Cases for succession

G.R. No. 44837, Ledesma and Ledesma v. Mclachlin et al., 66 Phil. 547
G.R. No. 44837
SOCORRO LEDESMA and ANA QUITCO LEDESMA, plaintiffs-appellees,
vs.
CONCHITA MCLACHLIN, ET AL., defendants-appellants.

Adriano T. de la Cruz for appellants.

Simeon Bitanga for appellees.

VILLA-REAL, J.:

This case is before us by virtue of an appeal taken by the defendants Conchita

McLachlin, Lorenzo Quitco, Jr., Sabina Quitco, Rafael Quitco and Marcela Quitco,
from the decision of the Court of First Instance of Occidental Negros, the dispositive
part of which reads:

For the foregoing considerations, the court renders judgment in this case declaring
Ana Quitco Ledesma an acknowledged natural daughter of the deceased Lorenzo M.
Quitco, for legal purposes, but absolving the defendants as to the prayer in the first
cause of action that the said Ana Quitco Ledesma be declared entitled to share in
the properties left by the deceased Eusebio Quitco.

As to the second cause of action, the said defendants are ordered to pay to the
plaintiff Socorro Ledesma, jointly and severally, only the sum of one thousand five
hundred pesos(P1,500), with legal interest thereon from the filing of this complaint
until fully paid. No pronouncement is made as to the costs. So ordered.

In support of their appeal, the appellants assign the following errors allegedly
committed by the trial court in its aforesaid decision:

1. That the trial court erred in holding, that the action for the recovery of the sum of
P1,500, representing the last installment of the note Exhibit C has not yet
prescribed.

2. That the trial court erred in holding that the property inherited by the defendants
from their deceased grandfather by the right of representation is subject to the
debts and obligations of their deceased father who died without any property
whatsoever.

3. That the trial court erred in condemning the defendants to pay jointly and
severally the plaintiff Socorro Ledesma the sum of P1,500.

The only facts to be considered in the determination of the legal questions raised in
this appeal are those set out in the appealed decision, which have been established
at the trial, namely:

In the year 1916, the plaintiff Socorro Ledesma lived maritally with Lorenzo M.
Quitco, while the latter was still single, of which relation, lasting until the year 1921,
was born a daughter who is the other plaintiff Ana Quitco Ledesma. In 1921, it
seems hat the relation between Socorro Ledesma and Lorenzo M. Quitco came to an
end, but the latter executed a deed (Exhibit A), acknowledging the plaintiff Ana
Quitco Ledesma as his natural daughter and on January 21, 1922, he issued in favor
of the plaintiff Socorro Ledesma a promissory note (Exhibit C), of the following
tenor:

P2,000. For value received I promise to pay Miss Socorro Ledesma the sum of two
thousand pesos (P2,000). Philippine currency under the following terms: Two
hundred and fifty pesos (P250) to be paid on the first day of March 1922; another
two hundred and fifty pesos (P250)to be paid on the first day of November 1922;
the remaining one thousand and five hundred (P1,500) to be paid two years from
the date of the execution of this note. San Enrique, Occ. Negros, P. I., Jan. 21, 1922.

Subsequently, Lorenzo M. Quitco married the defendant Conchita McLachlin, with

whom he had four children, who are the other defendants. On March 9, 1930,
Lorenzo M. Quitco died (Exhibit 5), and, still later, that is, on December 15, 1932, his
father Eusebio Quitco also died, and as the latter left real and personal properties

upon his death, administration proceedings of said properties were instituted in this
court, the said case being known as the "Intestate of the deceased Eusebio Quitco,"
civil case No. 6153 of this court.

Upon the institution of the intestate of the deceased Eusebio Quitco and the
appointment of the committee on claims and appraisal, the plaintiff Socorro
Ledesma, on August 26, 1935, filed before said committee the aforequoted
promissory note for payment, and the commissioners, upon receipt of said
promissory note, instead of passing upon it, elevated the same to this court en
consulta (Exhibit F), and as the Honorable Jose Lopez Vito, presiding over the First
Branch, returned said consulta and refrained from giving his opinion thereon
(Exhibit C), the aforesaid commissioners on claims and appraisal, alleging lack of
jurisdiction to pass upon the claim, denied he same (Exhibit H).

On November 14, 1933 (Exhibit I), the court issued an order of declaration of heirs
in the intestate of the deceased Eusebio Quitco, and as Ana Quitco Ledesma was
not included among the declared heirs, Socorro Ledesma, as mother of Ana Quitco
Ledesma, asked for the reconsideration of said order, a petition which the court
denied. From the order denying the said petition no appeal was taken, and in lieu
thereof there was filed the complaint which gives rise to this case.

The first question to be decided in this appeal, raised in the first assignment of
alleged error, is whether or not the action to recover the sum of P1,500,
representing the last installment for the payment of the promissory note Exhibit C,
has prescribed.

According to the promissory note Exhibit C, executed by the deceased Lorenzo M.

Quitco, on January 21, 1922, the last installment of P1,500 should be paid two years
from the date of the execution of said promissory note, that is, on January 21, 1924.
The complaint in the present case was filed on June 26, 1934, that is, more than ten
years after he expiration of the said period. The fact that the plaintiff Socorro
Ledesma filed her claim, on August 26, 1933, with the committee on claims and
appraisal appointed in the intestate of Eusebio Quitco, does not suspend the
running of the prescriptive period of the judicial action for the recovery of said debt,
because the claim for the unpaid balance of the amount of the promissory note
should no have been presented in the intestate of Eusebio Quitco, the said
deceased not being the one who executed the same, but in the intestate of Lorenzo
M. Quitco, which should have been instituted by the said Socorro Ledesma as

provided in section 642 of the Code of Civil Procedure, authorizing a creditor to

institute said case through the appointment of an administrator for the purpose of
collecting his credit. More than ten years having thus elapsed from the expiration of
the period for the payment of said debt of P1,500, the action for its recovery has
prescribed under section 43, No. 1, of the Code of Civil Procedure.

The first assignment of alleged error is, therefore, well-founded.

As to the second assignment of alleged error, consisting in that the trial court erred
in holding that the properties inherited by the defendants from their deceased
grandfather by representation are subject to the payment of debts and obligations
of their deceased father, who died without leaving any property, while it is true that
under the provisions of articles 924 to 927 of the Civil Code, a children presents his
father or mother who died before him in the properties of his grandfather or
grandmother, this right of representation does not make the said child answerable
for the obligations contracted by his deceased father or mother, because, as may
be seen from the provisions of the Code of Civil Procedure referring to partition of
inheritances, the inheritance is received with the benefit of inventory, that is to say,
the heirs only answer with the properties received from their predecessor. The
herein defendants, as heirs of Eusebio Quitco, in representation of their father
Lorenzo M. Quitco, are not bound to pay the indebtedness of their said father from
whom they did not inherit anything.

The second assignment of alleged error is also well-founded.

Being a mere sequel of the first two assignments of alleged errors, the third
assignment of error is also well-founded.

For the foregoing considerations, we are of the opinion and so hold: (1) That the
filing of a claim before the committee on claims and appraisal, appointed in the
intestate of the father, for a monetary obligation contracted by a son who died
before him, does not suspend the prescriptive period of the judicial action for the
recovery of said indebtedness; (2) that the claim for the payment of an
indebtedness contracted by a deceased person cannot be filed for its collection

before the committee on claims and appraisal, appointed in the intestate of his
father, and the propertiesinherited from the latter by the children of said deceased
do not answer for the payment of the indebtedness contracted during the lifetime of
said person.

Wherefore, the appealed judgment is reversed, and the defendants are absolved
from the complaint, with the costs to the appellees. So ordered.

G.R. No. L-4067

November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.
PARAS, C.J.:
This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado
dated January 3, 1943. The will is written in the Ilocano dialect and contains the following attestation
clause:
We, the undersigned, by these presents to declare that the foregoing testament of Antero
Mercado was signed by himself and also by us below his name and of this attestation clause
and that of the left margin of the three pages thereof. Page three the continuation of this
attestation clause; this will is written in Ilocano dialect which is spoken and understood by the
testator, and it bears the corresponding number in letter which compose of three pages and
all them were signed in the presence of the testator and witnesses, and the witnesses in the
presence of the testator and all and each and every one of us witnesses.
In testimony, whereof, we sign this statement, this the third day of January, one thousand
nine hundred forty three, (1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA

(Sgd.) BIBIANA ILLEGIBLE

(Sgd.) "ROSENDA CORTES

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero
Mercado, followed below by "A reugo del testator" and the name of Florentino Javier. Antero
Mercado is alleged to have written a cross immediately after his name. The Court of Appeals,
reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the attestation
clause failed (1) to certify that the will was signed on all the left margins of the three pages and at the
end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the
testator and each and every one of the witnesses; (2) to certify that after the signing of the name of
the testator by Atty. Javier at the former's request said testator has written a cross at the end of his
name and on the left margin of the three pages of which the will consists and at the end thereof; (3)
to certify that the three witnesses signed the will in all the pages thereon in the presence of the
testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado
caused Atty. Florentino Javier to write the testator's name under his express direction, as required by
section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of
certiorari from the decision of the Court of Appeals) argues, however, that there is no need for such
recital because the cross written by the testator after his name is a sufficient signature and the
signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a
signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De
Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62
Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado
or even one of the ways by which he signed his name. After mature reflection, we are not prepared
to liken the mere sign of the cross to a thumbmark, and the reason is obvious. The cross cannot and
does not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine there is a sufficient recital in the
attestation clause as to the signing of the will by the testator in the presence of the witnesses, and by
the latter in the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.

G.R. No. L-36033 November 5, 1982

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ,
(deceased): APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III,
Maasin),respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR. J.:

This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte,
Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of
the Will of Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which denied the probate of the
will, the motion for reconsideration and the motion for appointment of a special administrator.
In the petition for probate filed with the respondent court, the petitioner attached the alleged last will
and testament of the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of
two pages. The first page contains the entire testamentary dispositions and is signed at the end or
bottom of the page by the testatrix alone and at the left hand margin by the three (3) instrumental
witnesses. The second page which contains the attestation clause and the acknowledgment is
signed at the end of the attestation clause by the three (3) attesting witnesses and at the left hand
margin by the testatrix.
Since no opposition was filed after the petitioner's compliance with the requirement of publication,
the trial court commissioned the branch clerk of court to receive the petitioner's evidence.
Accordingly, the petitioner submitted his evidence and presented Vicente Timkang, one of the
subscribing witnesses to the will, who testified on its genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying
the probate of the will of Dorotea Perez for want of a formality in its execution. In the same order, the
petitioner was also required to submit the names of the intestate heirs with their corresponding
addresses so that they could be properly notified and could intervene in the summary settlement of
the estate.
Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or
motion, ex partepraying for a thirty-day period within which to deliberate on any step to be taken as a
result of the disallowance of the will. He also asked that the ten-day period required by the court to
submit the names of intestate heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the order denying the probate of the will.
However, the motion together with the previous manifestation and/or motion could not be acted upon
by the Honorable Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal. The said
motions or incidents were still pending resolution when respondent Judge Avelino S. Rosal assumed
the position of presiding judge of the respondent court.
Meanwhile, the petitioner filed a motion for the appointment of special administrator.
Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation
and/or motion filedex parte. In the same order of denial, the motion for the appointment of special
administrator was likewise denied because of the petitioner's failure to comply with the order
requiring him to submit the names of' the intestate heirs and their addresses.
The petitioner decided to file the present petition.

For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix
and all the three instrumental and attesting witnesses sign at the end of the will and in the presence
of the testatrix and of one another?
Article 805 of the Civil Code provides:
Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his
presence, and by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages shall be numbered correlatively
in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused some
other person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the lacier witnesses and signed the will and the
pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to the witnesses, it shall be interpreted to them.
The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will
to be valid, it is not enough that only the testatrix signs at the "end" but an the three subscribing
witnesses must also sign at the same place or at the end, in the presence of the testatrix and of one
another because the attesting witnesses to a will attest not merely the will itself but also the
signature of the testator. It is not sufficient compliance to sign the page, where the end of the will is
found, at the left hand margin of that page.
On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a
condition precedent or a matter of absolute necessity for the extrinsic validity of the wig that the
signatures of the subscribing witnesses should be specifically located at the end of the wig after the
signature of the testatrix. He contends that it would be absurd that the legislature intended to place
so heavy an import on the space or particular location where the signatures are to be found as long
as this space or particular location wherein the signatures are found is consistent with good faith and
the honest frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by
the testator himself or by the testator's name written by another person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of one another.

It must be noted that the law uses the terms attested and subscribed Attestation consists in
witnessing the testator's execution of the will in order to see and take note mentally that those things
are, done which the statute requires for the execution of a will and that the signature of the testator
exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the
same paper for the purpose of Identification of such paper as the will which was executed by the
testator. (Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our considered view that the will in this
case was subscribed in a manner which fully satisfies the purpose of Identification.
The signatures of the instrumental witnesses on the left margin of the first page of the will attested
not only to the genuineness of the signature of the testatrix but also the due execution of the will as
embodied in the attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual
forms should be ignored, especially where the authenticity of the will is not assailed. (Gonzales v.
Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and fundamental objective permeating the
provisions on the law on wills in this project consists in the liberalization of the manner of their
execution with the end in view of giving the testator more freedom in expressing his last wishes but
with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of
undue and improper pressure and influence upon the testator. This objective is in accord with the
modern tendency in respect to the formalities in the execution of a will" (Report of the Code
commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for the
defect in the place of signatures of the witnesses, he would have found the testimony sufficient to
establish the validity of the will.
The objects of attestation and of subscription were fully met and satisfied in the present case when
the instrumental witnesses signed at the left margin of the sole page which contains all the
testamentary dispositions, especially so when the will was properly Identified by subscribing witness
Vicente Timkang to be the same will executed by the testatrix. There was no question of fraud or
substitution behind the questioned order.
We have examined the will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect were it not for the fact
that, in this case, it is discernible from the entire wig that it is really and actually composed of only
two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first
page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end
or at the bottom while the instrumental witnesses signed at the left margin. The other page which is
marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament consists of two pages including this
page".

In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations with
respect to the purpose of the requirement that the attestation clause must state the number of pages
used:
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act
No. 2645, which requires that the attestation clause shall state the number of pages
or sheets upon which the win is written, which requirement has been held to be
mandatory as an effective safeguard against the possibility of interpolation or
omission of some of the pages of the will to the prejudice of the heirs to whom the
property is intended to be bequeathed (In re will of Andrada, 42 Phil., 180; Uy
Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto
vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the attestation clause must contain a
statement of the number of sheets or pages composing the will and that if this is
missing or is omitted, it will have the effect of invalidating the will if the deficiency
cannot be supplied, not by evidence aliunde, but by a consideration or examination
of the will itself. But here the situation is different. While the attestation clause does
not state the number of sheets or pages upon which the will is written, however, the
last part of the body of the will contains a statement that it is composed of eight
pages, which circumstance in our opinion takes this case out of the rigid rule of
construction and places it within the realm of similar cases where a broad and more
liberal view has been adopted to prevent the will of the testator from being defeated
by purely technical considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal
approach:
... Impossibility of substitution of this page is assured not only (sic) the fact that the
testatrix and two other witnesses did sign the defective page, but also by its bearing
the coincident imprint of the seal of the notary public before whom the testament was
ratified by testatrix and all three witnesses. The law should not be so strictly and
literally interpreted as to penalize the testatrix on account of the inadvertence of a
single witness over whose conduct she had no control where the purpose of the law
to guarantee the Identity of the testament and its component pages is sufficiently
attained, no intentional or deliberate deviation existed, and the evidence on record
attests to the fun observance of the statutory requisites. Otherwise, as stated in Vda.
de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration)
'witnesses may sabotage the will by muddling or bungling it or the attestation clause.
WHEREFORE, the present petition is hereby granted. The orders of the respondent court which
denied the probate of tile will, the motion for reconsideration of the denial of probate, and the motion
for appointment of a special administrator are set aside. The respondent court is ordered to allow the
probate of the wig and to conduct further proceedings in accordance with this decision. No
pronouncement on costs.
SO ORDERED.

G.R. No. L-54919, May 30, 1984

GENERAL RULE: Limited jurisdiction of the probate court

EXCEPTION: Where practical considerations demand that the intrinsic validity of the will be passed
upon, even before it is probated, the court should meet the issues.

FACTS:
Adoracion C. Campos died, leaving Hermogenes Campos (father) and her sisters, Nenita Paguia,
Remedios Lopez, and Marieta Medina as the surviving heirs. As the only compulsory heir is
Hermogenes, he executed an Affidavit of Adjudication, adjudicating unto himself the entire estate of
Adoracion.

Later that same year, Nenita filed a petition for reprobate of a will, alleging among others that
Adoracion was an American citizen and that the will was executed in teh US. Adoracion died in
Manila while temporarily residing in Malate.

While this case was still pending, Hermogenes died and left a will, appointing Polly Cayetano as the
executrix. Hence, this case.

ISSUEs: Whether or not the will was valid

Whether or not the court has jurisdiction over probate proceedings

HELD: 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 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 issues.
In this case, it was sufficiently established that Adoracion was an American citizen and the law which
governs her will is the law of Pennsylvania, USA, which is the national law of the decedent.
It is a settled rule that as regards the intrinsic validity of the provisions of the will, the national law of
the decedent must apply.
As to the issue of jurisdiction --The settlement of estate of Adoracion Campos was correctly filed with
the CFI of Manila where she had an estate since it was alleged and proven that Adoracion at the
time of her death was a citizen and permanent resident of Pennsylvania, USA and not a usual
resident of Cavite.
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.

Icasiano v. Icasiano Digest

Icasiano vs. Icasiano
G.R. No. L-18979 June 30, 1964

Facts:
1. Celso Icasiano, filed a petition for the probate of the will of Josefa Villacorte and for his
appointment as executor thereof. It appears from the evidence that the testatrix died on September
12, 1958. She executed a will in Tagalog, and through the help of her lawyer, it was prepared in
duplicates, an original and a carbon copy.

2. On the day that it was subscribed and attested, the lawyer only brought the original copy of the
will while the carbon duplicate (unsigned) was left in Bulacan. One of the witnesses failed to sign
one of the pages in the original copy but admitted he may have lifted 2 pages simultaneously instead
when he signed the will. Nevertheless, he affirmed that the will was signed by the testator and other
witnesses in his presence.

