G.R. No. L-58509 December 7, 1982

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA deceased, MARCELA RODELAS, petitioner-appellant, vs.AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.

Luciano A. Joson for petitioner-appellant.

Cesar Paralejo for oppositor-appellee.

 

RELOVA, J.:

This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section 3, Rule 50 of the Rules of Court.

As found by the Court of Appeals:

... On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla on the following grounds:

(1) Appellant was estopped from claiming that the deceased left a will by failing to produce the will within twenty days of the death of the testator as required by Rule 75, section 2 of the Rules of Court;

(2) The alleged copy of the alleged holographic will did not contain a disposition of property after death and was not intended to take effect after death, and therefore it was not a will

(3) The alleged hollographic will itself,and not an alleged copy thereof, must be produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil. 509; and

(4 ) The deceased did not leave any will, holographic or otherwise, executed and attested as required by law.

The appellees likewise moved for the consolidation of the case with another case Sp. Proc. No, 8275). Their motion was granted by the court in an order dated April 4, 1977.

On November 13, 1978, following the consolidation of the cases, the appellees moved again to dismiss the petition for the probate of the will. They argued that:

(1) The alleged holographic was not a last will but merely an instruction as to the management and improvement of the schools and colleges founded by decedent Ricardo B. Bonilla; and

(2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills.

Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of February 23, 1979.

The appellees then filed a motion for reconsideration on the ground that the order was contrary to law and settled pronouncements and rulings of the Supreme Court, to which the appellant in turn filed an opposition. On July 23, 1979, the court set aside its order of February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B. Bonilla. The court said:

... It is our considered opinion that once the original copy of the holographic will is lost, a copy thereof cannot stand in lieu of the original.

In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter of holographic wills the law, it is reasonable to suppose, regards the document itself as the material proof of authenticity of said wills.

MOREOVER, this Court notes that the alleged holographic will was executed on January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14 years from the time of the execution of the will to the death of the decedent, the fact that the original of the will could not be located shows to our mind that the decedent had discarded before his death his allegedly missing Holographic Will.

Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is contended that the dismissal of appellant's petition is contrary to law and well-settled jurisprudence.

On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal does not involve question of fact and alleged that the trial court committed the following assigned errors:

I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF;

II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;

III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.

The only question here is whether a holographic will which was lost or cannot be found can be proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the court after its due execution has been proved. The probate may be uncontested or not. If uncontested, at least one Identifying witness is required and, if no witness is available, experts may be resorted to. If contested, at

least three Identifying witnesses are required. However, if the holographic will has been lost or destroyed and no other copy is available, the will can not be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court.

WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

 

G.R. No. 106720 September 15, 1994

SPOUSES ROBERTO AND THELMA AJERO, petitioners, vs.THE COURT OF APPEALS AND CLEMENTE SAND, respondents.

Miguel D. Larida for petitioners.

Montilla Law Office for private respondent.

 

PUNO, J.:

This is an appeal by certiorari from the Decision of the Court of Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which reads;

PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial court is hereby REVERSED and SET ASIDE, and the petition for probate is hereby DISMISSED. No costs.

The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc. No. Q-37171, and the instrument submitted for probate is the holographic will of the late Annie Sand, who died on November 25, 1982.

In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.

On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's holographic will. They alleged that at the time of its execution, she was of sound and disposing mind, not acting under duress, fraud or undue influence, and was in every respect capacitated to dispose of her estate by will.

Private respondent opposed the petition on the grounds that: neither the testament's body nor the signature therein was in decedent's handwriting; it contained alterations and corrections which were not duly signed by decedent; and, the will was procured by petitioners through improper pressure and undue influence. The petition was likewise opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and lot located in Cabadbaran, Agusan Del Norte. He claimed that said property could not be conveyed by decedent in its entirety, as she was not its sole owner.

Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to probate. It found, inter alia:

Considering then that the probate proceedings herein must decide only the question of identity of the will, its due execution and the testamentary capacity of the testatrix, this probate court finds no reason at all for the disallowance of the will for its failure to comply with the formalities prescribed by law nor for lack of testamentary capacity of the testatrix.

For one, no evidence was presented to show that the will in question is different from the will actually executed by the testatrix. The only objections raised by the oppositors . . . are that the will was not written in the handwriting of the testatrix which properly refers to the question of its due execution, and not to the question of identity of will. No other will was alleged to have been executed by the testatrix other than the will herein presented. Hence, in the light of the evidence adduced, the identity of the will presented for probate must be accepted, i.e., the will submitted in Court must be deemed to be the will actually executed by the testatrix.

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While the fact that it was entirely written, dated and signed in the handwriting of the testatrix has been disputed, the petitioners, however, have satisfactorily shown in Court that the holographic will in question was indeed written entirely, dated and signed in the handwriting of the testatrix. Three (3) witnesses who have convincingly shown knowledge of the handwriting of the testatrix have been presented and have explicitly and categorically identified

the handwriting with which the holographic will in question was written to be the genuine handwriting and signature of the testatrix. Given then the aforesaid evidence, the requirement of the law that the holographic will be entirely written, dated and signed in the handwriting of the testatrix has been complied with.

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As to the question of the testamentary capacity of the testratix, (private respondent) Clemente Sand himself has testified in Court that the testatrix was completely in her sound mind when he visited her during her birthday celebration in 1981, at or around which time the holographic will in question was executed by the testatrix. To be of sound mind, it is sufficient that the testatrix, at the time of making the will, knew the value of the estate to be disposed of, the proper object of her bounty, and thecharacter of the testamentary act . . . The will itself shows that the testatrix even had detailed knowledge of the nature of her estate. She even identified the lot number and square meters of the lots she had conveyed by will. The objects of her bounty were likewise identified explicitly. And considering that she had even written a nursing book which contained the law and jurisprudence on will and succession, there is more than sufficient showing that she knows the character of the testamentary act.

In this wise, the question of identity of the will, its due execution and the testamentary capacity of the testatrix has to be resolved in favor of the allowance of probate of the will submitted herein.

Likewise, no evidence was presented to show sufficient reason for the disallowance of herein holographic will. While it was alleged that the said will was procured by undue and improper pressure and influence on the part of the beneficiary or of some other person, the evidence adduced have not shown any instance where improper pressure or influence was exerted on the testatrix. (Private respondent) Clemente Sand has testified that the testatrix was still alert at the time of the execution of the will, i.e., at or around the time of her birth anniversary celebration in 1981. It was also established that she is a very intelligent person and has a mind of her own. Her independence of character and to some extent, her sense of superiority, which has been testified to in Court, all show the unlikelihood of her being unduly influenced or improperly pressured to make the aforesaid will. It must be noted that the undue influence or improper pressure in question herein only refer to the making of a will and not as to the specific testamentary provisions therein which is the proper subject of another proceeding. Hence, under the circumstances, this Court cannot find convincing reason for the disallowance of the will herein.

Considering then that it is a well-established doctrine in the law on succession that in case of doubt, testate succession should be preferred over intestate succession, and the fact that no convincing grounds were presented and proven for the disallowance of the holographic will of the late Annie Sand, the aforesaid will submitted herein must be admitted to probate. 3 (Citations omitted.)

On appeal, said Decision was reversed, and the petition for probate of decedent's will was dismissed. The Court of Appeals found that, "the holographic will fails to meet the requirements for its validity." 4 It held that the decedent did not comply with Articles 813 and 814 of the New Civil Code, which read, as follows:

Art. 813: When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and date, such date validates the dispositions preceding it, whatever be the time of prior dispositions.

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

It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not dated. It also found that the erasures, alterations and cancellations made thereon had not been authenticated by decedent.

Thus, this appeal which is impressed with merit.

Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of the following cases:

(a) If not executed and attested as required by law;

(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution;

(c) If it was executed under duress, or the influence of fear, or threats;

(d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit;

(e) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto.

In the same vein, Article 839 of the New Civil Code reads:

Art. 839: The will shall be disallowed in any of the following cases;

(1) If the formalities required by law have not been complied with;

(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;

(3) If it was executed through force or under duress, or the influence of fear, or threats;

(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person;

(5) If the signature of the testator was procured by fraud;

(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto.

These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to admit a holographic will to probate, the only issues to be resolved are: (1) whether the instrument submitted is, indeed, the decedent's last will and testament; (2) whether said will was executed in accordance with the formalities prescribed by law; (3) whether the decedent had the necessary testamentary capacity at the time the will was executed; and, (4) whether the execution of the will and its signing were the voluntary acts of the decedent. 6

In the case at bench, respondent court held that the holographic will of Anne Sand was not executed in accordance with the formalities prescribed by law. It held that Articles 813 and 814 of the New Civil Code, ante, were not complied with, hence, it disallowed the probate of said will. This is erroneous.

We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded.

For purposes of probating non-holographic wills, these formal solemnities include the subscription, attestation, and acknowledgment requirements under Articles 805 and 806 of the New Civil Code.

In the case of holographic wills, on the other hand, what assures authenticity is the requirement that they be totally autographic or handwritten by the testator himself, 7 as provided under Article 810 of the New Civil Code, thus:

A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (Emphasis supplied.)

Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably handwritten by the testator.

A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void.

Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article 814. In the case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court held:

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. Manresa gave an identical commentary when he said "la omission de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1985." 8 (Citations omitted.)

Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator's signature, 9 their presence does not invalidate the will itself. 10 The lack of authentication will only result in disallowance of such changes.

It is also proper to note that the requirements of authentication of changes and signing and dating of dispositions appear in provisions (Articles 813 and 814) separate from that which provides for the necessary conditions for the validity of the holographic will (Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil Code, from which the present provisions covering holographic wills are taken. They read as follows:

Art. 678: A will is called holographic when the testator writes it himself in the form and with the requisites required in Article 688.

Art. 688: Holographic wills may be executed only by persons of full age.

In order that the will be valid it must be drawn on stamped paper corresponding to the year of its execution, written in its entirety by the testator and signed by him, and must contain a statement of the year, month and day of its execution.

If it should contain any erased, corrected, or interlined words, the testator must identify them over his signature.

Foreigners may execute holographic wills in their own language.

This separation and distinction adds support to the interpretation that only the requirements of Article 810 of the New Civil Code — and not those found in Articles 813 and 814 of the same Code — are essential to the probate of a holographic will.

The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is correct and must be affirmed.

As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. However, in exceptional instances, courts are not

powerless to do what the situation constrains them to do, and pass upon certain provisions of the will. 11 In the case at bench, decedent herself indubitably stated in her holographic will that the Cabadbaran property is in the name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same in its entirety). Thus, as correctly held by respondent court, she cannot validly dispose of the whole property, which she shares with her father's other heirs.

IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE, except with respect to the invalidity of the disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988, admitting to probate the holographic will of decedent Annie Sand, is hereby REINSTATED, with the above qualification as regards the Cabadbaran property. No costs.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

 

#Footnotes

1 Sixteenth Division, composed of Associate Justices Luis L. Victor (ponente), Ricardo J. Francisco (chairman), and Pacita Cañizares-Nye.

2 Presided by Judge Filemon H. Mendoza.

3 Rollo, pp. 37-39.

4 Impugned Decision, p. 5; Rollo, p. 46.

5 Pecson vs. Coronel, 45 Phil. 216 (1923); See 3 EDGARDO L. PARAS, Civil Code of the Philippines Annotated (1989), pp. 145-146.

6 See Montanaño vs. Suesa, 14 Phil. 676 (1909).

7 See Fernando vs. Villalon, 3 Phil. 386 (1904).

8 See Velasco vs. Lopez, 1 Phil. 720, 725 (1903), citing a Decision of the Supreme Court of Spain, dated April 4, 1895; See also, 3 MANRESA, Commentarios al Codigo Español (Quinta ed.), p. 483;See further, 3 ARTURO M. TOLENTINO, Commentaries & Jurisprudence on the Civil Code (1973), p. 107, citing Castan 341, 5 Valverde 82; 3 AMBROSIO PADILLA, Civil Code Annotated (1987), pp. 157-158; 2 RAMON C. AQUINO and CAROLINA C. GRIÑO-AQUINO (1990), p. 42.

9 3 PARAS, op. cit.

10 It must be noted, however, that in Kalaw, this Court laid down an exception to the general rule, when it invalidated the entire will because of an unauthenticated erasure made by the testator. In that case, the will had only one substantial provision. This was altered by substituting the original heir with another , with such alteration being unauthenticated. This was altered by substituting the original heir with another, with such alteration being unauthenticated. This Court held that the whole will was void "for the simple reason that nothing remains in the Will after (the provision is invalidated) which could remain valid. To state that the Will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix. But, that change of mind can neither be given effect because she failed to authenticate it in the manner required by law by affixing her full signature."

11 Nepomuceno vs. Court of Appeals, 139 SCRA 206 (1985); See Nuguid vs. Nuguid, 17 SCRA 449 (1966); See also Cayetano vs. Leonidas, 129 SCRA 522 (1984).

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

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

 

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside that portion of the decision of the respondent Court of Appeals (now intermediate Appellate Court) dated June 3, 1982, as amended by the resolution dated August 10, 1982, declaring as null and void the devise in favor of the petitioner and the resolution dated December 28, 1982 denying petitioner's motion for reconsideration.

Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly signed by him at the end of the Will on page three and on the left margin of pages 1, 2 and 4 thereof in the presence of Celestina Alejandro, Myrna C. Cortez, and Leandro Leano, who in turn, affixed their signatures below the attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the presence of the testator and of each other and the Notary Public. The Will was acknowledged before the Notary Public Romeo Escareal by the testator and his three attesting witnesses.

In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his sole and only executor of his estate. It is clearly stated in the Will that the testator was legally married to a certain Rufina Gomez by whom he had two legitimate children, Oscar and Carmelita, but since 1952, he had been estranged from his lawfully wedded wife and had been living with petitioner as husband and wife. In fact, on December 5, 1952, the testator Martin Jugo and the petitioner herein, Sofia J. Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The testator devised to his forced heirs, namely, his legal wife Rufina Gomez and his children Oscar and Carmelita his entire estate and the free portion thereof to herein petitioner. The Will reads in part:

Art. III. That I have the following legal heirs, namely: my aforementioned legal wife, Rufina Gomez, and our son, Oscar, and daughter Carmelita, both surnamed Jugo, whom I declare and admit to be legally and properly entitled to inherit from me; that while I have been estranged from my above-named wife for so many years, I cannot deny that I was legally married to her or that we have been separated up to the present for reasons and justifications known fully well by them:

Art. IV. That since 1952, 1 have been living, as man and wife with one Sofia J. Nepomuceno, whom I declare and avow to be entitled to my love and affection, for all the things which she has done for me, now and in the past; that while Sofia J. Nepomuceno has with my full knowledge and consent, did comport and represent myself as her own husband, in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned previous marriage;

On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament of the deceased Martin Jugo in the Court of First Instance of Rizal, Branch XXXIV, Caloocan City and asked for the issuance to her of letters testamentary.

On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an opposition alleging inter alia that the execution of the Will was procured by undue and improper influence on the part of the petitioner; that at the time of the execution of the Will, the testator was already very sick and that petitioner having admitted her living in concubinage with the testator, she is wanting in integrity and thus, letters testamentary should not be issued to her.

On January 6, 1976, the lower court denied the probate of the Will on the ground that as the testator admitted in his Will to cohabiting with the petitioner from December 1952 until his death on July 16, 1974, the Will's admission to probate will be an Idle exercise because on the face of the Will, the invalidity of its intrinsic provisions is evident.

The petitioner appealed to the respondent-appellate court.

On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of Rizal denying the probate of the will. The respondent court declared the Will to be valid except that the devise in favor of the petitioner is null and void pursuant to Article 739 in relation with Article 1028 of the Civil Code of the Philippines. The dispositive portion of the decision reads:

WHEREFORE, the decision a quo is hereby set aside, the will in question declared valid except the devise in favor of the appellant which is declared null and void. The properties so devised are instead passed on in intestacy to the appellant in equal shares, without pronouncement as to cost.

On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction of Clerical Error" praying that the word "appellant" in the last sentence of the dispositive portion of the decision be changed to "appellees" so as to read: "The properties so devised are instead passed on intestacy to the appellees in equal shares, without pronouncement as to costs." The motion was granted by the respondent court on August 10, 1982.

On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by the respondent court in a resolution dated December 28, 1982.

The main issue raised by the petitioner is whether or not the respondent court acted in excess of its jurisdiction when after declaring the last Will and Testament of the deceased Martin Jugo validly drawn, it went on to pass upon the intrinsic validity of the testamentary provision in favor of herein petitioner.

The petitioner submits that the validity of the testamentary provision in her favor cannot be passed upon and decided in the probate proceedings but in some other proceedings because the only purpose of the probate of a Will is to establish conclusively as against everyone that a Will was executed with the formalities required by law and that the testator has the mental capacity to execute the same. The petitioner further contends that even if the provisions of paragraph 1 of Article 739 of the Civil Code of the Philippines were applicable, the declaration of its nullity could only be made by the proper court in a separate action brought by the legal wife for the specific purpose of obtaining a declaration of the nullity of the testamentary provision in the Will in favor of the person with whom the testator was allegedly guilty of adultery or concubinage.

The respondents on the other hand contend that the fact that the last Will and Testament itself expressly admits indubitably on its face the meretricious relationship between the testator and the petitioner and the fact that petitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil status of the testator, which led private respondents to present contrary evidence, merits the application of the doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et al.(G.R. No. L- 39247, June 27, 1975). Respondents also submit that the admission of the testator of the illicit relationship between him and the petitioner put in issue the legality of the devise. We agree with the respondents.

The respondent court acted within its jurisdiction when after declaring the Will to be validly drawn, it went on to pass upon the intrinsic validity of the Will and declared the devise in favor of the petitioner null and void.

The general rule is that in probate proceedings, the court's area of inquiry is limited to an examination and resolution of the extrinsic validity of the Will. The rule is expressed thus:

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... It is elementary that a probate decree finally and definitively settles all questions concerning capacity of the testator and the proper execution and witnessing of his last Will and testament, irrespective of whether its provisions are valid and enforceable or otherwise. (Fernandez v. Dimagiba,21 SCRA 428)

The petition below being for the probate of a Will, the court's area of inquiry is limited to the extrinsic validity thereof. The testators testamentary capacity and the compliance with the formal requisites or solemnities prescribed by law are the only questions presented for the resolution of the court. Any inquiry into the intrinsic validity or efficacy of the provisions of the will or the legality of any devise or legacy is premature.

