on 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 therefore 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 Motion 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. LexLib
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 fro 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 sill 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 Partition to be submitted to the court is the Extra Judicial Patrician they signed on 7
May 1973.
(e) Petitioner Fran is guilty of fraud in undervaluing the estate of the late Remedios Media 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 Media 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. 27 Consequently, 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 Media 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 Media 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 the 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 date 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 Lim Tanhu v. 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 in 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, . . .; Rules 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-parte presentation 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 proffered 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
through practice the 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:
"SECTION 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 part 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 the 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 hand 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 such 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 undistributed 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 in 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 case, 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, 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 a semblance 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.
|||  (Heirs of Fran v. Salas, G.R. No. 53546, [June 25, 1992], 285 PHIL 789-814)

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

ERLINDA A. AGAPAY, petitioner, vs. CARLINA (CORNELIA) V. PALANG and HERMINIA P. DELA CRUZ, respondent.

Simplicio M. Sevilleja for petitioner.

Ray L. Basbas & Fe Fernandez-Bautista for respondents.

SYNOPSIS

Miguel Palang married on July 16, 1949. It was his first marriage. Their only child, Herminia, was born on May 12, 1950.

On July 15, 1973, Miguel, then 63 years old, contracted his second marriage with Erlinda Agapay, 19, herein petitioner. Two months earlier, Miguel and Erlinda purchased a piece
of riceland. Transfer Certificate of Title No. 101736 was issued in their names.

On September 23, 1975, a house and lot was purchased allegedly by Erlinda as the sole vendee. TCT No. 143120 was later issued in her name.

Miguel and Erlinda's cohabitation produced a son, Kristoper A. Palang, born on December 6, 1977. In 1979, Miguel and Erlinda were convicted of concubinage upon Carlina' s
complaint. Two years later, Miguel died.

On July 11, 1981, Carlina Palang and her daughter Herminia Palang de la Cruz, herein private respondents, instituted an action for recovery of ownership and possession with
damages against petitioner. Private respondents sought to get back the riceland and the house and lot allegedly purchased by Miguel during his cohabitation with petitioner.

After trial on the merits, the lower court dismissed the complaint declaring that there was little evidence to prove that the subject properties pertained to the conjugal property of
Carlina and Miguel Palang.

On appeal, the Court of Appeals reversed the trial court's decision. Hence, this petition.

The sale of the riceland was made in favor of Miguel and Erlinda. The application law is Art. 148 of the Family Code on the cohabitation of a man and a woman under a void
marriage or without the benefit of marriage. The marriage of Miguel and Erlinda was patently void because the earlier marriage of Miguel and Carlina was still subsisting. Under Art. 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. Actual contribution is required by this provision, in contrast to Art. 147. If the actual contribution of the party is not proved, there will be no co-ownership and no presumption of
equal shares. Since petitioner failed to prove that she contributed money to the purchase price ,of the riceland, we find no basis to justify her co-ownership with Miguel over the same.
Consequently, the riceland should revert to the conjugal partnership property of the deceased Miguel and private respondent Carlina Palang.

As regards Kristopher Palang's heirship and filiation, the same should be ventilated in the proper probate court or in a special proceeding instituted for the purpose, and cannot be
adjudicated in an ordinary civil action for recovery of ownership and possession.

The decision of the Court of Appeals is affirmed.

SYLLABUS

1. CIVIL LAW; FAMILY CODE; PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE; PROOF OF ACTUAL CONTRIBUTION BY BOTH PARTIES, REQUIRED;
ABSENCE THEREOF IN CASE AT BAR. — 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 subsisting and unaffected by the latter's  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. 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.

2. ID.; ID.; SEPARATION OF PROPERTY OF THE SPOUSES DURING MARRIAGE; JUDICIAL ORDER, REQUIRED. — 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 settlements. [Article 134 of the Family Code] The
judgment which resulted from the parties' compromise was not specifically and expressly for separation of property and should not be so inferred.

3. ID.; ID.; DONATION; BETWEEN PERSONS GUILTY OF ADULTERY OR CONCUBINAGE; VOID; RATIONALE; CASE AT BAR. — 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 Erlinda's name alone be placed as
the vendee. 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.

4. ID.; ID.; HEIRSHIP AND FILIATION; CANNOT BE ADJUDICATED IN AN ORDINARY CIVIL ACTION FOR RECOVERY OF OWNERSHIP; CASE AT BAR. — The
issue concerning Kristopher Palang's status and claim as an illegitimate son and heir to Miguel's estate is here resolved in favor of respondent court's correct assessment that the trial court erred
in making pronouncements regarding Kristopher's 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." Kristopher, not having been impleaded, was 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.

DECISION
ROMERO, J p:

Before us is a petition for review of the decision of the Court of Appeals in CA-G.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 respondent's 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 Carlina's 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 divorced Carlina in Hawaii. 1 When he returned for good in 1972, he refused to live with
private respondents, but stayed alone in a house in Pozorrubio, Pangasinan.
On July 15, 1973, the then sixty-three-year-old Miguel contracted his second marriage with nineteen-year-old Erlinda
Agapay, herein petitioner. 2 Two months 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. 3 The parties therein agreed to donate their conjugal property consisting of six parcels of land to their
only child, Herminia Palang. 4
Miguel and Erlinda's cohabitation produced a son, Kristopher A. Palang, born on December 6, 1977. In 1979, Miguel and
Erlinda were convicted of concubinage upon Carlina's complaint. 5 Two years later, on February 15, 1981, Miguel died.
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, contented 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, Miguel's illegitimate son. The
dispositive portion of the decision reads:
"WHEREFORE, premises considered, judgment is hereby rendered —
1) Dismissing the complaint, with cost 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 state of deceased Miguel Palang will have to be settled in another
separate action;
5) No pronouncement as to damages and attorney's fees.
SO ORDERED." 6
 On appeal, respondent court reversed the trial court's decision. The Court of Appeals rendered its decision on July 22, 1994
within the following dispositive portion:
"WHEREFORE, PREMISES CONSIDERED, the appealed decision is hereby REVERSED and another
one entered:
1. Declaring plaintiffs-appellants the owner 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 the 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 Palang's
illegitimate son and thus entitled to inherit from Miguel's estate. Third, respondent court erred, according to petitioner, "in not finding
that there is a 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 provision 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 transfer 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 or 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 subsisting and unaffected by the latter's 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 cda
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 10 but failed to persuade to us that she actually contributed money to buy the subject riceland. Worth noting is the fact
that on the date of the 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
contributed P3,750.00 as her share in the purchase price of subject property, 11 there being no proof of the same.
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 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." 12 Separation of property between spouse during the marriage shall not take place except by judicial order or without
judicial conferment when there is an express stipulation in the marriage settlements. 13 The judgment which resulted from the parties'
compromise was not specifically and expressly for separation of property and should not be so inferred.
 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 Erlinda's
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 donation
between spouses now applies to donations between persons living together as husband and wife without a valid marriage, 15 for
otherwise, the condition of those who incurred guilt would turn out to be better than those in legal union. 16
The second issue concerning Kristopher Palang's status and claim as an illegitimate son and heir to Miguel's estate is here
resolved in favor of respondent court's correct assessment that the trial court erred in making pronouncements regarding Kristopher's
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 court's decision which expressly found that Kristopher had not been impleaded as party defendant but theorized
that he had submitted to the court's jurisdiction through his mother/guardian ad litem. 18 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. 19 Petitioner's grave error has been discussed in the preceding
paragraph where the need for probate proceedings to resolve the settlement of Miguel's estate and Kristopher's successional rights has
been pointed out.
WHEREFORE, the instant petition is hereby DENIED. The questioned decision of the Court of Appeals is AFFIRMED.
Costs against petitioner.
SO ORDERED.
||| (Agapay v. Palang, G.R. No. 116668, [July 28, 1997], 342 PHIL 302-314)

SECOND DIVISION

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

MANUEL G. REYES, MILA G. REYES, DANILO G. REYES, LYN AGAPE, MARITES AGAPE, ESTEBANA GALOLO, and CELSA
AGAPE, petitioners, vs. COURT OF APPEALS AND JULIO VIVARES, respondents.