Issue: Whether or not the failure of one of the subscribing witnesses to affix his signature to a page
is sufficient to deny probate of the will

RULING: No, the failure to sign was entirely through pure oversight or mere inadvertence. Since the
duplicated bore the required signatures, this proves that the omission was not intentional. Even if the
original is in existence, a duplicate may still be admitted to probate since the original is deemed to be
defective, then in law, there is no other will bu the duly signed carbon duplicate and the same can be
probated.

The law should not be strictly and literally interpreted as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct she has no control of. Where the purpose of
the law is to guarantee the identity of the testament and its component pages, and there is no
intentional or deliberate deviation existed.

Note that this ruling should not be taken as a departure from the rules that the will should be signed
by the witnesses on every page. The carbon copy duplicate was regular in all respects.

G.R. No. L-40207

September 28, 1984

ROSA K. KALAW, petitioner,

vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI, Lipa City,
and GREGORIO K. KALAW, respondents.

Leandro H. Fernandez for petitioner.

Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J.:

On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of
his deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of
Batangas, Branch VI, Lipa City, for the probate of her holographic Will executed on December 24,
1968.

The holographic Will reads in full as follows:

My Last will and Testament

In the name of God, Amen.

I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound and
disposing mind and memory, do hereby declare thus to be my last will and testament.

1.
It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In
accordance with the rights of said Church, and that my executrix hereinafter named provide and
erect at the expose of my state a suitable monument to perpetuate my memory.

xxx

xxx

xxx

The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir.
Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in substance,

that the holographic Will contained alterations, corrections, and insertions without the proper
authentication by the full signature of the testatrix as required by Article 814 of the Civil Code
reading:

Art. 814.
In case of any insertion, cancellation, erasure or alteration in a holographic will the
testator must authenticate the same by his full signature.

ROSA's position was that the holographic Will, as first written, should be given effect and probated
so that she could be the sole heir thereunder.

After trial, respondent Judge denied probate in an Order, dated September 3, 197 3, reading in part:

The document Exhibit "C" was submitted to the National Bureau of Investigation for examination.
The NBI reported that the handwriting, the signature, the insertions and/or additions and the initial
were made by one and the same person. Consequently, Exhibit "C" was the handwriting of the
decedent, Natividad K. Kalaw. The only question is whether the win, Exhibit 'C', should be admitted
to probate although the alterations and/or insertions or additions above-mentioned were not
authenticated by the full signature of the testatrix pursuant to Art. 814 of the Civil Code. The
petitioner contends that the oppositors are estopped to assert the provision of Art. 814 on the ground
that they themselves agreed thru their counsel to submit the Document to the NBI FOR
EXAMINATIONS. This is untenable. The parties did not agree, nor was it impliedly understood, that
the oppositors would be in estoppel.

The Court finds, therefore, that the provision of Article 814 of the Civil Code is applicable to Exhibit
"C". Finding the insertions, alterations and/or additions in Exhibit "C" not to be authenticated by the
full signature of the testatrix Natividad K. Kalaw, the Court will deny the admission to probate of
Exhibit "C".

WHEREFORE, the petition to probate Exhibit "C" as the holographic will of Natividad K. Kalaw is
hereby denied.

SO ORDERED.

January 29, 1927

G.R. No. 26317

Estate of Miguel Mamuyac, deceased.
FRANCISCO GAGO, petitioner-appellant,
vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA,
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.

Nicanor Tavora for appellant.

Jose Rivera for appellees.

JOHNSON, J.:

The purpose of this action was to obtain the probation of a last will and testament of Miguel
Mamuyac, who died on the 2d day of January, 1922, in the municipality of Agoo of the Province of La
Union. It appears from the record that on or about the 27th day of July, 1918, the said Miguel
Mamuyac executed a last will and testament (Exhibit A). In the month of January, 1922, the said
Francisco Gago presented a petition in the Court of First Instance of the Province of La Union for the
probation of that will. The probation of the same was opposed by Cornelio Mamuyac, Ambrosio
Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144, Province of La Union). After
hearing all of the parties the petition for the probation of said will was denied by the Honorable C. M.
Villareal on the 2d day of November, 1923, upon the ground that the deceased had on the 16th day
of April, 1919, executed a new will and testament.

On the 21st day of February, 1925, the present action was commenced. Its purpose was to secure
the probation of the said will of the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio
Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac presented their oppositions,

alleging (a) that the said will is a copy of the second will and testament executed by the said Miguel
Mamuyac; (b) that the same had been cancelled and revoked during the lifetime of Miguel Mamuyac
and (c) that the said will was not the last will and testament of the deceased Miguel Mamuyac.

Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge, after hearing the
respective parties, denied the probation of said will of April 16, 1919, upon the ground that the same
had been cancelled and revoked in the year 1920. Judge Teodoro, after examining the evidence
adduced, found that the following facts had been satisfactorily proved:

That Exhibit A is a mere carbon of its original which remained in the possession of the deceased
testator Miguel Mamuyac, who revoked it before his death as per testimony of witness Jose Fenoy,
who typed the will of the testator on April 16, 1919, and Carlos Bejar, who saw on December 30,
1920, the original Exhibit A (will of 1919) actually cancelled by the testator Miguel Mamuyac, who
assured Carlos Bejar that inasmuch as he had sold him a house and the land where the house was
built, he had to cancel it (the will of 1919), executing thereby a new testament. Narcisa Gago in a
way corroborates the testimony of Jose Fenoy, admitting that the will executed by the deceased
(Miguel Mamuyac) in 1919 was found in the possession of father Miguel Mamuyac. The opponents
have successfully established the fact that father Miguel Mamuyac had executed in 1920 another
will. The same Narcisa Gago, the sister of the deceased, who was living in the house with him, when
cross-examined by attorney for the opponents, testified that the original Exhibit A could not be found.
For the foregoing consideration and for the reason that the original of Exhibit A has been cancelled
by the deceased father Miguel Mamuyac, the court disallows the probate of Exhibit A for the
applicant." From that order the petitioner appealed.

The appellant contends that the lower court committed an error in not finding from the evidence that
the will in question had been executed with all the formalities required by the law; that the same had
been revoked and cancelled in 1920 before his death; that the said will was a mere carbon copy and
that the oppositors were not estopped from alleging that fact.

With reference to the said cancellation, it may be stated that there is positive proof, not denied,
which was accepted by the lower court, that will in question had been cancelled in 1920. The law
does not require any evidence of the revocation or cancellation of a will to be preserved. It therefore
becomes difficult at times to prove the revocation or cancellation of wills. The fact that such
cancellation or revocation has taken place must either remain unproved of be inferred from evidence
showing that after due search the original will cannot be found. Where a will which cannot be found
is shown to have been in the possession of the testator, when last seen, the presumption is, in the
absence of other competent evidence, that the same was cancelled or destroyed. The same
presumption arises where it is shown that the testator had ready access to the will and it cannot be

found after his death. It will not be presumed that such will has been destroyed by any other person
without the knowledge or authority of the testator. The force of the presumption of cancellation or
revocation by the testator, while varying greatly, being weak or strong according to the
circumstances, is never conclusive, but may be overcome by proof that the will was not destroyed by
the testator with intent to revoke it.

In view of the fat that the original will of 1919 could not be found after the death of the testator Miguel
Mamuyac and in view of the positive proof that the same had been cancelled, we are forced to the
conclusion that the conclusions of the lower court are in accordance with the weight of the evidence.
In a proceeding to probate a will the burden of proofs is upon the proponent clearly to establish not
only its execution but its existence. Having proved its execution by the proponents, the burden is on
the contestant to show that it has been revoked. In a great majority of instances in which wills are
destroyed for the purpose of revoking them there is no witness to the act of cancellation or
destruction and all evidence of its cancellation perishes with the testator. Copies of wills should be
admitted by the courts with great caution. When it is proven, however, by proper testimony that a will
was executed in duplicate and each copy was executed with all the formalities and requirements of
the law, then the duplicate may be admitted in evidence when it is made to appear that the original
has been lost and was not cancelled or destroyed by the testator. (Borromeo vs. Casquijo, G.R. No.
26063.)[[1]]

After a careful examination of the entire record, we are fully persuaded that the will presented for
probate had been cancelled by the testator in 1920. Therefore the judgment appealed from is hereby
affirmed. And without any finding as to costs, it is so ordered.

G.R. No. L-56340

June 24, 1983

SPOUSES ALVARO PASTOR, JR. and MA. ELENA ACHAVAL DE PASTOR, petitioners,
vs.
THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF BRANCH I, COURT OF FIRST
INSTANCE OF CEBU and LEWELLYN BARLITO QUEMADA, respondents.

Pelaez, Pelaez, & Pelaez Law Office for petitioners.

Ceniza, Rama & Associates for private respondents.

PLANA, J.:

I.

FACTS:

This is a case of hereditary succession.

Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in Cebu City on June 5, 1966, survived
by his Spanish wife Sofia Bossio (who also died on October 21, 1966), their two legitimate children
Alvaro Pastor, Jr. (PASTOR, JR.) and Sofia Pastor de Midgely (SOFIA), and an illegitimate child, not
natural, by the name of Lewellyn Barlito Quemada QUEMADA PASTOR, JR. is a Philippine citizen,
having been naturalized in 1936. SOFIA is a Spanish subject. QUEMADA is a Filipino by his
mother's citizenship.

On November 13, 1970, QUEMADA filed a petition for the probate and allowance of an alleged
holographic will of PASTOR, SR. with the Court of First Instance of Cebu, Branch I (PROBATE
COURT), docketed as SP No. 3128-R. The will contained only one testamentary disposition: a
legacy in favor of QUEMADA consisting of 30% of PASTOR, SR.'s 42% share in the operation by
Atlas Consolidated Mining and Development Corporation (ATLAS) of some mining claims in PinaBarot, Cebu.

On November 21, 1970, the PROBATE COURT, upon motion of QUEMADA and after an ex parte
hearing, appointed him special administrator of the entire estate of PASTOR, SR., whether or not
covered or affected by the holographic will. He assumed office as such on December 4, 1970 after
filing a bond of P 5,000.00.

On December 7, 1970, QUEMADA as special administrator, instituted against PASTOR, JR. and his
wife an action for reconveyance of alleged properties of the estate, which included the properties
subject of the legacy and which were in the names of the spouses PASTOR, JR. and his wife, Maria
Elena Achaval de Pastor, who claimed to be the owners thereof in their own rights, and not by
inheritance. The action, docketed as Civil Case No. 274-R, was filed with the Court of First Instance
of Cebu, Branch IX.

On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their opposition to the petition for
probate and the order appointing QUEMADA as special administrator.

On December 5, 1972, the PROBATE COURT issued an order allowing the will to probate. Appealed
to the Court of Appeals in CA-G.R. No. 52961- R, the order was affirmed in a decision dated May 9,
1977. On petition for review, the Supreme Court in G.R. No. L-46645 dismissed the petition in a
minute resolution dated November 1, 1977 and remanded the same to the PROBATE COURT after
denying reconsideration on January 11, 1978.

For two years after remand of the case to the PROBATE COURT, QUEMADA filed pleading after
pleading asking for payment of his legacy and seizure of the properties subject of said legacy.
PASTOR, JR. and SOFIA opposed these pleadings on the ground of pendency of the reconveyance
suit with another branch of the Cebu Court of First Instance. All pleadings remained unacted upon by
the PROBATE COURT.

On March 5, 1980, the PROBATE COURT set the hearing on the intrinsic validity of the will for
March 25, 1980, but upon objection of PASTOR, JR. and SOFIA on the e ground of pendency of the
reconveyance suit, no hearing was held on March 25. Instead, the PROBATE COURT required the
parties to submit their respective position papers as to how much inheritance QUEMADA was
entitled to receive under the wig. Pursuant thereto, PASTOR. JR. and SOFIA submitted their
Memorandum of authorities dated April 10, which in effect showed that determination of how much
QUEMADA should receive was still premature. QUEMADA submitted his Position paper dated April
20, 1980. ATLAS, upon order of the Court, submitted a sworn statement of royalties paid to the
Pastor Group of tsn from June 1966 (when Pastor, Sr. died) to February 1980. The statement
revealed that of the mining claims being operated by ATLAS, 60% pertained to the Pastor Group
distributed as follows:

1.

A. Pastor, Jr. ...................................40.5%

2.

E. Pelaez, Sr. ...................................15.0%

3.

B. Quemada .......................................4.5%

On August 20, 1980, while the reconveyance suit was still being litigated in Branch IX of the Court of
First Instance of Cebu, the PROBATE COURT issued the now assailed Order of Execution and
Garnishment, resolving the question of ownership of the royalties payable by ATLAS and ruling in
effect that the legacy to QUEMADA was not inofficious. [There was absolutely no statement or claim
in the Order that the Probate Order of December 5, 1972 had previously resolved the issue of
ownership of the mining rights of royalties thereon, nor the intrinsic validity of the holographic will.]

The order of August 20, 1980 found that as per the holographic will and a written acknowledgment of
PASTOR, JR. dated June 17, 1962, of the above 60% interest in the mining claims belonging to the
Pastor Group, 42% belonged to PASTOR, SR. and only 33% belonged to PASTOR, JR. The
remaining 25% belonged to E. Pelaez, also of the Pastor Group. The PROBATE COURT thus
directed ATLAS to remit directly to QUEMADA the 42% royalties due decedent's estate, of which
QUEMADA was authorized to retain 75% for himself as legatee and to deposit 25% with a reputable
banking institution for payment of the estate taxes and other obligations of the estate. The 33%
share of PASTOR, JR. and/or his assignees was ordered garnished to answer for the accumulated
legacy of QUEMADA from the time of PASTOR, SR.'s death, which amounted to over two million
pesos.

The order being "immediately executory", QUEMADA succeeded in obtaining a Writ of Execution
and Garnishment on September 4, 1980, and in serving the same on ATLAS on the same day.
Notified of the Order on September 6, 1980, the oppositors sought reconsideration thereof on the
same date primarily on the ground that the PROBATE COURT gravely abused its discretion when it
resolved the question of ownership of the royalties and ordered the payment of QUEMADA's legacy
after prematurely passing upon the intrinsic validity of the will. In the meantime, the PROBATE
COURT ordered suspension of payment of all royalties due PASTOR, JR. and/or his assignees until
after resolution of oppositors' motion for reconsideration.

Before the Motion for Reconsideration could be resolved, however, PASTOR, JR., this time joined by
his wife Ma. ELENA ACHAVAL DE PASTOR, filed with the Court of Appeals a Petition for certiorari
and Prohibition with a prayer for writ of preliminary injunction (CA-G.R. No. SP- 11373-R). They

assailed the Order dated August 20, 1980 and the writ of execution and garnishment issued
pursuant thereto. The petition was denied on November 18, 1980 on the grounds (1) that its filing
was premature because the Motion for Reconsideration of the questioned Order was still pending
determination by the PROBATE COURT; and (2) that although "the rule that a motion for
reconsideration is prerequisite for an action for certiorari is never an absolute rule," the Order
assailed is "legally valid. "

On December 9, 1980, PASTOR, JR. and his wife moved for reconsideration of the Court of Appeal's
decision of November 18, 1980, calling the attention of the appellate court to another order of the
Probate Court dated November 11, 1980 (i.e., while their petition for certiorari was pending decision
in the appellate court), by which the oppositors' motion for reconsideration of the Probate Court's
Order of August 20, 1980 was denied. [The November 11 Order declared that the questions of
intrinsic validity of the will and of ownership over the mining claims (not the royalties alone) had been
finally adjudicated by the final and executory Order of December 5, 1972, as affirmed by the Court of
Appeals and the Supreme Court, thereby rendering moot and academic the suit for reconveyance
then pending in the Court of First Instance of Cebu, Branch IX. It clarified that only the 33% share of
PASTOR, JR. in the royalties (less than 7.5% share which he had assigned to QUEMADA before
PASTOR, SR. died) was to be garnished and that as regards PASTOR, SR.'s 42% share, what was
ordered was just the transfer of its possession to the custody of the PROBATE COURT through the
special administrator. Further, the Order granted QUEMADA 6% interest on his unpaid legacy from
August 1980 until fully paid.] Nonetheless, the Court of Appeals denied reconsideration.

Hence, this Petition for Review by certiorari with prayer for a writ of pre y injunction, assailing the
decision of the Court of Appeals dated November 18, 1980 as well as the orders of the Probate
Court dated August 20, 1980, November 11, 1980 and December 17, 1980, Med by petitioners on
March 26, 1981, followed by a Supplemental Petition with Urgent Prayer for Restraining Order.

In April 1981, the Court (First Division) issued a writ of preliminary injunction, the lifting of which was
denied in the Resolution of the same Division dated October 18, 1982, although the bond of
petitioners was increased from P50,000.00 to P100,000.00.

Between December 21, 1981 and October 12, 1982, private respondent filed seven successive
motions for early resolution. Five of these motions expressly prayed for the resolution of the question
as to whether or not the petition should be given due course.

On October 18, 1982, the Court (First Division) adopted a resolution stating that "the petition in fact
and in effect was given due course when this case was heard on the merits on September 7, (should
be October 21, 1981) and concise memoranda in amplification of their oral arguments on the merits
of the case were filed by the parties pursuant to the resolution of October 21, 1981 . . . " and denied
in a resolution dated December 13, 1982, private respondent's "Omnibus motion to set aside
resolution dated October 18, 1982 and to submit the matter of due course to the present
membership of the Division; and to reassign the case to another ponente."

Upon Motion for Reconsideration of the October 18, 1982 and December 13, 1982 Resolutions, the
Court en banc resolved to CONFIRM the questioned resolutions insofar as hey resolved that the
petition in fact and in effect had been given due course.

II.

ISSUES:

Assailed by the petitioners in these proceedings is the validity of the Order of execution and
garnishment dated August 20, 1980 as well as the Orders subsequently issued allegedly to
implement the Probate Order of December 5, 1972, to wit: the Order of November 11, 1980
declaring that the Probate Order of 1972 indeed resolved the issues of ownership and intrinsic
validity of the will, and reiterating the Order of Execution dated August 20, 1980; and the Order of
December 17, 1980 reducing to P2,251,516.74 the amount payable to QUEMADA representing the
royalties he should have received from the death of PASTOR, SR. in 1966 up to February 1980.