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True or not, the alleged sale is no ground for the dismissal of the petition for probate. Probate is one thing; the validity of the testamentary provisions is another. The first decides the execution of the document and the testamentary capacity of the testator; the second relates to descent and distribution (Sumilang v. Ramagosa, 21 SCRA 1369)

xxx xxx xxx

To establish conclusively as against everyone, and once for all, the facts that a will was executed with the formalities required by law and that the testator was in a condition to make a will, is the only purpose of the proceedings under the new code for the probate of a will. (Sec. 625). The judgment in such proceedings determines and can determine nothing more. In them the court has no power to pass upon the validity of any provisions made in the will. It can not decide, for example, that a certain legacy is void and another one valid. ... (Castaneda v. Alemany, 3 Phil. 426)

The rule, however, is not inflexible and absolute. Given exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the Will.

In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as universal heir and completely preterited her surviving forced heirs. A will of this nature, no matter how valid it may appear extrinsically, would be null and void. Separate or latter proceedings to determine the intrinsic validity of the testamentary provisions would be superfluous.

Even before establishing the formal validity of the will, the Court in Balanay .Jr. v. Martinez (64 SCRA 452) passed upon the validity of its intrinsic provisions.

Invoking "practical considerations", we stated:

The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will, before ruling on its allowance or formal validity, and in declaring it void.

We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality, and because of the motion to withdraw the petition for probate (which the lower court assumed to have been filed with the petitioner's authorization) the trial court acted correctly in passing upon the will's intrinsic validity even before its formal validity had been established. The probate of a will might become an Idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue (Nuguid v. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa L-23135, December 26, 1967, 21 SCRA 1369; Cacho v. Udan L-19996, April 30, 1965, 13 SCRA 693).

There appears to be no more dispute at this time over the extrinsic validity of the Will. Both parties are agreed that the Will of Martin Jugo was executed with all the formalities required by law and that the testator had the mental capacity to execute his Will. The petitioner states that she completely agrees with the respondent court when in resolving the question of

whether or not the probate court correctly denied the probate of Martin Jugo's last Will and Testament, it ruled:

This being so, the will is declared validly drawn. (Page 4, Decision, Annex A of Petition.)

On the other hand the respondents pray for the affirmance of the Court of Appeals' decision in toto.

The only issue, therefore, is the jurisdiction of the respondent court to declare the testamentary provision in favor of the petitioner as null and void.

We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra):

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation will be protracted. And for aught that appears in the record, in the record, in the event of probate or if the court rejects the will, probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. Result, waste of time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief that we might as well meet head-on the issue of the validity of the provisions of the will in question. (Section 2, Rule 1, Rules of Court. Case, et al. v. Jugo, et al., 77 Phil. 517, 522). After all, there exists a justiciable controversy crying for solution.

We see no useful purpose that would be served if we remand the nullified provision to the proper court in a separate action for that purpose simply because, in the probate of a will, the court does not ordinarily look into the intrinsic validity of its provisions.

Article 739 of the Civil Code provides:

The following donations shall be void:

(1) Those made between persons who were guilty of adultery or concubinage at the time of the donation;

(2) Those made between persons found guilty of the same criminal offense, in consideration thereof;

(3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office.

In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the same action.

Article 1028 of the Civil Code provides:

The prohibitions mentioned in Article 739, concerning donations inter vivos shall apply to testamentary provisions.

In Article III of the disputed Will, executed on August 15, 1968, or almost six years before the testator's death on July 16, 1974, Martin Jugo stated that respondent Rufina Gomez was his legal wife from whom he had been estranged "for so many years." He also declared that respondents Carmelita Jugo and Oscar Jugo were his legitimate children. In Article IV, he stated that he had been living as man and wife with the petitioner since 1952. Testator Jugo declared that the petitioner was entitled to his love and affection. He stated that Nepomuceno represented Jugo as her own husband but "in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned previous marriage.

There is no question from the records about the fact of a prior existing marriage when Martin Jugo executed his Will. There is also no dispute that the petitioner and Mr. Jugo lived together in an ostensible marital relationship for 22 years until his death.

It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted a marriage before the Justice of the Peace of Victoria, Tarlac. The man was then 51 years old while the woman was 48. Nepomuceno now contends that she acted in good faith for 22 years in the belief that she was legally married to the testator.

The records do not sustain a finding of innocence or good faith. As argued by the private respondents:

First. The last will and testament itself expressly admits indubitably on its face the meretricious relationship between the testator and petitioner, the devisee.

Second. Petitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil status of the testator, which led private respondents to present contrary evidence.

In short, the parties themselves dueled on the intrinsic validity of the legacy given in the will to petitioner by the deceased testator at the start of the proceedings.

Whether or not petitioner knew that testator Martin Jugo, the man he had lived with as man and wife, as already married, was an important and specific issue brought by the parties before the trial court, and passed upon by the Court of Appeals.

Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner who opted to present evidence on her alleged good faith in marrying the testator. (Testimony of Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 62-64).

Private respondents, naturally, presented evidence that would refute the testimony of petitioner on the point.

Sebastian Jugo, younger brother of the deceased testator, testified at length on the meretricious relationship of his brother and petitioner. (TSN of August 18,1975).

Clearly, the good faith of petitioner was by option of the parties made a decisive issue right at the inception of the case.

Confronted by the situation, the trial court had to make a ruling on the question.

When the court a quo held that the testator Martin Jugo and petitioner 'were deemed guilty of adultery or concubinage', it was a finding that petitioner was not the innocent woman she pretended to be.

xxx xxx xxx

3. If a review of the evidence must be made nonetheless, then private respondents respectfully offer the following analysis:

FIRST: The secrecy of the marriage of petitioner with the deceased testator in a town in Tarlac where neither she nor the testator ever resided. If there was nothing to hide from, why the concealment' ? Of course, it maybe argued that the marriage of the deceased with private respondent Rufina Gomez was likewise done in secrecy. But it should be remembered that Rufina Gomez was already in the family way at that time and it would seem that the parents of Martin Jugo were not in favor of the marriage so much so that an action in court was brought concerning the marriage. (Testimony of Sebastian Jugo, TSN of August 18, 1975, pp. 29-30)

SECOND: Petitioner was a sweetheart of the deceased testator when they were still both single. That would be in 1922 as Martin Jugo married respondent Rufina Gomez on November 29, 1923 (Exh. 3). Petitioner married the testator only on December 5, 1952. There was a space of about 30 years in between. During those 30 years, could it be believed that she did not even wonder why Martin Jugo did not marry her nor contact her anymore after November, 1923 - facts that should impel her to ask her groom before she married him in secrecy, especially so when she was already about 50 years old at the time of marriage.

THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by itself conclusive demonstration that she new that the man she had openly lived for 22 years as man and wife was a married man with already two children.

FOURTH: Having admitted that she knew the children of respondent Rufina Gomez, is it possible that she would not have asked Martin Jugo whether or not they were his illegitimate or legitimate children and by whom? That is un-Filipino.

FIFTH: Having often gone to Pasig to the residence of the parents of the deceased testator, is it possible that she would not have known that the mother of private respondent Oscar Jugo and Carmelita Jugo was respondent Rufina Gomez, considering that the houses of the parents of Martin Jugo (where he had lived for many years) and that of respondent Rufina Gomez were just a few meters away?

Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say the least, inherently improbable, for they are against the experience in common life and the ordinary instincts and promptings of human nature that a woman would not bother at all to ask the man she was going to marry whether or not he was already married to another, knowing that her groom had children. It would be a story that would strain human credulity to the limit if petitioner did not know that Martin Jugo was already a married man in view of the irrefutable fact that it was precisely his marriage to respondent Rufina Gomez that led petitioner to break off with the deceased during their younger years.

Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between persons who are living in adultery or concubinage. It is the donation which becomes void. The giver cannot give even assuming that the recipient may receive. The very wordings of the Will invalidate the legacy because the testator admitted he was disposing the properties to a person with whom he had been living in concubinage.

WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals, now Intermediate Appellate Court, is AFFIRMED. No costs.

SO ORDERED.

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

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

Ermelo P. Guzman for petitioner.

Armando Z. Gonzales for private respondent.

 

GUTIERREZ, JR., J.:

This is a petition for review on certiorari, seeking to annul the order of the respondent judge of the Court of First Instance of Manila, Branch XXXVIII, which admitted to and allowed the probate of the last will and testament of Adoracion C. Campos, after an ex-parte presentation of evidence by herein private respondent.

On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes Campos and her sisters, private respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes Campos was the only compulsory heir, he executed an Affidavit of Adjudication under Rule 74, Section I of the Rules of Court whereby he adjudicated unto himself the ownership of the entire estate of the deceased Adoracion Campos.

Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate of a will of the deceased, Adoracion Campos, which was allegedly executed in the

United States and for her appointment as administratrix of the estate of the deceased testatrix.

In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death and was a permanent resident of 4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in Manila on January 31, 1977 while temporarily residing with her sister at 2167 Leveriza, Malate, Manila; that during her lifetime, the testatrix made her last wig and testament on July 10, 1975, according to the laws of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New Jersey as executor; that after the testatrix death, her last will and testament was presented, probated, allowed, and registered with the Registry of Wins at the County of Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who was appointed after Dr. Barzaga had declined and waived his appointment as executor in favor of the former, is also a resident of Philadelphia, U.S.A., and that therefore, there is an urgent need for the appointment of an administratrix to administer and eventually distribute the properties of the estate located in the Philippines.

On January 11, 1978, an opposition to the reprobate of the will was filed by herein petitioner alleging among other things, that he has every reason to believe that the will in question is a forgery; that the intrinsic provisions of the will are null and void; and that even if pertinent American laws on intrinsic provisions are invoked, the same could not apply inasmuch as they would work injustice and injury to him.

On December 1, 1978, however, the petitioner through his counsel, Atty. Franco Loyola, filed a Motion to Dismiss Opposition (With Waiver of Rights or Interests) stating that he "has been able to verify the veracity thereof (of the will) and now confirms the same to be truly the probated will of his daughter Adoracion." Hence, an ex-partepresentation of evidence for the reprobate of the questioned will was made.

On January 10, 1979, the respondent judge issued an order, to wit:

At the hearing, it has been satisfactorily established that Adoracion C. Campos, in her lifetime, was a citizen of the United States of America with a permanent residence at 4633 Ditman Street, Philadelphia, PA 19124, (Exhibit D) that when alive, Adoracion C. Campos executed a Last Will and Testament in the county of Philadelphia, Pennsylvania, U.S.A., according to the laws thereat (Exhibits E-3 to E-3-b) that while in temporary sojourn in the Philippines, Adoracion C. Campos died in the City of Manila (Exhibit C) leaving property both in the Philippines and in the United States of America; that the Last Will and Testament of the late Adoracion C. Campos was admitted and granted probate by the Orphan's Court Division of the Court of Common Pleas, the probate court of the Commonwealth of Pennsylvania, County of Philadelphia, U.S.A., and letters of administration were issued in favor of Clement J. McLaughlin all in accordance with the laws of the said foreign country on procedure and allowance of wills (Exhibits E to E-10); and that the petitioner is not suffering from any disqualification which would render her unfit as administratrix of the estate in the Philippines of the late Adoracion C. Campos.

WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is hereby admitted to and allowed probate in the Philippines, and Nenita Campos Paguia is hereby appointed Administratrix of the estate of said decedent; let Letters of Administration with the Will annexed issue in favor of

said Administratrix upon her filing of a bond in the amount of P5,000.00 conditioned under the provisions of Section I, Rule 81 of the Rules of Court.

Another manifestation was filed by the petitioner on April 14, 1979, confirming the withdrawal of his opposition, acknowledging the same to be his voluntary act and deed.

On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the order allowing the will be set aside on the ground that the withdrawal of his opposition to the same was secured through fraudulent means. According to him, the "Motion to Dismiss Opposition" was inserted among the papers which he signed in connection with two Deeds of Conditional Sales which he executed with the Construction and Development Corporation of the Philippines (CDCP). He also alleged that the lawyer who filed the withdrawal of the opposition was not his counsel-of-record in the special proceedings case.

The petition for relief was set for hearing but the petitioner failed to appear. He made several motions for postponement until the hearing was set on May 29, 1980.

On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate and/or Set Aside the Order of January 10, 1979, and/or dismiss the case for lack of jurisdiction. In this motion, the notice of hearing provided:

Please include this motion in your calendar for hearing on May 29, 1980 at 8:30 in the morning for submission for reconsideration and resolution of the Honorable Court. Until this Motion is resolved, may I also request for the future setting of the case for hearing on the Oppositor's motion to set aside previously filed.

The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the case was called for hearing on this date, the counsel for petitioner tried to argue his motion to vacate instead of adducing evidence in support of the petition for relief. Thus, the respondent judge issued an order dismissing the petition for relief for failure to present evidence in support thereof. Petitioner filed a motion for reconsideration but the same was denied. In the same order, respondent judge also denied the motion to vacate for lack of merit. Hence, this petition.

Meanwhile, on June 6,1982, petitioner Hermogenes Campos died and left a will, which, incidentally has been questioned by the respondent, his children and forced heirs as, on its face, patently null and void, and a fabrication, appointing Polly Cayetano as the executrix of his last will and testament. Cayetano, therefore, filed a motion to substitute herself as petitioner in the instant case which was granted by the court on September 13, 1982.

A motion to dismiss the petition on the ground that the rights of the petitioner Hermogenes Campos merged upon his death with the rights of the respondent and her sisters, only remaining children and forced heirs was denied on September 12, 1983.

Petitioner Cayetano persists with the allegations that the respondent judge acted without or in excess of his jurisdiction when:

1) He ruled the petitioner lost his standing in court deprived the Right to Notice (sic) upon the filing of the Motion to Dismiss opposition with waiver of rights or interests against the estate of deceased Adoracion C. Campos,

thus, paving the way for the hearing ex-parte of the petition for the probate of decedent will.

2) He ruled that petitioner can waive, renounce or repudiate (not made in a public or authenticated instrument), or by way of a petition presented to the court but by way of a motion presented prior to an order for the distribution of the estate-the law especially providing that repudiation of an inheritance must be presented, within 30 days after it has issued an order for the distribution of the estate in accordance with the rules of Court.

3) He ruled that the right of a forced heir to his legitime can be divested by a decree admitting a will to probate in which no provision is made for the forced heir in complete disregard of Law of Succession

4) He denied petitioner's petition for Relief on the ground that no evidence was adduced to support the Petition for Relief when no Notice nor hearing was set to afford petitioner to prove the merit of his petition — a denial of the due process and a grave abuse of discretion amounting to lack of jurisdiction.

5) He acquired no jurisdiction over the testate case, the fact that the Testator at the time of death was a usual resident of Dasmariñas, Cavite, consequently Cavite Court of First Instance has exclusive jurisdiction over the case (De Borja vs. Tan, G.R. No. L-7792, July 1955).

The first two issues raised by the petitioner are anchored on the allegation that the respondent judge acted with grave abuse of discretion when he allowed the withdrawal of the petitioner's opposition to the reprobate of the will.

We find no grave abuse of discretion on the part of the respondent judge. No proof was adduced to support petitioner's contention that the motion to withdraw was secured through fraudulent means and that Atty. Franco Loyola was not his counsel of record. The records show that after the firing of the contested motion, the petitioner at a later date, filed a manifestation wherein he confirmed that the Motion to Dismiss Opposition was his voluntary act and deed. Moreover, at the time the motion was filed, the petitioner's former counsel, Atty. Jose P. Lagrosa had long withdrawn from the case and had been substituted by Atty. Franco Loyola who in turn filed the motion. The present petitioner cannot, therefore, maintain that the old man's attorney of record was Atty. Lagrosa at the time of filing the motion. Since the withdrawal was in order, the respondent judge acted correctly in hearing the probate of the will ex-parte, there being no other opposition to the same.

The third issue raised deals with the validity of the provisions of the will. As a general rule, the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testatrix's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the court has declared that the will has been duly authenticated. However, where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue. (Maninang vs. Court of Appeals, 114 SCRA 478).

In the case at bar, the petitioner maintains that since the respondent judge allowed the reprobate of Adoracion's will, Hermogenes C. Campos was divested of his legitime which was reserved by the law for him.

This contention is without merit.

Although on its face, the will appeared to have preterited the petitioner and thus, the respondent judge should have denied its reprobate outright, the private respondents have sufficiently established that Adoracion was, at the time of her death, an American citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the Civil Code which respectively provide:

Art. 16 par. (2).

xxx xxx xxx

However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.

Art. 1039.

Capacity to succeed is governed by the law of the nation of the decedent.

the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the national law of the decedent. Although the parties admit that the Pennsylvania law does not provide for legitimes and that all the estate may be given away by the testatrix to a complete stranger, the petitioner argues that such law should not apply because it would be contrary to the sound and established public policy and would run counter to the specific provisions of Philippine Law.

It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Article 16(2) and 1039 of the Civil Code, the national law of the decedent must apply. This was squarely applied in the case ofBellis v. Bellis (20 SCRA 358) wherein we ruled:

It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones.

xxx xxx xxx

The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and under the law of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine Law on legitimes cannot be applied to the testacy of Amos G. Bellis.

As regards the alleged absence of notice of hearing for the petition for relief, the records wig bear the fact that what was repeatedly scheduled for hearing on separate dates until June

19, 1980 was the petitioner's petition for relief and not his motion to vacate the order of January 10, 1979. There is no reason why the petitioner should have been led to believe otherwise. The court even admonished the petitioner's failing to adduce evidence when his petition for relief was repeatedly set for hearing. There was no denial of due process. The fact that he requested "for the future setting of the case for hearing . . ." did not mean that at the next hearing, the motion to vacate would be heard and given preference in lieu of the petition for relief. Furthermore, such request should be embodied in a motion and not in a mere notice of hearing.

Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid of merit. Under Rule 73, Section 1, of the Rules of Court, it is provided that:

SECTION 1. Where estate of deceased persons settled. — If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resided at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record.

Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the Court of First Instance of Manila where she had an estate since it was alleged and proven that Adoracion at the time of her death was a citizen and permanent resident of Pennsylvania, United States of America and not a "usual resident of Cavite" as alleged by the petitioner. Moreover, petitioner is now estopped from questioning the jurisdiction of the probate court in the petition for relief. It is a settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief, against his opponent and after failing to obtain such relief, repudiate or question that same jurisdiction. (See Saulog Transit, Inc. vs. Hon. Manuel Lazaro, et al., G. R. No. 63 284, April 4, 1984).

WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of merit.

SO ORDERED.

EN BANC

[G.R. No. L-8774. November 26, 1956.]

In the matter of the testate estate of the deceased JUANA JUAN VDA. DE MOLO. EMILIANA MOLO-PECKSON and PILAR PEREZ-NABLE, Petitioners-Appellees, vs. ENRIQUE TANCHUCO,

FAUSTINO GOMEZ, ET AL., Oppositors-Appellants.

 

D E C I S I O N

MONTEMAYOR, J.:

Mariano   Molo   and   Juana   Juan   was   a   couple   possessed   of   much   worldly   wealth,   but unfortunately, not blessed with children. To fill the void in their marital life, they took into their home   and   custody   two  baby   girls,   raising   them   from   infancy,   treating   them  as   their   own daughters,   sending   them   to   school,   and   later   to   the   best   and   exclusive   centers   of   higher learning, until they both graduated, one in pharmacy, and the other in law. These two fortunate girls, now grown up women and married, are Emiliana Perez-Molo-Peckson, a niece of Juana, and Pilar Perez-Nable a half sister of Emiliana.

Mariano Molo died in January, 1941, and by will bequeathed all his estate to his wife. Juana, his widow,  died  on  May  28,  1950,   leaving  no   forced  heirs  but  only  collateral,  — children  and grandchildren of her sisters.  She  left considerable property worth around a million pesos or more, and to dispose of the same, she was supposed to have executed on May 11, 1948, about two years before her death, a document purporting to be her last will and testament, wherein she bequeathed the bulk of her property to her two foster children, Emiliana and Pilar. These two foster daughters, as Petitioners, presented the document for probate in the Court of First Instance of Rizal. The other relatives, such as Enrique Tanchuco, only son of Juana’s deceased sister Modesta, and his two children, Ester, and Gloria, both surnamed Tanchuco, and Faustino Gomez  and  Fortunata  Gomez,   the  only   surviving  grandchildren  of  another  deceased   sister, named Francisca, filed opposition to the probate of the will on the ground that the instrument in question was not the last will and testament of Juana; chan   roblesvirtualawlibrarythat the same was not executed and attested  in accordance with  law; chan   roblesvirtualawlibrarythat  the said supposed will  was secured through undue pressure and  influence on the part  of  the beneficiaries  therein; chan   roblesvirtualawlibrarythat the signature of  the testatrix was secured by fraud and that she did not intend the instrument to be her last will; chan 

roblesvirtualawlibraryand that at the time the instrument was executed, the testatrix Juana was not of sound and disposing mind.

Because of the value of the property involved, as well as the fact that the bulk of said property was being left to Emiliana and Pilar,   ignoring and practically disinheriting the other relatives whose blood ties with the testatrix were just as close, if not closer, the will, marked Exhibit A at the   hearing,   was   hotly   contested   and   considerable   evidence,   oral   and   documentary,   was introduced by both parties.  After hearing,   Judge Bienvenido A.  Tan,  presiding  over   the trial court,   in a well  considered decision declared the document Exhibit A to be the last will  and testament of Juana Juan, and admitted the same for probate; chan   roblesvirtualawlibraryand following the provisions of the   will,   he   appointed   Emiliana   and   Pilar   executrices   without   bond.   Failing   to   obtain   a reconsideration of   this  decision,   the Oppositors appealed to  the Court  of  Appeals  about  the beginning of the year 1951.

Ordinarily, because of the value of the property involved in the will, which was many times more than P50,000, the appeal should have been brought directly to this Tribunal. However, shortly, after the execution of the instrument admitted to probate as a will, the testatrix executed a document purporting to be a deed of donation inter vivos, donating the great bulk of her entire property,  with the exception of  about P16,000 worth,  to the same beneficiaries   in  the will, namely, Emiliana and Pilar. If this deed of donation is valid, then the will disposes of property valued only  at  about  P16,000; chan   roblesvirtualawlibraryhence,   the  appeal   to   the Court  of  Appeals   instead of   the Supreme Court. In justice to the Oppositors, it should be stated that, at the same time that they opposed the probate of the will   in the probate court,  they also expressed their intention to contest the validity of the allege donation inter vivos, either in the administration proceedings or in a proper separate case. The appeal, for one reason or another, remained in the Court of Appeals for sometime, and only by its resolution of July 7, 1954, was the case certified to us on 

the  ground   that,   inasmuch  as   the   validity  of   the   supposed  donation   inter   vivos  was  being impugned and repudiated by the Oppositors of the will, and inasmuch as the will itself covered property valued well in excess of P50,000, the appeal should be determined by the Supreme Court.

We have carefully gone over the evidence of the record, and we are convinced that the great preponderance thereof is in favor of the probate of the will. Not only this, but we realize that the   credibility   of   witnesses   is   very  much   involved   in   the   determination   of   this   case,   the testimony of those for the Petitioners being diametrically opposed to and utterly conflicting with that of the witnesses for the Oppositors. His Honor, the trial judge had the opportunity and was in   a   position   to   gauge   said   credibility   and   he   evidently   found   the   witnesses   for thePetitioners more entitled to credence,  and their   testimony more reasonable.  We find no reason for disturbing said finding of the probate court. We quote with approval a portion of the decision of Judge Tan, reading as follows:chanroblesvirtuallawlibrary

“From the evidence presented in this case, both oral and documentary, it was proved to the full satisfaction of this Court that the deceased freely and voluntarily executed Exhibit “A”, her last will  and testament,  in the presence of her three attesting witnesses that at the time of the execution of the said will, the deceased was of sound mind and in good health and was fully conscious of all her acts as may be seen in Exhibits “D”, “D-1”, “D-2”, “D-3”, and “D-4”, and also as was proven by the testimony of the two attesting witnesses,  Petrona P. Navarro and Dr. Cleofas Canicosa; chan   roblesvirtualawlibrarythat said will was signed in the presence of the three attesting witnesses, who, likewise, signed in the presence of the testatrix and in the presence of each other; chan   roblesvirtualawlibrarythat after the execution of said will or after the signing of the same, the deceased Juana Juan Vda. de Molo  took  it  with  her  and kept   it   in  her  possession and after  her  death,   the  said  will  was presented in court for probate.

“While the written opposition to the probate of said will consists of a litany of supposed abuses, force   and   undue   influence   exercised   on   the   testatrix,   yet   the   evidence   shows   that   these supposed abuses, force and undue influence consist only of failure on the part of the deceased to invite the Oppositors in all the parties held in her house through the alleged influence of Mrs. Nable, of paying more attention, care, and extending more kindness to thePetitioners than to the Oppositors in   spite   of   the   close   blood   relationship   existing   between   the   testatrix   and the Oppositors. The Oppositors also tried to prove the existence of another will which, according to them, was read to the Oppositor Enrique Tanchuco three days before the departure of the testatrix   for   the  United  States,   though  no  evidence  whatsoever  was  presented  as   to  what happened to the supposed will, where it is now, in whose hands it is, or in whose possession it could be found. The Oppositors also tried to prove that during the illness of the testatrix in 1948 they were unable to visit her because of the influence of Emiliana Molo-Peckson, who told them that they could not visit the testatrix because of the advice of the doctor. This testimony of the Oppositors was satisfactorily contradicted by the testimony of Mrs. Emiliana Molo-Peckson who denied that the testatrix was sick in the year 1948 and by means of photographs which show that during the said period of time, which theOppositors alleged to be the date when Mrs. Juana Juan Vda. de Molo was sick, the latter attended several affairs, such as sponsoring the reconstruction of the Antipolo Church, attending a party given in the house of Gen. Aguinaldo in Kawit, Cavite, and other social gatherings.”

Neither do we find anything unusual or extraordinary in the testatrix giving practically all her property to her foster daughters, to the exclusion of her other relatives. The two beneficiaries, as already stated, were taken in and raised by her and her husband, Mariano, when they were 

mere babies. Naturally, they became very much attached to and came to love said two children, specially since they had none of their own. They sent them to good, even expensive schools like the Santa Teresa, Santa Escolastica, and the University of the Philippines, and otherwise lavished their affection and their wealth on their two protegees. Little wonder then that Juana in making her will made Emiliana and Pilar practically her exclusive beneficiaries, specially since, So we understand, when these two girls had grown up to womanhood, and been highly educated, they helped their foster parents in the administration of their extensive properties, and later took good, kind, and tender care of them in their old age. We repeat that it was neither unusual nor extraordinary   that   the   testatrix,   with   no   forced   heirs,   should   have  made   her   two   foster daughters, the beneficiaries in her will, to the exclusion of her blood relatives. Said this Court in a similar case — Pecson vs. Coronel, 45 Phil. 220:chanroblesvirtuallawlibrary

“The Appellants emphasize the fact that family ties in this country are very strongly knit and that the exclusion of relatives from one’s estate is an exceptional case.  It  is true that the ties of relationship in the Philippines are very strong, but we understand that cases of preterition of relatives from the inheritance are not rare. The liberty to dispose of one’s estate by will when there are no forced heirs is rendered sacred by the Civil Code in force in the Philippines since 1889. It is so provided in the first paragraph of article 763 in the following terms:chanroblesvirtuallawlibrary

“‘Any person who has no forced heirs may dispose by will of all his property or any part of it in favor of any person qualified to acquire it.’

“Even ignoring the precedents of this legal precept, the Code embodying it has been in force in the Philippines for more than a quarter of a century, and for this reason it is not tenable to say that the exercise of the liberty thereby granted is necessarily exceptional, where it is not shown that the inhabitants of this country whose customs must have been taken into consideration by the legislator in adopting this legal precept, are averse to such a liberty.”

Oppositors-Appellants in their printed memorandum contend that under Section 618 of Act 190, the Old Code of Civil Procedure, which requires that a will should be attested or subscribed by three or more credible witnesses, two of the attesting witnesses to the will in question, namely, Miss Navarro and Miss Canicosa, who were employed as pharmacist and salesgirl, respectively, in the drugstore of Pilar Perez-Nable, one of beneficiaries in the will, may not be considered credible witnesses for the reason that as such employees, they would naturally testify in favor of their   employer.  We  find   the   contention  untenable.   Section  620  of   the   same  Code  of  Civil Procedure provides that any person of sound mind, and of the age of eighteen years or more, and not blind, deaf, or dumb and able to read and write, may be a witness to the execution of a will.  This  same provision  is  reproduced  in our New Civil  Code of  1950,  under Art.  820.  The relation of employer and employee, or being a relative to the beneficiary in a will,  does not disqualify one to be a witness to a will. The main qualification of a witness in the attestation of wills,   if  other  qualifications as  to  age,  mental  capacity  and  literacy  are present,   is   that  said witness must be credible, that is to say, his testimony may be entitled to credence. There is a long line of authorities on this point, a few of which we may cite:chanroblesvirtuallawlibrary

“A ‘credible witness’  is one who is not disqualified to testify by mental  incapacity,  crime, or other cause. Historical Soc. of Dauphin County vs. Kelker, 74 A. 619, 226 Pa. 16, 134 Am. St. Rep. 1010.” (Words and Phrases, Vol. 10, p. 340).

“As construed by the common law, a ‘credible witness’ to a will means a ‘competent witness’. Appeal  of Clark,  95 A. 517, 114 Me. 105, Ann. Cas.  1917A, 837.” (Ibid.  p.  341).  “Expression ‘credible witness’ in relation to attestation of wills means ‘competent witness’; chan   roblesvirtualawlibrarythat is, one 

competent under the law to testify to fact of execution of will. Vernon’s Ann. Civ. St. art. 8283. Moos vs. First State Bank of Uvalde, Tex. Civ. App. 60 S. W. 2d 888, 889.” (Ibid. p. 842)

“The term ‘credible’, used in the statute of wills requiring that a will shall be attested by two credible witnesses, means competent; chan   roblesvirtualawlibrarywitnesses who, at the time of attesting the will, are legally competent to testify, in a court of justice, to the facts attested by subscribing the will, the competency being determined as of the date of the execution of the will and not of the time it is offered for probate. Smith vs. Goodell, 101 N.E. 255, 256, 258 Ill. 145. (Ibid.)

“‘Credible witnesses’, as used in the statute relating to wills, means competent witnesses — that is, such persons as are not legally disqualified from testifying in courts of justice, by reason of mental incapacity, interest, or the commission of crimes, or other cause excluding them from testifying generally, or rendering them incompetent in respect of the particular subject matter or in the particular suit. Hill vs. Chicago Title & Trust Co., 152 N. E. 545, 546, 322 III. 42.” (Ibid. p. 343)

This Tribunal itself held in the case of Vda. de Roxas vs. Roxas, 48 Off. Gaz., 2177, that the law does not bar relatives, either of the testator or of the heirs or legatees, from acting as attesting witnesses to a will.

In view of the foregoing, finding no reversible error in the decision appealed from the same is hereby affirmed. No costs.

G.R. No. 103554 May 28, 1993

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO, PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO, represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA, represented herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO CANEDA, petitioners, vs.HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate of Mateo Caballero, respondents.

Palma, Palma & Associates for petitioners.

Emilio Lumontad, Jr. for private respondents.

 

REGALADO, J.:

Presented for resolution by this Court in the present petition for review on certiorari is the issue of whether or not the attestation clause contained in the last will and testament of the late Mateo Caballero complies with the requirements of Article 805, in relation to Article 809, of the Civil Code.

The records show that on December 5, 1978, Mateo Caballero, a widower without any children and already in the twilight years of his life, executed a last will and testament at his residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa. The said testator was duly assisted by his

lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the preparation of that last will. 1 It was declared therein, among other things, that the testator was leaving by way of legacies and devises his real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not appear to be related to the testator. 2

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu seeking the probate of his last will and testament. The probate court set the petition for hearing on August 20, 1979 but the same and subsequent scheduled hearings were postponed for one reason to another. On May 29, 1980, the testator passed away before his petition could finally be heard by the probate court. 3 On February 25, 1981, Benoni Cabrera, on of the legatees named in the will, sough his appointment as special administrator of the testator's estate, the estimated value of which was P24,000.00, and he was so appointed by the probate court in its order of March 6, 1981. 4

Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" and docketed as Special Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First Instance of Cebu. On October 18, 1982, herein petitioners had their said petition intestate proceeding consolidated with Special Proceeding No. 3899-R in Branch II of the Court of First Instance of Cebu and opposed thereat the probate of the Testator's will and the appointment of a special administrator for his estate. 5

Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV of the Regional Trial Court of Cebu, appointed William Cabrera as special administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued an order for the return of the records of Special Proceeding No. 3965-R to the archives since the testate proceeding for the probate of the will had to be heard and resolved first. On March 26, 1984 the case was reraffled and eventually assigned to Branch XII of the Regional Trial Court of Cebu where it remained until the conclusion of the probate proceedings. 6

In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as oppositors and objected to the allowance of the testator's will on the ground that on the alleged date of its execution, the testator was already in the poor state of health such that he could not have possibly executed the same. Petitioners likewise reiterated the issue as to the genuineness of the signature of the testator therein. 7

On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty. Filoteo Manigos, testified that the testator executed the will in question in their presence while he was of sound and disposing mind and that, contrary to the assertions of the oppositors, Mateo Caballero was in good health and was not unduly influenced in any way in the execution of his will. Labuca also testified that he and the other witnesses attested and signed the will in the presence of the testator and of each other. The other two attesting witnesses were not presented in the probate hearing as the had died by then. 8

On April 5, 1988, the probate court rendered a decision declaring the will in question as the last will and testament of the late Mateo Caballero, on the ratiocination that:

. . . The self-serving testimony of the two witnesses of the oppositors cannot overcome the positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who clearly told the Court that indeed Mateo Caballero executed the

Last Will and Testament now marked Exhibit "C" on December 5, 1978. Moreover, the fact that it was Mateo Caballero who initiated the probate of his Will during his lifetime when he caused the filing of the original petition now marked Exhibit "D" clearly underscores the fact that this was indeed his Last Will. At the start, counsel for the oppositors manifested that he would want the signature of Mateo Caballero in Exhibit "C" examined by a handwriting expert of the NBI but it would seem that despite their avowal and intention for the examination of this signature of Mateo Caballero in Exhibit "C", nothing came out of it because they abandoned the idea and instead presented Aurea Caballero and Helen Caballero Campo as witnesses for the oppositors.

All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament of Mateo Caballero and that it was executed in accordance with all the requisites of the law. 9

Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question is null and void for the reason that its attestation clause is fatally defective since it fails to specifically state that the instrumental witnesses to the will witnessed the testator signing the will in their presence and that they also signed the will and all the pages thereof in the presence of the testator and of one another.

On October 15, 1991, respondent court promulgated its decision 10 affirming that of the trial court, and ruling that the attestation clause in the last will of Mateo Caballero substantially complies with Article 805 of the Civil Code, thus:

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

To our thinking, this is sufficient compliance and no evidence need be presented to indicate the meaning that the said will was signed by the testator and by them (the witnesses) in the presence of all of them and of one another. Or as the language of the law would have it that the testator signed the will "in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another." If not completely or ideally perfect in accordance with the wordings of Art. 805 but (sic) the phrase as formulated is in substantial compliance with the requirement of the law." 11

Petitioners moved for the reconsideration of the said ruling of respondent court, but the same was denied in the latter's resolution of January 14, 1992, 12 hence this appeal now before us. Petitioners assert that respondent court has ruled upon said issue in a manner not in accord with the law and settled jurisprudence on the matter and are now questioning once more, on

the same ground as that raised before respondent court, the validity of the attestation clause in the last will of Mateo Caballero.