Quimpo Willkom Borja Neri Galejesan Oclarit Law Offices for petitioners.

Algarra Mutia and Trinidad Law Offices for private respondents.

SYNOPSIS

Torcuato Reyes executed a last will and testament wherein he stated that he was bequeathing some of his personal and real properties to his wife, Asuncion "Oning" Reyes, and
designating private respondent as executor. After his death, private respondent filed a petition for the probate of the will which was opposed by petitioners, Torcuato's natural children, and their
mothers claiming, among others, that Asuncion Reyes was never married to the testator because she was already married to Lupo Ebarle and that their marriage was not annulled. The will was
admitted to probate but the disposition to Asuncion Reyes was declared by the trial court as null and void for being contrary to law and morals. On appeal, the Court of Appeals modified the
trial court's decision declaring valid the assailed disposition on the ground that the oppositors failed to present competent evidence that Asuncion Reyes was legally married to another. Hence,
this recourse of petitioners who belatedly presented a copy of the marriage certificate of Asuncion Reyes and Lupo Abarle.
 As a general rule, courts in probate proceedings are limited to pass upon only the extrinsic validity of wills and without jurisdiction to determine validity or efficacy of the will's
provisions. The propriety of the institution of Oning Reyes as one of the devisees/legatees already involved inquiry on the will's intrinsic validity and which need not be inquired upon by the
probate court.

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. IaSAHC

This Court would not try the case anew or settle factual issues since its jurisdiction is confined to resolving questions of law which have been passed upon by the lower courts.

SYLLABUS

1. REMEDIAL LAW; PROBATE COURT; PROCEEDINGS LIMITED TO EXTRINSIC VALIDITY OF WILL; EXCEPTIONS. — 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 will's 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 of 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. cdrep

2. ID.; ID.; ID.; CASE AT BAR. — 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 "Oming" 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 will's intrinsic validity and which need not be inquired upon by the probate court.

3. ID.; ID.; ID.; DOCTRINE IN NEPOMUCENO v. COURT OF APPEALS (139 SCRA 206) NOT APPLICABLE TO CASE AT BAR. — 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. 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.

4. ID.; EVIDENCE; UNCORROBORATED TESTIMONIAL EVIDENCE, HEARSAY. — 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 Asunsion.

5. CIVIL LAW; SUCCESSION; WILL, THE TESTATOR SPEAKING AFTER DEATH. — 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 like 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 . . . All doubts must be resolved in favor of the testator's having meant just what he said." (Santos vs. Manarang, 27
Phil. 209).

6. REMEDIAL LAW; EVIDENCE; FAILURE TO PRESENT EVIDENCE TO SUPPORT ALLEGATION THAT DEVISEE/LEGATEE HAD AN EXISTING MARRIAGE
WITH ANOTHER, CONSTITUTES WAIVER. — Petitioner 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 that pro- bate 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.

7. ID.; ID.; FACTUAL FINDINGS OF THE COURT OF APPEALS, GENERALLY NOT DISTURBED ON APPEAL. — This Court would not try the case anew 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. 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. cda

DECISION

TORRES, JR., J p:

Unless legally flawed, a testator's 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 1 dated November 29, 1995, the dispositive portion of which reads:
"WHEREFORE, premises considered, the judgment appealed from allowing or admitting the will of
Torcuato J. Reyes to probate and directing the issuance of Letters 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 paragraph II and subparagraphs (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 xxx 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, Gingoog, Caamulan, Sugbongcogon, Boloc-Boloc, Kinoguitan, 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 petition 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 deceased's 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 order 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 else's 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, meretricious, 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 court's decision
admitting the will for probate but with the modification that paragraph II including subparagraphs (a) and (b) were declared valid. The
appellate court stated:
"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." 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 latter's 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 contract 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 cdasia
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. 7 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 will's
provisions. 8 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 9 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 of doubtful legality. 10 Where the parties agree that the intrinsic validity be first determined, the probate
court may also do so. 11 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. 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 will's 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 and 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. 13 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.
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. . . . All doubts must be resolved in favor of the testator's 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 not try the case anew 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. cdasia
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.
||| (Reyes v. Court of Appeals, G.R. No. 124099, [October 30, 1997], 346 PHIL 266-276)

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.

Napoleon M. Malamas for petitioners.

Ramon Quisumbing, Jr. Law Office for private respondents.

SYNOPSIS

This is a petition for review on certiorari filed by petitioners Rolando Sanchez, Florida Mierly Sanchez, Alfredo T. Sanchez and Myrna Sanchez 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 modified compromise agreement among the parties valid and
binding even without the trial court's approval. Petitioners in this case are asserting that the respondent Court of Appeals erred in granting the petition for  certiorari under Rule 65 considering
that the special civil action of certiorari may not be availed as a substitute for an appeal and in annulling the decision of the lower court declaring the compromise agreement executed by both
parties on October 30, 1969 void and unenforceable the same not having been approved by the intestate court. HSTAcI

The Supreme Court ruled that 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 office exercising 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, the
Court is convinced that all these requirements were met and thus hold that the questioned decision and resolutions of the trial court may be challenged through a special civil action 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 court's decision and resolutions
were issued without or excess of jurisdiction, which may thus be challenged or attacked at any time.

Anent the second issue regarding the necessity of judicial approval in a compromise agreement, the Court ruled that such contention lacks merit. Being a consensual contract, it is
perfected upon the meeting of the minds of the parties. Judicial approval is not required for its perfection hence, the court affirmed the validity of the parties' compromise agreement. In view of
the foregoing, the instant petition is denied and the assailed decision of the Court of Appeals is affirmed.

SYLLABUS

1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; REQUISITES THEREOF. — 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.

2. ID.; ID.; ID.; CERTIORARI IS NOT A SUBSTITUTE FOR A LOST APPEAL; EXCEPTIONS THEREOF. — 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 June 30 1970 Cf. Bautista et al. vs. Sarmiento
et al. L-45137 Sept. 23 1985); (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 L-029039 Nov. 28 1968); (5) where the order is a
patent nullity (Marcelo vs. De Guzman et al. L-29077 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.

3. ID.; ID,; ID.; AN ACT DONE BY A PROBATE COURT IN EXCESS OF ITS JURISDICTION MAY BE CORRECTED BY  CERTIORARI. — The issues herein clearly
involve not only the correctness of the trial court's decision but also the latter's 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."

4. ID.; ID.; ID.; FACTUAL MATTERS, NOT REVIEWABLE BY THE COURT UNDER RULE 45. — 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.

5. ID.; JUDGMENT; A VOID JUDGMENT FOR WANT OF JURISDICTION IS NO JUDGMENT AT ALL. — 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; . . . 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. "

6. ID.; ID.; APPEAL; ISSUE RAISED FOR THE FIRST TIME ON APPEAL AND NOT RAISED TIMELY IN THE PROCEEDINGS IN LOWER COURT IS BARRED BY
ESTOPPEL. — 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 he raised for the first time on appeal."

7. ID.; SPECIAL PROCEEDINGS; REQUISITES FOR A VALID PARTITION. — 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.

8. ID.; SPECIAL PROCEEDINGS; JURISDICTION OF PROBATE COURT; DOCTRINE THAT IN SPECIAL PROCEEDINGS FOR THE PROBATE OF A WILL, THE
QUESTION OF OWNERSHIP IS AN EXTRANEOUS MATTER WHICH THE PROBATE COURT CANNOT RESOLVE WITH FINALITY, LIKEWISE APPLICABLE TO AN
INTESTATE PROCEEDING; CASE AT BAR. — 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.

9. CIVIL LAW; OBLIGATIONS AND CONTRACTS; FRAUD; NOT ESTABLISHED IN CASE AT BAR. — 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.