The Probate Order itself, insofar as it merely allowed the holographic will in probate, is not
questioned. But petitioners denounce the Probate Court for having acted beyond its jurisdiction or
with grave abuse of discretion when it issued the assailed Orders. Their argument runs this way:
Before the provisions of the holographic win can be implemented, the questions of ownership of the
mining properties and the intrinsic validity of the holographic will must first be resolved with finality.
Now, contrary to the position taken by the Probate Court in 1980 i.e., almost eight years after the
probate of the will in 1972 the Probate Order did not resolve the two said issues. Therefore, the
Probate Order could not have resolved and actually did not decide QUEMADA's entitlement to the
legacy. This being so, the Orders for the payment of the legacy in alleged implementation of the
Probate Order of 1972 are unwarranted for lack of basis.

Closely related to the foregoing is the issue raised by QUEMADA The Probate Order of 1972 having
become final and executory, how can its implementation (payment of legacy) be restrained? Of

course, the question assumes that QUEMADA's entitlement to the legacy was finally adjudged in the
Probate Order.

On the merits, therefore, the basic issue is whether the Probate Order of December 5, 1972 resolved
with finality the questions of ownership and intrinsic validity. A negative finding will necessarily render
moot and academic the other issues raised by the parties, such as the jurisdiction of the Probate
Court to conclusively resolve title to property, and the constitutionality and repercussions of a ruling
that the mining properties in dispute, although in the name of PASTOR, JR. and his wife, really
belonged to the decedent despite the latter's constitutional disqualification as an alien.

On the procedural aspect, placed in issue is the propriety of certiorari as a means to assail the
validity of the order of execution and the implementing writ.

III.

DISCUSSION:

1.

Issue of Ownership

(a)
In a special proceeding for the probate of a will, the issue by and large is restricted to the
extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely executed the will in
accordance with the formalities prescribed by law. (Rules of Court, Rule 75, Section 1; Rule 76,
Section 9.) As a rule, the question of ownership is an extraneous matter which the Probate Court
cannot resolve with finality. Thus, for the purpose of determining whether a certain property should or
should not be included in the inventory of estate properties, the Probate Court may pass upon the
title thereto, but such determination is provisional, not conclusive, and is subject to the final decision
in a separate action to resolve title. [3 Moran, Comments on the Rules of Court (1980 ed.), p. 458;
Valero Vda. de Rodriguez vs. Court of Appeals, 91 SCRA 540.]

(b)
The rule is that execution of a judgment must conform to that decreed in the dispositive part
of the decision. (Philippine-American Insurance Co. vs. Honorable Flores, 97 SCRA 811.) However,
in case of ambiguity or uncertainty, the body of the decision may be scanned for guidance in
construing the judgment. (Heirs of Presto vs. Galang, 78 SCRA 534; Fabular vs. Court of Appeals,
119 SCRA 329; Robles vs. Timario. 107 Phil. 809.)

The Order sought to be executed by the assailed Order of execution is the Probate Order of
December 5, 1972 which allegedly resolved the question of ownership of the disputed mining
properties. The said Probate Order enumerated the issues before the Probate Court, thus:

Unmistakably, there are three aspects in these proceedings: (1) the probate of the holographic will
(2) the intestate estate aspect; and (3) the administration proceedings for the purported estate of the
decedent in the Philippines.

In its broad and total perspective the whole proceedings are being impugned by the oppositors on
jurisdictional grounds, i.e., that the fact of the decedent's residence and existence of properties in the
Philippines have not been established.

Specifically placed in issue with respect to the probate proceedings are: (a) whether or not the
holographic will (Exhibit "J") has lost its efficacy as the last will and testament upon the death of
Alvaro Pastor, Sr. on June 5, 1966, in Cebu City, Philippines; (b) Whether or not the said will has
been executed with all the formalities required by law; and (c) Did the late presentation of the
holographic will affect the validity of the same?

Issues In the Administration Proceedings are as follows: (1) Was the ex- parte appointment of the
petitioner as special administrator valid and proper? (2) Is there any indispensable necessity for the
estate of the decedent to be placed under administration? (3) Whether or not petition is qualified to
be a special administrator of the estate; and (4) Whether or not the properties listed in the inventory
(submitted by the special administrator but not approved by the Probate Court) are to be excluded.

Then came what purports to be the dispositive portion:

Upon the foregoing premises, this Court rules on and resolves some of the problems and issues
presented in these proceedings, as follows:

(a)
The Court has acquired jurisdiction over the probate proceedings as it hereby allows and
approves the so-called holographic will of testator Alvaro Pastor, Sr., executed on July 31, 1961 with
respect to its extrinsic validity, the same having been duly authenticated pursuant to the requisites or

solemnities prescribed by law. Let, therefore, a certificate of its allowance be prepared by the Branch
Clerk of this Court to be signed by this Presiding Judge, and attested by the seal of the Court, and
thereafter attached to the will, and the will and certificate filed and recorded by the clerk. Let attested
copies of the will and of the certificate of allowance thereof be sent to Atlas Consolidated Mining &
Development Corporation, Goodrich Bldg., Cebu City, and the Register of Deeds of Cebu or of
Toledo City, as the case may be, for recording.

(b)
There was a delay in the granting of the letters testamentary or of administration for as a
matter of fact, no regular executor and/or administrator has been appointed up to this time and - the
appointment of a special administrator was, and still is, justified under the circumstances to take
possession and charge of the estate of the deceased in the Philippines (particularly in Cebu) until
the problems causing the delay are decided and the regular executor and/or administrator
appointed.

(c)
There is a necessity and propriety of a special administrator and later on an executor and/or
administrator in these proceedings, in spite of this Court's declaration that the oppositors are the
forced heirs and the petitioner is merely vested with the character of a voluntary heir to the extent of
the bounty given to him (under) the will insofar as the same will not prejudice the legitimes of the
oppositor for the following reasons:

1.

To submit a complete inventory of the estate of the decedent-testator Alvaro Pastor, Sr.

2.

To administer and to continue to put to prolific utilization of the properties of the decedent;

3.
To keep and maintain the houses and other structures and belonging to the estate, since the
forced heirs are residing in Spain, and prepare them for delivery to the heirs in good order after
partition and when directed by the Court, but only after the payment of estate and inheritance taxes;

(d)
Subject to the outcome of the suit for reconveyance of ownership and possession of real and
personal properties in Civil Case No. 274-T before Branch IX of the Court of First Instance of Cebu,
the intestate estate administration aspect must proceed, unless, however, it is duly proven by the
oppositors that debts of the decedent have already been paid, that there had been an extrajudicial
partition or summary one between the forced heirs, that the legacy to be given and delivered to the
petitioner does not exceed the free portion of the estate of the testator, that the respective shares of

the forced heirs have been fairly apportioned, distributed and delivered to the two forced heirs of
Alvaro Pastor, Sr., after deducting the property willed to the petitioner, and the estate and inheritance
taxes have already been paid to the Government thru the Bureau of Internal Revenue.

The suitability and propriety of allowing petitioner to remain as special administrator or administrator
of the other properties of the estate of the decedent, which properties are not directly or indirectly
affected by the provisions of the holographic will (such as bank deposits, land in Mactan etc.), will be
resolved in another order as separate incident, considering that this order should have been properly
issued solely as a resolution on the issue of whether or not to allow and approve the aforestated will.
(Emphasis supplied.)

Nowhere in the dispositive portion is there a declaration of ownership of specific properties. On the
contrary, it is manifest therein that ownership was not resolved. For it confined itself to the question
of extrinsic validity of the win, and the need for and propriety of appointing a special administrator.
Thus it allowed and approved the holographic win "with respect to its extrinsic validity, the same
having been duly authenticated pursuant to the requisites or solemnities prescribed by law." It
declared that the intestate estate administration aspect must proceed " subject to the outcome of the
suit for reconveyance of ownership and possession of real and personal properties in Civil Case
274-T before Branch IX of the CFI of Cebu." [Parenthetically, although the statement refers only to
the "intestate" aspect, it defies understanding how ownership by the estate of some properties could
be deemed finally resolved for purposes of testate administration, but not so for intestate purposes.
Can the estate be the owner of a property for testate but not for intestate purposes?] Then again, the
Probate Order (while indeed it does not direct the implementation of the legacy) conditionally stated
that the intestate administration aspect must proceed "unless . . . it is proven . . . that the legacy to
be given and delivered to the petitioner does not exceed the free portion of the estate of the
testator," which clearly implies that the issue of impairment of legitime (an aspect of intrinsic validity)
was in fact not resolved. Finally, the Probate Order did not rule on the propriety of allowing
QUEMADA to remain as special administrator of estate properties not covered by the holographic
will, "considering that this (Probate) Order should have been properly issued solely as a resolution
on the issue of whether or not to allow and approve the aforestated will. "

(c)
That the Probate Order did not resolve the question of ownership of the properties listed in
the estate inventory was appropriate, considering that the issue of ownership was the very subject of
controversy in the reconveyance suit that was still pending in Branch IX of the Court of First Instance
of Cebu.

(d)
What, therefore, the Court of Appeals and, in effect, the Supreme Court affirmed en toto
when they reviewed the Probable Order were only the matters properly adjudged in the said Order.

(e)
In an attempt to justify the issuance of the Order of execution dated August 20, 1980, the
Probate Court in its Order of November 11, 1980 explained that the basis for its conclusion that the
question of ownership had been formally resolved by the Probate Order of 1972 are the findings in
the latter Order that (1) during the lifetime of the decedent, he was receiving royalties from ATLAS;
(2) he had resided in the Philippines since pre-war days and was engaged in the mine prospecting
business since 1937 particularly in the City of Toledo; and (3) PASTOR, JR. was only acting as
dummy for his father because the latter was a Spaniard.

Based on the premises laid, the conclusion is obviously far-fetched.

(f)
It was, therefore, error for the assailed implementing Orders to conclude that the Probate
Order adjudged with finality the question of ownership of the mining properties and royalties, and
that, premised on this conclusion, the dispositive portion of the said Probate Order directed the
special administrator to pay the legacy in dispute.

2.

Issue of Intrinsic Validity of the Holographic Will -

(a)
When PASTOR, SR. died in 1966, he was survived by his wife, aside from his two legitimate
children and one illegitimate son. There is therefore a need to liquidate the conjugal partnership and
set apart the share of PASTOR, SR.'s wife in the conjugal partnership preparatory to the
administration and liquidation of the estate of PASTOR, SR. which will include, among others, the
determination of the extent of the statutory usufructuary right of his wife until her death. * When the
disputed Probate order was issued on December 5, 1972, there had been no liquidation of the
community properties of PASTOR, SR. and his wife.

(b)
So, also, as of the same date, there had been no prior definitive determination of the assets
of the estate of PASTOR, SR. There was an inventory of his properties presumably prepared by the
special administrator, but it does not appear that it was ever the subject of a hearing or that it was
judicially approved. The reconveyance or recovery of properties allegedly owned but not in the name
of PASTOR, SR. was still being litigated in another court.

(c)
There was no appropriate determination, much less payment, of the debts of the decedent
and his estate. Indeed, it was only in the Probate Order of December 5, 1972 where the Probate
Court ordered that-

... a notice be issued and published pursuant to the provisions of Rule 86 of the Rules of Court,
requiring all persons having money claims against the decedent to file them in the office of the
Branch Clerk of this Court."

(d)
Nor had the estate tax been determined and paid, or at least provided for, as of December 5,
1972.

(e)
The net assets of the estate not having been determined, the legitime of the forced heirs in
concrete figures could not be ascertained.

(f)
All the foregoing deficiencies considered, it was not possible to determine whether the
legacy of QUEMADA - a fixed share in a specific property rather than an aliquot part of the entire net
estate of the deceased - would produce an impairment of the legitime of the compulsory heirs.

(g)
Finally, there actually was no determination of the intrinsic validity of the will in other
respects. It was obviously for this reason that as late as March 5, 1980 - more than 7 years after the
Probate Order was issued the Probate Court scheduled on March 25, 1980 a hearing on the intrinsic
validity of the will.

3.

Propriety of certiorari

Private respondent challenges the propriety of certiorari as a means to assail the validity of the
disputed Order of execution. He contends that the error, if any, is one of judgment, not jurisdiction,
and properly correctible only by appeal, not certiorari.

Under the circumstances of the case at bar, the challenge must be rejected. Grave abuse of
discretion amounting to lack of jurisdiction is much too evident in the actuations of the probate court
to be overlooked or condoned.

(a)
Without a final, authoritative adjudication of the issue as to what properties compose the
estate of PASTOR, SR. in the face of conflicting claims made by heirs and a non-heir (MA. ELENA
ACHAVAL DE PASTOR) involving properties not in the name of the decedent, and in the absence of
a resolution on the intrinsic validity of the will here in question, there was no basis for the Probate
Court to hold in its Probate Order of 1972, which it did not, that private respondent is entitled to the
payment of the questioned legacy. Therefore, the Order of Execution of August 20, 1980 and the
subsequent implementing orders for the payment of QUEMADA's legacy, in alleged implementation
of the dispositive part of the Probate Order of December 5, 1972, must fall for lack of basis.

(b)
The ordered payment of legacy would be violative of the rule requiring prior liquidation of the
estate of the deceased, i.e., the determination of the assets of the estate and payment of all debts
and expenses, before apportionment and distribution of the residue among the heirs and legatees.
(Bernardo vs. Court of Appeals, 7 SCRA 367.)

(c)
Neither has the estate tax been paid on the estate of PASTOR, SR. Payment therefore of the
legacy to QUEMADA would collide with the provision of the National Internal Revenue Code
requiring payment of estate tax before delivery to any beneficiary of his distributive share of the
estate (Section 107 [c])

(d)
The assailed order of execution was unauthorized, having been issued purportedly under
Rule 88, Section 6 of the Rules of Court which reads:

Sec. 6. Court to fix contributive shares where devisees, legatees, or heirs have been in possession.
Where devisees, legatees, or heirs have entered into possession of portions of the estate before
the debts and expenses have been settled and paid and have become liable to contribute for the
payment of such debts and expenses, the court having jurisdiction of the estate may, by order for
that purpose, after hearing, settle the amount of their several liabilities, and order how much and in
what manner each person shall contribute, and may issue execution as circumstances require.

The above provision clearly authorizes execution to enforce payment of debts of estate. A legacy is
not a debt of the estate; indeed, legatees are among those against whom execution is authorized to
be issued.

... there is merit in the petitioners' contention that the probate court generally cannot issue a writ of
execution. It is not supposed to issue a writ of execution because its orders usually refer to the
adjudication of claims against the estate which the executor or administrator may satisfy without the
necessity of resorting to a writ of execution. The probate court, as such, does not render any
judgment enforceable by execution.

The circumstances that the Rules of Court expressly specifies that the probate court may issue
execution (a) to satisfy (debts of the estate out of) the contributive shares of devisees, legatees and
heirs in possession of the decedent's assets (Sec. 6. Rule 88), (b) to enforce payment of the
expenses of partition (Sec. 3, Rule 90), and (c) to satisfy the costs when a person is cited for
examination in probate proceedings (Sec. 13, Rule 142) may mean, under the rule of inclusion unius
est exclusion alterius, that those are the only instances when it can issue a writ of execution. (Vda.
de Valera vs. Ofilada, 59 SCRA 96, 108.)

(d)
It is within a court's competence to order the execution of a final judgment; but to order the
execution of a final order (which is not even meant to be executed) by reading into it terms that are
not there and in utter disregard of existing rules and law, is manifest grave abuse of discretion
tantamount to lack of jurisdiction. Consequently, the rule that certiorari may not be invoked to defeat
the right of a prevailing party to the execution of a valid and final judgment, is inapplicable. For when
an order of execution is issued with grave abuse of discretion or is at variance with the judgment
sought to be enforced (PVTA vs. Honorable Gonzales, 92 SCRA 172), certiorari will lie to abate the
order of execution.

(e)
Aside from the propriety of resorting to certiorari to assail an order of execution which varies
the terms of the judgment sought to be executed or does not find support in the dispositive part of
the latter, there are circumstances in the instant case which justify the remedy applied for.

Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of PASTOR, JR., is the holder in her own right of
three mining claims which are one of the objects of conflicting claims of ownership. She is not an
heir of PASTOR, SR. and was not a party to the probate proceedings. Therefore, she could not
appeal from the Order of execution issued by the Probate Court. On the other hand, after the
issuance of the execution order, the urgency of the relief she and her co-petitioner husband seek in

the petition for certiorari states against requiring her to go through the cumbersome procedure of
asking for leave to intervene in the probate proceedings to enable her, if leave is granted, to appeal
from the challenged order of execution which has ordered the immediate transfer and/or
garnishment of the royalties derived from mineral properties of which she is the duly registered
owner and/or grantee together with her husband. She could not have intervened before the issuance
of the assailed orders because she had no valid ground to intervene. The matter of ownership over
the properties subject of the execution was then still being litigated in another court in a
reconveyance suit filed by the special administrator of the estate of PASTOR, SR.

Likewise, at the time petitioner PASTOR, JR. Med the petition for certiorari with the Court of Appeals,
appeal was not available to him since his motion for reconsideration of the execution order was still
pending resolution by the Probate Court. But in the face of actual garnishment of their major source
of income, petitioners could no longer wait for the resolution of their motion for reconsideration. They
needed prompt relief from the injurious effects of the execution order. Under the circumstances,
recourse to certiorari was the feasible remedy.

WHEREFORE, the decision of the Court of Appeals in CA G.R. No. SP-11373-R is reversed. The
Order of execution issued by the probate Court dated August 20, 1980, as well as all the Orders
issued subsequent thereto in alleged implementation of the Probate Order dated December 5, 1972,
particularly the Orders dated November 11, 1980 and December 17, 1980, are hereby set aside; and
this case is remanded to the appropriate Regional Trial Court for proper proceedings, subject to the
judgment to be rendered in Civil Case No. 274-R.

SO ORDERED.

December 29, 1943

G.R. No. 48840

ERNESTO M. GUEVARA, petitioner-appellant,
vs.
ROSARIO GUEVARA and her husband PEDRO BUISON, respondent-appellees.

Primacias, Abad, Mencias & Castillo for appellant.

Pedro C. Quinto for appellees.