We find the present petition to be meritorious, as we shall shortly hereafter, after some prefatory observations which we feel should be made in aid of the rationale for our resolution of the controversy.

1. A will has been defined as a species of conveyance whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate after his death. 13 Under the Civil Code, there are two kinds of wills which a testator may execute. 14 the first kind is the ordinary or attested will, the execution of which is governed by Articles 804 to 809 of the Code. Article 805 requires that:

Art. 805. 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 should 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 latter witnessed and signed the will and all 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 witness, it shall be interpreted to them.

In addition, the ordinary will must be acknowledged before a notary public by a testator and the attesting witness.15 hence it is likewise known as notarial will. Where the attestator is deaf or deaf-mute, Article 807 requires that he must personally read the will, if able to do so. Otherwise, he should designate two persons who would read the will and communicate its contents to him in a practicable manner. On the other hand, if the testator is blind, the will should be read to him twice; once, by anyone of the witnesses thereto, and then again, by the notary public before whom it is acknowledged. 16

The other kind of will is the holographic will, which Article 810 defines as one that is entirely written, dated, and signed by the testator himself. This kind of will, unlike the ordinary type, requires no attestation by witnesses. A common requirement in both kinds of will is that they should be in writing and must have been executed in a language or dialect known to the testator. 17

However, in the case of an ordinary or attested will, its attestation clause need not be written in a language or dialect known to the testator since it does not form part of the testamentary disposition. Furthermore, the language used in the attestation clause likewise need not even

be known to the attesting witnesses. 18 The last paragraph of Article 805 merely requires that, in such a case, the attestation clause shall be interpreted to said witnesses.

An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the instrument has been executed before them and to the manner of the execution the same. 19 It is a separate memorandum or record of the facts surrounding the conduct of execution and once signed by the witnesses, it gives affirmation to the fact that compliance with the essential formalities required by law has been observed. 20 It is made for the purpose of preserving in a permanent form a record of the facts that attended the execution of a particular will, so that in case of failure of the memory of the attesting witnesses, or other casualty, such facts may still be proved. 21

Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the invalidity of the will, 22 should state (1) the number of the pages used upon which the will is written; (2) that the testator signed, or expressly caused another to sign, the will and every page thereof in the presence of the attesting witnesses; and (3) that the attesting witnesses witnessed the signing by the testator of the will and all its pages,and that said witnesses also signed the will and every page thereof in the presence of the testator and of one another.

The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages; 23 whereas the subscription of the signature of the testator and the attesting witnesses is made for the purpose of authentication and identification, and thus indicates that the will is the very same instrument executed by the testator and attested to by the witnesses. 24

Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of the will as embodied in the attestation clause. 25 The attestation clause, therefore, provide strong legal guaranties for the due execution of a will and to insure the authenticity thereof. 26 As it appertains only to the witnesses and not to the testator, it need be signed only by them. 27 Where it is left unsigned, it would result in the invalidation of the will as it would be possible and easy to add the clause on a subsequent occasion in the absence of the testator and its witnesses. 28

In its report, the Code Commission commented on the reasons of the law for requiring the formalities to be followed in the execution of wills, in the following manner:

The underlying and fundamental objectives 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 with respect to the formalities in the execution of wills. . . . 29

2. An examination of the last will and testament of Mateo Caballero shows that it is comprised of three sheets all of which have been numbered correlatively, with the left margin of each page thereof bearing the respective signatures of the testator and the three attesting witnesses. The part of the will containing the testamentary dispositions is expressed in the

Cebuano-Visayan dialect and is signed at the foot thereof by the testator. The attestation clause in question, on the other hand, is recited in the English language and is likewise signed at the end thereof by the three attesting witnesses hereto. 30 Since it is the proverbial bone of contention, we reproduce it again for facility of reference:

We, the undersigned attesting Witnesses, whose Residences and postal addresses appear on the Opposite of our respective names, we do hereby certify that the Testament was read by him and the testator, MATEO CABALLERO; has published unto us the foregoing Will consisting of THREE PAGES, including the Acknowledgment, each page numbered correlatively in the letters on the upper part of each page, as his Last Will and Testament and he has the same and every page thereof, on the spaces provided for his signature and on the left hand margin, in the presence of the said testator and in the presence of each and all of us.

It will be noted that Article 805 requires that the witness should both attest and subscribe to the will in the presence of the testator and of one another. "Attestation" and "subscription" differ in meaning. Attestation is the act of senses, while subscription is the act of the hand. The former is mental, the latter mechanical, and to attest a will is to know that it was published as such, and to certify the facts required to constitute an actual and legal publication; but to subscribe a paper published as a will is only to write on the same paper the names of the witnesses, for the sole purpose of identification. 31

In Taboada vs. Rizal, 32 we clarified that 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. As it involves a mental act, there would be no means, therefore, of ascertaining by a physical examination of the will whether the witnesses had indeed signed in the presence of the testator and of each other unless this is substantially expressed in the attestation.

It is contended by petitioners that the aforequoted attestation clause, in contravention of the express requirements of the third paragraph of Article 805 of the Civil Code for attestation clauses, fails to specifically state the fact that the attesting witnesses the testator sign the will and all its pages in their presence and that they, the witnesses, likewise signed the will and every page thereof in the presence of the testator and of each other. We agree.

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

The phrase "and he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin," obviously refers to the testator and not the instrumental witnesses as it is immediately preceded by the words "as his Last Will and Testament." On the other hand, although the words "in the presence of the testator and in the presence of each and all of us" may, at first blush, appear to likewise signify and refer to the witnesses, it must, however, be interpreted as referring only to the testator signing in the presence of the witnesses since said phrase immediately follows the words "he has signed

the same and every page thereof, on the spaces provided for his signature and on the left hand margin." What is then clearly lacking, in the final logical analysis , is the statement that the witnesses signed the will and every page thereof in the presence of the testator and of one another.

It is our considered view that the absence of that statement required by law is a fatal defect or imperfection which must necessarily result in the disallowance of the will that is here sought to be admitted to probate. Petitioners are correct in pointing out that the aforestated defect in the attestation clause obviously cannot be characterized as merely involving the form of the will or the language used therein which would warrant the application of the substantial compliance rule, as contemplated in the pertinent provision thereon in the Civil Code, to wit:

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

While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left margin of each page by the three attesting witnesses, it certainly cannot be conclusively inferred therefrom that the said witness affixed their respective signatures in the presence of the testator and of each other since, as petitioners correctly observed, the presence of said signatures only establishes the fact that it was indeed signed, but it does not prove that the attesting witnesses did subscribe to the will in the presence of the testator and of each other. The execution of a will is supposed to be one act so that where the testator and the witnesses sign on various days or occasions and in various combinations, the will cannot be stamped with the imprimatur of effectivity. 33

We believe that the further comment of former Justice J.B.L. Reyes 34 regarding Article 809, wherein he urged caution in the application of the substantial compliance rule therein, is correct and should be applied in the case under consideration, as well as to future cases with similar questions:

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

3. We stress once more that under Article 809, the defects and imperfections must only be with respect to the form of the attestation or the language employed therein. Such defects or imperfections would not render a will invalid should it be proved that the will was really executed and attested in compliance with Article 805. In this regard, however, the manner of proving the due execution and attestation has been held to be limited to merely an examination of the will itself without resorting to evidence aliunde, whether oral or written.

The foregoing considerations do not apply where the attestation clause totally omits the fact that the attesting witnesses signed each and every page of the will in the presence of the testator and of each other. 35 In such a situation, the defect is not only in the form or language of the attestation clause but the total absence of a specific element required by Article 805 to be specifically stated in the attestation clause of a will. That is precisely the defect complained of in the present case since there is no plausible way by which we can read into the questioned attestation clause statement, or an implication thereof, that the attesting witness did actually bear witness to the signing by the testator of the will and all of its pages and that said instrumental witnesses also signed the will and every page thereof in the presence of the testator and of one another.

Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied on by respondents since it presupposes that the defects in the attestation clause can be cured or supplied by the text of the will or a consideration of matters apparent therefrom which would provide the data not expressed in the attestation clause or from which it may necessarily be gleaned or clearly inferred that the acts not stated in the omitted textual requirements were actually complied within the execution of the will. In other words, defects must be remedied by intrinsic evidence supplied by the will itself.

In the case at bar, contrarily, proof of the acts required to have been performed by the attesting witnesses can be supplied by only extrinsic evidence thereof, since an overall appreciation of the contents of the will yields no basis whatsoever from with such facts may be plausibly deduced. What private respondent insists on are the testimonies of his witnesses alleging that they saw the compliance with such requirements by the instrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsic evidence to prove the same and would accordingly be doing by the indirection what in law he cannot do directly.

4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as to which manner of interpretation should be followed in resolving issues centering on compliance with the legal formalities required in the execution of wills. The formal requirements were at that time embodied primarily in Section 618 of Act No. 190, the Code of Civil Procedure. Said section was later amended by Act No. 2645, but the provisions respecting said formalities found in Act. No. 190 and the amendment thereto were practically reproduced and adopted in the Civil Code.

One view advance the liberal or substantial compliance rule. This was first laid down in the case of Abangan vs. Abangan, 36 where it was held that the object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. Nonetheless, it was also emphasized that one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will, hence when an interpretation already given assures such ends, any other interpretation whatsoever that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded. The subsequent cases ofAvera vs. Garcia, 37 Aldaba vs. Roque, 38 Unson vs. Abella, 39 Pecson vs. Coronel, 40 Fernandez vs. Vergel de Dios, et al., 41 and Nayve vs. Mojal, et al. 42 all adhered to this position.

The other view which advocated the rule that statutes which prescribe the formalities that should be observed in the execution of wills are mandatory in nature and are to be strictly construed was followed in the subsequent cases of In the Matter of the Estate of

Saguinsin, 43 In re Will of Andrada, 44 Uy Coque vs. Sioca, 45 In re Estate of Neumark, 46 and Sano vs. Quintana. 47

Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to clarify the seemingly conflicting decisions in the aforementioned cases. In said case of Gumban, the attestation clause had failed to state that the witnesses signed the will and each and every page thereof on the left margin in the presence of the testator. The will in question was disallowed, with these reasons therefor:

In support of their argument on the assignment of error above-mentioned, appellants rely on a series of cases of this court beginning with (I)n the Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In re Estate of Neumark ([1923], 46 Phil., 841), and ending with Sano vs. Quintana([1925], 48 Phil., 506). Appellee counters with the citation of a series of cases beginning withAbangan vs. Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs. Roque ([1922], 43 Phil., 378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is to contrast and, if possible, conciliate the last two decisions cited by opposing counsel, namely, those of Sano vs. Quintana,supra, and Nayve vs. Mojal and Aguilar, supra.

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

It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit inconsistency in doctrine. Yet here, unless aided impossible to reconcile the Mojal and Quintana decisions. They are fundamentally at variance. If we rely on one, we affirm. If we rely on the other, we reverse.

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

The right to dispose of property by will is governed entirely by statute. The law of the case is here found in section 61 of the Code of Civil Procedure as amended by Act No. 2645, and in section 634 of the same Code, as unamended. It is in part provided in section 61, as amended that "No will . . . shall be valid . . . unless . . .." It is further provided in the same section that "The attestation shall state the number of sheets or 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 three witnesses, and the latter witnessed and signed the will and all pages thereof in the presence of the testator and of each other." Codal section 634 provides that "The will shall be disallowed in either of the following case: 1. If not executed and attested as in this Act provided." The law not alone carefully makes use of the imperative, but cautiously goes further and makes use of the negative, to enforce legislative intention. It is not within the province of the courts to disregard the legislative purpose so emphatically and clearly expressed.

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

But after the Gumban clarificatory pronouncement, there were decisions of the Court that once more appeared to revive the seeming diversity of views that was earlier threshed out therein. The cases of Quinto vs. Morata, 49Rodriguez vs. Alcala, 50 Enchevarria vs. Sarmiento, 51 and Testate Estate of Toray 52 went the way of the ruling as restated in Gumban. But De Gala vs. Gonzales, et al., 53 Rey vs. Cartagena, 54 De Ticson vs. De Gorostiza, 55Sebastian vs. Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs. Fabia, 58 Leynez vs. Leynez, 59 Martir vs. Martir, 60Alcala vs. De Villa, 61 Sabado vs.Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered away from the strict interpretation rule and established a trend toward an application of the liberal view.

The Code Commission, cognizant of such a conflicting welter of views and of the undeniable inclination towards a liberal construction, recommended the codification of the substantial compliance rule, as it believed this rule to be in accord with the modern tendency to give a liberal approach to the interpretation of wills. Said rule thus became what is now Article 809 of the Civil Code, with this explanation of the Code Commission:

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

However, in recent years the Supreme Court changed its attitude and has become more liberal in the interpretation of the formalities in the execution of wills. This liberal view is enunciated in the cases ofRodriguez vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October 18,

1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.

In the above mentioned decisions of our Supreme Court, it has practically gone back to the original provisions of Section 618 of the Code of Civil Procedure before its amendment by Act No. 2645 in the year 1916. To turn this attitude into a legislative declaration and to attain the main objective of the proposed Code in the liberalization of the manner of executing wills, article 829 of the Project is recommended, which reads:

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

The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does not offer any puzzle or difficulty, nor does it open the door to serious consequences. The later decisions do tell us when and where to stop; they draw the dividing line with precision. They do not allow evidence aliunde to fill a void in any part of the document or supply missing details that should appear in the will itself. They only permit a probe into the will, an exploration into its confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire results."

It may thus be stated that the rule, as it now stands, is that omissions which can be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will itself.67

WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent court is hereby REVERSED and SET ASIDE. The court a quo is accordingly directed to forthwith DISMISS its Special Proceeding No. 3899-R (Petition for the Probate of the Last Will and Testament of Mateo Caballero) and to REVIVE Special Proceeding No. 3965-R (In the matter of the Intestate Estate of Mateo Caballero) as an active case and thereafter duly proceed with the settlement of the estate of the said decedent.

SO ORDERED.

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

D E C I S I O N

ROMERO, J.:

Before us is a petition for review of the decision of the Court of Appeals in CA-G.R. CV No. 24199 entitled “Erlinda Agapay v. Carlina (Cornelia) Palang and

Herminia P. Dela Cruz” dated June 22, 1994 involving the ownership of two parcels of land acquired during the cohabitation of petitioner and private respondent’s legitimate spouse.

Miguel Palang contracted his first marriage on July 16, 1949 when he took private respondent Carlina (or Cornelia) Vallesterol as a wife at the Pozorrubio Roman Catholic Church in Pangasinan.  A few months after the wedding, in October 1949, he left to work in Hawaii.  Miguel and Carlina’s only child, Herminia Palang, was born on May 12, 1950.

Miguel returned in 1954 for a year.  His next visit to the Philippines was in 1964 and during the entire duration of his year-long sojourn he stayed in Zambales with his brother, not in Pangasinan with his wife and child.  The trial court found evidence that as early as 1957, Miguel had attempted to divorce Carlina in Hawaii.[1] When he returned for good in 1972, he refused to live with private respondents, but stayed alone in a house in Pozorrubio, Pangasinan.

On July 15, 1973, the then sixty-three-year-old Miguel contracted his second marriage with nineteen-year-old Erlinda Agapay, herein petitioner. [2] Two months earlier, on May 17, 1973, Miguel and Erlinda, as evidenced by the Deed of Sale, jointly purchased a parcel of agricultural land located at San Felipe, Binalonan, Pangasinan with an area of 10,080 square meters. Consequently, Transfer Certificate of Title No. 101736 covering said rice land was issued in their names.

A house and lot in Binalonan, Pangasinan was likewise purchased on September 23, 1975, allegedly by Erlinda as the sole vendee.  TCT No. 143120 covering said property was later issued in her name.

On October 30, 1975, Miguel and Cornelia Palang executed a Deed of Donation as a form of compromise agreement to settle and end a case filed by the latter.[3] The parties therein agreed to donate their conjugal property consisting of six parcels of land to their only child, Herminia Palang.[4]

Miguel and Erlinda’s cohabitation produced a son, Kristopher A. Palang, born on December 6, 1977.  In 1979, Miguel and Erlinda were convicted of Concubinage upon Carlina’s complaint.[5] Two years later, on February 15, 1981, Miguel died.

On July 11, 1981, Carlina Palang and her daughter Herminia Palang de la Cruz, herein private respondents, instituted the case at bar, an action for recovery of ownership and possession with damages against petitioner before the Regional Trial Court in Urdaneta, Pangasinan (Civil Case No. U-4265).  Private respondents sought to get back the riceland and the house and lot both located at Binalonan, Pangasinan allegedly purchased by Miguel during his cohabitation with petitioner.

Petitioner, as defendant below, contended that while the riceland covered by TCT No. 101736 is registered in their names (Miguel and Erlinda), she had already given her half of the property to their son Kristopher Palang.  She added that the house and lot covered by TCT No. 143120 is her sole property, having

bought the same with her own money.  Erlinda added that Carlina is precluded from claiming aforesaid properties since the latter had already donated their conjugal estate to Herminia.

After trial on the merits, the lower court rendered its decision on June 30, 1989 dismissing the complaint after declaring that there was little evidence to prove that the subject properties pertained to the conjugal property of Carlina and Miguel Palang.  The lower court went on to provide for the intestate shares of the parties, particularly of Kristopher Palang, Miguel’s illegitimate son.  The dispositive portion of the decision reads:

“WHEREFORE, premises considered, judgment is hereby rendered-

1)             Dismissing the complaint, with costs against plaintiffs;

2)             Confirming the ownership of defendant Erlinda Agapay of the residential lot located at Poblacion, Binalonan, Pangasinan, as evidenced by TCT No. 143120, Lot 290-B including the old house standing therein;

3)             Confirming the ownership of one-half (1/2) portion of that piece of agricultural land situated at Balisa, San Felipe, Binalonan, Pangasinan, consisting of 10,080 square meters and as evidenced by TCT No. 101736, Lot 1123-A to Erlinda Agapay;

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

5)             No pronouncement as to damages and attorney’s fees.