10. ID.; COMPROMISES; A FORM OF AMICABLE SETTLEMENT THAT IS NOT ONLY ALLOWED BUT ALSO ENCOURAGED. — 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."

11. ID.; ID.; JUDICIAL APPROVAL IS NOT REQUIRED FOR THE PERFECTION THEREOF. — 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: "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 not judicially approved (Meneses v. De la Rosa, 77 Phil. 34 [1946]; Vda. De Guilas v. David, 132 Phil. 241, L-24280,2.3 SCRA 762 [May 27,1968]; Cochingyan v.
Cloribel, L-27070-71 [April 22, 1977], 76 SCRA. 361)."

12.  ID.; ID.; A PARTY TO A COMPROMISE AGREEMENT CANNOT ASK FOR A RESCISSION AFTER IT HAS ENJOYED ITS BENEFITS. — 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."

13.  ID.; ID.; A COMPROMISE ENTERED INTO AND CARRIED OUT IN GOOD FAITH WILL NOT BE DISCARDED EVEN IF THERE WAS A MISTAKE OF LAW OR
FACT. — 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.

14.  ID.; SUCCESSION; COLLATION; PROPERTIES CONVEYED INTER VIVOS BY THE DECEDENT TO AN HEIR BY WAY OF SALE, NOT SUBJECT TO
COLLATION. — 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. HSCATc

DECISION

PANGANIBAN, J p:
 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? cdasia
These questions are answered by this Court as it resolves the petition for review on certiorari before us assailing the November 23,
1992 Decision 1 of the Court of Appeals 2 in CA-G.R. SP No. 28761 which annulled the decision 3 of the trial court 4 and which declared
the compromise agreement among the parties valid and binding even without the said trial court's approval. The dispositive portion of the
assailed Decision reads:
"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] Rosalia's 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 father's 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 (Annex 'M', 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 attorney's 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] Rosalia's 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 Rosalia's 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. Lugod's right to appeal." 8
For clarity's sake, this Court hereby reproduces verbatim the compromise agreement 9 of the parties:
"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 consideration 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 him 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, Intervenors-Oppositors 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.
P11,580.00
(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 EIGHTY THREE THOUSAND SIX HUNDRED (483,600) sq. ms. more or less.
P61,680.00
(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, containing an area of THIRTY FOUR THOUSAND
THREE HUNDRED (34,300) sq. ms. more or less, being claimed by Miguel Tuto. cdpr
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, containing 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. cdpr
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. 7-A-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-A-18-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. II-13 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 C.
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 attorney's 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 ares.
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
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 of 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, guardian ad 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.)
PABLO S. REYES
(Sgd.)
TEOGENES VELEZ, JR.
(Sgd.)
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 10 dated September 4, 1992, initially dismissed private respondent's petition. Acting,
however, on a motion for reconsideration and a supplemental motion for reconsideration dated September 14, 1992 and September 25, 1992,
respectively, 11 Respondent Court thereafter reinstated private respondents' petition in a resolution 12 dated October 14, 1992.
In due course, the Court of Appeals, as earlier stated, rendered its assailed Decision granting the petition, setting aside the trial
court's 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 Court's 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 of certiorari 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 court's 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 Court's 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 respondent's recourse to Rule 65 of the Rules of Court. They contend that private respondent's
invocation of certiorari was "procedurally defective." 14 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. 15 This Court disagrees.
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., L-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, L-029039, Nov. 28, 1968); (5) where the order is a patent nullity (Marcelo vs. De Guzman, et al., L-29077, 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)." 16 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, 17 as in the present case.
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.  18 After a thorough review of the case at bar, we are
convinced that all these requirements were met.
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. 19 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." 20 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:
"[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. 22 Such disregard, on the ground that the compromise agreement "was not approved by the court," 23 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." 24
The foregoing issues clearly involve not only the correctness of the trial court's decision but also the latter's jurisdiction. They
encompass plain errors of jurisdiction and grave abuse of discretion, not merely errors of judgment. 25 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." 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 court's] granting of [herein petitioners'] motion for
execution of the assailed decision, 27 [herein private respondent] Rosalia's resort to the instant petition [for review on
certiorari] is all the more warranted under the circumstances." 28
We thus hold that 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 court's 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; '. . . 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. 31 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, 32 where
the Court, through Justice Irene R. Cortes, ruled:
"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 (Meneses v. 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)." (emphasis 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,  33 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. 34 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. 35 cdphil
Indeed, compromise is a form of amicable settlement that is not only allowed but also encouraged in civil cases. 36 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."
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 court's approval is necessary in compromises entered
into by guardians and parties 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 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. 38 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.
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 40 readily
reveals that they never questioned the validity of the compromise. In their comment before the Court of Appeals, 41 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. 42 The issue of minority was first raised only in petitioners' Motion for
Reconsideration of the Court of Appeals' Decision; 43 thus, it "is as if it was never duly raised in that court at all."  44 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. 45 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." 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." 47 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 decedent's estate which were not included in the inventory of the estate's 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 petitioner's 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 heir's waiver of his/her hereditary share "even if the
actual extent of such share is not determined until the subsequent liquidation of the estate." 48 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. 49
Finally, petitioners contend that Private Respondent Rosalia T. Lugod's alleged fraudulent acts, specifically her concealment of
some of the decedent's properties, attended the actual execution of the compromise agreement. 50 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:
"[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] Rosalia's 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, thirty-six (36) ares as embodied in the aforementioned
compromise agreement to thirty-six (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 Court's commission of March 10, 1970 provided, however, that if the said 36-hectare 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 36 hectare 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. 53 This Court has consistently ruled that "a party to a compromise cannot ask for a rescission after it has enjoyed its
benefits." 54 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. 55 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. 56 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" 57 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." 58 Volenti non fit injuria.
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. 59 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 estate's residue must contain the names and shares of
the persons entitled thereto. A perusal of the whole record, particularly the trial court's conclusion,  60 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.  61 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:
"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 of P8,533.94 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.  63 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 administratrix 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." 64 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." 65 Hence, there is no hard evidence on
record to back up petitioners' claims.
In any case, the trial court noted Private Respondent Rosalia's 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." 66 However, Geodetic Engineer Idulsa did not comply with the
court's subpoena duces tecum and ad testificandum. Neither did he furnish the required relocation survey. 67 No wonder, even after a
thorough scrutiny of the records, this Court cannot find any evidence to support petitioner's allegations of fraud against Private Respondent
Rosalia.
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. 68 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 involved gratuitous transfers of future
inheritance; these were contracts of sale perfected by the decedents during their lifetime. 69 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.
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. 70 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. liblex
WHEREFORE, the petition is hereby DENIED and the assailed Decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
||| (Sanchez v. Court of Appeals, G.R. No. 108947, [September 29, 1997], 345 PHIL 155-194)
 THIRD DIVISION

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

URSULINA GANUELAS, METODIO GANUELAS and ANTONIO GANUELAS, petitioners, 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 LA ROSA, represented by GREGORIO DELA ROSA, Administrator, respondents.

Tañada Vivo & Tan for petitioners.

SYNOPSIS

The late Celestina Ganuelas executed a Deed of Donation of Real Property in favor of Ursulina Ganuelas. Private respondents alleged that the deed was a void disposition  mortis
causa as it lacks the legal requirement of acknowledgment by attesting witnesses thereto before the notary public. Petitioners, however, insist that the donation was inter vivos.

Whether the donation was inter vivos or mortis causa, the Court ruled that, it was mortis causa. It noted that there was nothing in the Donation 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 therein "to become effective upon the death of the DONOR" admits no other
interpretation but that Celestina intended to transfer the ownership of the properties to Ursulina on her death, not during her lifetime. It was also provided therein that if the donee should die
before the donor, the donation shall be deemed rescinded and of no further force and effect. The deed even contains an attestation clause expressly confirming the donation as  mortis causa.
Nevertheless, as there was failure to comply with the formalities of a will, the Court ruled that the donation was void.