OZAETA, J.:

Ernesto M. Guevarra and Rosario Guevara, ligitimate son and natural daughter, respectively, of the
deceased Victorino L. Guevara, are litigating here over their inheritance from the latter. The action
was commenced on November 12, 1937, by Rosario Guevara to recover from Ernesto Guevara
what she claims to be her strict ligitime as an acknowledged natural daughter of the deceased to
wit, a portion of 423,492 square meters of a large parcel of land described in original certificate of
title No. 51691 of the province of Pangasinan, issued in the name of Ernesto M. Guervara and to
order the latter to pay her P6,000 plus P2,000 a year as damages for withholding such legitime from
her. The defendant answered the complaint contending that whatever right or rights the plaintiff
might have had, had been barred by the operation of law.

It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit A), apparently with
all the formalities of the law, wherein he made the following bequests: To his stepdaughter Candida
Guevara, a pair of earrings worth P150 and a gold chain worth P40; to his son Ernesto M. Guevara,
a gold ring worth P180 and all the furniture, pictures, statues, and other religious objects found in the
residence of the testator in Poblacion Sur, Bayambang, Pangasinan; "a mi hija Rosario Guevara," a
pair of earrings worth P120; to his stepson Piuo Guevara, a ring worth P120; and to his wife by
second marriage, Angustia Posadas, various pieces of jewelry worth P1,020.

He also made the following devises: "A mis hijos Rosario Guevara y Ernesto M. Guevara y a mis
hijastros, Vivencio, Eduviges, Dionisia, Candida y Pio, apellidados Guevara," a residential lot with its
improvements situate in the town of Bayambang, Pangasinan, having an area of 960 square meters
and assessed at P540; to his wife Angustia Posadas he confirmed the donation propter nuptias
theretofore made by him to her of a portion of 25 hectares of the large parcel of land of 259-odd
hectares described in plan Psu-66618. He also devised to her a portion of 5 hectares of the same
parcel of land by way of complete settlement of her usufructurary right.

He set aside 100 hectares of the same parcel of land to be disposed of either by him during his
lifetime or by his attorney-in-fact Ernesto M. Guevara in order to pay all his pending debts and to
degray his expenses and those of his family us to the time of his death.

The remainder of said parcel of land his disposed of in the following manner:

(d). Toda la porcion restante de mi terreno arriba descrito, de la extension superficial aproximada
de ciento veintinueve (129) hectareas setenta (70) areas, y veiticinco (25) centiares, con todas sus
mejoras existentes en la misma, dejo y distribuyo, pro-indiviso, a mis siguientes herederos como
sigue:

A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas, ocho (8) areas y cincuenta y
cuatro (54) centiareas, hacia la parte que colinda al Oeste de las cien (100) hectareas referidas en
el inciso (a) de este parrafo del testamento, como su propiedad absoluta y exclusiva, en la cual
extension superficial estan incluidas cuarenta y tres (43) hectareas, veintitres (23) areas y cuarenta
y dos (42) centiareas que le doy en concepto de mejora.

A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas, sesenta y un (61) areas y
setenta y un (71) centiareas, que es la parte restante.

Duodecimo. Nombro por la presente como Albacea Testamentario a mi hijo Ernesto M. Guevara,
con relevacion de fianza. Y una vez legalizado este testamento, y en cuanto sea posible, es mi
deseo, que los herederos y legatarios aqui nombrados se repartan extrajudicialmente mis bienes de
conformidad con mis disposiciones arriba consignadas.

Subsequently, and on July 12, 1933, Victorino L. Guevarra executed whereby he conveyed to him
the southern half of the large parcel of land of which he had theretofore disposed by the will above
mentioned, inconsideration of the sum of P1 and other valuable considerations, among which were
the payment of all his debts and obligations amounting to not less than P16,500, his maintenance up
to his death, and the expenses of his last illness and funeral expenses. As to the northern half of the
same parcel of land, he declared: "Hago constar tambien que reconozco a mi referido hijo Ernesto
M. guevara como dueo de la mitad norte de la totalidad y conjunto de los referidos terrenos por
haberlos comprado de su propio peculio del Sr. Rafael T. Puzon a quien habia vendido con
anterioridad."

On September 27, 1933, final decree of registration was issued in land registration case No. 15174
of the Court of First Instance of Pangasinan, and pursuant thereto original certificate of title No.
51691 of the same province was issued on October 12 of the same year in favor of Ernesto M.
Guevara over the whole parcel of land described in the deed of sale above referred to. The
registration proceeding had been commenced on November 1, 1932, by Victorino L. Guevara and
Ernesto M. Guevara as applicants, with Rosario, among others, as oppositor; but before the trial of
the case Victorino L. Guevara withdrew as applicant and Rosario Guevara and her co-oppositors
also withdrew their opposition, thereby facilitating the issuance of the title in the name of Ernesto M.
Guevara alone.

On September 27, 1933, Victorino L. Guevarra died. His last will and testament, however, was never
presented to the court for probate, nor has any administration proceeding ever been instituted for the
settlement of his estate. Whether the various legatees mentioned in the will have received their
respective legacies or have even been given due notice of the execution of said will and of the
dispositions therein made in their favor, does not affirmatively appear from the record of this case.
Ever since the death of Victorino L. Guevara, his only legitimate son Ernesto M. Guevara appears to
have possessed the land adjudicated to him in the registration proceeding and to have disposed of
various portions thereof for the purpose of paying the debts left by his father.

In the meantime Rosario Guevara, who appears to have had her father's last will and testament in
her custody, did nothing judicially to invoke the testamentary dispositions made therein in her favor,
whereby the testator acknowledged her as his natural daughter and, aside from certain legacies and
bequests, devised to her a portion of 21.6171 hectares of the large parcel of land described in the
will. But a little over four years after the testor's demise, she (assisted by her husband) commenced
the present action against Ernesto M. Guevara alone for the purpose hereinbefore indicated; and it
was only during the trial of this case that she presented the will to the court, not for the purpose of
having it probated but only to prove that the deceased Victirino L. Guevara had acknowledged her
as his natural daughter. Upon that proof of acknowledgment she claimed her share of the inheritance
from him, but on the theory or assumption that he died intestate, because the will had not been
probated, for which reason, she asserted, the betterment therein made by the testator in favor of his
legitimate son Ernesto M. Guevara should be disregarded. Both the trial court and the Court of
appeals sustained that theory.

Two principal questions are before us for determination: (1) the legality of the procedure adopted by
the plaintiff (respondent herein) Rosario Guevara; and (2) the efficacy of the deed of sale exhibit 2
and the effect of the certificate of title issued to the defendant (petitioner herein) Ernesto M.
Guevara.

We cannot sanction the procedure adopted by the respondent Rosario Guevara, it being in our
opinion in violation of procedural law and an attempt to circumvent and disregard the last will and
testament of the decedent. The Code of Civil Procedure, which was in force up to the time this case
was decided by the trial court, contains the following pertinent provisions:

Sec. 625. Allowance Necessary, and Conclusive as to Execution. No will shall pass either the real
or personal estate, unless it is proved and allowed in the Court of First Instance, or by appeal to the
Supreme Court; and the allowance by the court of a will of real and personal estate shall be
conclusive as to its due execution.

Sec. 626. Custodian of Will to Deliver. The person who has the custody of a will shall, within thirty
days after he knows of the death of the testator, deliver the will into the court which has jurisdiction,
or to the executor named in the will.

Sec. 627. Executor to Present Will and Accept or Refuse Trust. A person named as executor in a
will, shall within thirty days after he knows of the death of the testor, or within thirty days after he
knows that he is named executor, if he obtained such knowledge after knowing of the death of the
testor, present such will to the court which has jurisdiction, unless the will has been otherwise
returned to said court, and shall, within such period, signify to the court his acceptance of the trust,
or make known in writing his refusal to accept it.

Sec. 628. Penalty. A person who neglects any of the duties required in the two proceeding
sections, unless he gives a satisfactory excuse to the court, shall be subject to a fine not exceeding
one thousand dollars.

Sec. 629. Person Retaining Will may be Committed. If a person having custody of a will after the
death of the testator neglects without reasonable cause to deliver the same to the court having
jurisdiction, after notice by the court so to do, he may be committed to the prison of the province by a
warrant issued by the court, and there kept in close confinement until he delivers the will.

The foregoing provisions are now embodied in Rule 76 of the new Rules of Court, which took effect
on July 1, 1940.

The proceeding for the probate of a will is one in rem, with notice by publication to the whole world
and with personal notice to each of the known heirs, legatees, and devisees of the testator (section
630, C. c. P., and sections 3 and 4, Rule 77). Altho not contested (section 5, Rule 77), the due
execution of the will and the fact that the testator at the time of its execution was of sound and
disposing mind and not acting under duress, menace, and undue influence or fraud, must be proved
to the satisfaction of the court, and only then may the will be legalized and given effect by means of
a certificate of its allowance, signed by the judge and attested by the seal of the court; and when the
will devises real property, attested copies thereof and of the certificate of allowance must be
recorded in the register of deeds of the province in which the land lies. (Section 12, Rule 77, and
section 624, C. C. P.)

It will readily be seen from the above provisions of the law that the presentation of a will to the court
for probate is mandatory and its allowance by the court is essential and indispensable to its efficacy.
To assure and compel the probate of will, the law punishes a person who neglects his duty to
present it to the court with a fine not exceeding P2,000, and if he should persist in not presenting it,
he may be committed to prision and kept there until he delivers the will.

The Court of Appeals took express notice of these requirements of the law and held that a will,
unless probated, is ineffective. Nevertheless it sanctioned the procedure adopted by the respondent
for the following reasons:

The majority of the Court is of the opinion that if this case is dismissed ordering the filing of testate
proceedings, it would cause injustice, incovenience, delay, and much expense to the parties, and
that therefore, it is preferable to leave them in the very status which they themselves have chosen,
and to decide their controversy once and for all, since, in a similar case, the Supreme Court applied
that same criterion (Leao vs. Leao, supra), which is now sanctioned by section 1 of Rule 74 of the
Rules of Court. Besides, section 6 of Rule 124 provides that, if the procedure which the court ought
to follow in the exercise of its jurisdiction is not specifically pointed out by the Rules of Court, any
suitable process or mode of procedure may be adopted which appears most consistent to the spirit
of the said Rules. Hence, we declare the action instituted by the plaintiff to be in accordance with
law.

Let us look into the validity of these considerations. Section 1 of Rule 74 provides as follows:

Section 1. Extrajudicial settlement by agreement between heirs. If the decedent left no debts and
the heirs and legatees are all of age, or the minors are represented by their judicial guardians, the
parties may, without securing letters of administration, divide the estate among themselves as they
see fit by means of a public instrument filed in the office of the register of deeds, and should they
disagree, they may do so in an ordinary action of partition. If there is only one heir or one legatee, he
may adjudicate to himself the entire estate by means of an affidavit filed in the office of the register of
deeds. It shall be presumed that the decedent left no debts if no creditor files a petition for letters of
administration within two years after the death of the decedent.

That is a modification of section 596 of the Code of Civil Procedure, which reads as follows:

Sec. 596. Settlement of Certain Intestates Without Legal Proceedings. Whenever all the heirs of a
person who died intestate are of lawful age and legal capacity and there are no debts due from the
estate, or all the debts have been paid the heirs may, by agreement duly executed in writing by all of
them, and not otherwise, apportion and divide the estate among themselves, as they may see fit,
without proceedings in court.

The implication is that by the omission of the word "intestate" and the use of the word "legatees" in
section 1 of Rule 74, a summary extrajudicial settlement of a deceased person's estate, whether he
died testate or intestate, may be made under the conditions specified. Even if we give retroactive
effect to section 1 of Rule 74 and apply it here, as the Court of Appeals did, we do not believe it
sanctions the nonpresentation of a will for probate and much less the nullification of such will thru the
failure of its custodian to present it to the court for probate; for such a result is precisely what Rule
76 sedulously provides against. Section 1 of Rule 74 merely authorizes the extrajudicial or judicial
partition of the estate of a decedent "without securing letter of administration." It does not say that in
case the decedent left a will the heirs and legatees may divide the estate among themselves without
the necessity of presenting the will to the court for probate. The petition to probate a will and the
petition to issue letters of administration are two different things, altho both may be made in the
same case. the allowance of a will precedes the issuance of letters testamentary or of administration
(section 4, Rule 78). One can have a will probated without necessarily securing letters testamentary
or of administration. We hold that under section 1 of Rule 74, in relation to Rule 76, if the decedent
left a will and no debts and the heirs and legatees desire to make an extrajudicial partition of the
estate, they must first present that will to the court for probate and divide the estate in accordance
with the will. They may not disregard the provisions of the will unless those provisions are contrary to
law. Neither may they so away with the presentation of the will to the court for probate, because
such suppression of the will is contrary to law and public policy. The law enjoins the probate of the
will and public policy requires it, because unless the will is probated and notice thereof given to the
whole world, the right of a person to dispose of his property by will may be rendered nugatory, as is

attempted to be done in the instant case. Absent legatees and devisees, or such of them as may
have no knowledge of the will, could be cheated of their inheritance thru the collusion of some of the
heirs who might agree to the partition of the estate among themselves to the exclusion of others.

In the instant case there is no showing that the various legatees other than the present litigants had
received their respective legacies or that they had knowledge of the existence and of the provisions
of the will. Their right under the will cannot be disregarded, nor may those rights be obliterated on
account of the failure or refusal of the custodian of the will to present it to the court for probate.

Even if the decedent left no debts and nobdy raises any question as to the authenticity and due
execution of the will, none of the heirs may sue for the partition of the estate in accordance with that
will without first securing its allowance or probate by the court, first, because the law expressly
provides that "no will shall pass either real or personal estate unless it is proved and allowed in the
proper court"; and, second, because the probate of a will, which is a proceeding in rem, cannot be
dispensed with the substituted by any other proceeding, judicial or extrajudicial, without offending
against public policy designed to effectuate the testator's right to dispose of his property by will in
accordance with law and to protect the rights of the heirs and legatees under the will thru the means
provided by law, among which are the publication and the personal notices to each and all of said
heirs and legatees. Nor may the court approve and allow the will presented in evidence in such an
action for partition, which is one in personam, any more than it could decree the registration under
the Torrens system of the land involved in an ordinary action for reinvindicacion or partition.

We therefore believe and so hold that section 1 of Rule 74, relied upon by the Court of Appeals,
does not sanction the procedure adopted by the respondent.

The case of Leao vs. Leao (25 Phil., 180), cited by the Court of Appeals, like section 1 of Rule 74,
sanctions the extrajudicial partition by the heirs of the properties left by a decedent, but not the
nonpresentation of a will for probate. In that case one Paulina Ver executed a will on October 11,
1902, and died on November 1, 1902. Her will was presented for probate on November 10, 1902,
and was approved and allowed by the Court on August 16, 1904. In the meantime, and on
November 10, 1902, the heirs went ahead and divided the properties among themselves and some
of them subsequently sold and disposed of their shares to third persons. It does not affirmatively
appear in the decision in that case that the partition made by the heirs was not in accordance with
the will or that they in any way disregarded the will. In closing the case by its order dated September
1, 1911, the trial court validated the partition, and one of the heirs, Cunegunda Leao, appealed. In
deciding the appeal this Court said:

The principal assignment of error is that the lower court committed an error in deciding that the heirs
and legatees of the estate of Da. Paulina Ver had voluntarily divided the estate among themselves.

[G.R. No. 141882. March 11, 2005]

J.L.T. AGRO, INC., represented by its Manager, JULIAN L. TEVES, petitioner, vs. ANTONIO
BALANSAG and HILARIA CADAYDAY, respondents.
DECISION
TINGA, J.:

Once again, the Court is faced with the perennial conflict of property claims between two sets of
heirs, a conflict ironically made grievous by the fact that the decedent in this case had resorted to
great lengths to allocate which properties should go to which set of heirs.

This is a Rule 45 petition assailing the Decision[1] dated 30 September 1999 of the Court of Appeals
which reversed the Decision[2] dated 7 May 1993 of the Regional Trial Court (RTC), Branch 45, of
Bais City, Negros Oriental.

The factual antecedents follow.

Don Julian L. Teves (Don Julian) contracted two marriages, first with Antonia Baena (Antonia), and
after her death, with Milagros Donio Teves (Milagros Donio). Don Julian had two children with
Antonia, namely: Josefa Teves Escao (Josefa) and Emilio Teves (Emilio). He had also four (4)
children with Milagros Donio, namely: Maria Evelyn Donio Teves (Maria Evelyn), Jose Catalino
Donio Teves (Jose Catalino), Milagros Reyes Teves (Milagros Reyes) and Pedro Reyes Teves
(Pedro).[3]

The present controversy involves a parcel of land covering nine hundred and fifty-four (954) square
meters, known as Lot No. 63 of the Bais Cadastre, which was originally registered in the name of the
conjugal partnership of Don Julian and Antonia under Original Certificate of Title (OCT) No. 5203 of
the Registry of Deeds of Bais City. When Antonia died, the land was among the properties involved
in an action for partition and damages docketed as Civil Case No. 3443 entitled Josefa Teves

Escao v. Julian Teves, Emilio B. Teves, et al.[4] Milagros Donio, the second wife of Don Julian,
participated as an intervenor. Thereafter, the parties to the case entered into a Compromise
Agreement[5] which embodied the partition of all the properties of Don Julian.

On the basis of the compromise agreement and approving the same, the Court of First Instance
(CFI) of Negros Oriental, 12th Judicial District, rendered a Decision[6] dated 31 January 1964. The
CFI decision declared a tract of land known as Hacienda Medalla Milagrosa as property owned in
common by Don Julian and his two (2) children of the first marriage. The property was to remain
undivided during the lifetime of Don Julian.[7] Josefa and Emilio likewise were given other properties
at Bais, including the electric plant, the movie property, the commercial areas, and the house
where Don Julian was living. The remainder of the properties was retained by Don Julian, including
Lot No. 63.