SO ORDERED.”[6]

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

“WHEREFORE, PREMISES CONSIDERED, the appealed decision is hereby REVERSED and another one entered:

1.             Declaring plaintiffs-appellants the owners of the properties in question;

2.             Ordering defendant-appellee to vacate and deliver the properties in question to herein plaintiffs-appellants;

3.             Ordering the Register of Deeds of Pangasinan to cancel Transfer Certificate of Title Nos. 143120 and 101736 and to issue in lieu thereof another certificate of title in the name of plaintiffs-appellants.

No pronouncement as to costs.”[7]

Hence, this petition.

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

After studying the merits of the instant case, as well as the pertinent provisions of law and jurisprudence, the Court denies the petition and affirms the questioned decision of the Court of Appeals.

The first and principal issue is the ownership of the two pieces of property subject of this action.  Petitioner assails the validity of the deeds of conveyance over the same parcels of land.  There is no dispute that the transfers of ownership from the original owners of the riceland and the house and lot, Corazon Ilomin and the spouses Cespedes, respectively, were valid.

The sale of the riceland on May 17, 1973, was made in favor of Miguel and Erlinda.  The provision of law applicable here is Article 148 of the Family Code providing for cases of cohabitation when a man and a woman who are not capacitated to marry each other live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage.  While Miguel and Erlinda contracted marriage on July 15, 1973, said union was patently void because the earlier marriage of Miguel and Carlina was still susbsisting and unaffected by the latter’s de facto separation.

Under Article 148, only the properties acquired by both of the parties through their actual joint contribution of money, property or industry shall be owned by them in common in proportion to their respective contributions. It must be stressed that actual contribution is required by this provision, in contrast to Article

147 which states that efforts in the care and maintenance of the family and household, are regarded as contributions to the acquisition of common property by one who has no salary or income or work or industry.  If the actual contribution of the party is not proved, there will be no co-ownership and no presumption of equal shares.[9]

In the case at bar, Erlinda tried to establish by her testimony that she is engaged in the business of buy and sell and had a sari-sari store[10] but failed to persuade us that she actually contributed money to buy the subject riceland.  Worth noting is the fact that on the date of conveyance, May 17, 1973, petitioner was only around twenty years of age and Miguel Palang was already sixty-four and a pensioner of the U.S. Government.  Considering her youthfulness, it is unrealistic to conclude that in 1973 she contributed P3,750.00 as her share in the purchase price of subject property, [11] there being no proof of the same.

Petitioner now claims that the riceland was bought two months before Miguel and Erlinda actually cohabited.  In the nature of an afterthought, said added assertion was intended to exclude their case from the operation of Article 148 of the Family Code.  Proof of the precise date when they commenced their adulterous cohabitation not having been adduced, we cannot state definitively that the riceland was purchased even before they started living together.  In any case, even assuming that the subject property was bought before cohabitation, the rules of co-ownership would still apply and proof of actual contribution would still be essential.

Since petitioner failed to prove that she contributed money to the purchase price of the riceland in Binalonan, Pangasinan, we find no basis to justify her co-ownership with Miguel over the same.  Consequently, the riceland should, as correctly held by the Court of Appeals, revert to the conjugal partnership property of the deceased Miguel and private respondent Carlina Palang.

Furthermore, it is immaterial that Miguel and Carlina previously agreed to donate their conjugal property in favor of their daughter Herminia in 1975.  The trial court erred in holding that the decision adopting their compromise agreement “in effect partakes the nature of judicial confirmation of the separation of property between spouses and the termination of the conjugal partnership.” [12] Separation of property between spouses during the marriage shall not take place except by judicial order or without judicial conferment when there is an express stipulation in the marriage settlements.[13] The judgment which resulted from the parties’ compromise was not specifically and expressly for separation of property and should not be so inferred.

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

The transaction was properly a donation made by Miguel to Erlinda, but one which was clearly void and inexistent by express provision of law because it was made between persons guilty of adultery or concubinage at the time of the donation, under Article 739 of the Civil Code.  Moreover, Article 87 of the Family Code expressly provides that the prohibition against donations between spouses now applies to donations between persons living together as husband and wife without a valid marriage,[15] for otherwise, the condition of those who incurred guilt would turn out to be better than those in legal union.[16]

The second issue concerning Kristopher Palang’s status and claim as an illegitimate son and heir to Miguel’s estate is here resolved in favor of respondent court’s correct assessment that the trial court erred in making pronouncements regarding Kristopher’s heirship and filiation “inasmuch as questions as to who are the heirs of the decedent, proof of filiation of illegitimate children and the determination of the estate of the latter and claims thereto should be ventilated in the proper probate court or in a special proceeding instituted for the purpose and cannot be adjudicated in the instant ordinary civil action which is for recovery of ownership and possession.”[17]

As regards the third issue, petitioner contends that Kristopher Palang should be considered as party-defendant in the case at bar following the trial court’s decision which expressly found that Kristopher had not been impleaded as party defendant but theorized that he had submitted to the court’s jurisdiction through his mother/guardian ad litem.[18] The trial court erred gravely.  Kristopher, not having been impleaded, was, therefore, not a party to the case at bar.  His mother, Erlinda, cannot be called his guardian ad litem for he was not involved in the case at bar.  Petitioner adds that there is no need for Kristopher to file another action to prove that he is the illegitimate son of Miguel, in order to avoid multiplicity of suits.[19] Petitioner’s grave error has been discussed in the preceeding paragraph where the need for probate proceedings to resolve the settlement of Miguel’s estate and Kristopher’s successional rights has been pointed out.

WHEREFORE, the instant petition is hereby DENIED.  The questioned decision of the Court of Appeals is AFFIRMED.  Costs against petitioner.

SO ORDERED.

G.R. No. 12099 October 30, 1997

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

 

TORRES, JR., J.:

Unless legally flawed, a testator's intention in his last will and testament is its "life and soul" which deserves reverential observance.

The controversy before us deals with such a case.

Petitioners Manuel G. Reyes, Mila G. Reyes, Danilo G. Reyes, Lyn Agape, Marites Agape, Estebana Galolo and Celsa Agape, the oppositors in Special Proceedings No. 112 for the probate of the will of Torcuato J. Reyes, assail in this petition for review the decision of the Court of Appeals 1 dated November 29, 1995, the dispositive portion of which reads:

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

SO ORDERED. 2

The antecedent facts:

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

xxx xxx xxx

II. I give and bequeath to my wife Asuncion "Oning" R. Reyes the following properties to wit:

a. All my shares of our personal properties consisting among others of jewelries, coins, antiques, statues, tablewares, furnitures, fixtures and the building;

b. All my shares consisting of one half (1/2) or 50% of all the real estates I own in common with my brother Jose, situated in Municipalities of Mambajao, Mahinog, Guinsiliban, Sagay all in Camigiun; real estates in Lunao, Gingoog, Caamulan, Sugbongcogon, Boloc-Boloc, Kinoguitan, Balingoan, Sta. Ines, Talisay, all in the province of Misamis Oriental. 3

The will consisted of two pages and was signed by Torcuato Reyes in the presence of three witnesses: Antonio Veloso, Gloria Borromeo, and Soledad Gaputan. Private respondent Julio A. Vivares was designated the executor and in his default or incapacity, his son Roch Alan S. Vivares.

Reyes died on May 12, 1992 and on May 21, 1992, private respondent filed a petition for probate of the will before the Regional Trial Court of Mambajao, Camiguin. The petition was set for hearing and the order was published in the Mindanao Daily Post, a newspaper of

general circulation, once a week for three consecutive weeks. Notices were likewise sent to all the persons named in the petition.

On July 21, 1992, the recognized natural children of Torcuato Reyes with Estebana Galolo, namely Manuel, Mila, and Danilo all surnamed Reyes, and the deceased's natural children with Celsa Agape, namely Lyn and Marites Agape, filed an opposition with the following allegations: a) that the last will and testament of Reyes was not executed and attested in accordance with the formalities of law; and b) that Asuncion Reyes Ebarle exerted undue and improper influence upon the testator at the time of the execution of the will. The opposition further averred that Reyes was never married to and could never marry Asuncion Reyes, the woman he claimed to be his wife in the will, because the latter was already married to Lupo Ebarle who was still then alive and their marriage was never annulled. Thus, Asuncion can not be a compulsory heir for her open cohabitation with Reyes was violative of public morals.

On July 22, 1992, the trial court issued an order declaring that it had Acquired jurisdiction over the petition and, therefore, allowed the presentation of evidence. After the presentation of evidence and submission of the respective memoranda, the trial court issued its decision on April 23, 1993.

The trial court declared that the will was executed in accordance with the formalities prescribed by law. It, however, ruled that Asuncion Reyes, based on the testimonies of the witnesses, was never married to the deceased Reyes and, therefore, their relationship was an adulterous one.

Thus:

The admission in the will by the testator to the illicit relationship between him and ASUNCION REYES EBARLE who is somebody else's wife, is further bolstered, strengthened, and confirmed by the direct testimonies of the petitioner himself and his two "attesting" witnesses during the trial.

In both cases, the common denominator is the immoral, meretrecious, adulterous and illicit relationship existing between the testator and the devisee prior to the death of the testator, which constituted the sole and primary consideration for the devise or legacy, thus making the will intrinsically invalid. 4

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

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

Considering that the oppositors never showed any competent, documentary or otherwise during the trial to show that Asuncion "Oning" Reyes' marriage to the testator was inexistent or void, either because of a pre-existing marriage or

adulterous relationship, the trial court gravely erred in striking down paragraph II (a) and (b) of the subject Last Will and Testament, as void for being contrary to law and morals. Said declarations are not sufficient to destroy the presumption of marriage. Nor is it enough to overcome the very declaration of the testator that Asuncion Reyes is his wife. 5

Dissatisfied with the decision of the Court of Appeals, the oppositors filed this petition for review.

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

The petition is devoid of merit.

As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. 7 Thus, the court merely inquires on its due execution, whether or not it complies with the formalities prescribed by law, and the testamentary capacity of the testator. It does not determine nor even by implication prejudge the validity or efficacy of the will's provisions. 8 The intrinsic validity is not considered since the consideration thereof usually comes only after the will has been proved and allowed. There are, however, notable circumstances wherein the intrinsic validity was first determined as when the defect of the will is apparent on its face and the probate of the will may become a useless ceremony if it is intrinsically invalid. 9 The intrinsic validity of a will may be passed upon because "practical considerations" demanded it as when there is preterition of heirs or the testamentary provisions are of doubtful legality. 10Where the parties agree that the intrinsic validity be first determined, the probate court may also do so. 11Parenthetically, the rule on probate is not inflexible and absolute. Under exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will. 12

The case at bar arose from the institution of the petition for the probate of the will of the late Torcuato Reyes. Perforce, the only issues to be settled in the said proceeding were: (1) whether or not the testator had animus testandi; (2) whether or not vices of consent attended the execution of the will; and (3) whether or not the formalities of the will had been complied with. Thus, the lower court was not asked to rule upon the intrinsic validity or efficacy of the provisions of the will. As a result, the declaration of the testator that Asuncion "Oning" Reyes was his wife did not have to be scrutinized during the probate proceedings. The propriety of the institution of Oning Reyes as one of the devisees/legatees already involved inquiry on the will's intrinsic validity and which need not be inquired upon by the probate court.

The lower court erroneously invoked the ruling in Nepomuceno vs. Court of Appeals (139 SCRA 206) in the instant case. In the case aforesaid, the testator himself, acknowledged his illicit relationship with the devisee, to wit:

Art. IV. That since 1952, I have been living, as man and wife, with one Sofia J. Nepomuceno, whom I declared and avow to be entitled to my love an [sic] affection, for all the things which she has done for me, now and in the past; that while Sofia J. Nepomuceno has with my full knowledge and consent, did comfort and represent myself as her own husband, in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned previous marriage.

Thus, the very tenor of the will invalidates the legacy because the testator admitted he was disposing of the properties to a person with whom he had been living in concubinage. 13 To remand the case would only be a waste of time and money since the illegality or defect was already patent. This case is different from the Nepomuceno case. Testator Torcuato Reyes merely stated in his will that he was bequeathing some of his personal and real properties to his wife, Asuncion "Oning" Reyes. There was never an open admission of any illicit relationship. In the case of Nepomuceno, the testator admitted that he was already previously married and that he had an adulterous relationship with the devisee.

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

The foregoing testimony cannot go against the declaration of the testator that Asuncion "Oning" Reyes is his wife. In Alvarado v. City Government of Tacloban (supra) the Supreme Court stated that the declaration of the of the husband is competent evidence to show the fact of marriage.

Considering that the oppositors never showed any competent evidence, documentary or otherwise during the trial to show that Asuncion "Oning" Reyes' marriage to the testator was inexistent or void, either because of a pre-existing marriage or adulterous relationship, the trial court gravely erred in striking down paragraph II (a) and (b) of the subject Last Will and Testament, as void for being contrary to law and morals. Said declarations are not sufficient to destroy the presumption of marriage. Nor is it enough to overcome the very declaration of the testator that Asuncion Reyes is his wife. 14

In the elegant language of Justice Moreland written decades ago, hesaid —

A will is the testator speaking after death. Its provisions have substantially the same force and effect in the probate court as if the testator stood before the court in full life making the declarations by word of mouth as they appear in the will. That was the special purpose of the law in the creation of the instrument known as the last will and testament. Men wished to speak after they were dead and the law, by the creation of that instrument, permitted

them to do so. . . . All doubts must be resolved in favor of the testator's having meant just what he said. (Santos vs. Manarang, 27 Phil. 209).

Petitioners tried to refute this conclusion of the Court of Appeals by presenting belatedly a copy of the marriage certificate of Asuncion Reyes and Lupo Ebarle. Their failure to present the said certificate before the probate court to support their position that Asuncion Reyes had an existing marriage with Ebarle constituted a waiver and the same evidence can no longer be entertained on appeal, much less in this petition for review. This Court would not try the case anew or settle factual issues since its jurisdiction is confined to resolving questions of law which have been passed upon by the lower courts. The settled rule is that the factual findings of the appellate court will not be disturbed unless shown to be contrary to the evidence on the record, which petitioners have not shown in this case. 15

Considering the foregoing premises, we sustain the findings of the appellate court it appearing that it did not commit a reversible error in issuing the challenged decision.

ACCORDINGLY, decision appealed from dated November 29, 1995, is hereby AFFIRMED and the instant petition for review is DENIED for lack of merit.

SO ORDERED.

Regalado, Romero, Puno and Mendoza, JJ., concur.

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

ROLANDO SANCHEZ, FLORIDA MIERLY SANCHEZ, ALFREDO T. SANCHEZ and MYRNA T. SANCHEZ, petitioners, vs. THE HONORABLE COURT OF APPEALS, ROSALIA S. LUGOD, ARTURO S. LUGOD, EVELYN LUGOD-RANISES and ROBERTO S. LUGOD, respondents.

D E C I S I O N

PANGANIBAN, J.:

Is a petition for certiorari, in lieu of appeal, the proper remedy to correct orders of a probate court nullifying certain deeds of sale and, thus, effectively passing upon title to the properties subject of such deeds?  Is a compromise agreement partitioning inherited properties valid even without the approval of the trial court hearing the intestate estate of the deceased owner?

The Case

These questions are answered by this Court as it resolves the petition for review on certiorari before us assailing the November 23, 1992 Decision [1] of the Court of Appeals[2] in CA-G.R. SP No. 28761 which annulled the decision [3] of the trial court[4] and which declared the compromise agreement among the parties valid and binding even without the said trial court’s approval.  The dispositive portion of the assailed Decision reads:

“WHEREFORE, for the reasons hereinabove set forth and discussed, the instant petition is GRANTED and the challenged decision as well as the subsequent orders of the respondent court are ANNULLED and SET ASIDE.  The temporary restraining order issued by this Court on October 14, 1992 is made PERMANENT.  The compromise agreement dated October 30, 1969 as modified by the memorandum of agreement of April 13, 1970 is DECLARED valid and binding upon herein parties.  And Special Proceedings No. 44-M and 1022 are deemed CLOSED and TERMINATED.

SO ORDERED.” [5]

The Antecedent Facts

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

“[Herein private respondent] Rosalia S. Lugod is the only child of spouses Juan C. Sanchez and Maria Villafranca while [herein private respondents] Arturo S. Lugod, Evelyn L. Ranises and Roberto S. Lugod are the legitimate children of [herein private respondent] Rosalia.

[Herein petitioners] Rolando, Florida Mierly, Alfredo and Myrna, all surnamed Sanchez, are the illegitimate children of Juan C. Sanchez.

Following the death of her mother, Maria Villafranca, on September 29, 1967, [herein private respondent] Rosalia filed on January 22, 1968, thru counsel, a petition for letters of administration over the estate of her mother and the estate of her father, Juan C. Sanchez, who was at the time in state of senility (Annex ‘B’, Petition).

On September 30, 1968, [herein private respondent] Rosalia, as administratrix of the intestate estate of her mother, submitted an inventory and appraisal of the real and personal estate of her late mother (Annex ‘C’, Petition).

Before the administration proceedings in Special Proceedings No. 44-M could formally be terminated and closed, Juan C. Sanchez, [herein private respondent] Rosalia’s father, died on October 21, 1968.

On January 14, 1969, [herein petitioners] as heirs of Juan C. Sanchez, filed a petition for letters of administration (Special Proceedings No. 1022) over the intestate estate of Juan C. Sanchez, which petition was opposed by (herein private respondent) Rosalia.[6]

On October 30, 1969, however, [herein private respondent] Rosalia and [herein petitioners] assisted by their respective counsels executed a compromise agreement (Annex ‘D’, Petition) wherein they agreed to divide the properties enumerated therein of the late Juan C. Sanchez.

On November 3, 1969, petitioner Rosalia was appointed by [the trial court], and took her oath as the administratrix of her father’s intestate estate.

On January 19, 1970, [herein petitioners] filed a motion to require administratrix, [herein private respondent] Rosalia, to deliver deficiency of 24 hectares and or to set aside compromise agreement (Annex ‘E’, Petition).

Under date of April 13, 1970, (herein private respondent) Rosalia and [herein petitioners] entered into and executed a memorandum of agreement which modified the compromise agreement (Annex ‘F’. Petition)

On October 25, 1979, or nine years later, [herein petitioners] filed, thru counsel, a motion to require [herein private respondent] Rosalia to submit a new inventory and to render an accounting over properties not included in the compromise agreement (Annex ‘G’, Petition).  They likewise filed a motion to defer the approval of the compromise agreement (Annex ‘H’, Ibid), in which they prayed for the annulment of the compromise agreement on the ground of fraud.