SYLLABUS

1. CIVIL LAW; MODES OF ACQUIRING OWNERSHIP; DONATION INTER VIVOS DISTINGUISHED FROM DONATION MORTIS CAUSA. — Crucial in the resolution
of the issue whether the donation is inter vivos or mortis causa is the determination of whether the donor intended to transfer the ownership over the properties upon the execution of the deed.
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: If the donation is
made in contemplation of the donor's death, meaning that the full or naked ownership of the donated properties will pass to the donee only because of the donor's 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 donor's lifetime or
independently of the donor's death, meaning that the full or naked ownership (nuda proprietas) of the donated properties passes to the donee during the donor's 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.

2. ID.; ID.; SUCCESSION; DONATION MORTIS CAUSA; DISTINGUISHING CHARACTERISTICS. — 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. CTAIDE

3. ID.; ID.; ID.; ID.; ID.; PRESENT IN CASE AT BAR. — 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. 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. More. The deed contains an attestation clause expressly
confirming the donation as mortis causa.

4. ID.; ID.; ID.; ID.; MOTIVATION. — 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.

5. ID.; ID.; ID.; ID.; REQUIRES FORMALITIES OF A WILL. — 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. 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. (Italics supplied) TcICEA

DECISION
CARPIO MORALES, J p:

The present petition for review under Rule 45 of the Rules of Court assails, on a question of law, the February 22, 1996
decision 1 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.
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 2 covering
seven parcels of land in favor of her niece Ursulina Ganuelas (Ursulina), one of herein petitioners.
The pertinent provision of the deed of donation reads, quoted verbatim:
xxx xxx 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.
xxx xxx xxx. 3
On June 10, 1967, Celestina executed a document denominated as Revocation of Donation 4 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. cDSAEI
After Celestina's 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 5 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.
The defendants-herein petitioners alleged in their Answer 6 that the donation in favor of Ursulina was inter vivos as
contemplated under Article 729 of the Civil Code, 7 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.
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, 8 found for the plaintiffs-herein private respondents, thus:
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, 10 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. 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
donor's affection for the donee rather than the donor's death; 15 that the provision on the effectivity of the donation — after the donor's
death — simply meant that absolute ownership would pertain to the donee on the donor's death; 16 and that since the donation is inter
vivos, it may be revoked only for the reasons provided in Articles 760, 17 764 18 and 765 19 of the Civil Code.
In a letter of March 16, 1992, 20 private respondent Corazon Sipalay, reacting to this Court's 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 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, 21 welcome private respondents' gesture but pray that "for the sake of enriching
jurisprudence, their [p]etition be given due course and resolved."
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 vivosdiffers 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. 23 The following ruling of this Court in Alejandro v. Geraldez is illuminating: 24
If the donation is made in contemplation of the donor's death, meaning that the full or naked ownership
of the donated properties will pass to the donee only because of the donor's 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 donor's lifetime or independently of the donor's death, meaning
that the full or naked ownership (nuda proprietas) of the donated properties passes to the donee during the donor's
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 25 and 749 26 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. 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. CTSDAI
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. 31 (Emphasis supplied)
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. 32 In other words, love and affection may also underline transfers mortis causa. 33
In Maglasang v. Heirs of Cabatingan, 34 the deeds of donation contained provisions almost identical to those found in the
deed subject of the present case:
That for and in consideration of the love and affection of the DONOR for the DONEE, . . . 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. (Emphasis supplied)
In that case, this Court held that the donations were mortis causa, for the above-quoted provision conclusively establishes the
donor's intention to transfer the ownership and possession of the donated property to the donee only after the former's 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 donor's death. CcTIDH
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. STECAc
SO ORDERED.
||| (Ganuelas v. Cawed, G.R. No. 123968, [April 24, 2003], 449 PHIL 465-477)

THIRD DIVISION

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

The Incompetent, CARMEN CAÑIZA, represented by her legal guardian, AMPARO EVANGELISTA, petitioner, vs. COURT OF APPEALS (SPECIAL
FIRST DIVISION), PEDRO ESTRADA and his wife, LEONORA ESTRADA, respondents.

Priscilla A. Villacorta for petitioner.

Montilla Law Office for private respondents.

SYLLABUS
 1. REMEDIAL LAW; JURISDICTION; DETERMINED BY THE ALLEGATIONS IN THE COMPLAINT. — 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.

2. ID.; PROVISIONAL REMEDIES; ACTION FOR UNLAWFUL DETAINER; IT IS SUFFICIENT TO ALLEGE THAT THE DEFENDANT IS UNLAWFULLY
WITHHOLDING POSSESSION FROM THE PLAINTIFF. — It is settled that in an action for unlawful detainer, 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.

3. ID.; ID.; ID.; PROPER WHEN A PERSON WHO OCCUPIES, OUT OF GENEROSITY, THE LAND OF ANOTHER AND FAILS TO VACATE THE SAME UPON
DEMAND BY THE OWNER; CASE AT BAR. — 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, 229 SCRA 627, 636 [1994] 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." 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.

4. CIVIL LAW; SUCCESSION; A WILL HAS NO EFFECT WHATEVER AND NO RIGHT CAN BE CLAIMED THEREUNDER UNTIL IT IS ADMITTED TO PROBATE.
— 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, CIVIL CODE).
An owner's intention to confer title on 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.

5. REMEDIAL LAW; SPECIAL PROCEEDINGS; GUARDIANSHIP; DUTIES OF THE GUARDIAN; CASE AT BAR. — Amparo Evangelista was appointed by a competent
court the general guardian of both the person and the estate of her aunt, Carmen Cañiza. Her Letters of Guardianship dated December 19, 1989 clearly installed her as the "guardian over
the person and properties of the incompetent CARMEN CAÑIZA 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 well-being, 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, Cañiza's property, both real and personal, it being recognized principle that the ward has no right to possession or control of his property during his incompetency. That
right to manage the ward's estate carried with it 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.
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.

6. ID.; PROVISIONAL REMEDIES; EJECTMENT CASE; EFFECT OF THE DEATH OF A PARTY; CASE AT BAR. — 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 Cañiza, is one of the latter's only two (2) surviving heirs, the other being Cañiza'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. To be sure, an EJECTMENT case survives the death
of a party. Cañiza'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.

DECISION

NARVASA, C .J p:

On November 20, 1989, being then ninety-four (94) years of age, Carmen Cañiza, 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  1 of
the Regional Trial Court of Quezon City, Branch 107, 2 in a guardianship proceeding instituted by her niece, Amparo A.
Evangelista. 3 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.
Cañiza 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. 4 The complaint was later amended to identify the incompetent Cañiza as plaintiff, suing through
her legal guardian, Amparo Evangelista.
The amended Complaint 5 pertinently alleged that plaintiff Cañiza 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
to temporarily reside in her house, rent-free; that Cañiza 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, Cañiza 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 Cañiza's house since the 1960's; that
in consideration of their faithful service they had been considered by Cañiza 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 Cañiza's favor, 6 the Estradas being ordered to vacate the
premises and pay Cañiza P5,000.00 by way of attorney's fees.
But on appeal, 7 the decision was reversed by the Quezon City Regional Trial Court, Branch 96. 8 By judgment rendered on
October 21, 1992, 9 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." cdphil
Cañiza sought to have the Court of Appeals reverse the decision of October 21, 1992, but failed in that attempt. In a
decision 10 promulgated on June 2, 1993, the Appellate Court 11 affirmed the RTC's judgment in toto . It ruled that (a) the proper
remedy for Cañiza 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
Cañiza," 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 Cañiza that defendants are to remain and are to continue in their occupancy and possession, so much so that
Cañiza's supervening incompetency can not be said to have vested in her guardian the right or authority to drive the defendants
out." 12
Through her guardian, Cañiza 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, 14 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 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 Cañiza, which "occupancy can even ripen into full ownership once the holographic will of petitioner Carmen
Cañiza is admitted to probate." They conclude, on those postulates, that it is beyond the power of Cañiza's legal guardian to oust them
from the disputed premises.
Carmen Cañiza died on March 19, 1994, 15 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. 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 Cañiza'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 Cañiza 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. 17 An inquiry into the averments of the amended complaint in the Court of
origin is thus in order. 18
The amended Complaint alleges:19
"6. That the plaintiff, Carmen Cañiza, 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;
xxx xxx xxx
9. That the defendants, their children, grandchildren and sons-in-law, were allowed to live temporarily in
the house of plaintiff, Carmen Cañiza, 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 20 is quoted below:
"WHEREFORE, in the interest of justice and the rule of law, plaintiff, Carmen Cañiza, 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 Cañiza: 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 Cañiza's house by tolerance — having been "allowed to live temporarily . . .
(therein) for free, out of . . . (Cañiza's) kindness;"
2) that Cañiza 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, Cañiza 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 Cañiza, 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,  21 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. 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 . . . (Cañiza'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 (Cañiza) of the possession of . . . (her
property) by force, intimidation, threat, strategy, or stealth."
The argument is arrant sophistry. Cañiza'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 Cañiza 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. 23 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. 24 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. 25 Thus, in Asset
Privatization Trust vs. Court of Appeals, 26 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."
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, 27 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. 28 Now, the complaint filed by Cañiza'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.
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 Cañiza 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 Cañiza 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 Cañiza 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; 29 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.). 30 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.
Amparo Evangelista was appointed by a competent court the general guardian of both the person and the estate of her aunt,
Carmen Cañiza. Her Letters of Guardianship 31 dated December 19, 1989 clearly installed her as the "guardian over the person and
properties of the incompetent CARMEN CAÑIZA 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 . . ." 32 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 well-being, with right to custody of her person in preference to relatives and friends.  33 It also became
her right and duty to get possession of, and exercise control over, Cañiza'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. 34 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, 35 and bring and defend
such actions as may be needful for this purpose. 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' 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 Cañiza passed away during the pendency of this appeal. The Estradas thereupon moved to dismiss
the petition, arguing that Cañiza's death automatically terminated the guardianship, Amparo 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, 38 the rule affords no advantage to the Estradas. Amparo Evangelista, as niece of Carmen Cañiza, is
one of the latter's only two (2) surviving heirs, the other being Cañiza's nephew, Ramon C. Nevado. On their motion and by
Resolution of this Court 39 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.: 40
"SEC. 17. 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 administrator and
the court may appoint guardian ad litem for the minor heirs.
To be sure, an ejectment case survives the death of a party. Cañiza's demise did not extinguish the  desahucio suit instituted
by her through her guardian. 41 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.
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. cda
SO ORDERED.
||| (Cañiza v. Court of Appeals, G.R. No. 110427, [February 24, 1997], 335 PHIL 1107-1121)
 SECOND DIVISION

[G.R. No. 156536. October 31, 2006.]

JOSEPH CUA, petitioner, vs. GLORIA A. VARGAS, AURORA VARGAS, RAMON VARGAS, MARITES VARGAS, EDELINA VARGAS AND
GEMMA VARGAS, respondents.

DECISION

AZCUNA, J p:

This is a petition for review under Rule 45 of the Rules of Court seeking the reversal of the decision 1 dated March 26,
2002, and the resolution 2 dated December 17, 2002, of the Court of Appeals in CA-G.R. SP No. 59869 entitled "Gloria A.
Vargas, Aurora Vargas, Ramon Vargas, Marites Vargas, Edelina Vargas and Gemma Vargas v. Joseph Cua."
The facts are as follows:
A parcel of residential land with an area of 99 square meters located in San Juan, Virac, Catanduanes was left behind by
the late Paulina Vargas. On February 4, 1994, a notarized Extra Judicial Settlement Among Heirs was executed by and among
Paulina Vargas' heirs, namely Ester Vargas, Visitacion Vargas, Juan Vargas, Zenaida V. Matienzo, Rosario V. Forteza, Andres
Vargas, Gloria Vargas, Antonina Vargas and Florentino Vargas, partitioning and adjudicating unto themselves the lot in question,
each one of them getting a share of 11 square meters. Florentino, Andres, Antonina and Gloria, however, did not sign the
document. Only Ester, Visitacion, Juan, Zenaida and Rosario signed it. The Extra Judicial Settlement Among Heirs was published
in the Catanduanes Tribune for three consecutive weeks. 3
On November 15, 1994, an Extra Judicial Settlement Among Heirs with Sale 4 was again executed by and among the
same heirs over the same property and also with the same sharings. Once more, only Ester, Visitacion, Juan, Zenaida and Rosario
signed the document and their respective shares totaling 55 square meters were sold to Joseph Cua, petitioner herein.
According to Gloria Vargas, the widow of Santiago Vargas and one of respondents herein, she came to know of the
Extra Judicial Settlement Among Heirs with Sale dated November 16, 1994 only when the original house built on the lot was
being demolished sometime in May 1995. 5 She likewise claimed she was unaware that an earlier Extra Judicial Settlement
Among Heirs dated February 4, 1994 involving the same property had been published in the Catanduanes Tribune. 6
 After knowing of the sale of the 55 square meters to petitioner, Gloria Vargas tried to redeem the property, with the
following letter 7 sent to petitioner on her behalf: HTSAEa
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 lawful heirs of the
late Paulina Vargas, original owner of Lot No. 214 of Virac, Poblacion covered by ARP No. 031-0031 in her
name.
I understand that a document "Extra Judicial Settlement Among Heirs with Sale" was executed by some of my
client's co-heirs and alleged representatives of other co-heirs, by virtue of which document you acquired by
purchase from the signatories to the said document, five (5) shares with a 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 five (5) shares as well
as other shares which you may likewise have acquired by purchase. And you are hereby given an option to agree
to legal redemption within a period of fifteen (15) days from your receipt hereof.
Should you fail to convey to me your agreement within said 15-day-period, proper legal action shall be taken by
my client to redeem said shares.
Thank you.
Very truly yours,
(Sgd.)
JUAN G. ATENCIA
When the offer to redeem was refused and after having failed to reach an amicable settlement at the barangay
level, 9 Gloria Vargas filed a case for annulment of Extra Judicial Settlement and Legal Redemption of the lot with the Municipal
Trial Court (MTC) of Virac, Catanduanes against petitioner and consigned the amount of P100,000 which is the amount of the
purchase with the Clerk of Court on May 20, 1996. 10 Joining her in the action were her children with Santiago, namely, Aurora,
Ramon, Marites, Edelina and Gemma, all surnamed Vargas.
Subsequently, Carlos Gianan, Jr. and Gloria Arcilla, heirs of the alleged primitive owner of the lot in question, Pedro
Lakandula, intervened in the case. 11
Respondents claimed that as co-owners of the property, they may be subrogated to the rights of the purchaser by
reimbursing him the price of the sale. They likewise alleged that the 30-day period following a written notice by the vendors to
their co-owners for them to exercise the right of redemption of the property had not yet set in as no written notice was sent to
them. In effect, they claimed that the Extra Judicial Settlement Among Heirs and the Extra Judicial Settlement Among Heirs with
Sale were null and void and had no legal and binding effect on them. 12
After trial on the merits, the MTC rendered a decision 13 in favor of petitioner, dismissing the complaint as well as the
complaint-in-intervention for lack of merit, and declaring the Deed of Extra Judicial Settlement Among Heirs with Sale valid and
binding. The MTC upheld the sale to petitioner because the transaction purportedly occurred after the partition of the property
among the co-owner heirs. The MTC opined that the other heirs could validly dispose of their respective shares. Moreover, the
MTC found that although there was a failure to strictly comply with the requirements under Article 1088 of the  Civil Code 14 for
a written notice of sale to be served upon respondents by the vendors prior to the exercise of the former's right of redemption, this
deficiency was cured by respondents' actual knowledge of the sale, which was more than 30 days before the filing of their
complaint, and their consignation of the purchase price with the Clerk of Court, so that the latter action came too late. Finally, the
MTC ruled that respondents failed to establish by competent proof petitioner's bad faith in purchasing the portion of the property
owned by respondents' co-heirs. 15
On appeal, the Regional Trial Court (RTC), Branch 42, of Virac, Catanduanes affirmed the MTC decision in a judgment
dated November 25, 1999. The matter was thereafter raised to the Court of Appeals (CA). ASHEca
The CA reversed the ruling of both lower courts in the assailed decision dated March 26, 2002, declaring that the Extra
Judicial Settlement Among Heirs and the Extra Judicial Settlement Among Heirs with Sale, dated February 4, 1994 and
November 15, 1994, respectively, were void and without any legal effect. The CA held that, pursuant to Section 1, Rule 74 of
the Rules of Court, 16 the extrajudicial settlement made by the other co-heirs is not binding upon respondents considering the
latter never participated in it nor did they ever signify their consent to the same.
 His motion for reconsideration having been denied, petitioner filed the present petition for review.
The issues are:
Whether heirs are deemed constructively notified and bound, regardless of their failure to participate
therein, by an extrajudicial settlement and partition of estate when the extrajudicial settlement and partition has
been duly published; and,
Assuming a published extrajudicial settlement and partition does not bind persons who did not participate
therein, whether the written notice required to be served by an heir to his co-heirs in connection with the sale of
hereditary rights to a stranger before partition under Article 1088 of the Civil Code 17 can be dispensed with
when such co-heirs have actual knowledge of the sale such that the 30-day period within which a co-heir can
exercise the right to be subrogated to the rights of a purchaser shall commence from the date of actual knowledge
of the sale.
Petitioner argues, as follows:
Firstly, the acquisition by petitioner of the subject property subsequent to the extrajudicial partition was valid because the
partition was duly published. The publication of the same constitutes due notice to respondents and signifies their implied
acquiescence thereon. Respondents are therefore estopped from denying the validity of the partition and sale at this late stage.
Considering that the partition was valid, respondents no longer have the right to redeem the property.
Secondly, petitioner is a possessor and builder in good faith.
Thirdly, the MTC had no jurisdiction over the complaint because its subject matter was incapable of pecuniary
estimation. The complaint should have been filed with the RTC.
Fourthly, there was a non-joinder of indispensable parties, the co-heirs who sold their interest in the subject property not
having been impleaded by respondents.
Fifthly, the appeal to the CA should have been dismissed as it was not properly verified by respondents. Gloria Vargas
failed to indicate that she was authorized to represent the other respondents (petitioners therein) to initiate the petition. Moreover,
the verification was inadequate because it did not state the basis of the alleged truth and/or correctness of the material allegations
in the petition.
The petition lacks merit.
The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding. The rule plainly states, however, that persons
who do not participate or had no notice of an extrajudicial settlement will not be bound thereby.  18 It contemplates a notice that
has been sent out or issued before any deed of settlement and/or partition is agreed upon (i.e., a notice calling all interested parties
to participate in the said deed of extrajudicial settlement and partition), and not after such an agreement has already been
executed 19 as what happened in the instant case with the publication of the first deed of extrajudicial settlement among heirs.