Paragraph 13 of the Compromise Agreement, at the heart of the present dispute, lays down the
effect of the eventual death of Don Julian vis--vis his heirs:

13. That in the event of death of Julian L. Teves, the properties hereinafter adjudicated to Josefa
Teves Escao and Emilio B. Teves, (excluding the properties comprised as Hacienda Medalla
Milagrosa together with all its accessories and accessions) shall be understood as including not only
their one-half share which they inherited from their mother but also the legitimes and other
successional rights which would correspond to them of the other half belonging to their father, Julian
L. Teves. In other words, the properties now selected and adjudicated to Julian L. Teves (not
including his share in the Hacienda Medalla Milagrosa) shall exclusively be adjudicated to the wife in
second marriage of Julian L. Teves and his four minor children, namely, Milagros Donio Teves, his
two acknowledged natural children Milagros Reyes Teves and Pedro Reyes Teves and his two
legitimated children Maria Evelyn Donio Teves and Jose Catalino Donio Teves. (Emphasis supplied)

On 16 November 1972, Don Julian, Emilio and Josefa executed a Deed of Assignment of Assets
with Assumption of Liabilities[8] in favor of J.L.T. Agro, Inc. (petitioner). Less than a year later, Don
Julian, Josefa and Emilio also executed an instrument entitled Supplemental to the Deed of
Assignment of Assets with the Assumption of Liabilities (Supplemental Deed)[9] dated 31 July 1973.
This instrument which constitutes a supplement to the earlier deed of assignment transferred
ownership over Lot No. 63, among other properties, in favor of petitioner.[10] On 14 April 1974, Don
Julian died intestate.

On the strength of the Supplemental Deed in its favor, petitioner sought the registration of the
subject lot in its name. A court, so it appeared, issued an order[11] cancelling OCT No. 5203 in the
name of spouses Don Julian and Antonia on 12 November 1979, and on the same date TCT No. T375 was issued in the name of petitioner.[12] Since then, petitioner has been paying taxes assessed
on the subject lot.[13]

Meanwhile, Milagros Donio and her children had immediately taken possession over the subject lot
after the execution of the Compromise Agreement. In 1974, they entered into a yearly lease
agreement with spouses Antonio Balansag and Hilaria Cadayday, respondents herein.[14] On Lot
No. 63, respondents temporarily established their home and constructed a lumber yard.
Subsequently, Milagros Donio and her children executed a Deed of Extrajudicial Partition of Real
Estate[15] dated 18 March 1980. In the deed of partition, Lot No. 63 was allotted to Milagros Donio
and her two (2) children, Maria Evelyn and Jose Catalino. Unaware that the subject lot was already
registered in the name of petitioner in 1979, respondents bought Lot No. 63 from Milagros Donio as
evidenced by the Deed of Absolute Sale of Real Estate[16] dated 9 November 1983.

At the Register of Deeds while trying to register the deed of absolute sale, respondents discovered
that the lot was already titled in the name of petitioner. Thus, they failed to register the deed.[17]

Respondents, as vendees of Lot No. 63, filed a complaint before the RTC Branch 45 of Bais City,
seeking the declaration of nullity and cancellation of TCT No. T-375 in the name of petitioner and the
transfer of the title to Lot No. 63 in their names, plus damages.[18]

After hearing, the trial court dismissed the complaint filed by respondents. The dispositive portion of
the decision reads:

WHEREFORE, premises considered, by preponderance of evidence, this Court finds judgment in

favor of the defendant and against the plaintiff, and thus hereby orders:

(1)

That complaint be dismissed;

(2) That plaintiffs vacate the subject land, particularly identified as Lot No. 63 registered under
Transfer Certificate of Title No. T-375;

(3)

That plaintiffs pay costs.

Finding no basis on the counterclaim by defendant, the same is hereby ordered dismissed.[19]

The trial court ruled that the resolution of the case specifically hinged on the interpretation of
paragraph 13 of the Compromise Agreement.[20] It added that the direct adjudication of the
properties listed in the Compromise Agreement was only in favor of Don Julian and his two children
by the first marriage, Josefa and Emilio.[21] Paragraph 13 served only as an amplification of the
terms of the adjudication in favor of Don Julian and his two children by the first marriage.

According to the trial court, the properties adjudicated in favor of Josefa and Emilio comprised their
shares in the estate of their deceased mother Antonia, as well as their potential share in the estate of
Don Julian upon the latters death. Thus, upon Don Julians death, Josefa and Emilio could not
claim any share in his estate, except their proper share in the Hacienda Medalla Milagrosa which
was adjudicated in favor of Don Julian in the Compromise Agreement. As such, the properties
adjudicated in favor of Don Julian, except Hacienda Medalla Milagrosa, were free from the forced
legitimary rights of Josefa and Emilio, and Don Julian was under no impediment to allocate the
subject lot, among his other properties, to Milagros Donio and her four (4) children.[22]

The trial court further stressed that with the use of the words shall be, the adjudication in favor of
Milagros Donio and her four (4) children was not final and operative, as the lot was still subject to
future disposition by Don Julian during his lifetime.[23] It cited paragraph 14[24] of the Compromise
Agreement in support of his conclusion.[25] With Lot No. 63 being the conjugal property of Don
Julian and Antonia, the trial court also declared that Milagros Donio and her children had no
hereditary rights thereto except as to the conjugal share of Don Julian, which they could claim only
upon the death of the latter.[26]

The trial court ruled that at the time of Don Julians death on 14 April 1974, Lot No. 63 was no longer
a part of his estate since he had earlier assigned it to petitioner on 31 July 1973. Consequently, the
lot could not be a proper subject of extrajudicial partition by Milagros Donio and her children, and not
being the owners they could not have sold it. Had respondents exercised prudence before buying
the subject lot by investigating the registration of the same with the Registry of Deeds, they would
have discovered that five (5) years earlier, OCT No. 5203 had already been cancelled and replaced
by TCT No. T-375 in the name of petitioner, the trial court added.[27]

The Court of Appeals, however, reversed the trial courts decision. The decretal part of the appellate
decision reads:

WHEREFORE, premises considered, the decision appealed from is hereby REVERSED and SET
ASIDE and a new one is entered declaring the Transfer Certificate of Title No. T-375 registered in the
name of J.L.T. Agro, Inc. as null and void.

With costs against defendant J.L.T. Agro, Inc. represented by its Manager, Julian L. Teves.

SO ORDERED.[28]

Per the appellate court, the Compromise Agreement incorporated in CFI decision dated 31 January
1964, particularly paragraph 13 thereof, determined, adjudicated and reserved to Don Julians two
sets of heirs their future legitimes in his estate except as regards his (Don Julians) share in
Hacienda Medalla Milagrosa.[29] The two sets of heirs acquired full ownership and possession of the
properties respectively adjudicated to them in the CFI decision and Don Julian himself could no
longer dispose of the same, including Lot No. 63. The disposition in the CFI decision constitutes res
judicata.[30] Don Julian could have disposed of only his conjugal share in the Hacienda Medalla
Milagrosa.[31]

The appellate court likewise emphasized that nobody in his right judgment would preterit his legal
heirs by simply executing a document like the Supplemental Deed which practically covers all
properties which Don Julian had reserved in favor of his heirs from the second marriage. It also
found out that the blanks reserved for the Book No. and Page No. at the upper right corner of TCT
No. T-375, to identify the exact location where the said title was registered or transferred, were not
filled up, thereby indicating that the TCT is spurious and of dubious origin.[32]

Aggrieved by the appellate courts decision, petitioner elevated it to this Court via a petition for
review on certiorari, raising pure questions of law.

Before this Court, petitioner assigns as errors the following rulings of the appellate court, to wit: (a)
that future legitime can be determined, adjudicated and reserved prior to the death of Don Julian; (b)
that Don Julian had no right to dispose of or assign Lot No. 63 to petitioner because he reserved the
same for his heirs from the second marriage pursuant to the Compromise Agreement; (c) that the
Supplemental Deed was tantamount to a preterition of his heirs from the second marriage; and (d)
that TCT No. T-375 in the name of petitioner is spurious for not containing entries on the Book No.
and Page No.[33]

While most of petitioners legal arguments have merit, the application of the appropriate provisions of
law to the facts borne out by the evidence on record nonetheless warrants the affirmance of the
result reached by the Court of Appeals in favor of respondents.

Being the key adjudicative provision, paragraph 13 of the Compromise Agreement has to be quoted
again:

13. That in the event of death of Julian L. Teves, the properties herein adjudicated to Josefa Teves
Escao and Emilio B. Teves, (excluding the properties comprised as Hacienda Medalla Milagrosa
together with all its accessories and accessions) shall be understood as including not only their onehalf share which they inherited from their mother but also the legitimes and other successional rights
which would correspond to them of the other half belonging to their father, Julian L.Teves. In other
words, the properties now selected and adjudicated to Julian L. Teves (not including his share in the
Hacienda Medalla Milagrosa) shall exclusively be adjudicated to the wife in second marriage of
Julian L. Teves and his four minor children, namely, Milagros Donio Teves, his two acknowledged
natural children Milagros Reyes Teves and Pedro Reyes Teves and his two legitimated children
Maria Evelyn Donio Teves and Jose Catalino Donio Teves. (Emphasis supplied)

With the quoted paragraph as basis, the Court of Appeals ruled that the adjudication in favor of the
heirs of Don Julian from the second marriage became automatically operative upon the approval of
the Compromise Agreement, thereby vesting on them the right to validly dispose of Lot No. 63 in
favor of respondents.

Petitioner argues that the appellate court erred in holding that future legitime can be determined,
adjudicated and reserved prior to the death of Don Julian. The Court agrees. Our declaration in Blas
v. Santos[34] is relevant, where we defined future inheritance as any property or right not in
existence or capable of determination at the time of the contract, that a person may in the future
acquire by succession. Article 1347 of the New Civil Code explicitly provides:

ART. 1347. All things which are not outside the commerce of men, including future things, may be
the object of a contract. All rights which are not intransmissible may also be the object of contracts.

No contract may be entered into upon future inheritance except in cases expressly authorized by
law.

All services which are not contrary to law, morals, good customs, public order or public policy may
likewise be the object of a contract.

Well-entrenched is the rule that all things, even future ones, which are not outside the commerce of
man may be the object of a contract. The exception is that no contract may be entered into with
respect to future inheritance, and the exception to the exception is the partition inter vivos referred to
in Article 1080.[35]

For the inheritance to be considered future, the succession must not have been opened at the time
of the contract.[36] A contract may be classified as a contract upon future inheritance, prohibited
under the second paragraph of Article 1347, where the following requisites concur:

(1)

That the succession has not yet been opened;

(2)

That the object of the contract forms part of the inheritance; and

(3)
That the promissor has, with respect to the object, an expectancy of a right which is purely
hereditary in nature.[37]

The first paragraph of Article 1080, which provides the exception to the exception and therefore
aligns with the general rule on future things, reads:

ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by will, such
partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs.

....

In interpreting this provision, Justice Edgardo Paras advanced the opinion that if the partition is
made by an act inter vivos, no formalities are prescribed by the Article.[38] The partition will of
course be effective only after death. It does not necessarily require the formalities of a will for after all
it is not the partition that is the mode of acquiring ownership. Neither will the formalities of a
donation be required since donation will not be the mode of acquiring the ownership here after
death; since no will has been made it follows that the mode will be succession (intestate
succession). Besides, the partition here is merely the physical determination of the part to be given
to each heir.[39]

The historical antecedent of Article 1080 of the New Civil Code is Article 1056[40] of the old Civil
Code. The only change in the provision is that Article 1080 now permits any person (not a testator,
as under the old law) to partition his estate by act inter vivos. This was intended to abrogate the then
prevailing doctrine that for a testator to partition his estate by an act inter vivos, he must first make a
will with all the formalities provided by law.[41]

Article 1056 of the old Civil Code (now Article 1080) authorizes a testator to partition inter vivos his
property, and distribute them among his heirs, and this partition is neither a donation nor a
testament, but an instrument of a special character, sui generis, which is revocable at any time by

the causante during his lifetime, and does not operate as a conveyance of title until his death. It
derives its binding force on the heirs from the respect due to the will of the owner of the property,
limited only by his creditors and the intangibility of the legitime of the forced heirs.[42]

The partition inter vivos of the properties of Don Julian is undoubtedly valid pursuant to Article 1347.
However, considering that it would become legally operative only upon the death of Don Julian, the
right of his heirs from the second marriage to the properties adjudicated to him under the
compromise agreement was but a mere expectancy. It was a bare hope of succession to the
property of their father. Being the prospect of a future acquisition, the interest by its nature was
inchoate. It had no attribute of property, and the interest to which it related was at the time
nonexistent and might never exist.[43]

Evidently, at the time of the execution of the deed of assignment covering Lot No. 63 in favor of
petitioner, Don Julian remained the owner of the property since ownership over the subject lot would
only pass to his heirs from the second marriage at the time of his death. Thus, as the owner of the
subject lot, Don Julian retained the absolute right to dispose of it during his lifetime. His right cannot
be challenged by Milagros Donio and her children on the ground that it had already been adjudicated
to them by virtue of the compromise agreement.

Emerging as the crucial question in this case is whether Don Julian had validly transferred
ownership of the subject lot during his lifetime. The lower court ruled that he had done so through
the Supplemental Deed. The appellate court disagreed, holding that the Supplemental Deed is not
valid, containing as it does a prohibited preterition of Don Julians heirs from the second marriage.
Petitioner contends that the ruling of the Court of Appeals is erroneous. The contention is wellfounded.

Article 854 provides that the preterition or omission of one, some, or all of the compulsory heirs in
the direct line, whether living at the time of the execution of the will or born after the death of the
testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they
are not inofficious. Manresa defines preterition as the omission of the heir in the will, either by not
naming him at all or, while mentioning him as father, son, etc., by not instituting him as heir without
disinheriting him expressly, nor assigning to him some part of the properties.[44] It is the total
omission of a compulsory heir in the direct line from inheritance.[45] It consists in the silence of the
testator with regard to a compulsory heir, omitting him in the testament, either by not mentioning him
at all, or by not giving him anything in the hereditary property but without expressly disinheriting him,
even if he is mentioned in the will in the latter case.[46] But there is no preterition where the testator
allotted to a descendant a share less than the legitime, since there was no total omission of a forced
heir.[47]

In the case at bar, Don Julian did not execute a will since what he resorted to was a partition inter
vivos of his properties, as evidenced by the court approved Compromise Agreement. Thus, it is

premature if not irrelevant to speak of preterition prior to the death of Don Julian in the absence of a
will depriving a legal heir of his legitime. Besides, there are other properties which the heirs from the
second marriage could inherit from Don Julian upon his death. A couple of provisions in the
Compromise Agreement are indicative of Don Julians desire along this line.[48] Hence, the total
omission from inheritance of Don Julians heirs from the second marriage, a requirement for
preterition to exist, is hardly imaginable as it is unfounded.

Despite the debunking of respondents argument on preterition, still the petition would ultimately rise
or fall on whether there was a valid transfer effected by Don Julian to petitioner. Notably, Don Julian
was also the president and director of petitioner, and his daughter from the first marriage, Josefa,
was the treasurer thereof. There is of course no legal prohibition against such a transfer to a family
corporation. Yet close scrutiny is in order, especially considering that such transfer would remove
Lot No. 63 from the estate from which Milagros and her children could inherit. Both the alleged
transfer deed and the title which necessarily must have emanated from it have to be subjected to
incisive and detailed examination.

Well-settled, of course, is the rule that a certificate of title serves as evidence of an indefeasible title
to the property in favor of the person whose name appears therein.[49] A certificate of title
accumulates in one document a precise and correct statement of the exact status of the fee held by
its owner. The certificate, in the absence of fraud, is the evidence of title and shows exactly the real
interest of its owner.[50]

To successfully assail the juristic value of what a Torrens title establishes, a sufficient and convincing
quantum of evidence on the defect of the title must be adduced to overcome the predisposition in
law in favor of a holder of a Torrens title. Thus, contrary to the appellate courts ruling, the
appearance of a mere thumbmark of Don Julian instead of his signature in the Supplemental Deed
would not affect the validity of petitioners title for this Court has ruled that a thumbmark is a
recognized mode of signature.[51]

The truth, however, is that the replacement of OCT No. 5203 in the name of Julian by T.C.T. No. T375 is marred by a grave irregularity which is also an illegality, as it contravenes the orthodox,
conventional and normal process established by law. And, worse still, the illegality is reflected on the
face of both titles. Where, as in this case, the transferee relies on a voluntary instrument to secure
the issuance of a new title in his name such instrument has to be presented to the Registry of
Deeds. This is evident from Sections 53 and 57 of Presidential Decree (P.D.) No. 1529 or the
Property Registration Decree. The sections read, thus:

SEC. 53. Presentation of owners duplicate upon entry of new certificate. No voluntary instrument
shall be registered by the Register of Deeds unless the owners duplicate certificate is presented
with such instrument, except in cases expressly provided for in this Decree or upon order of the
court, for cause shown. (Emphasis supplied)

....

SEC. 57. Procedure in registration of conveyances. An owner desiring to convey his registered
land in fee simple shall execute and register a deed of conveyance in a form sufficient in law. The
Register of Deeds shall thereafter make out in the registration book a new certificate of title to the
grantee and shall prepare and deliver to him an owners duplicate certificate. The Register of Deeds
shall note upon the original and duplicate certificate the date of transfer, the volume and page of the
registration book in which the new certificate is registered and a reference by number to the last
preceding certificate. The original and the owners duplicate of the grantors certificate shall be
stamped cancelled. The deed of conveyance shall be filed and endorsed with the number and the
place of registration of the certificate of title of the land conveyed. (Emphasis supplied)

As petitioner bases its right to the subject lot on the Supplemental Deed, it should have presented it
to the Register of Deeds to secure the transfer of the title in its name. Apparently, it had not done so.
There is nothing on OCT No. 5203 or on the succeeding TCT No. T-375 either which shows that it
had presented the Supplemental Deed. In fact, there is absolutely no mention of a reference to said
document in the original and transfer certificates of title. It is in this regard that the finding of the
Court of Appeals concerning the absence of entries on the blanks intended for the Book No. and
Page No. gains significant relevance. Indeed, this aspect fortifies the conclusion that the
cancellation of OCT No. 5203 and the consequent issuance of TCT No. T-375 in its place are not
predicated on a valid transaction.

What appears instead on OCT No. 5203 is the following pertinent entry:

Entry No. 1374: Kind: Order: Executed in favor of J.L.T. AGRO, INC.

CONDITIONS: Lost owners duplicate is hereby cancelled, and null and void and a new Certificate
of Title No. 375 is issued per Order of the Court of First Instance on file in this office.

Date of Instrument: November 12, 1979

Date of Inscription: Nov. 12, 1979

(SGD) MANUEL C. MONTESA

4:00 P.M.