On February 4, 1980, however, counsel for [herein petitioners] moved to withdraw his appearance and the two motions he filed, Annex ‘G’ and ‘H’ (Annex ‘I’, Petition).

On February 28, 1980, the [trial] court issued an order directing [herein private respondent] Rosalia to submit a new inventory of properties under her administration and an accounting of the fruits thereof, which prompted [herein private respondent] Rosalia to file a rejoinder on March 31, 1980 (Annex ‘K’, Petition).

On May 12, 1980, [herein petitioners], thru new counsel, filed a motion to change administratrix (Annex ‘L’, Petition) to which [herein private respondent] Rosalia filed an opposition (Annex’M’,Ibid).

The parties were subsequently ordered to submit their respective position papers, which they did (Annexes ‘N’ and ‘O’, Petition).  On September 14, 1989, former counsel of (herein petitioners) entered his re-appearance as counsel for (herein petitioners).

On the bases of memoranda submitted by the parties, the [trial court], this time presided by Judge Vivencio A. Galon, promulgated its decision on June 26, 1991, the dispositive portion of which states:

‘WHEREFORE, premises considered, judgment is hereby rendered as follows by declaring and ordering:

1.That the entire intestate estate of Maria Villafranca Sanchez under Special Proceedings No.44-M consists of all her paraphernal properties and one-half (1/2) of the conjugal properties which must be divided equally between Rosalia Sanchez de Lugod and Juan C. Sanchez;

2.That the entire intestate estate of Juan C. Sanchez under Special Proceedings No. 1022 consists of all his capital properties, one-half (1/2) from the conjugal partnership of gains and one-half (1/2) of the intestate estate of Maria Villafranca under Special Proceedings No. 44-M;

3.That one-half (1/2) of the entire intestate estate of Juan C. Sanchez shall be inherited by his only legitimate daughter, Rosalia V. Sanchez de Lugod while the other one-half (1/2) shall be inherited and be divided equally by, between and among the six (6) illegitimate children, namely:  Patricia Alburo, Maria Ramuso Sanchez, Rolando Pedro T. Sanchez, Florida Mierly T. Sanchez, Alfredo T. Sanchez and Myrna T. Sanchez;

4.That all the Deed (sic) of Absolute Sales executed by Juan C. Sanchez and Maria Villafranca in favor of Rosalia Sanchez Lugod, Arturo S. Lugod, Evelyn S. Lugod and Roberto S. Lugod on July 26, 1963 and June 26, 1967 are all declared simulated and fictitious and must be subject to collation and partition among all heirs;

5.That within thirty (30) days from finality of this decision, Rosalia Sanchez Lugod is hereby ordered to prepare a project of partition of the intestate estate of Juan C. Sanchez under Special Proceedings No. 1022 and distribute and deliver to all heirs their corresponding shares.  If she fails to do so within the

said thirty (30) days, then a Board of Commissioners is hereby constituted, who are all entitled to honorarium  and per diems and other necessary expenses chargeable to the estate to be paid by Administratrix Rosalia S. Lugod, appointing the Community Environment and Natural Resources Officer (CENRO) of Gingoog City as members thereof, with the task to prepare the project of partition and deliver to all heirs their respective shares within ninety (90) days from the finality of said decision;

6.That within thirty (30) days from receipt of this decision, Administratrix Rosalia Sanchez Vda. de Lugod is hereby ordered to submit two (2) separate certified true and correct accounting, one for the income of all the properties of the entire intestate estate of Maria Villafranca under Special Proceedings No. 44-M, and another for the properties of the entire intestate estate of Juan C. Sanchez under Special Proceedings No. 1022 duly both signed by her and both verified by a Certified Public Accountant and distribute and deliver to her six (6) illegitimate brothers and sisters in equal shares, one -half (1/2) of the net income of the estate of Juan C. Sanchez from October 21, 1968 up to the finality of this decision;

7.For failure to render an accounting report and failure to give cash advances to the illegitimate children of Juan C. Sanchez during their minority and hour of need from the net income of the estate of Juan C. Sanchez, which adversely prejudiced their social standing and pursuit of college education, (the trial court) hereby orders Rosalia Sanchez Vda. de Lugod to pay her six (6) illegitimate brothers and sisters the sum of Five Hundred Thousand (P500,000.00) Pesos, as exemplary damages, and also the sum of One Hundred Fifty Thousand (P150,000.00) Pesos for attorney’s fees;

8.Upon release of this decision and during its pendency, should appeal be made, the Register of Deeds and Assessors of the Provinces and Cities where the properties of Juan C. Sanchez and Maria Villafranca are located, are all ordered to register and annotate in the title and/or tax declarations, the dispositive portion of this decision for the protection of all heirs and all those who may be concerned.

SO ORDERED.’

[Herein private respondent] Rosalia filed a motion for reconsideration dated July 17, 1991 (Annex ‘P’, Petition) on August 6, 1991.

On August 13, 1991, [herein petitioners] filed a motion for execution and opposition to [herein private respondent] Rosalia’s motion for reconsideration (Annex ‘Q’, Petition).

On September 3, 1991, [the trial court] issued an Omnibus Order (Annex ‘S’, Petition) declaring, among other things, that the decision at issue had become final and executory.

[Herein private respondent] Rosalia then filed a motion for reconsideration of said Omnibus Order (Annex ‘T’, Petition).  Said [herein private respondent] was allowed to file a memorandum in support of her motion (Annex ‘V’, Petition).

On June 26, 1991, [the trial court] issued and Order denying petitioner Rosalia’s motion for reconsideration (Annex ‘W’, Petition).”[7]

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

“I

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

II

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

III

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

IV

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

V

[The trial court] grossly misinterpreted [herein private respondent] Rosalia S. Lugod’s right to appeal.”[8]

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

“COMPROMISE AGREEMENT

COME NOW, the parties in the above-entitled case, motivated by their mutual desire to preserve and maintain harmonious relations between and among themselves, for mutual valuable considerations and in the spirit of good will and fair play, and, for the purpose of this Compromise Agreement, agree to the following:

1. That the deceased Juan C. Sanchez who died intestate on October 21, 1968 was legally married to Maria Villafranca de Sanchez, who predeceased her on September 29, 1967, out of whose wedlock Rosalia Sanchez Lugod, Oppositor herein, was born, thus making her the sole and only surviving legitimate heir of her deceased parents;

2. That the said deceased Juan C. Sanchez, left illegitimate children, Intervenors-Oppositors and Petitioners, respectively, herein namely;

(1) Patricio Alburo, born out of wedlock on March 17, 1926 at Cebu City, Philippines, to Emilia Alburo;

(2) Maria Ramoso Sanchez, born out of wedlock on May 9, 1937 at Gingoog, Misamis Oriental, now, Gingoog City, to Alberta Ramoso;

(3)  (a)  Rolando Pedro Sanchez, born on May 19, 1947,

(b)  Florida Mierly Sanchez, born on February 16, 1949,

(c)  Alfredo Sanchez, born on July 21, 1950,and

(d)  Myrna Sanchez, born on June 16, 1952, all born out of wedlock to Laureta Tampus in Gingoog City, Philippines.

3. That the deceased Juan C. Sanchez left the following properties, to wit:

I.  SEPARATE CAPITAL OF JUAN C. SANCHEZ

NATURE, DESCRIPTION AND AREA ASSESSED VALUE(1)      Agricultural Land. Covered by Tax. Decl. No. 06458,

Cad. Lot No. 1041 C-2, located at Murallon, Gingoog City and bounded on the North by Lot Nos. 1033, 1035, 1036, 1037, 1039, 1040, 1042 & 1043; South by Lot No. 1080, 1088, 1087 & 1084; East by Lot Nos. 1089, 1061 & 2319; West by Lot Nos. 954, 1038, 1057 & 1056, containing an area of ONE HUNDRED EIGHTY THREE THOUSAND SIX HUNDRED SEVENTY TWO (183, 672) sq. ms. more or less.

P21,690.00

II.  CONJUGAL PROPERTY OF JUAN C. SANCHEZ AND MARIA VILLAFRANCA DE SANCHEZ

(1)      Agricultural Land. Covered by Tax Decl. No. 06447, Cad. Lot No. 2745, C-7 located at Agay-ayan, Gingoog City and bounded on the North by Lot Nos. 2744, 2742, 2748; South by Lot No. 2739; East by Lot No. 2746; West by Lot No. 2741, containing an area of FOURTEEN THOUSAND SEVEN HUNDRED (14,700) sq. ms. more or less.

P1,900.00

(2)      Agricultural Land.  Covered by Tax Decl. No. 06449, Cad, Lot No. 3271 C-7 located at Panyangan, Lanao, Gingoog City and bounded on the North by Lot No. 3270; South by Lot Nos. 2900 & 3462; East by Panyangan River & F. Lumanao; and Part of Lot 3272; and West by Samay Creek, containing an area of ONE HUNDRED FOUR THOUSAND SIX HUNDRED (104,600) sq. ms. more or less.

P11,580.00

(3)      Agricultural Land.  Covered by Tax Decl. No. 06449, Cad. Lot No. 2319, Case 2, located at Murallon, Gingoog City and bounded on the North by Lot No. 1061; South by Hinopolan Creek; East by Lot No. 1044; and West by Lot No. 1041, containing an area of

THREE THOUSAND TWO HUNDRED TWENTY FIVE (3,225) sq. ms. more or less.

(4)      Agricultural Land. Covered by Tax Decl. No. 06452, Cad. Lot No. 3272, C-7 Part 4 located at Panyangan, Lunao, Gingoog City and bounded on the North by Lot Nos. 3270 & 3273; East by Panyangan River; South by Panyangan River; and West by Lot Nos. 3270 & 3271, containing an area of FIFTY FIVE THOUSAND SIX HUNDRED (55,600) sq. ms. more or less, being claimed by Damian Querubin.

P2.370.00

(5)      Agricultural Land.  Covered by Tax Decl. No. 06453, Cad. Lot No. 3270 Case 7, located at Sunog, Lunao, Gingoog City and bounded on the North by Samay Creek & Lot 3267; South by Lot Nos. 3271 & 3272; East by Lot Nos. 3269 & 3273; and West by Samay Creek, containing an area of FOUR HUNDRED EIGHT THREE THOUSAND SIX HUNDRED (483,600) sq. ms. more or less.

P61,680.00

(6)      Agricultural Land.  Covered by Tax Decl. No. 06457, Cad. Lot No. 3273, C-7 Part 2 located at Panyangan, Lunao, Gingoog City and bounded on the North by Lot No. 3269; South by Lot No. 3272; East by Panyangan River; and West by Lot No. 3270, contaning an area of THIRTY FOUR THOUSAND THREE HUNDRED (34,300) sq. ms. more or less, being claimed by Miguel Tuto.

P3,880.00

(7)      Agricultural Land.  Covered by Tax Decl. No. 12000, Cad. Lot No. 2806, Case 7 located at Agayayan, Gingoog City and bounded on the North by Agayayan River; South by Victoriano Barbac; East by Isabelo Ramoso; and West by Restituto Baol, contaning an area of SIX THOUSAND SIX HUNDRED SEVENTY SIX (6,676) sq. ms. more or less.

P380.00

(8)      Agricultural Land.  Covered by Tax Decl. No. 12924, Cad. Lot No. 1206 C-1 located at Cahulogan, Gingoog City and bounded on the NW., by Lot No. 1209; SW., by Lot No. 1207; East by National  Highway; and  West   by Lot No. 1207; containing an area of FOUR THOUSAND FIVE HUNDRED THIRTEEN (4,513) sq. ms. more or less.

P740.00

(9)      Agricultural Land.  Covered by Tax Decl. No. 12925, Cad. Lot No. 5554, located at Tinaytayan, Pigsalohan, Gingoog City and bounded on the North by Lot Nos. 5559 & 5558; South by Lot No. 3486; East by Lot No. 5555; and West by Lot No. 5355, containing an area of EIGHTEEN THOUSAND FIVE HUNDRED TWENTY EIGHT (18,528) sq. ms. more or less.

P320.00

(10)    Agricultural Land.  Covered by Tax Decl. No. 12926, Cad. Lot No. 5555 C-7 located at Tinaytayan, Pigsalojan, Gingoog City and bounded on the North by Tinaytayan Creek & Lot Nos. 5557 & 5558; South by Lot Nos. 3486, 3487, 3488, 3491 & 3496; East by Cr. & Lot No. 3496; and West by Lot No. 5554, containing an area of SEVENTY SEVEN THOUSAND SEVEN HUNDRED SEVENTY SIX (77,776) sq. ms. more or less.

P1,350.00

(11)    A Commercial Land.  Covered by Tax Decl. No. 06454, Cad. Lot No. 61-C-1 located at Guno-Condeza Sts., Gingoog City and bounded on the North by Lot 64; South by Road-Lot 613 Condeza St; East by Lot Nos. 63, and 62; West by Road-Lot 614-Guno St., containing an area of ONE THOUSAND FORTY TWO (1,042) sq. ms. more or less.

P9,320.00

(12)    A Commercial Land.  Covered by Tax Decl. No. 06484, Lot No. 5, Block 2, located at Cabuyoan, Gingoog City and bounded on

the North by Lot No. 4, block 2; South by Lot No. 8, block 2; East by Lot No. 6, block 2, West by Subdivision Road, containing an area of FOUR HUNDRED (400) sq. ms. more or less.

P12,240.00

(13)    A Commercial Land.  Covered by Tax Decl. No. 15798, Block No. 7-A-16-0 located at Cabuyoan, Gingoog City and bounded on the North by Lot No. 7-A-16-0; South by Lot No. 7-16-0; East by Lot No. 7-A-18-Road; West by Lot No. 8, PSU-120704-Julito Arengo vs. Restituto Baol, containing an area of TWO HUNDRED SIXTEEN (216) sq. ms. more or less.

P1,050.00

(14)    Agricultural Land.  Covered by Tax, Decl. No. 06789, Cad. Lot No. 5157-C-7, located at Kiogat, Agayayan, Gingoog City and bounded on the North by Lot No. 5158, 5159, 5156; South by SE-Steep Bank; East by NW, by Lot No. 5158, Villafranca, containing an area of NINETY SIX THOUSAND TWO HUNDRED (96,200) sq. ms. more or less.

P3,370.00

III.  PERSONAL ESTATE (CONJUGAL)

NATURE AND DESCRIPTION                             LOCATION                               APPRAISAL

1.             Fifty (50) shares of stockRural Bank of Gingoog, Inc.

at P100.00 per share                                                                                      P5,000.00

2.             Four (4) shares of Preferred Stockwith San Miguel

Corporation                                                                                  400.00

4. That, the parties hereto have agreed to divide the above-enumerated properties in the following manner, to wit:

(a)      To Patricio Alburo, Maria Ramoso Sanchez, Roland Pedro T. Sanchez, Florida Mierly Sanchez, Alfredo T. Sanchez and Myrna T. Sanchez, in equal pro-indiviso shares, considering not only their respective areas but also the improvements existing thereon, to wit:

Agricultural Land. Covered by Tax  Decl. No. 06453, Cad. Lot No. 3270 Case 7, located at Sunog, Lunao, Gingoog City and bounded on the North by Samay Creek & Lot 3267; South by Lot Nos. 3271 and 3272; East by Lot Nos. 3269 & 3273; and West by Samay Creek, containing an area of FOUR HUNDRED EIGHTY THREE THOUSAND SIX HUNDRED (483,600) sq. ms. and assessed in the sum of P61,680.00.

(b)      To Rosalia Sanchez Lugod all the rest of the properties, both real and personal, enumerated above with the exception of the following:

(1)           Two Preferred Shares of Stock in the San Miguel Corporation, indicated in San Miguel Corporation Stock Certificate No. 30217, which two shares she is ceding in favor of Patricio Alburo;

(2)           The house and lot designated as Lot No. 5, Block 2 together with the improvements thereon and identified as parcel No. II-12, lot covered by Tax Decl. No. 15798 identified as Parcel No. II-13 in the above enumerated, and Cad. Lot No. 5157-C-7 together with the improvements thereon, which is identified as parcel No. II-14 of the above-enumeration of properties, which said Rosalia S. Lugod is likewise ceding and renouncing in favor of Rolando Pedro, Florida Mierly, Alfredo and Myrna, all surnamed Sanchez, in equal pro-indiviso shares;

5.       That Rolando Pedro, Florida Mierly, Alfredo and Myrna, all surnamed Sanchez hereby acknowledge to have received jointly and severally in form of advances after October 21, 1968 the aggregate sum of EIGHT THOUSAND FIVE HUNDRED THIRTY-THREE PESOS (P8,533.94) and NINETY-FOUR CENTAVOS;

6.       That the parties hereto likewise acknowledge and recognize in the indebtedness of the deceased Juan G. Sanchez and his deceased wife Maria Villafranca Sanchez to the Lugod Enterprises, Inc., in the sum of P43,064.99;

7.       That the parties hereto shall be responsible for the payment of the estate and inheritance taxes proportionate to the value of their respective shares as may be determined by the Bureau of Internal Revenue and shall likewise be responsible for the expenses of survey and segregation of their respective shares;

8.       That Patricio Alburo, Maria Ramoso Sanchez, Roland Pedro Sanchez, Florida Mierly Sanchez, Alfredo Sanchez and Myrna Sanchez hereby waive, relinquish and renounce, jointly and individually, in a manner that is absolute and irrevocable, all their rights and interests, share and participation which they have or might have in all the properties, both real and personal, known or unknown and/or which may not be listed herein, or in excess of the areas listed or mentioned herein, and/or which might have been, at one time or another, owned by, registered or placed in the name of either of the spouses Juan C. Sanchez or Maria Villafranca de Sanchez or both, and which either one or both might have sold, ceded, transferred, or donated to any person or persons or entity and which parties hereto do hereby confirm and ratify together with all the improvements thereon, as well as all the produce and proceeds thereof, and particularly of the properties, real and personal listed herein, as well as demandable obligations due to the deceased spouses Juan C. Sanchez, before and after the death of the aforementioned spouses Juan C. Sanchez and Maria Villafranca de Sanchez, in favor of oppositor Rosalia S. Lugod;

9.       That the expenses of this litigation including attorney’s fees shall be borne respectively by the parties hereto;

10.     That Laureta Tampus for herself and guardian ad-litem of her minor children, namely: Florida Mierly, Alfredo, and Myrna, all surnamed Sanchez, hereby declare that she has no right, interest, share and participation whatsoever in the estate left by Juan C. Sanchez and/or Maria Villafranca de Sanchez, or both, and that she likewise waives, renounces, and relinquishes whatever rigid, share, participation or interest therein which she has or might have in favor of Rosalia S. Lugod;

11.     That, the parties hereto mutually waive and renounce in favor of each other any whatever claims or actions, arising from, connected with, and as a result of Special Proceedings Nos. 44-M and 1022 of the Court of First Instance

of Misamis Oriental, Rosalia S. Lugod, warranting that the parcel of land ceded to the other parties herein contains 48 hectares and 36 acres.