The publication of the settlement does not constitute constructive notice to the heirs who had no knowledge or did not
take part in it because the same was notice after the fact of execution. The requirement of publication is geared for the protection
of creditors and was never intended to deprive heirs of their lawful participation in the decedent's estate. In this connection, the
records of the present case confirm that respondents never signed either of the settlement documents, having discovered their
existence only shortly before the filing of the present complaint. Following Rule 74, these extrajudicial settlements do not bind
respondents, and the partition made without their knowledge and consent is invalid insofar as they are concerned. TASCDI
This is not to say, though, that respondents' co-heirs cannot validly sell their hereditary rights to third persons even
before the partition of the estate. The heirs who actually participated in the execution of the extrajudicial settlements, which
included the sale to petitioner of their pro indiviso shares in the subject property, are bound by the same. Nevertheless,
respondents are given the right to redeem these shares pursuant to Article 1088 of the  Civil [Link] right to redeem was never
lost because respondents were never notified in writing of the actual sale by their co-heirs. Based on the provision, there is a need
for written notice to start the period of redemption, thus:
Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-
heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they
do so within the period of one month from the time they were notified in writing of the sale by the vendor .
(Emphasis supplied.)
It bears emphasis that the period of one month shall be reckoned from the time that a co-heir is notified in writing by the
vendor of the actual sale. Written notice is indispensable and mandatory, 20 actual knowledge of the sale acquired in some other
manner by the redemptioner notwithstanding. It cannot be counted from the time advance notice is given of an impending or
contemplated sale. The law gives the co-heir thirty days from the time written notice of the actual sale within which to make up
his or her mind and decide to repurchase or effect the redemption. 21
 Though the Code does not prescribe any particular form of written notice nor any distinctive method for written
notification of redemption, the method of notification remains exclusive, there being no alternative provided by law.  22 This
proceeds from the very purpose of Article 1088, which is to keep strangers to the family out of a joint ownership, if, as is often
the case, the presence of outsiders be undesirable and the other heir or heirs be willing and in a position to repurchase the share
sold. 23
It should be kept in mind that the obligation to serve written notice devolves upon the vendor co-heirs because the latter
are in the best position to know the other co-owners who, under the law, must be notified of the sale. 24 This will remove all
uncertainty as to the fact of the sale, its terms and its perfection and validity, and quiet any doubt that the alienation is not
definitive. 25 As a result, the party notified need not entertain doubt that the seller may still contest the alienation. 26
Considering, therefore, that respondents' co-heirs failed to comply with this requirement, there is no legal impediment to
allowing respondents to redeem the shares sold to petitioner given the former's obvious willingness and capacity to do so.
Likewise untenable is petitioner's contention that he is a builder in good faith. Good faith consists in the belief of the
builder that the land the latter is building on is one's own without knowledge of any defect or flaw in one's title. 27 Petitioner
derived his title from the Extra Judicial Settlement Among Heirs With Sale dated November 15, 1994. He was very much aware
that not all of the heirs participated therein as it was evident on the face of the document itself. Because the property had not yet
been partitioned in accordance with the Rules of Court, no particular portion of the property could have been identified as yet and
delineated as the object of the sale. This is because the alienation made by respondents' co-heirs was limited to the portion which
may be allotted to them in the division upon the termination of the co-ownership. Despite this glaring fact, and over the protests
of respondents, petitioner still constructed improvements on the property. For this reason, his claim of good faith lacks credence.
As to the issue of lack of jurisdiction, petitioner is estopped from raising the same for the first time on appeal. Petitioner
actively participated in the proceedings below and sought affirmative ruling from the lower courts to uphold the validity of the
sale to him of a portion of the subject property embodied in the extrajudicial settlement among heirs. Having failed to seasonably
raise this defense, he cannot, under the peculiar circumstances of this case, be permitted to challenge the jurisdiction of the lower
court at this late stage. While it is a rule that a jurisdictional question may be raised at any time, an exception arises where
estoppel has already supervened.
Estoppel sets in when a party participates in all stages of a case before challenging the jurisdiction of the lower court.
One cannot belatedly reject or repudiate its decision after voluntarily submitting to its jurisdiction, just to secure affirmative relief
against one's opponent or after failing to obtain such relief. The Court has, time and again, frowned upon the undesirable practice
of a party submitting a case for decision and then accepting the judgment, only if favorable, and attacking it for lack of
jurisdiction when adverse. 28
Petitioner's fourth argument, that there is a non-joinder of indispensable parties, similarly lacks merit. An indispensable
party is a party-in-interest without whom there can be no final determination of an action and who is required to be joined as
either plaintiff or defendant. 29 The party's interest in the subject matter of the suit and in the relief sought is so inextricably
intertwined with the other parties that the former's legal presence as a party to the proceeding is an absolute necessity. Hence, an
indispensable party is one whose interest will be directly affected by the court's action in the litigation. In the absence of such
indispensable party, there cannot be a resolution of the controversy before the court which is effective, complete, or equitable. 30
In relation to this, it must be kept in mind that the complaint filed by respondents ultimately prayed that they be allowed
to redeem the shares in the property sold by their co-heirs. Significantly, the right of the other heirs to sell their undivided share in
the property to petitioner is not in dispute. Respondents concede that the other heirs acted within their hereditary rights in doing
so to the effect that the latter completely and effectively relinquished their interests in the property in favor of petitioner.
Petitioner thus stepped into the shoes of the other heirs to become a co-owner of the property with respondents. As a result, only
petitioner's presence is absolutely required for a complete and final determination of the controversy because what respondents
seek is to be subrogated to his rights as a purchaser. ECHSDc
Finally, petitioner contends that the petition filed by respondents with the CA should have been dismissed because the
verification and certificate of non-forum shopping appended to it were defective, citing specifically the failure of respondent
Gloria Vargas to: (1) indicate that she was authorized to represent her co-respondents in the petition, and (2) state the basis of the
alleged truth of the allegations.
The general rule is that the certificate of non-forum shopping must be signed by all the plaintiffs or petitioners in a case
and the signature of only one of them is insufficient. 31 Nevertheless, the rules on forum shopping, which were designed to
promote and facilitate the orderly administration of justice, should not be interpreted with such absolute literalness as to subvert
their own ultimate and legitimate objective. Strict compliance with the provisions regarding the certificate of non-forum shopping
merely underscores its mandatory nature in that the certification cannot be altogether dispensed with or its requirements
completely disregarded. 32 Under justifiable circumstances, the Court has relaxed the rule requiring the submission of such
certification considering that although it is obligatory, it is not jurisdictional. 33
Thus, when all the petitioners share a common interest and invoke a common cause of action or defense, the signature of
only one of them in the certification against forum shopping substantially complies with the rules. 34 The co-respondents of
 respondent Gloria Vargas in this case were her children. In order not to defeat the ends of justice, the Court deems it sufficient
that she signed the petition on their behalf and as their representative.
WHEREFORE, the petition is DENIED for lack of merit. Costs against petitioner.
SO ORDERED.
||| (Cua v. Vargas, G.R. No. 156536, [October 31, 2006], 536 PHIL 1082-1097)