Acting Deputy Register of Deeds II

(Emphasis supplied)[52]
What the entry indicates is that the owners duplicate of OCT No. 5203 was lost, a petition for the
reconstitution of the said owners duplicate was filed in court, and the court issued an order for the
reconstitution of the owners duplicate and its replacement with a new one. But if the entry is to be
believed, the court concerned (CFI, according to the entry) issued an order for the issuance of a new
title which is TCT No. T-375 although the original of OCT No. 5203 on file with the Registry of Deeds
had not been lost.

Going by the legal, accepted and normal process, the reconstitution court may order the
reconstitution and replacement of the lost title only, nothing else. Since what was lost is the owners
copy of OCT No. 5203, only that owners copy could be ordered replaced. Thus, the Register of
Deeds exceeded his authority in issuing not just a reconstituted owners copy of the original
certificate of title but a new transfer certificate of title in place of the original certificate of title. But if
the court order, as the entry intimates, directed the issuance of a new transfer certificate of title
even designating the very number of the new transfer certificate of title itselfthe order would be
patently unlawful. A court cannot legally order the cancellation and replacement of the original of the
O.C.T. which has not been lost,[53] as the petition for reconstitution is premised on the loss merely
of the owners duplicate of the OCT

Apparently, petitioner had resorted to the court order as a convenient contrivance to effect the
transfer of title to the subject lot in its name, instead of the Supplemental Deed which should be its
proper course of action. It was so constrained to do because the Supplemental Deed does not
constitute a deed of conveyance of the registered land in fee simple in a form sufficient in law, as
required by Section 57 of P.D. No. 1529.

A plain reading of the pertinent provisions of the Supplemental Deed discloses that the assignment
is not supported by any consideration. The provision reads:

....

WHEREAS, in the Deed of Assignment of Assets with the Assumption of Liabilities executed by
Julian L. Teves, Emilio B. Teves and Josefa T. Escao at Dumaguete City on 16th day of November
1972 and ratified in the City of Dumaguete before Notary Public Lenin Victoriano, and entered in the
latters notarial register as Doc. No. 367; Page No. 17; Book No. V; series of 1972, Julian L. Teves,
Emilio B. Teves and Josefa T. Escao, transferred, conveyed and assigned unto J.L.T. AGRO, INC.,
all its assets and liabilities as reflected in the Balance Sheet of the former as of December 31, 1971.

WHEREAS, on the compromise agreement, as mentioned in the Decision made in the Court of First
Instance of Negros Oriental, 12th Judicial District Branch II, on Dec. 31, 1964 pertaining to Civil
Case No. 3443 the following properties were adjudicated to Don Julian L. Teves. We quote.

From the properties at Bais

Adjudicated to Don Julian L.Teves

....

Lot No. 63, Tax Dec. No. 33, Certificate of Title No. 5203, together with all improvements. Assessed
value - P2,720.00

....

WHEREAS, this Deed of Assignment is executed by the parties herein in order to effect the
registration of the transfer of the above corporation.

NOW, THEREFORE, for and in consideration of the above premises the ASSIGNOR hereby
transfers, conveys, and assigns unto J.L.T. AGRO, INC., the above described parcel of land[s] with a
fair market value of EIGHTY-FOUR THOUSAND PESOS (P84,000.00), Philippine Currency, and
which transfer, conveyance and assignment shall become absolute upon signing.[54] (Emphasis
supplied)

The amount of P84,000.00 adverted to in the dispositive portion of the instrument does not represent
the consideration for the assignment made by Don Julian. Rather, it is a mere statement of the fair
market value of all the nineteen (19) properties enumerated in the instrument, of which Lot No. 63 is
just one, that were transferred by Don Julian in favor of petitioner. Consequently, the testimony[55] of
petitioners accountant that the assignment is supported by consideration cannot prevail over the
clear provision to the contrary in the Supplemental Deed.

The Court of Appeals, on the other hand, apparently considered the 1948 mortgage which is
annotated on the back of the TCT No. T-375 as the consideration for the assignment.[56] However,
the said annotation[57] shows that the mortgage was actually executed in favor of Rehabilitation

Finance Corporation, not of petitioner.[58] Clearly, said mortgage, executed as it was in favor of the
Rehabilitation Finance Corporation and there being no showing that petitioner itself paid off the
mortgate obligation, could not have been the consideration for the assignment to petitioner.

Article 1318 of the New Civil Code enumerates the requisites of a valid contract, namely: (1)
consent of the contracting parties; (2) object certain which is the subject matter of the contract; and
(3) Cause of the obligation which is established.

Thus, Article 1352 declares that contracts without cause, or with unlawful cause produce no effect
whatsoever. Those contracts lack an essential element and they are not only voidable but void or
inexistent pursuant to Article 1409, paragraph (2).[59] The absence of the usual recital of
consideration in a transaction which normally should be supported by a consideration such as the
assignment made by Don Julian of all nineteen (19) lots he still had at the time, coupled with the fact
that the assignee is a corporation of which Don Julian himself was also the President and Director,
forecloses the application of the presumption of existence of consideration established by law.[60]

Neither could the Supplemental Deed validly operate as a donation. Article 749 of the New Civil
Code is clear on the point, thus:

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

The acceptance may be made in the same deed of donation or in a separate public document, but it
shall not take effect unless it is done during the lifetime of the donor.

If the acceptance is made in a separate instrument, the donor shall be notified thereof in an
authentic form, and this step shall be noted in both instruments.

In Sumipat, et al v. Banga, et al.,[61] this Court declared that title to immovable property does not
pass from the donor to the donee by virtue of a deed of donation until and unless it has been
accepted in a public instrument and the donor duly notified thereof. The acceptance may be made in
the very same instrument of donation. If the acceptance does not appear in the same document, it
must be made in another. Where the deed of donation fails to show the acceptance, or where the
formal notice of the acceptance, made in a separate instrument, is either not given to the donor or
else not noted in the deed of donation and in the separate acceptance, the donation is null and void.

In the case at bar, although the Supplemental Deed appears in a public document,[62] the absence
of acceptance by the donee in the same deed or even in a separate document is a glaring violation
of the requirement.

One final note. From the substantive and procedural standpoints, the cardinal objectives to write finis
to a protracted litigation and avoid multiplicity of suits are worth pursuing at all times.[63] Thus, this
Court has ruled that appellate courts have ample authority to rule on specific matters not assigned
as errors or otherwise not raised in an appeal, if these are indispensable or necessary to the just
resolution of the pleaded issues.[64] Specifically, matters not assigned as errors on appeal but
consideration of which are necessary in arriving at a just decision and complete resolution of the
case, or to serve the interest of justice or to avoid dispensing piecemeal justice.[65]

In the instant case, the correct characterization of the Supplemental Deed, i.e., whether it is valid or
void, is unmistakably determinative of the underlying controversy. In other words, the issue of
validity or nullity of the instrument which is at the core of the controversy is interwoven with the
issues adopted by the parties and the rulings of the trial court and the appellate court.[66] Thus, this
Court is also resolute in striking down the alleged deed in this case, especially as it appears on its
face to be a blatant nullity.

WHEREFORE, foregoing premises considered, the Decision dated 30 September 1999 of the Court
of Appeals is hereby AFFIRMED. Costs against petitioner J.L.T. Agro, Inc.

SO ORDERED.

G.R. No. L-22595

November 1, 1927

Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-appellee,

vs.
ANDRE BRIMO, opponent-appellant.

Ross, Lawrence and Selph for appellant.

Camus and Delgado for appellee.

ROMUALDEZ, J.:

The partition of the estate left by the deceased Joseph G. Brimo is in question in this case.

The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the brothers
of the deceased, opposed it. The court, however, approved it.

The errors which the oppositor-appellant assigns are:

(1) The approval of said scheme of partition; (2) denial of his participation in the inheritance; (3) the
denial of the motion for reconsideration of the order approving the partition; (4) the approval of the
purchase made by the Pietro Lana of the deceased's business and the deed of transfer of said
business; and (5) the declaration that the Turkish laws are impertinent to this cause, and the failure
not to postpone the approval of the scheme of partition and the delivery of the deceased's business
to Pietro Lanza until the receipt of the depositions requested in reference to the Turkish laws.

The appellant's opposition is based on the fact that the partition in question puts into effect the
provisions of Joseph G. Brimo's will which are not in accordance with the laws of his Turkish
nationality, for which reason they are void as being in violation or article 10 of the Civil Code which,
among other things, provides the following:

Nevertheless, legal and testamentary successions, in respect to the order of succession as well as
to the amount of the successional rights and the intrinsic validity of their provisions, shall be
regulated by the national law of the person whose succession is in question, whatever may be the
nature of the property or the country in which it may be situated.

But the fact is that the oppositor did not prove that said testimentary dispositions are not in
accordance with the Turkish laws, inasmuch as he did not present any evidence showing what the

Turkish laws are on the matter, and in the absence of evidence on such laws, they are presumed to
be the same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.)

It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it
when he desires to be given an opportunity to present evidence on this point; so much so that he
assigns as an error of the court in not having deferred the approval of the scheme of partition until
the receipt of certain testimony requested regarding the Turkish laws on the matter.

The refusal to give the oppositor another opportunity to prove such laws does not constitute an error.
It is discretionary with the trial court, and, taking into consideration that the oppositor was granted
ample opportunity to introduce competent evidence, we find no abuse of discretion on the part of the
court in this particular. There is, therefore, no evidence in the record that the national law of the
testator Joseph G. Brimo was violated in the testamentary dispositions in question which, not being
contrary to our laws in force, must be complied with and executed. lawphil.net

Therefore, the approval of the scheme of partition in this respect was not erroneous.

In regard to the first assignment of error which deals with the exclusion of the herein appellant as a
legatee, inasmuch as he is one of the persons designated as such in will, it must be taken into
consideration that such exclusion is based on the last part of the second clause of the will, which
says:

Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship having been
conferred upon me by conquest and not by free choice, nor by nationality and, on the other hand,
having resided for a considerable length of time in the Philippine Islands where I succeeded in
acquiring all of the property that I now possess, it is my wish that the distribution of my property and
everything in connection with this, my will, be made and disposed of in accordance with the laws in
force in the Philippine islands, requesting all of my relatives to respect this wish, otherwise, I annul
and cancel beforehand whatever disposition found in this will favorable to the person or persons who
fail to comply with this request.

The institution of legatees in this will is conditional, and the condition is that the instituted legatees
must respect the testator's will to distribute his property, not in accordance with the laws of his
nationality, but in accordance with the laws of the Philippines.

If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the
herein oppositor who, by his attitude in these proceedings has not respected the will of the testator,
as expressed, is prevented from receiving his legacy.

The fact is, however, that the said condition is void, being contrary to law, for article 792 of the civil
Code provides the following:

Impossible conditions and those contrary to law or good morals shall be considered as not imposed
and shall not prejudice the heir or legatee in any manner whatsoever, even should the testator
otherwise provide.

And said condition is contrary to law because it expressly ignores the testator's national law when,
according to article 10 of the civil Code above quoted, such national law of the testator is the one to
govern his testamentary dispositions.

Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the
institution of legatees in said will is unconditional and consequently valid and effective even as to the
herein oppositor.

It results from all this that the second clause of the will regarding the law which shall govern it, and to
the condition imposed upon the legatees, is null and void, being contrary to law.

All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and
effective it not appearing that said clauses are contrary to the testator's national law.

Therefore, the orders appealed from are modified and it is directed that the distribution of this estate
be made in such a manner as to include the herein appellant Andre Brimo as one of the legatees,
and the scheme of partition submitted by the judicial administrator is approved in all other respects,
without any pronouncement as to costs.

So ordered.
G.R. No. 149017

November 28, 2008

VALENTE RAYMUNDO,petitioner,
vs.
TEOFISTA ISAGON VDA. DE SUAREZ, DANILO I. SUAREZ, EUFROCINA SUAREZ, MARCELO I.
SUAREZ, JR, EVELYN SUAREZ, ET AL., respondents.

DECISION

NACHURA, J.:

This petition, filed under Rule 65 of the Rules of Court, assails the Court of Appeals (CA) Decision1
and Resolution2 in CA-G.R. SP No. 58090 which reversed, set aside and recalled the Regional Trial
Court (RTC) Orders3 in Civil Case No. 51203.

First, the long settled facts.

Marcelo and Teofista Isagon Suarez'4 marriage was blessed with both material wealth and progeny
in herein respondents, namely, Danilo,5 Eufrocina, Marcelo Jr., Evelyn, and Reggineo,6 all
surnamed Suarez. During their marriage, governed by the conjugal partnership of gains regime, they
acquired numerous properties, which included the following: (1) a parcel of land situated in Barrio
Caniogan, Pasig with an area of 348 square meters covered by Transfer Certificate of Title (TCT)
No. 30680; (2) property located in Pinagbuhatan, Pasig, with an area of 1,020 square meters under
Tax Declaration No. A-016-01003; and (3) Lot Nos. 5, 6 & 7, Block 2 covered by Tax Declaration No.
A-01700723 (subject properties).

After the death of Marcelo Sr. in 1955, Teofista and herein respondents, as well as Elpidio Suarez,7
executed an Extrajudicial Settlement of Estate,8 partitioning Marcelo Sr.'s estate, thus:

WHEREAS, the said deceased is survived by the parties hereto who are his only legal heirs:
TEOFISTA ISAGON, being the surviving spouse, and EUFROCINA S. ANDRES, ELPIDIO SUAREZ,
DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ, being
the legitimate children of the deceased with the said TEOFISTA ISAGON;

WHEREAS, the minors ELPIDIO, SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO
SUAREZ, JR. and REGGINEO SUAREZ are represented herein by EUFROCINA S. ANDRES, in
her capacity as the guardian and legal administrator of the property of the said minors;

WHEREAS, there are no known debts or financial obligations of whatever nature and amount
against the estate of the deceased;

NOW, THEREFORE, in consideration of the foregoing premises, the Parties have agreed to settle
and liquidate the assets of the conjugal partnership between the deceased and TEOFISTA ISAGON,
and to settle and adjudicate the estate of the said deceased, by and pursuance to these presents, in
the following manner, to wit:

1. That TEOFISTA ISAGON, as the surviving spouse and partner of the deceased, shall receive in
absolute and exclusive ownership the following properties as her lawful share in the assets of the
conjugal partnership of gains between her and the deceased, to wit:

(a) Half (1/2) interest and participation in the parcel of land covered by Tax Declaration No. 6938,
situated at Sitio Pantayan, Municipality of Taytay, Province of Rizal;

(b) Half (1/2) interest and participation in the parcel of land covered by Tax Declaration No. 6939,
situated at Sitio Pantayan, Municipality of Taytay, Province of Rizal;

(c) Half (1/2) interest and participation in the parcel of land covered by TCT No. 38291, situated at
Barrio Rosario, Municipality of Pasig, Province of Rizal;

(d) Half (1/2) interest and participation in the parcel of land covered by TCT No. 38290, situated at
Barrio Rosario, Municipality of Pasig, Province of Rizal;

(e) TWELVE THOUSAND FIVE HUNDRED THIRTY PESOS AND NINETY (P12,530.90) deposited
with the Commercial Bank and Trust Company of the Philippines, and THIRTY-NINE PESOS
(P39.00) deposited with Prudential Bank.

2. That the Parties TEOFISTA ISAGON, EUFROCINA S. ANDRES, ELPIDIO SUAREZ, DANILO
SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ, shall each and
all receive and be entitled to a share equivalent to one-seventh (1/7) of the estate of the deceased
MARCELO SUAREZ, which estate is comprised of the following properties, to wit:

(a) A parcel of land covered by TCT No. 30680, situated at Barrio Kaniogan, Municipality of Pasig,
Province of Rizal, with an assessed value of P4,150.00.

(b) Three (3) parcels of land covered by TCT Nos. 33982, 33983 and 33984, situated at Barrio
Pineda, Municipality of Pasig, Province of Rizal, with an assessed value of P560.00.

(c) A parcel of land covered by TCT 33986, situated at Barrio Pineda, Municipality of Pasig, Province
of Rizal, with an assessed value of P440.00.

(d) Two (2) parcels of land, being Lots Nos. 42 and 44 of the amendment-subdivision plan TY-4653Amd., being a portion of Lot 2 described on the original plan II-4653, G.L.R.O. Record No. _____,
situated at Barrio Santolan, Municipality of Pasig, Province of Rizal, with a total assessed value of
P590.00.

(e) Two parcels of land, being Lots Nos. 43 and 45 of the amendment-subdivision plan TY-4653Amd., being a portion of Lot 2 described on the original plan II-4653, G.L.R.O. Record No. _______,
situated at Barrio Santolan, Municipality of Pasig, Province of Rizal, with a total assessed value of
P1,190.00.

(f) A parcel of land, being Lot No. 6, Block 269 of the subdivision plan pos-112, being a portion of Lot
2, Block 348, Psd-3188, G.L.R.O. Record Nos. 375,699 and 917, situated at San Felipe Neri,
Province of Rizal, with an assessed value of P6,340.00.

(g) A parcel of land covered by OCT No. 391, situated in the Municipality of Taytay, Province of Rizal,
with an assessed value of P1,840.00.

(h) TWELVE THOUSAND (12,000) shares of stock of the Consolidated Mines, Inc. represented by
Certificate No. 71-5-B (for 1,000 shares) and Certificate No. 12736 (for 11,000 shares).

PROVIDED, that their title to the properties hereinabove mentioned shall be in common and the
share of each heir being pro indiviso.

Curiously, despite the partition, title to the foregoing properties, explicitly identified in the Extrajudicial
Settlement of Estate as forming part of Marcelo's and Isagon's property regime, remained in the
couple's name. Not surprisingly, Teofista continued to administer and manage these properties. On
the whole, apart from those now owned exclusively by Teofista, all the properties were held pro
indiviso by Teofista and her children; and respective titles thereto were not changed, with Teofista as
de facto administrator thereof.

In 1975, Rizal Realty Corporation (Rizal Realty) and Teofista, the latter owning ninety percent (90%)
of the former's shares of stock, were sued by petitioner Valente Raymundo, his wife Violeta, Virginia
Banta and Maria Concepcion Vito (plaintiffs) in consolidated cases for Rescission of Contract and
Damages, docketed as Civil Case Nos. 21736 to 21739. Thereafter, in 1975, the then Court of First
Instance (CFI) of Rizal, Branch 1, rendered judgment: (1) rescinding the respective contracts of
plaintiffs with Rizal Realty and Teofista, and (2) holding the two defendants solidarily liable to
plaintiffs for damages in the aggregate principal amount of about P70,000.00.9

When the judgment of the CFI became final and executory, herein subject properties were levied
and sold on execution on June 24, 1983 to satisfy the judgment against Teofista and Rizal Realty.
The aforementioned plaintiffs were the highest bidder, and bought the levied properties for the
amount of P94,170.00. As a result, a certificate of sale was issued to them and registered in their
favor on August 1, 1983. On July 31, 1984, the Provincial Sheriff of Rizal issued a final deed of sale
over the subject properties.