12.     That, Rosalia S. Lugod shall assume as she hereby assumes the payment to Lugod Enterprises, Inc., of the sum of P51,598.93 representing the indebtedness of the estate of Juan C. Sanchez and Maria Villafranca de Sanchez and the advances made to Rolando Pedro, Mierly, Alfredo, and Myrna all surnamed Sanchez, mentioned in paragraphs 5 and 6 hereof and, to give effect to this Agreement, the parties hereto agree to have letters of administration issued in favor of Rosalia S. Lugod without any bond.

That Rosalia S. Lugod likewise agrees to deliver possession and enjoyment of the parcel of land herein ceded to petitioners and intervenors immediately after the signing of this agreement and that the latter also mutually agree among themselves to have the said lot subdivided and partitioned immediately in accordance with the proportion of one sixth (1/6) part for every petitioner and intervenor and that in the meantime that the partition and subdivision is not yet effected, the administrations of said parcel of land shall be vested jointly with Laureta Tampos, guardian ad litem of petitioners and Maria Ramoso, one of the intervenors who shall see to it that each petitioner and intervenor is given one sixth (1/6) of the net proceeds of all agricultural harvest made thereon.

WHEREFORE, it is most respectfully prayed that the foregoing compromise agreement be approved.

Medina, Misamis Oriental, October 30, 1969.

(Sgd.)                                                                               (Sgd.)PATRICIO ALBURO                                          ROSALIA S. LUGOD

Intervenor-Oppositor                                                   Oppositor

(Sgd.)MARIA RAMOSO SANCHEZ                          ASSISTED BY:

Intervenor-Oppositor

                                                                             (Sgd.)ASSISTED BY:                                                  PABLO S. REYES                                                                             R-101-Navarro Bldg.(Sgd.)                                                                  Don A. Velez St.REYNALDO L. FERNANDEZ                          Cagayan de Oro CityGingoog City

(Sgd.)                                                                               (Sgd.)ROLANDO PEDRO T. SANCHEZ     ALFREDO T. SANCHEZ

                        Petitioner                                                  Petitioner

(Sgd.)                                                                               (Sgd.)FLORIDA MIERLY T. SANCHEZ       MYRNA T. SANCHEZ

                        Petitioner                                                  Petitioner

                                                                                          (Sgd.)                                                                             LAURETA TAMPUS                                                                             For herself and as Guardian                                                                             Ad-Litem of the minors                                                                             Florida Mierly, Alfredo, and

                                                                             Myrna, all surnamed Sanchez

ASSISTED BY:

                                                                             TEOGENES VELEZ, JR.                                                                             Counsel for Petitioners

                                                                             Cagayan de Oro City

 

The Clerk of CourtCourt of First Instance

Branch III, Medina, Mis.  Or.

Greetings:

                  Please set the foregoing compromise agreement for the approval of the Honorable Court today, Oct. 30, 1969.

(Sgd.)                                        (Sgd.)                                          (Sgd.)PABLO S. REYES     TEOGENES VELEZ, JR.          REYNALDO L. FERNANDEZ”

The Memorandum of Agreement dated April 13, 1970, which the parties entered into with the assistance of their counsel, amended the above compromise.  (It will be reproduced later in our discussion of the second issue raised by the petitioners.)

The Court of Appeals, in a Resolution [10] dated September 4, 1992, initially dismissed private respondents’ petition.  Acting, however, on a motion for reconsideration and a supplemental motion for reconsideration dated September

14, 1992 and September 25, 1992, respectively, [11] Respondent Court thereafter reinstated private respondents’ petition in a resolution[12] dated October 14, 1992.

In due course, the Court of Appeals, as earlier stated, rendered its assailed Decision granting the petition, setting aside the trial court’s decision and declaring the modified compromise agreement valid and binding.

Hence, this appeal to this Court under Rule 45 of the Rules of Court.

The Issues

In this appeal, petitioners invite the Court’s attention to the following issues:

“I

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

II

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

III

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

IV

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

V

The respondent court grossly erred in declaring the termination of the intestate proceedings even as the lower court had not made a final and enforceable distribution of the estate of the deceased Juan C. Sanchez.

VI

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

The salient aspects of some issues are closely intertwined; hence, they are hereby consolidated into three main issues specifically dealing with the following subjects:  (1) the propriety of certiorari as a remedy before the Court of Appeals, (2) the validity of the compromise agreement, and (3) the presence of fraud in the execution of the compromise and/or collation of the properties sold.

The Court’s Ruling

The petition is not meritorious.

First Issue:  Propriety of CertiorariBefore the Court of Appeals

Since private respondents had neglected or failed to file an ordinary appeal within the reglementary period, petitioners allege that the Court of Appeals erred in allowing private respondent’s recourse to Rule 65 of the Rules of Court. They contend that private respondents’ invocation of certiorari was  “procedurally defective.”[14] They further argue that private respondents, in their petition before the Court of Appeals, alleged errors of the trial court which, being merely errors of judgment and not errors of jurisdiction, were not correctable by certiorari.[15] This Court disagrees.

Doctrinally entrenched is the general rule that certiorari is not a substitute for a lost appeal.  However, Justice Florenz D. Regalado lists several exceptions to this rule, viz.:  “(1) where the appeal does not constitute a speedy and adequate remedy (Salvadades vs. Pajarillo, et al.,  78 Phil. 77), as where 33 appeals were involved from orders issued in a single proceeding which will inevitably result in a proliferation of more appeals (PCIB vs. Escolin, et al., L-27860 and 27896, Mar.

29, 1974); (2) where the orders were also issued either in excess of or without jurisdiction (Aguilar vs. Tan, L-23600, Jun 30, 1970, Cf. Bautista, et al. vs. Sarmiento, et al., L-45137, Sept. 231985); (3) for certain special consideration, as public welfare or public policy (See Jose vs. Zulueta, et al. -16598, May 31, 1961  and  the cases cited therein); (4) where in criminal actions, the court rejects rebuttal evidence for the prosecution as, in case of acquittal, there could be no remedy (People vs. Abalos, L029039, Nov. 28, 1968); (5) where the order is a patent nullity (Marcelo vs. De Guzman, et al., L-29077, June 29, 1982); and (6) where the decision in the certiorari case will avoid future litigations (St. Peter Memorial Park, Inc. vs. Campos, et al., L-38280, Mar. 21, 1975).”[16] Even in a case where the remedy of appeal was lost, the Court has issued the writ of certiorari where the lower court patently acted in excess of or outside its jurisdiction,[17] as in the present case.

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

As a probate court, the trial court was exercising judicial functions when it issued its assailed resolution.  The said court had jurisdiction to act in the intestate proceedings involved in this case with the caveat that, due to its limited jurisdiction, it could resolve questions of title only provisionally. [19] It is hornbook doctrine that “in a special proceeding for the probate of a will, the question of ownership is an extraneous matter which the probate court cannot resolve with finality.  This pronouncement no doubt applies with equal force to an intestate proceeding as in the case at bar.”[20] In the instant case, the trial court rendered a decision declaring as simulated and fictitious all the deeds of absolute sale which, on July 26, 1963 and June 26, 1967, Juan C. Sanchez and Maria Villafranca executed in favor of their daughter, Rosalia Sanchez Lugod; and grandchildren, namely, Arturo S. Lugod, Evelyn S. Lugod and Roberto S. Lugod.  The trial court ruled further that the properties covered by the said sales must be subject to collation.  Citing Article 1409 (2) of the Civil Code, the lower court nullified said deeds of sale and determined with finality the ownership of the properties subject thereof.  In doing so, it clearly overstepped its jurisdiction as a probate court. Jurisprudence teaches:

“[A] probate court or one in charge of proceedings whether testate or intestate cannot adjudicate or determine title to properties claimed to be a part of the estate and which are claimed to belong to outside parties.  All that the said court could do as regards said properties is to determine whether they should or should not be included in the inventory or list of properties to be administered by the

administrator.  If there is not dispute, well and good, but if there is, then the parties, the administrator, and the opposing parties have to resort to an ordinary action for a final determination of the conflicting claims of title because the probate court cannot do so.”[21]

Furthermore, the trial court committed grave abuse of discretion when it rendered its decision in disregard of the parties’ compromise agreement. [22] Such disregard, on the ground that the compromise agreement “was not approved by the court,”[23] is tantamount to “an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act in contemplation and within the bounds of law.”[24]

The foregoing issues clearly involve not only the correctness of the trial court’s decision but also the latter’s jurisdiction.  They encompass plain errors of jurisdiction and grave abuse of discretion, not merely errors of judgment. [25] Since the trial court exceeded its jurisdiction, a petition for certiorari is certainly a proper remedy. Indeed, it is well-settled that “(a)n act done by a probate court in excess of its jurisdiction may be corrected by certiorari.”[26]

Consistent with the foregoing, the following disquisition by respondent appellate court is apt:

“As a general proposition, appeal is the proper remedy of petitioner Rosalia here under Rule 109 of the Revised Rules of Court. But the availability of the ordinary course of appeal does not constitute sufficient ground to [prevent] a party from making use of the extraordinary remedy of certiorari where appeal is not an adequate remedy or equally beneficial, speedy and sufficient (Echauz vs. Court of Appeals, 199 SCRA 381).  Here, considering that the respondent court has disregarded the compromise agreement which has long been executed as early as October, 1969 and declared null and void the deeds of sale with finality, which, as a probate court, it has no jurisdiction to do, We deem ordinary appeal is inadequate.  Considering further the [trial court’s] granting of [herein petitioners’] motion for execution of the assailed decision,[27] [herein private respondent] Rosalia’s resort to the instant petition [for review on certiorari] is all the more warranted under the circumstances.”[28]

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

which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it exhibits its head.’ ”[29]

Second Issue: Validity of Compromise Agreement

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

These contentions lack merit.  Article 2028 of the Civil Code defines a compromise agreement as “a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one already commenced.”  Being a consensual contract, it is perfected upon the meeting of the minds of the parties.  Judicial approval is not required for its perfection. [31] Petitioners’ argument that the compromise was not valid for lack of judicial approval is not novel; the same was raised in Mayuga vs. Court of Appeals,[32] where the Court, through Justice Irene R. Cortes, ruled:

“It is alleged that the lack of judicial approval is fatal to the compromise. A compromise is a consensual contract. As such, it is perfected upon the meeting of the minds of the parties to the contract. (Hernandez v. Barcelon, 23 Phil. 599 [1912]; see also De los Reyes v. de Ugarte, 75 Phil. 505 [1945].)  And from that moment not only does it become binding upon the parties (De los Reyes v.De Ugarte, supra ), it also has upon them the effect and authority of res judicata (Civil Code, Art. 2037), even if not judicially approved (Meneses v. De la Rosa, 77 Phil. 34 [1946]; Vda. De Guilas v. David, 132 Phil. 241, L-24280, 23 SCRA 762 [May 27, 1968]; Cochingyan v. Cloribel, L-27070-71 [April 22, 1977], 76 SCRA 361).” (Italics found in the original.)

In the case before us, it is ineludible that the parties knowingly and freely entered into a valid compromise agreement. Adequately assisted by their respective counsels, they each negotiated its terms and provisions for four months; in fact, said agreement was executed only after the fourth draft. As noted by the trial court itself, the first and second drafts were prepared successively in July, 1969; the third draft on September 25, 1969; and the fourth draft, which was finally signed by the parties on October 30, 1969, [33] followed. Since this compromise agreement was the result of a long drawn out process, with all the parties ably striving to protect their respective interests and to come out with the best they could, there can be no doubt that the parties entered into it freely and voluntarily.  Accordingly, they should be bound thereby.[34] To be valid,

it is merely required under the law to be based on real claims and actually agreed upon in good faith by the parties thereto.[35]

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

In opposing the validity and enforcement of the compromise agreement, petitioners harp on the minority of Florida Mierly, Alfredo and Myrna. Citing Article 2032 of the Civil Code, they contend that the court’s approval is necessary in compromises entered into by guardians and parents in behalf of their wards or children.[37]

However, we observe that although denominated a compromise agreement, the document in this case is essentially a deed of partition, pursuant to Article 1082 of the Civil Code which provides that “[e]very act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction.”

For a partition to be valid, Section 1, Rule 74 of the Rules of Court, requires the concurrence of the following conditions: (1) the decedent left no will; (2) the decedent left no debts, or if there were debts left, all had been paid; (3) the heirs and liquidators are all of age, or if they are minors, the latter are represented by their judicial guardian or legal representatives; and (4) the partition was made by means of a public instrument or affidavit duly filed with the Register of Deeds.[38] We find that all the foregoing requisites are present in this case.  We therefore affirm the validity of the parties’ compromise agreement/partition in this case.

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

“I         Are the properties which are the object of the sale by the deceased spouses to their grandchildren collationable?

II    Are the properties which are the object of the sale by the deceased spouses to their legitimate daughter also collationable?

III  The first and second issues being resolved, how much then is the rightful share of the four (4) recognized illegitimate children?”[39]

Furthermore, the 27-page Memorandum dated February 17, 1990 filed by petitioners before the Regional Trial Court [40] readily reveals that they never questioned the validity of the compromise.  In their comment before the Court of Appeals,[41] petitioners based their objection to said compromise agreement on the

solitary “reason that it was tainted with fraud and deception,” zeroing specifically on the alleged fraud committed by private respondent Rosalia S. Lugod. [42] The issue of minority was first raised only in petitioners’ Motion for Reconsideration of the Court of Appeals’ Decision;[43] thus, it “is as if it was never duly raised in that court at all.”[44] Hence, this Court cannot now, for the first time on appeal, entertain this issue, for to do so would plainly violate the basic rule of fair play, justice and due process.[45] We take this opportunity to reiterate and emphasize the well-settled rule that “(a)n issue raised for the first time on appeal and not raised timely in the proceedings in the lower court is barred by estoppel.  Questions raised on appeal must be within the issues framed by the parties and, consequently, issues not raised in the trial court cannot be raised for the first time on appeal.”[46]

The petitioners likewise assail as void the provision on waiver contained in No. 8 of the aforequoted compromise, because it allegedly constitutes a relinquishment by petitioners of “a right to properties which were not known.”[47] They argue that such waiver is contrary to law, public policy, morals or good custom.  The Court disagrees.  The assailed waiver pertained to their hereditary right to properties belonging to the decedent’s estate which were not included in the inventory of the estate’s properties. It also covered their right to other properties originally belonging to the spouses Juan Sanchez and Maria Villafranca de Sanchez which have been transferred to other persons.  In addition, the parties agreed in the compromise to confirm and ratify said transfers.  The waiver is valid because, contrary to petitioners’ protestation, the parties waived a known and existing interest -- their hereditary right which was already vested in them by reason of the death of their father.  Article 777 of the Civil Code provides that “(t)he rights to the succession are transmitted from the moment of death of the decedent.” Hence, there is no legal obstacle to an heir’s waiver of his/her hereditary share “even if the actual extent of such share is not determined until the subsequent liquidation of the estate.”[48] At any rate, such waiver is consistent with the intent and letter of the law advocating compromise as a vehicle for the settlement of civil disputes.[49]

Finally, petitioners contend that Private Respondent Rosalia T. Lugod’s alleged fraudulent acts, specifically her concealment of some of the decedent’s properties, attended the actual execution of the compromise agreement. [50] This argument is debunked by the absence of any substantial and convincing evidence on record showing fraud on her part.  As aptly observed by the appellate court:

“[Herein petitioners] accuse [herein private respondent] Rosalia of fraud or deception by alleging, inter alia, that the parcel of land given to them never conformed to the stated area, i.e., forty-eight (48) hectares, as stated in the compromise agreement.  We find this argument unconvincing and unmeritorious. [Herein petitioners’] averment of fraud on the part of [herein private respondent] Rosalia becomes untenable when We consider the memorandum of agreement they later

executed with [herein private respondent] Rosalia wherein said compromise agreement was modified by correcting the actual area given to [herein petitioners] from forty-eight (48) hectares to thirty-six (36) hectares only.  If the actual area allotted to them did not conform to the 48 hectare area stated in the compromise agreement, then why did they agree to the memorandum of agreement whereby their share in the estate of their father was even reduced to just 36 hectares?  Where is fraud or deception there?  Considering that [herein petitioners] were ably represented by their lawyers in executing these documents and who presumably had explained to them the import and consequences thereof, it is hard to believe their charge that they were defrauded and deceived by [herein private respondent] Rosalia.