THIRD DIVISION

[G.R. No. 175720. September 11, 2007.]

CRESENCIANA TUBO RODRIGUEZ (now deceased),substituted by SUSANA A. LLAGAS, petitioner,[Link] RODRIGUEZ, BELEN

RODRIGUEZ and BUENAVENTURA RODRIGUEZ, respondents.

DECISION

YNARES-SANTIAGO, J p:

This petition for review on certiorari assails the Decision 1 of the Court of Appeals in CA-G.R. SP No. 91442 dated
June 27, 2006, which set aside the Decision of the Regional Trial Court (RTC) of Makati City, Branch 134, in Civil Case No. 03-
517, and reinstated the Decision of the Metropolitan Trial Court (MTC) of Makati City, Branch 63, in Civil Case No. 75717,
dismissing the complaint for ejectment; as well as the Resolution denying the motion for reconsideration.
Juanito Rodriguez owned a five-door apartment located at San Jose Street, Guadalupe Nuevo, Makati City, and covered
by TCT No. 144865. 2 On October 27, 1983, Juanito executed a "Huling Habilin at Testamento" giving petitioner Cresenciana
Tubo Rodriguez, his live-in partner, apartments D and E, and his children Benjamin Rodriguez (the deceased husband of
respondent Evangeline Rodriguez),apartment A, respondent Buenaventura Rodriguez, apartment B, and respondent Belen
Rodriguez, apartment C. 3 SHIcDT
However, on June 14, 1984, Juanito executed a Deed of Absolute Sale over the property in favor of petitioner.  4 Thus,
TCT No. 144865 was cancelled and a new TCT No. 150431 was issued in the name of the petitioner. 5 aEIcHA
The case arose when petitioner filed on September 20, 2001 a complaint for unlawful detainer against the respondents,
alleging that she is the lawful and registered owner of the property; and that in 1984, she allowed respondents Evangeline,
Buenaventura and Belen, out of kindness and tolerance, to personally occupy units A, B and D, respectively. However, without
her knowledge and consent, respondents separately leased the units to Montano Magpantay, Mel Navarro and Socorro Escota,
who despite repeated demands, failed and refused to vacate the premises and to pay the rentals thereof. 6
In their Answer, respondents claimed ownership over the subject property by succession. They alleged that while
petitioner is the registered owner of the property, however, she is not the lawful owner thereof because the June 14, 1984 Deed of
Absolute Sale was simulated and void. As in Civil Case No. 01-1641 now pending before the RTC of Makati City, Branch 141,
which they filed to assail the validity of the said sale, respondents maintain that petitioner exerted undue influence over their
father, who at that time was seriously ill, to agree to the sale of the property for only P20,000.00 after knowing that only two
apartments were given to her in the Huling Habilin at Testamento. Further, she had no cause of action against them for being a
party to the August 23, 1990 Partition Agreement wherein they recognized each other as co-owners and partitioned the property
in accordance with the provision of the last will and testament. 7
On February 26, 2002, the MTC rendered a judgment in favor of the respondents and held that the deed of sale was
simulated otherwise petitioner would not have entered into the Partition Agreement, which legally conferred upon each heir
exclusive ownership over their respective shares, thus:
WHEREFORE, the Complaint is DISMISSED. Plaintiff is ordered to pay attorney's fees of P10,000.00
and the costs of suit in favor of defendants.
SO ORDERED. 8
On appeal, the RTC reversed the decision of the MTC. It held that petitioner's certificate of title is a conclusive evidence
of ownership of the land described therein; and that unless and until said title has been annulled by a court of competent
jurisdiction, such title is existing and valid. This is true also with respect to the deed of sale. The present action, which involves
only the issue of physical or material possession, is not the proper action to challenge it. Further, the MTC erred when it relied
heavily on the "Huling Habilin at Testamento," which was not probated hence has no effect and no right can be claimed therein.
The Partition Agreement which was allegedly entered into pursuant to the Huling Habilin at Testamento should not also be
considered. Thus:
WHEREFORE, premises considered, the decision rendered by the Metropolitan Trial Court, Branch 63,
Makati City, is hereby ordered REVERSED AND SET ASIDE. Consequently, judgment is hereby rendered
ordering the defendants and all persons claiming rights under them to vacate the premises and surrender the
possession thereof to the plaintiff. Defendants are likewise ordered to pay jointly and severally the plaintiff an
amount of P5,000.00 a month per unit beginning 13 August 2001 until they finally vacate the premises and the
costs of this suit. HETDAC
SO ORDERED. 9
Aggrieved, respondents filed a petition for review before the Court of Appeals which reversed and set aside the decision
of the RTC and reinstated the decision of the MTC. It held that the MTC correctly received evidence on ownership since the
question of possession could not be resolved without deciding the issue of ownership. Further, the Huling Habilin at
Testamento transmitted ownership of the specific apartments not only to the respondents but also to the petitioner; and pursuant
thereto, the parties executed the Partition Agreement in accordance with the wishes of the testator, thus:
WHEREFORE, this Court resolves to REVERSE and SET ASIDE the Decision of the Regional Trial
Court. The decision dated February 26, 2002 of the Metropolitan Trial Court, Branch 63, Makati City in Civil
Case No. 75717 dismissing the complaint for ejectment is hereby REINSTATED. cHECAS
SO ORDERED. 10
The motion for reconsideration was denied hence, petitioner filed the present petition for review raising the following
errors:
I.
THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR OF LAW AND GRAVE ABUSE OF
DISCRETION IN REVERSING AND SETTING ASIDE THE DECISION OF THE REGIONAL TRIAL
COURT AND REINSTATING THE DECISION OF THE METROPOLITAN TRIAL COURT DISMISSING
PETITIONER'S COMPLAINT FOR UNLAWFUL DETAINER. aTIEcA
II.
THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR OF LAW AND GRAVE ABUSE OF
DISCRETION IN DECLARING THAT THE PROPERTY, A PARCEL OF LAND UPON WHICH A FIVE-
UNIT APARTMENT STANDS, BECAME THE SUBJECT OF JUANITO RODRIGUEZ'S HULING HABILIN
AT TESTAMENTO WHEREIN THE PROPERTY WAS DISTRIBUTED TO HIS HEIRS (HEREIN
RESPONDENTS) INCLUDING THE RESPONDENT (PETITIONER HEREIN). 11
Petitioner alleges that as the registered owner of the subject property, she enjoys the right of possession thereof and that
question of ownership cannot be raised in an ejectment case unless it is intertwined with the issue of possession. While the court
may look into the evidence of title or ownership and possession de jure to determine the nature of possession, it cannot resolve the
issue of ownership because the resolution of said issue would effect an adjudication on ownership which is not proper in the
summary action for unlawful detainer. Petitioner insists that the Court of Appeals erred in ruling that the  Huling Habilin at
Testamento transmitted ownership of the specific apartments disregarding the fact that the same is not probated yet and that the
testator changed or revoked his will by selling the property to petitioner prior to his death.
Contrarily, respondents pray that the instant petition for review be dismissed since the resolution of the question of
ownership by the MTC and the Court of Appeals was provisional only to resolve the issue of possession. Petitioner can always
avail of legal remedies to have the issue of ownership passed upon by the proper court. Aware of the provisional nature of the
resolution on ownership in ejectment cases, respondents filed Civil Case No. 01-1641 to assail the validity of the deed of sale of
the property and the registration thereof in petitioner's name. DHITSc
The petition has merit.
An action for unlawful detainer exists when a person unlawfully withholds possession of any land or building against or
from a lessor, vendor, vendee or other persons, after the expiration or termination of the right to hold possession, by virtue of any
contract, express or implied. 12 The sole issue to be resolved is the question as to who is entitled to the physical or material
possession of the premises or possession de facto. 13 Being a summary proceeding intended to provide an expeditious means of
protecting actual possession or right to possession of property, the question of title is not involved 14 and should be raised by the
affected party in an appropriate action in the proper court. 15 HIAcCD
However, when the issue of ownership is raised the court is not ousted of its jurisdiction. Section 16 of Rule 70 of
the Rules of Court provides:
 SEC 16. Resolving defense of ownership. — When the defendant raises the defense of ownership in his
pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of
ownership shall be resolved only to determine the issue of possession. TcSAaH
Thus, all that the trial court can do is to make an initial determination of who is the owner of the property so that it can resolve
who is entitled to its possession absent other evidence to resolve ownership. 16 But this adjudication is only provisional and does
not bar or prejudice an action between the same parties involving title to the property. 17
In the case at bar, petitioner's cause of action for unlawful detainer was based on her alleged ownership of land covered
by TCT No. 150431 and that she merely tolerated respondents' stay thereat. However, when respondents leased the apartments to
other persons without her consent, their possession as well as those persons claiming right under them became unlawful upon
their refusal to vacate the premises and to pay the rent. On the other hand, respondents assailed petitioner's title by claiming that
the deed of sale upon which it was based was simulated and void. They insisted that they were co-owners thus, they have the right
to possess the said property. To prove their claim, they presented the Huling Habilin at Testamento of Juanito Rodriguez and the
Partition Agreement. CTcSIA
The lower courts considered the following documentary evidence in arriving at their respective decisions, albeit the RTC
decision contradicts that of the MTC and Court of Appeals: 1) Huling Habilin at Testamento executed by Juanito Rodriguez on
October 27, 1983; 2) Deed of Sale of the property executed by Juanito Rodriguez and the petitioner on June 14, 1984; 3) TCT No.
150431 in the name of the petitioner; and 4) the August 23, 1990 Partition Agreement executed by both the respondents and the
petitioner. cEAHSC
Based on the foregoing documentary evidence, we find that there is preponderance of evidence in favor of the
petitioner's claim. Respondents failed to prove their right of possession, as the Huling Habilin at Testamento and the Partition
Agreement have no legal effect since the will has not been probated. Before any will can have force or validity it must be
probated. This cannot be dispensed with and is a matter of public policy. 18 Article 838 of the Civil Code mandates that "[n]o
will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court." As the
will was not probated, the Partition Agreement which was executed pursuant thereto can not be given effect. Thus, the fact that
petitioner was a party to said agreement becomes immaterial in the determination of the issue of possession. ECcTaH
Moreover, at the time the deed of sale was executed in favor of the petitioner, Juanito Rodriguez remained the owner
thereof since ownership would only pass to his heirs at the time of his death. Thus, as owner of the property, he had the absolute
right to dispose of it during his lifetime. Now, whether or not the disposition was valid is an issue that can be resolved only in
Civil Case No. 01-1641, an action instituted by the respondents for that purpose. DCcIaE
We are, thus, left with the deed of sale and the certificate of title over the property to consider.
We agree with the RTC that a certificate of title is a conclusive evidence of ownership of the land described therein; the
validity of which shall not be subject to a collateral attack, especially in an ejectment case which is summary in nature. DSATCI
In Ross Rica Sales Center, Inc. v. Ong, 19 the Court held that:
The long settled rule is that the issue of ownership cannot be subject of a collateral attack. IcTEAD
In Apostol v. Court of Appeals, this Court had the occasion to clarify this:
. . . Under Section 48 of Presidential Decree No. 1529, a certificate of title shall not be subject to
collateral attack. It cannot be altered, modified or cancelled, except in a direct proceeding for that
purpose in accordance with law. The issue of the validity of the title of the respondents can only be
assailed in an action expressly instituted for that purpose. Whether or not the petitioners have the right to
claim ownership over the property is beyond the power of the court a quo to determine in an action for
unlawful detainer. SECcIH
Further, in Co v. Militar, 20 it was held that:
[T]he Torrens System was adopted in this country because it was believed to be the most effective
measure to guarantee the integrity of land titles and to protect their indefeasibility once the claim of ownership is
established and recognized. IaTSED
It is settled that a Torrens Certificate of title is indefeasible and binding upon the whole world unless and
until it has been nullified by a court of competent jurisdiction. Under existing statutory and decisional law, the
power to pass upon the validity of such certificate of title at the first instance properly belongs to the Regional
Trial Courts in a direct proceeding for cancellation of title. aIcDCA
As the registered owner, petitioner had a right to the possession of the property, which is one of the
attributes of ownership. ...
We emphasize, however, that our ruling on the issue of ownership is only provisional to determine who between the
parties has the better right of possession. It is, therefore, not conclusive as to the issue of ownership, which is the subject matter of
 Civil Case No. 01-1641. Our ruling that petitioner has a better right of possession was arrived at on the basis of evidence without
prejudice to the eventual outcome of the annulment case, where the issue as to who has title to the property in question is fully
threshed out. As the law now stands, in an ejectment suit, the question of ownership may be provisionally ruled upon for the sole
purpose of determining who is entitled to possession de facto. EScAID
WHEREFORE, in view of the foregoing, the Decision of the Court of Appeals in CA-G.R. SP No. 91442 dated June 27,
2006 is REVERSED and SET ASIDE. The Decision of the Regional Trial Court of Makati City, Branch 134, in Civil Case No.
03-517, reversing the Decision of the Metropolitan Trial Court (MTC) of Makati City, Branch 63, in Civil Case No. 75717, is
REINSTATED.
SO ORDERED.
||| (Rodriguez v. Rodriguez, G.R. No. 175720, [September 11, 2007], 559 PHIL 398-408)