Parenthetically, before expiration of the redemption period, or on June 21, 1984, herein respondents
filed a revindicatory action against petitioner Valente, Violeta, Virginia and Maria Concepcion,
docketed as Civil Case No. 51203, for the annulment of the auction sale and recovery of ownership
of the levied properties. Essentially, respondents alleged in their complaint that they cannot be held
liable for the judgment rendered against their mother, Teofista, not having been impleaded therein;
and consequently, the subject properties, which they own pro indiviso with their mother, can neither
be levied nor be sold on execution.

Meanwhile, the RTC, Branch 151, formerly the CFI, Branch 1, in Civil Case Nos. 21376 to 21379,
issued an Order10 directing Teofista: (1) to vacate the subject properties, (2) to desist from
despoiling, dismantling, removing or alienating the improvements thereon, (3) to place petitioner

Valente, Violeta, Virginia and Maria Concepcion in peaceful possession thereof, and (4) to surrender
to them the owner's duplicate copy of the torrens title and other pertinent documents. Herein
respondents, joined by their mother, Teofista, filed a Motion for Reconsideration arguing that the
subject properties are co-owned by them and further informing the RTC of the filing and pendency of
Civil Case No. 51203. Nonetheless, the trial court denied Teofista's and herein respondents' motion,
reiterated its previous order, which included, among others, the order for Teofista and all persons
claiming right under her, to vacate the lots subject of the judicial sale.

Undaunted, Teofista and herein respondents filed a petition for certiorari before the CA to annul the
foregoing orders. The appellate court, on July 6, 1987, dismissed Teofista's and herein respondents'
petition, thus:

We believe this petition cannot prosper for two reasons. First, as purported case for certiorari it fails
to show how the respondent judge had acted without or in excess of jurisdiction or with grave abuse
of discretion. The two orders being assailed were preceded by a final judgment, a corresponding writ
of execution, a levy on execution and a judicial sale, all of which enjoy a strong sense presumption
of regularity.

Secondly, as far as [petitioner] Teofista Suarez is concerned, she cannot complain about the levy
because she was a party in the consolidated cases where judgment was rendered against her in her
personal capacity. Since she did not appeal from the decision, she cannot say that the judgment is
erroneous for an obligation that belong to the corporation. And with respect to the children of Teofista
Suarez, who are co-petitioners in this proceedings [herein respondents], suffice it to point out that
not being parties in the consolidated cases, what they should have done was to immediately file a
third party claim. The moment levy was made on the parcels of land, which they claim are theirs by
virtue of hereditary succession, they should have seasonably filed such claim to protect their rights.
As the record discloses, however, the children chose to remain silent, and even allowed the auction
sale to be held, filing almost a year later a half-hearted complaint to annul the proceedings which
they allowed to be dismissed by not diligently prosecuting it.

In Santos v. Mojica (10 SCRA 318), a partition case with third- party claimants, the Supreme Court
came out with the following ruling: "The procedure (a petition for certiorari) followed by him (a
petitioner not party to the original partition case) in vindicating his right is not the one sanctioned by
law, for he should have filed a separate and independent action making parties therein the sheriff
and the plaintiffs responsible for the execution xxx. It can, therefore, be said that (he) acted
improperly in filing the present petition because his remedy was to file a separate and independent
action to vindicate his ownership over the land.

WHEREFORE, the petition is denied and the restraining order previously issued is DISSOLVED,
with costs against petitioners.11

On the other litigation front concerning Civil Case No. 51203, a writ of preliminary injunction was
issued by the RTC Pasig, Branch 155, on February 25, 1985, enjoining petitioner Valente, Violeta,
Virginia and Maria Concepcion from transferring to third parties the levied properties based on its
preliminary finding that the auctioned properties are co-owned by Teofista and herein respondents.
Subsequently, however, Civil Case No. 51203 was dismissed by the RTC, Branch 155, at the
instance of petitioner Valente for failure of herein respondents to prosecute. But in yet another turn of
events, the RTC, Branch 155, lifted its previous order of dismissal and directed the issuance of alias
summons.

Thus, it was now petitioner Valente's, Violeta's, Virginia's and Maria Concepcion's turn to file a
petition for certiorari with the CA, assailing the various orders of the RTC, Branch 155, which all
rejected their bid to dismiss Civil Case No. 51203. The CA granted their petition, thus:

And the fact that herein private respondents, as the legal heirs of Teofista Vda. de Suarez and
supposedly not parties in Civil Case Nos. 21376 - 21379 does not preclude the application of the
doctrine of res judicata since, apart from the requisites constitutive of this procedural tenet, they
were admittedly the children of Teofista Suarez, who is the real party-in-interest in the previous final
judgment. As successors-in-interest of Teofista Suarez, private respondents merely stepped into the
shoes of their mother in regard to the levied pieces of property. Verily, there is identity of parties, not
only where the parties in both actions are the same, but where there is privity with them as in the
cases of successors-in-interest by title subsequent to the commencement of the action or where
there is substantial identity.

Finally, the action to annul the judicial sale filed by herein private respondents is not the
reinvindicatory suit, much less the third party claim contemplated by Section 17 of Rule 39.

WHEREFORE, the petition for certiorari is hereby granted and the questioned orders dated February
25, 1985, May 19, 1989 and February 26, 1990 issued in Civil Case No. 51203 are hereby annulled;
further respondent judge is ordered to dismiss Civil Case No. 51203.12

From this ruling, herein respondents appealed to the Supreme Court. In Suarez v. Court of
Appeals,13 we reversed the appellate court, thus:

Even without touching on the incidents and issues raised by both petitioner [herein respondents] and
private respondents [petitioner Valente, Violeta, Virginia and Maria Concepcion] and the
developments subsequent to the filing of the complaint, [w]e cannot but notice the glaring error
committed by the trial court.

It would be useless to discuss the procedural issue on the validity of the execution and the manner
of publicly selling en masse the subject properties for auction. To start with, only one-half of the 5
parcels of land [subject properties] should have been the subject of the auction sale.

The law in point is Article 777 of the Civil Code, the law applicable at the time of the institution of the
case:

The rights to the succession are transmitted from the moment of the death of the decedent."

Article 888 further provides:

"The legitime of the legitimate children and descendants consists of one-half of the hereditary estate
of the father and of the mother.

The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of
the surviving spouse as hereinafter provided."

Article 892, par. 2 likewise provides:

"If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to
a portion equal to the legitime of each of the legitimate children or descendants."

Thus, from the foregoing, the legitime of the surviving spouse is equal to the legitime of each child.

The proprietary interest of petitioners [herein respondents] in the levied and auctioned property is
different from and adverse to that of their mother [Teofista]. Petitioners [herein respondents] became
co-owners of the property not because of their mother [Teofista] but through their own right as
children of their deceased father [Marcelo Sr.]. Therefore, petitioners [herein respondents] are not
barred in any way from instituting the action to annul the auction sale to protect their own interest.

WHEREFORE, the decision of the Court of Appeals dated July 27, 1990 as well as its Resolution of
August 28, 1990 are hereby REVERSED and set aside; and Civil Case No. 51203 is reinstated only
to determine that portion which belongs to petitioners and to annul the sale with regard to said
portion.

It was at this point when another series of events transpired, culminating in the present petition.

Upon our reinstatement of Civil Case No. 51203, each and every pleading filed by herein
respondents, as plaintiffs therein, was hotly contested and opposed by therein defendants, including
petitioner Valente. Moreover, even at that stage, when the case had been remanded with a directive
to "determine that portion which belongs to [herein respondents] and to annul the sale with regard to
said portion," Civil Case No. 51203 had to be re-raffled and transferred, for varied reasons, to the
different court branches in Pasig City. In between all these, petitioner Valente, along with the other
defendants, repeatedly filed a Motion to Dismiss Civil Case No. 51203 for the purported failure of
herein respondents to prosecute the case. Most of these Motions to Dismiss were denied.

With each transfer of Civil Case No. 51203, the judge to which the case was raffled had to study the
records anew. Expectedly, part of the records went missing and were lost. On April 12, 1993, the
Clerk of Court of RTC, Branch 71, to which Civil Case No. 51203 was remanded, filed a report on
the records of the case, to wit:

1. The first volume of the record in the above-entitled case was recorded as received on June 20,
1990, by Sheriff Alejandro O. Loquinario;

2. That the staff of Branch 71 at this time was sharing a small room with Branch 161 at the First
Floor of the Justice Hall, and as the Branch was newly formed, it had no equipment or furniture of its
own, and was still undermanned;

3. That sometime in August 1990, Branch 71 moved to the staffroom of Branch 159 at the Second
Floor of the Justice Hall;

4. That on October 25, 1990, this Court received a Notice of Judgment dated October 22, 1990 from
the Court of Appeals that ruled the dismissal of the above-entitled case, and as per standing
instructions of Judge Graduacion A. Reyes-Claravall, the same was bound as volume 2 of the case;

5. That just before the Christmas vacation in 1991, the branch was forced to hastily move all of its
records and equipment to branch 69, because of the unexpected notice we received that the room
we were occupying was to be demolished in order to meet the schedule for the renovation of the
building;

6. That unfortunately, the room was demolished before the undersigned could make a last check to
see if everything was transferred;

7. That it was only later on that this office discovered that important documents were indeed lost,
including transcripts of stenographic notes in a case that was submitted for decision;

8. That sometime in May 1992, the branch moved its Office to its present location;

9. That on March 8, 1993, this Court received a copy of a Decision of the Supreme Court reversing
the earlier ruling of the Court of Appeals;

10. That it was at this time that the first volume of this case, which was bundled along with other
cases which were decided and/or archived, was reported as missing;

11. That from the time the same was found to be missing, Judge Claravall ordered that a search for
the same be made in all of the offices wherein this branch was forced to share a room with, as well
as the Court of Appeals, in the event that the same was transmitted to said Court;

12. That all the efforts were in vain, as said record could not be located anywhere;

13. That the undersigned now concludes that the first volume of the above-entitled case was
probably lost during the renovation of the Justice Hall Building, and will have to be reconstituted with
the use of documents in the possession of the parties, or documents entered as exhibits in other
Courts.14

In this regard, herein respondents filed a Motion for Reconstitution of Records15 of the case. Initially,
petitioner Valente, and the other defendants -- Violeta, Virginia and Maria Concepcion -- opposed the
motion.16 However, the trial court eventually granted the motion for reconstitution, and ordered
petitioner Valente and the other defendants to submit a copy of their Answer filed thereat and copies
of other pleadings pertinent to the case.17

Thereafter, three (3) incidents, among numerous others, set off by the parties' pleadings, are worth
mentioning, to wit:

1. A Motion for Leave to File and Admit Supplemental Complaint18 filed by herein respondents. The
Supplemental Complaint additionally prayed that the levy and sale at public auction of the subject
properties be annulled and set aside, as the bid price was unconscionable and grossly inadequate to
the current value of the subject properties. The Supplemental Complaint further sought a re-bidding
with respect to Teofista's share in the subject properties. Finally, it prayed that TCT No. 6509 in the
name of petitioner Valente, Violeta, Virginia and Maria Concepcion be cancelled and TCT No. 30680
in the name of Marcelo Suarez, married to Teofista Isagon, be reinstated.

2. A Manifestation and Motion (to Execute/Enforce Decision dated September 4, 1992 of the
Supreme Court)19 filed by herein respondents pointing out that the Supreme Court itself had noted
the current increased value of the subject properties and that petitioner Valente, Violeta, Virginia and
Maria Concepcion unjustly enriched themselves in appropriating the subject properties worth millions
then, for a measly bid price of P94,170.00, for a judgment obligation worth only P70,000.00.

3. An Urgent Motion [to direct compliance by plaintiffs (herein respondents) with Supreme Court
Decision or to consider the matter submitted without evidence on the part of plaintiffs]20 filed by
therein defendants, including herein petitioner Valente, pointing out that plaintiffs (herein
respondents) have yet to comply with the RTC, Branch 67 Order commanding them to submit (to the
RTC) any evidence showing settlement of the estate of the deceased Marcelo Suarez, in order for
the court to determine the portion in the estate which belongs to Teofista. The Urgent Motion stated
in paragraph 2, thus:

2. The defendants [including herein petitioner Valente] did everything possible to expedite the
disposition of this case while the plaintiffs [herein respondents] did everything possible to DELAY the
disposition of the same obviously because the plaintiffs [herein respondents] are in full possession
and enjoyment of the property in dispute. In its decision of September 4, 1992, the SUPREME
COURT nullified TWO final and executory DECISIONS of the Court of Appeals in an unprecedented
action. In said decision, the Supreme Court ordered the plaintiffs [herein respondents] to establish
with evidence their personality as heirs of Marcelo Suarez, and after being able to do so, to adduce
evidence that would determine what portion belongs to plaintiffs hence the above matters need be
litigated upon before the RTC can "annul the sale with regard to said portion" (belonging to the
plaintiffs alleged heirs).

On these incidents, the records reveal the following Orders issued by the different branches of the
RTC:

1. Order dated March 17, 1995, issued by Presiding Judge Rodrigo B. Lorenzo of Branch 266, Pasig
City, admitting herein respondents' Supplemental Complaint.21

2. Order dated January 22, 1996, issued by Judge Apolinario B. Santos resolving: (a) herein
respondents' Manifestation and Motion (to execute/enforce Decision dated September 4, 1992 of the
Supreme Court), and (b) therein defendants' (including herein petitioner Valente's) Request for
Answer to Written Interrogatories.22 The RTC, Branch 67, resolved the incidents, thus:

From the foregoing uncontroverted facts, this Court is convinced beyond a shadow of doubt that the
Decision of the Supreme Court of September 4, 1992, being the final arbiter in any judicial dispute,
should be implemented for the following reasons:

xxxx

On the request for Answers to Written Interrogatories filed by the defendants, it is obvious that at this
stage of the proceedings where the Supreme Court had already pronounced the undisputed facts,
which binds this court, the answer sought to be elicited through written interrogatories, therefore, are
entirely irrelevant, aside from having been filed way out of time.

WHEREFORE, premises considered, this court, implements the decision of the Supreme Court
dated September 4, 1992 which mandates that:

"xxx and Civil Case No. 51203 is reinstated only to determine that portion which belongs to petitioner
and to annul the sale with regard to said portion."

In order to enforce such mandate of the Supreme Court, this court orders that:

a. The auction sale of the five (5) parcels of land and all prior and subsequent proceedings in
relation thereto are declared null and void.

b. Transfer Certificate of Title No. 6509 in the name of defendant Valente Raymundo is also declared
null and void, and the Register of Deeds of Rizal, Pasig City, is ordered to issue a new one in the
name of the deceased Marcelo Suarez or to reinstate Transfer Certificate of Title No. 30680 in the
name of Marcelo Suarez.

c. Teofista Suarez is ordered to reimburse the amount of P94,170.00, plus legal interest from the
date of issuance of this order, and failing which, the portion of the estate of Marcelo Suarez
belonging to the surviving spouse, Teofista Suarez, may be levied on execution.

d. [Herein respondents], including Teofista Suarez, are hereby ordered to submit to this court any
evidence showing settlement of the estate of the deceased, Marcelo Suarez, in order for this court to
determine the portion in the estate which belongs to Teofista Suarez.

Therein defendants, including petitioner Valente, filed a Motion for Reconsideration which the trial
court denied on May 29, 1996.

3. Order dated September 10, 1996, issued by Judge Santos denying the appeal interposed by
petitioner Valente from the January 22, 1996 and May 29, 1996 Orders, ruling that these are
interlocutory orders, and, therefore, not appealable.23

4. Order dated April 8, 1999, issued by Pairing Judge Santiago Estrella which declared, thus:

Considering that counsel for the plaintiffs does not have the birth certificates of the heirs of the
plaintiff to prove their affiliation with the deceased which is one of the matters written in the decision
of the higher court which must be complied with, and in order for counsel for the plaintiffs [herein
respondents] to have the opportunity to complete all documentary evidence and in view of
abbreviating the proceedings and as prayed for, today's scheduled pre-trial is re-set for the last time
to May 19, 1999 at 8:30 a.m.

In this connection, counsel for plaintiffs [herein respondents] is advised to secure all the
documentary evidence she needs material to this case which will expedite the disposition of this
case.24

This last Order and therein defendants' Urgent Motion spawned another contentious issue between
the parties. In this connection, Judge Estrella issued an Order25 requiring the parties to file their
respective position papers due to the "divergent views on the nature of the hearing that should be
conducted in compliance with" our decision in Suarez. Both parties duly filed their position papers,
with herein respondents attaching thereto a copy of the Extrajudicial Settlement of Estate executed
by the heirs of Marcelo Suarez in 1957.

In resolving this latest crossfire between the parties, the RTC, Branch 67, issued an Order dated
January 11, 2000, which reads, in part:

This Court is of the view that the Honorable Supreme Court is not a trier of facts, precisely it directed
that the records of this case be remanded to the Regional Trial Court for further proceedings.

xxxx

It is a matter of record that there was no trial on the merits completed in the Regional Trial Court. xxx
The Supreme Court reversed the judgment of the Court of Appeals and ordered the reinstatement of
Civil Case No. 51203. Naturally, there was no trial on the merits before this Court that allowed the
parties to adduce evidence to establish their respective claims in the plaintiffs' [herein respondents]
complaint and in the defendants' [including petitioner Valente] counter-claim, respectively. It is in this
context that the Honorable Supreme Court reinstated the "action [of herein respondents] to annul the
auction sale to protect their [herein respondents] own interest.

While this Court is of the view that trial on the merits is necessary for the purpose of giving the
plaintiffs [herein respondents] a chance to adduce evidence to sustain their complaint and the
defendants [including petitioner Valente] to prove their defense, consistent with the directive of the
Honorable Supreme Court (in its Decision promulgated on September 4, 1992), the Court is,
however, confronted with the very recent decision of the Honorable Supreme Court in "Heirs of
Guido Yaptinchay, et al. vs. Del Rosario, et al., G.R. No. 124320, March 2, 1999" where it held that -

The declaration of heirship must be made in an administration proceeding, and not in an

independent civil action. This doctrine was reiterated in Solve vs. Court of Appeals (182 SCRA 119,
128). The trial court cannot make a declaration of heirship in the civil action for the reason that such
a declaration can only be made in a special proceeding. Under Section 3, Rule 1 of the 1997
Revised Rules of Court, a civil action is defined as "one by which a party sues another for the
enforcement or protection of a right, or the prevention or redress of a wrong" while a special
proceeding is "a remedy by which a party seeks to establish a status, a right, or a particular fact." It

is then decisively clear that the declaration of heirship can be made only in a special proceeding
inasmuch as the petitioners here are seeking the establishment of a status or right.

In as much as the leading case on the matter is that of "Heirs of Yaptinchay v. Del Rosario, G.R. No.
124320, March 2, 1999" it is left with no choice but to obey said latter doctrine.

WHEREFORE, the foregoing premises considered, this Court holds that in the light of the doctrine
laid down in the case of "Heirs of Yaptinchay vs. Del Rosario, G.R. No. 124320, March 2, 1999" this
case is dismissed without prejudice to the plaintiffs' [herein respondents'] filing a special proceeding
consistent with said latest ruling.26

Herein respondents moved for reconsideration thereof which, however, was denied by the RTC,
Branch 67 on March 14, 2000.27

Consequently, herein respondents filed a petition for certiorari before the CA alleging grave abuse of
discretion in the trial court's order dismissing Civil Case No. 51203 without prejudice. All the
defendants in the trial court were impleaded as private respondents in the petition. Yet, curiously,
only petitioner Valente filed a Comment thereto. The appellate court granted the petition, recalled
and set aside RTC, Branch 67's Orders dated January 11, 2000 and March 14, 2000, and reinstated
Judge Santos' Orders dated May 29, 1996 and September 6, 1996. It disposed of the petition, thus:

We agree with [herein respondents].

On September 4, 1992, the Supreme Court (G.R. No. 94918) reversed the decision of the Court of
Appeals and mandates that Civil Case No. 51203 be reinstated in order to determine the portion in
the estate which belongs to Teofista Suarez. The sale of the parcels of land was declared null and
void. Necessarily, the title (TCT No. 5809) in the name of respondents was also declared null and
void. xxx

xxxx

Hon. Apolinario Santos of Br. 67, Regional Trial Court, Pasig City, on January 22, 1996 and on
motion of [herein respondents], issued an order to execute/enforce the decision of the Supreme
Court xxx.

xxxx

[Petitioner Valente, Violeta, Virginia and Maria Concepcion] filed a notice of appeal on the order of
Judge Santos. The appeal, on motion of [herein respondents] was denied on September 10, 1996.
Obviously, the decision of the Supreme Court had become final and executory. Likewise, both orders
of Judge Santos dated May 29, 1996 denying the motion for reconsideration and the denial of the
notice of appeal dated September 6, 1996 had also become final and executory.

The denial of petitioner Valente's Motion for Reconsideration prompted the filing of this present
petition for certiorari.

Petitioner Valente posits that the appellate court committed grave abuse of discretion in recalling and
setting aside the Orders of Judge Estrella and reinstating those of Judge Santos because:

1. The CA ruled that the Orders dated May 29, 1996 and September 6, 1996 issued by Judge
Santos were final and executory, and yet the latter did not allow an appeal to be taken therefrom
ratiocinating that the questioned orders were interlocutory, and therefore, not appealable; and

2. The CA ignored and violated the Supreme Court's ruling in Heirs of Yaptinchay v. Del Rosario28
which held that a declaration of heirship must be made in a special proceeding and not in a civil
action.

We find the petition bereft of merit.

At the outset, we note that petitioner Valente incorrectly filed a petition for certiorari to appeal the CA
decision. Petitioner should have filed a petition for review on certiorari under Rule 45 of the Rules of
Court. Simply imputing in a petition that the decision sought to be reviewed is tainted with grave
abuse of discretion does not magically transform a petition into a special civil action for certiorari.
The CA decision disposed of the merits of a special civil action, an original petition, filed thereat by
herein respondents. That disposition is a final and executory order, appealable to, and may be
questioned before, this Court by persons aggrieved thereby, such as petitioner Valente, via Rule 45.

On this score alone, the petition should have been dismissed outright. However, we have
disregarded this procedural flaw and now resolve this case based on the merits or lack thereof.

Petitioner asseverates that the assailed CA ruling "is unfair and it amounts to a trickery to prevent an
appeal against a final order by claiming that the appealed order is merely interlocutory and later
maintain that the same order has become final after declaring it to be interlocutory."

We reject petitioner's paltry contention. Petitioner apparently does not comprehend the distinction
between an interlocutory order which is final and executory, and a final order which disposes of the
controversy or case; much less, understand the available remedies therefrom.

We have defined an interlocutory order as referring to something between the commencement and
the end of the suit which decides some point or matter but it is not the final decision on the whole
controversy.29 It does not terminate or finally dismiss or finally dispose of the case, but leaves
something to be done by the court before the case is finally decided on the merits.30 Upon the other
hand, a final order is one which leaves to the court nothing more to do to resolve the case.31

On more than one occasion, we laid down the test to ascertain whether an order is interlocutory or
final i.e., "Does it leave something to be done in the trial court with respect to the merits of the
case?" If it does, it is interlocutory; if it does not, it is final. The key test to what is interlocutory is
when there is something more to be done on the merits of the case.32 The Orders dated May 29,
1996 and September 6, 1996 issued by Judge Santos are interlocutory, and therefore, not
appealable, as they leave something more to be done on the merits of the case. In fact, in paragraph
(d) of Judge Santos' Order dated May 29, 1996, herein respondents were directed to submit
evidence showing settlement of the estate of the deceased Marcelo Sr.

Contrary to petitioner Valente's stance, there is no trickery or chicanery in the CA's distinction
between an interlocutory and a final order. Indeed, as ruled by the CA, the RTC Order denying
petitioner Valente's Notice of Appeal attained finality when he failed to file a petition for certiorari
under Rule 65 of the Rules of Court.

We cannot overemphasize the rule that the correct identification of the nature of an assailed order
determines the remedies available to an aggrieved party. The old Rules of Court in Section 2, Rule
41 reads, thus:

SEC. 2. Judgments or orders subject to appeal.-Only final judgments or orders shall be subject to
appeal. No interlocutory or incidental judgment or order shall stay the progress of an action, nor shall
it be the subject of appeal until final judgment or order is rendered for one party or the other.

xxxx

With the advent of the 1997 Rules of Civil Procedure, Section 1, Rule 41 now provides for the
appropriate remedy to be taken from an interlocutory order, thus:

SECTION 1. Subject of appeal. - An appeal may be taken from a judgment or final order that
completely disposes of the case, or of a particular matter therein when declared by these Rules to
be appealable.

No appeal may be taken from:

xxx

(c) An interlocutory order;

xxx

In all the above instances where the judgment or final order is not appealable, the aggrieved party
may file an appropriate special civil action under Rule 65.

Clearly, the denial of therein defendants' (including petitioner Valente's) appeal from the Orders
dated May 29, 1996 and September 6, 1996 was in order. Thus, the CA decision affirming the RTC's
denial was correct.

Further, on this crucial distinction as applied to this case, petitioner Valente filed a petition for
certiorari from the CA decision in CA-G.R. SP No. 58090, which is not an interlocutory order. It is a

final order which completely disposed of the merits of the case with nothing more left to be done
therein. The correct and available remedy available to petitioner Valente was, as previously
discussed, a petition for review on certiorari under Rule 45 of the Rules of Court.

In fine, petitioner Valente erroneously sought relief through reversed remedies. He tried to appeal
the interlocutory orders of the RTC which are unappealable. Thus, the RTC properly denied his
Notice of Appeal, and the CA correctly upheld the RTC. He should have filed a petition for certiorari;
under Rule 65. On the other hand, from the final order of the CA, he comes before this Court on a
petition for certiorari under Rule 65, when the proper remedy is an appeal by certiorari under Rule
45.

In the recent case of Jan-Dec Construction Corporation v. Court of Appeals33 we ruled in this wise:

As a rule, the remedy from a judgment or final order of the CA is appeal via petition for review under
Rule 45 of the Rules.

Under Rule 45, decisions, final orders or resolutions of the CA in any case, i.e., regardless of the
nature of the action or proceedings involved, may be appealed to the Court by filing a petition for
review, which would be but a continuation of the appellate process over the original case. It seeks to
correct errors of judgment committed by the court, tribunal, or officer. In contrast, a special civil
action for certiorari under Rule 65 is an independent action based on the specific grounds therein
provided and proper only if there is no appeal or any plain, speedy and adequate remedy in the
ordinary course of law. It is an extraordinary process for the correction of errors of jurisdiction and
cannot be availed of as a substitute for the lost remedy of an ordinary appeal.

Independently of this procedural infirmity, even on the merits of the case, the petition does not fare
otherwise. It must be dismissed for lack of merit.

Petitioner Valente insists that, following our ruling in Heirs of Yaptinchay v. Del Rosario,34 herein
respondents must first be declared heirs of Marcelo Sr. before they can file an action to annul the
judicial sale of what is, undisputedly, conjugal property of Teofista and Marcelo Sr.

We disagree. Our ruling in Heirs of Yaptinchay is not applicable.

Herein respondents' status as legitimate children of Marcelo Sr. and Teofista and thus, Marcelo
Sr.'s heirs has been firmly established, and confirmed by this Court in Suarez v. Court of
Appeals.35 True, this Court is not a trier of facts,36 but as the final arbiter of disputes,37 we found
and so ruled that herein respondents are children, and heirs of their deceased father, Marcelo Sr.
This having been settled, it should no longer have been a litigated issue when we ordered a remand
to the lower court. In short, petitioner Valente's, Violeta's, Virginia's, and Maria Concepcion's
representation in the RTC that our ruling in Suarez required herein respondents to present evidence
of their affiliation with the deceased, Marcelo Sr., is wrong.

As was set forth in the dispositive portion of Suarez, "Civil Case No. 51203 is reinstated only to
determine that portion which belongs to [herein respondents] and to annul the sale with regard to
said portion." There is clearly no intimation in our decision for the RTC to have to determine an
already settled issue i.e., herein respondents' status as heirs of Marcelo Sr.

Moreover, petitioner Valente cannot assail, directly or indirectly, the status of herein respondents as
legitimate children of Marcelo Sr. and Teofista, and likewise demand that herein respondents first
prove their filiation to Marcelo Sr. The following records bear out Marcelo, Sr.'s and Teofista's
paternity of herein respondents, and the latter's status as legitimate children:

1. The CA decision in CA-G.R. SP Nos. 10646 to 10649 where Teofista, along with herein
respondents, questioned the RTC, Branch 151's Orders dated October 10, 1984 and October 14,
1986. Although the CA ruled against Teofista and herein respondents, it explicitly recognized the
latter's status as legitimate children of Teofista and Marcelo Sr.; and38

2. The CA decision in CA-G.R. SP No. 20320 which incorrectly ruled that herein respondents were,
as children of Teofista, merely successors-in-interest of the latter to the property and by virtue
thereof, bound by the judgment in Civil Case Nos. 21376 to 21379 consistent with the doctrine of res
judicata.39 We subsequently reversed this ruling on the wrong application of res judicata in the
conclusive case of Suarez. We retained and affirmed, however, the CA's factual finding of herein
respondents' status as heirs of Marcelo Sr. We categorically held therein that "the proprietary interest
of [herein respondents] in the levied and auctioned [properties] is different from and adverse to that
of [Teofista]. [Herein respondents] became co-owners of the property not because of [Teofista] but
through their own right as children of their deceased father [, Marcelo Sr.]."

Clearly, herein respondents' long possessed status of legitimate children of Marcelo Sr. and Teofista
cannot be indirectly or directly attacked by petitioner Valente in an action to annul a judicial sale.

Articles 262,40 263,41 265 and 26642 of the Civil Code, the applicable law at the time of Marcelo's
death, support the foregoing conclusion, to wit:

Art. 262. The heirs of the husband may impugn the legitimacy of the child only in the following cases:

(1) If the husband should die before the expiration of the period fixed for bringing his action;

(2) If the husband should die after the filing of the complaint, without having desisted from the same;

(3) If the child was born after the death of the husband.

Art. 263. The action to impugn the legitimacy of the child shall be brought within one year from the
recording of birth in the Civil Register, if the husband should be in the same place, or in a proper
case, any of his heirs.

If he or his heirs are absent, the period shall be eighteen months if they should reside in the
Philippines; and two years if abroad. If the birth of the child has been concealed, the term shall be
counted from the discovery of the fraud.

Art. 265. The filiation of legitimate children is proved by the record of birth appearing in the Civil
Register, or by an authentic document or a final judgment.

Art. 266. In the absence of the titles indicated in the preceding article, the filiation shall be proved by
the continuous possession of status of a legitimate child.

In Heirs of Yaptinchay, the complaint for annulment and/or declaration of nullity of certain TCT's was
dismissed for failure of the petitioners to demonstrate "any proof or even a semblance of it" that they
had been declared the legal heirs of the deceased couple, the spouses Yaptinchay. In stark contrast,
the records of this case reveal a document, an Extrajudicial Settlement of Marcelo Sr.'s estate, which
explicitly recognizes herein respondents as Marcelo Sr.'s legitimate children and heirs. The same
document settles and partitions the estate of Marcelo Sr. specifying Teofista's paraphernal
properties, and separates the properties she owns in common with her children, herein respondents.
Plainly, there is no need to re-declare herein respondents as heirs of Marcelo Sr., and prolong this
case interminably.

Petitioner Valente, along with Violeta, Virginia and Maria Concepcion, became owners of the subject
properties only by virtue of an execution sale to recover Teofista's judgment obligation. This
judgment obligation is solely Teofista's, and payment therefor cannot be made through an execution
sale of properties not absolutely owned by her. These properties were evidently conjugal properties
and were, in fact, even titled in the name of Marcelo, Sr. married to Teofista. Thus, upon Marcelo
Sr.'s death, by virtue of compulsory succession, Marcelo Sr.'s share in the conjugal partnership was
transmitted by operation of law to his compulsory heirs.

Compulsory succession is a distinct kind of succession, albeit not categorized as such in Article
77843 of the Civil Code. It reserves a portion of the net estate of the decedent in favor of certain
heirs, or group of heirs, or combination of heirs, prevailing over all kinds of succession.44 The
portion that is so reserved is the legitime. Article 886 of the Civil Code defines legitime as "that part
of the testator's property which he cannot dispose of because the law has reserved it for certain
heirs who are, therefore, called compulsory heirs." Herein respondents are primary compulsory
heirs,45 excluding secondary compulsory heirs,46 and preferred over concurring compulsory heirs in
the distribution of the decedent's estate.47

Even without delving into the Extrajudicial Settlement of Marcelo Sr.'s estate in 1957, it must be
stressed that herein respondents' rights to the succession vested from the moment of their father's
death.48 Herein respondents' ownership of the subject properties is no longer inchoate; it became
absolute upon Marcelo's death, although their respective shares therein remained pro indiviso.
Ineluctably, at the time the subject properties were sold on execution sale to answer for Teofista's
judgment obligation, the inclusion of herein respondents' share therein was null and void.

In fine, Teofista's ownership over the subject properties is not absolute. Significantly, petitioner
Valente does not even attempt to dispute the conjugal nature of the subject properties. Since
Teofista owns only a portion of the subject properties, only that portion could have been, and was
actually, levied upon and sold on auction by the provincial sheriff of Rizal. Thus, a separate
declaration of heirship by herein respondents is not necessary to annul the judicial sale of their share
in the subject properties.

We note the recent case of Portugal v. Portugal-Beltran,49 where we scrutinized our rulings in Heirs
of Yaptinchay and the cited cases of Litam v. Rivera50 and Solivio v. Court of Appeals,51 and Guilas
v. CFI Judge of Pampanga52 cited in Solivio. We ruled thus:

The common doctrine in Litam, Solivio and Guilas in which the adverse parties are putative heirs to
the estate of a decedent or parties to the special proceedings for its settlement is that if the special
proceedings are pending, or if there are no special proceedings filed but there is, under the
circumstances of the case, a need to file one, then the determination of, among other issues,

heirship should be raised and settled in said special proceedings. Where special proceedings had
been instituted but had been finally closed and terminated, however, or if a putative heirs has lost the
right to have himself declared in the special proceedings as co-heir and he can no longer ask for its
re-opening, then an ordinary civil action can be filed for his declaration as heir in order to bring about
the annulment of the partition or distribution or adjudication of a property or properties belonging to
the estate of the deceased.

In the case at bar, respondent, believing rightly or wrongly that she was the sole heir to Portugal's
estate, executed on February 15, 1988 the questioned Affidavit of Adjudication under the second
sentence of Rule 74, Section of the Revised Rules of Court. Said rule is an exception to the general
rule that when a person dies leaving property, it should be judicially administered and the competent
court should appoint a qualified administrator, in the order established in Sec. 6, Rule 78 in case the
deceased left no will, or in case he did, he failed to name an executor therein.

xxx

It appearing, however, that in the present case the only property of the intestate estate of Portugal is
the Caloocan parcel of land, to still subject it, under the circumstances of the case, to a special
proceeding which could be long, hence, not expeditious, just to establish the status of petitioners as
heirs is not only impractical; it is burdensome to the estate with the costs and expenses of an
administration proceedings. And it is superfluous in light of the fact that the parties to the civil casesubject of the present case, could and had already in fact presented evidence before the trial court
which assumed jurisdiction over the case upon the issues it defined during pre-trial.

In fine, under the circumstances of the present case, there being no compelling reason to still
subject Portugal's estate to administration proceedings since a determination of petitioners' status as
heirs could be achieved in the civil case filed by petitioners xxx.53

All told, under the circumstances, in addition to the already settled status of herein respondents as
heirs of Marcelo Sr., there is no need to dismiss Civil Case No. 51203 and require herein
respondents to institute a separate special proceeding for a declaration of their heirship.

WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals
in CA-G.R. SP No. 58090 is AFFIRMED. The Orders dated May 29, 1996 and September 6, 1996
issued by Judge Santos are REINSTATED. Costs against the petitioner.

SO ORDERED.