If the parcel of land given to [herein petitioners], when actually surveyed, happened to be different in area to the stated area of 48 hectares in the compromise agreement, this circumstance is not enough proof of fraud or deception on [herein private respondent] Rosalia’s part.  Note that Tax Declaration No. 06453 plainly discloses that the land transferred to [herein petitioners] pursuant to the compromise agreement contained an area of 48 hectares (Annex ‘A’, Supplemental Reply).  And when [herein petitioners] discovered that the land allotted to them actually contained only 24 hectares, a conference between the parties took place which led to the execution and signing of the memorandum of agreement wherein [herein petitioners’] distributive share was even reduced to 36 hectares. In the absence of convincing and clear evidence to the contrary, the allegation of fraud and deception cannot be successfully imputed to [herein private respondent] Rosalia who must be presumed to have acted in good faith.”[51]

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

“MEMORANDUM OF AGREEMENT

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

1. To amend the compromise agreement executed by them on October 30, 1969 so as to include the following:

a.     Correction of the actual area being given to the petitioners and intervenors, all illegitimate children of the late Juan C. Sanchez, forty-eight (48) hectares, thirty-six (36) acres as embodied in the aforementioned compromise agreement

to thirty-six (36) hectares only, thus enabling each of them to get six (6) hectares each.

b.     That the said 36-hectare area shall be taken from that parcel of land which is now covered by O.C.T. No. 146 (Patent No. 30012) and the adjoining areas thereof designated as Lot A and Lot C as reflected on the sketch plan attached to the record of this case prepared by Geodetic Engineer Olegario E. Zalles pursuant to the Court’s commission of March 10, 1970 provided, however, that if the said 36-hectare area could not be found after adding thereto the areas of said lots A and C, then the additional area shall be taken from what is designated as Lot B, likewise also reflected in the said sketch plan attached to the records;

c.     That the partition among the six illegitimate children of the late Juan C. Sanchez (petitioners and intervenors) shall be effective among themselves in such a manner to be agreed upon by them, each undertaking to assume redemption of whatever plants found in their respective shares which need redemption from the tenants thereof as well as the continuity of the tenancy agreements now existing and covering the said shares or areas.

d.     The subdivision survey shall be at the expense of the said petitioners and intervenors prorata.

e.     That the administratrix agrees to deliver temporary administration of the area designated as Lot 5 of the Valles Sketch Plan pending final survey of the said 36-hectare area.

Cagayan de Oro City, April 13, 1970.

   (Sgd.)   LAURETA TAMPOSFor herself and as Guardianad-litem of Rolando, Mierly,Alfredo and Myrna, all

surnamed Sanchez

Assisted by:

   (Sgd.)   TEOGENES VELEZ, Jr.

   Counsel for Petitioners

   (Sgd.)   ROSALIA S. LUGOD

   Administratrix

Assisted by:

   (Sgd.)   PABLO S. REYES   Counsel for Administratrix   (Sgd.)   MARIA RABOSO SANCHEZ

                Intervenor”[52]

Not only did the parties knowingly enter into a valid compromise agreement; they even amended it when they realized some errors in the original.  Such correction emphasizes the voluntariness of said deed.

It is also significant that all the parties, including the then minors, had already consummated and availed themselves of the benefits of their compromise.[53] This Court has consistently ruled that “a party to a compromise cannot ask for a rescission after it has enjoyed its benefits.” [54] By their acts, the parties are ineludibly estopped from questioning the validity of their compromise agreement. Bolstering this conclusion is the fact that petitioners questioned the compromise only nine years after its execution, when they filed with the trial court their Motion to Defer Approval of Compromise Agreement, dated October 26, 1979.[55] In hindsight, it is not at all farfetched that petitioners filed said motion for the sole reason that they may have felt shortchanged in their compromise agreement or partition with private respondents, which in their view was unwise and unfair.  While we may sympathize with this rueful sentiment of petitioners, we can only stress that this alone is not sufficient to nullify or disregard the legal effects of said compromise which, by its very nature as a perfected contract, is binding on the parties.  Moreover, courts have no jurisdiction to look into the wisdom of a compromise or to render a decision different therefrom. [56]It is a well-entrenched doctrine that “the law does not relieve a party from the effects of an unwise, foolish, or disastrous contract, entered into with all the required formalities and with full awareness of what he was doing”[57] and “a compromise entered into and carried out in good faith will not be discarded even if there was a mistake of law or fact, (McCarthy vs. Barber Steamship Lines, 45 Phil. 488) because courts have no power to relieve parties from obligations voluntarily assumed, simply because their contracts turned out to be disastrous deals or unwise investments.”[58] Volenti non fit injuria.

Corollarily, the petitioners contend that the Court of Appeals gravely abused its discretion in deeming Special Proceedings Nos. 44-M and 1022 “CLOSED and TERMINATED,” arguing that there was as yet no order of distribution of the

estate pursuant to Rule 90 of the Rules of Court.  They add that they had not received their full share thereto.[59] We disagree. Under Section 1, Rule 90 of the Rules of Court, an order for the distribution of the estate may be made when the “debts, funeral charges, and expenses of administration, the allowance to the widow, and inheritance tax, if any,” had been paid.  This order for the distribution of the estate’s residue must contain the names and shares of the persons entitled thereto.  A perusal of the whole record, particularly the trial court’s conclusion,[60] reveals that all the foregoing requirements already concurred in this case.  The payment of the indebtedness of the estates of Juan C. Sanchez and Maria Villafranca in the amount of P51,598.93 was shouldered by Private Respondent Rosalia, who also absorbed or charged against her share the advances of Rolando T. Lugod in the sum of P8,533.94,  in compliance with Article 1061 of the Civil Code on collation. [61] Furthermore, the compromise of the parties, which is the law between them, already contains the names and shares of the heirs to the residual estate, which shares had also been delivered.  On this point, we agree with the following discussion of the Court of Appeals:

“But what the (trial court) obviously overlooked in its appreciation of the facts of this case are the uncontroverted facts that (herein petitioners) have been in possession and ownership of their respective distributive shares as early as October 30, 1969 and they have received other properties in addition to their distributive shares in consideration of the compromise agreement which they now assail.  Proofs thereof are Tax Declarations No. 20984, 20985, 20986, 20987, 20988, 20989 and 20990 (Annexes ‘B’ to ‘H’, Supplemental Reply) in the respective names of (herein petitioners), all for the year 1972.  (Herein petitioners) also retained a house and lot, a residential lot and a parcel of agricultural land (Annexes ‘I’, ‘J’ and ‘K’, Ibid.) all of which were not considered in the compromise agreement between the parties.  Moreover, in the compromise agreement per se, it is undoubtedly stated therein that cash advances in the aggregate sum of P8,533.94 were received by (herein petitioners) after October 21, 1968  (Compromise Agreement, par. 5)”[62]

All the foregoing show clearly that the probate court had essentially finished said intestate proceedings which, consequently, should be deemed closed and terminated.  In view of the above discussion, the Court sees no reversible error on the part of the Court of Appeals.

Third Issue:  Fraud and Collation

Petitioners fault Respondent Court for not ordering Private Respondent Rosalia T. Lugod to deliver to them the deficiency as allegedly provided under the compromise agreement.  They further contend that said court erred in not

directing the provisional inclusion of the alleged deficiency in the inventory for purposes of collating the properties subject of the questioned deeds of sale. [63] We see no such error.  In the trial court, there was only one hearing conducted, and it was held only for the reception of the evidence of Rosalia S. Lugod to install her as administratix of the estate of Maria Villafranca.  There was no other evidence, whether testimonial or otherwise, “received, formally offered to, and subsequently admitted by the probate court below”; nor was there “a trial on the merits of the parties’ conflicting claims.”[64] In fact, the petitioners “moved for the deferment of the compromise agreement on the basis of alleged fraudulent concealment of properties -- NOT because of any deficiency in the land conveyed to them under the agreements.”[65] Hence, there is no hard evidence on record to back up petitioners’ claims.

In any case, the trial court noted Private Respondent Rosalia’s willingness to reimburse any deficiency actually proven to exist.  It subsequently ordered the geodetic engineer who prepared the certification and the sketch of the lot in question, and who could have provided evidence for the petitioners, “to bring records of his relocation survey.”[66] However, Geodetic Engineer Idulsa did not comply with the court’s subpoena duces tecum and ad testificandum.  Neither did he furnish the required relocation survey.[67] No wonder, even after a thorough scrutiny of the records, this Court cannot find any evidence to support petitioners’ allegations of fraud against Private Respondent Rosalia.

Similarly, petitioners’ allegations of fraud in the execution of the questioned deeds of sale are bereft of substance, in view of the palpable absence of evidence to support them. The legal presumption of validity of the questioned deeds of absolute sale, being duly notarized public documents, has not been overcome.[68] On the other hand, fraud is not presumed.  It must be proved by clear and convincing evidence, and not by mere conjectures or speculations.  We stress that these deeds of sale did not involve gratuitous transfers of future inheritance; these were contracts of sale perfected by the decedents during their lifetime.[69] Hence, the properties conveyed thereby are not collationable because, essentially, collation mandated under Article 1061 of the Civil Code contemplates properties conveyed inter vivos by the decedent to an heir by way of donation or other gratuitous title.

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

WHEREFORE, the petition is hereby DENIED and the assailed Decision of the Court of Appeals is AFFIRMED.

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

URSULINA GANUELAS, METODIO GANUELAS and ANTONIO GANUELAS, v. HON. ROBERT T. CAWED, Judge of the Regional Trial Court of San Fernando, La Union

(Branch 29), LEOCADIA G. FLORES, FELICITACION G. AGTARAP, CORAZON G. SIPALAY and ESTATE OF ROMANA GANUELAS DE LA ROSA, represented by GREGORIO DELA

ROSA, Administrator,respondent.

D E C I S I O N

CARPIO-MORALES, J.:

The present petition for review under Rule 45 of the Rules of Court assails, on a question of law, the February 22, 1996 decision1 of the Regional Trial Court of San Fernando, La Union, Branch 29, in Civil Case No. 3947, an action for declaration of nullity of a deed of donation.

The facts, as culled from the records of the case, are as follows:

On April 11, 1958, Celestina Ganuelas Vda. de Valin (Celestina) executed a Deed of Donation of Real Property[2 covering seven parcels of land in favor of her niece Ursulina Ganuelas (Ursulina), one of herein petitioners.

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

x x x

That, for and in consideration of the love and affection which the DONOR has for the DONEE, and of the faithful services the latter has rendered in the past to the former, the said DONOR does by these presents transfer and convey, by way of DONATION, unto the DONEE the property above, described, to become effective upon the death of the DONOR; but in the event that the DONEE should die before the DONOR, the present donation shall be deemed rescinded and of no further force and effect.

x x x.[3

On June 10, 1967, Celestina executed a document denominated as Revocation of Donation[4 purporting to set aside the deed of donation. More than a month later or on August 18, 1967, Celestina died without issue and any surviving ascendants and siblings.

After Celestinas death, Ursulina had been sharing the produce of the donated properties with private respondents Leocadia G. Flores, et al., nieces of Celestina.

In 1982, or twenty-four years after the execution of the Deed of Donation, Ursulina secured the corresponding tax declarations, in her name, over the donated properties, to wit: Tax Declarations Nos. 18108, 18109, 18110, 18111, 18112, 18113 and 18114, and since then, she refused to give private respondents any share in the produce of the properties despite repeated demands.

Private respondents were thus prompted to file on May 26, 1986 with the RTC of San Fernando, La Union a complaint[5 against Ursulina, along with Metodio Ganuelas and Antonio Ganuelas who were alleged to be unwilling plaintiffs. The complaint alleged that the Deed of Donation executed by Celestina in favor of Ursulina was void for lack of acknowledgment by the attesting witnesses thereto before notary public Atty. Henry Valmonte, and the donation was a disposition mortis causa which failed to comply with the provisions of the Civil Code regarding formalities of wills and testaments, hence, it was void. The plaintiffs-herein private respondents thus prayed that judgment be rendered ordering Ursulina to return to them as intestate heirs the possession and ownership of the properties. They likewise prayed for the cancellation of the tax declarations secured in the name of Ursulina, the partition of the properties among the intestate heirs of Celestina, and the rendering by Ursulina of an

accounting of all the fruits of the properties since 1982 and for her to return or pay the value of their shares.

The defendants-herein petitioners alleged in their Answer6 that the donation in favor of Ursulina was inter vivos as contemplated under Article 729 of the Civil Code,[7 hence, the deed did not have to comply with the requirements for the execution of a valid will; the Revocation of Donation is null and void as the ground mentioned therein is not among those provided by law to be the basis thereof; and at any rate, the revocation could only be legally enforced upon filing of the appropriate complaint in court within the prescriptive period provided by law, which period had, at the time the complaint was filed, already lapsed.

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

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

SO ORDERED.[9

The trial court also held that the absence of a reservation clause in the deed implied that Celestina retained complete dominion over her properties, thus supporting the conclusion that the donation is mortis causa,10 and that while the deed contained an attestation clause and an acknowledgment showing the intent of the donor to effect a postmortem disposition, the acknowledgment was defective as only the donor and donee appear to have acknowledged the deed before the notary public, thereby rendering the entire document void.11

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

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

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

I. . . . WHEN IT DECLARED NULL AND VOID THE DONATION EXECUTED BY CELESTINA GANUELAS;

II. . . . WHEN IT UPHELD THE REVOCATION OF DONATION;

III. . . . IN RENDERING ITS DECISION ADVERSE TO PETITIONER URSULINA GANUELAS.[14

Petitioners argue that the donation contained in the deed is inter vivos as the main consideration for its execution was the donors affection for the donee rather than the donors death;[15 that the provision on the effectivity of the donationafter the donors deathsimply meant that absolute ownership would pertain to the donee on the donors death;16 and that since the donation is inter vivos, it may be revoked only for the reasons provided in Articles 760,[17 76418 and 76519 of the Civil Code.

In a letter of March 16, 1998,[20 private respondent Corazon Sipalay, reacting to this Courts January 28, 1998 Resolution requiring private respondents to SHOW CAUSE why they should not be disciplinarily dealt with or held in contempt for failure to submit the name and address of their new counsel, explains that they are no longer interested in pursuing the case and are willing and ready to waive whatever rights they have over the properties subject of the donation. Petitioners, who were required to comment on the letter, by Comment of October 28, 1998,[21 welcome private respondents gesture but pray that for the sake of enriching jurisprudence, their [p]etition be given due course and resolved.

The issue is thus whether the donation is inter vivos or mortis causa.

Crucial in the resolution of the issue is the determination of whether the donor intended to transfer the ownership over the properties upon the execution of the deed.[22

Donation inter vivos differs from donation mortis causa in that in the former, the act is immediately operative even if the actual execution may be deferred until the death of the donor, while in the latter, nothing is conveyed to or acquired by the donee until the death of the donor-testator.23 The following ruling of this Court in Alejandro v. Geraldez is illuminating:24

If the donation is made in contemplation of the donors death, meaning that the full or naked ownership of the donated properties will pass to the donee only because of the donors death, then it is at that time that the donation takes effect, and it is a donation mortis causa which should be embodied in a last will and testament.

But if the donation takes effect during the donors lifetime or independently of the donors death, meaning that the full or naked ownership (nuda proprietas) of the donated properties passes to the donee during the donors lifetime, not by reason of his death but because of the deed of donation, then the donation is inter vivos.

The distinction between a transfer inter vivos and mortis causa is important as the validity or revocation of the donation depends upon its nature. If the donation is inter vivos, it must be executed and accepted with the formalities prescribed by Articles 74825and 74926 of the Civil Code, except when it is onerous in which case the rules on contracts will apply. If it is mortis causa, the donation must be in the form of a will, with all the formalities for the validity of wills, otherwise it is void and cannot transfer ownership.27

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

1. It conveys no title or ownership to the transferee before the death of the transferor; or, what amounts to the same thing, that the transferor should retain the ownership (full or naked) and control of the property while alive;

2. That before his death, the transfer should be revocable by the transferor at will, ad nutum; but revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed;

3. That the transfer should be void if the transferor should survive the transferee.28

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

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

More importantly, the provision in the deed stating that if the donee should die before the donor, the donation shall be deemed rescinded and of no further force and effect shows that the donation is a postmortem disposition.

As stated in a long line of cases, one of the decisive characteristics of a donation mortis causa is that the transfer should be considered void if the donor should survive the donee.[30

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

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

To classify the donation as inter vivos simply because it is founded on considerations of love and affection is erroneous. That the donation was prompted by the affection of the donor for the donee and the services rendered by the latter is of no particular significance in determining whether the deed constitutes a transfer inter vivos or not, because a legacy may have an identical motivation.32 In other words, love and affection may also underline transfers mortis causa.[33

In Maglasang v. Heirs of Cabatingan,34 the deeds of donation contained provisions almost identical to those found in the deed subject of the present case:

That for and in consideration of the love and affection of the DONOR for the DONEE, x x x the DONOR does hereby, by these presents, transfer, convey, by way of donation, unto the DONEE the above-described property, together with the buildings and all improvements existing thereon, to become effective upon the death of the DONOR; PROVIDED, HOWEVER, that in the event that the DONEE should die before the DONOR, the present donation shall be deemed automatically rescinded and of no further force and effect. (Underscoring supplied)

In that case, this Court held that the donations were mortis causa, for the above-quoted provision conclusively establishes the donors intention to transfer the ownership and possession of the donated property to the donee only after the formers death. Like in the present case, the deeds therein did not contain any clear provision that purports to pass proprietary rights to the donee prior to the donors death.

As the subject deed then is in the nature of a mortis causa disposition, the formalities of a will under Article 728 of the Civil Code should have been complied with, failing which the donation is void and produces no effect.35

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

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court. (Emphasis supplied)

The trial court did not thus commit any reversible error in declaring the Deed of Donation to be mortis causa.

WHEREFORE, the petition is hereby DENIED for lack of merit.

SO ORDERED.

[G.R. No. 125888.  August 13, 1998]

SPOUSES ERNESTO and EVELYN SICAD, petitioners, vs. COURT OF APPEALS, CATALINO VALDERRAMA, JUDY CRISTINA M. VALDERRAMA and JESUS ANTONIO VALDERRAMA, respondents.

DECISION

NARVASA, C.J.:

The issue raised in the appeal by certiorari at bar centers on the character of a deed of donation executed by the late Aurora Virto Vda. De Montinola of the City of Iloilo – as either inter vivos or mortis causa.  That deed, entitled “DEED OF DONATION INTER VIVOS,”[1] was executed by Montinola on December 11, 1979.  It named as donees her grandchildren, namely: Catalino Valderrama, Judy Cristina M. Valderrama and Jesus Antonio Valderrama; and treated of a parcel of land, Lot 3231 of the Cadastral Survey of Panay, Capiz, covered by Transfer Certificate Title No. T-16105 in the name of Montinola.  The deed also contained the signatures of the donees in acknowledgment of the acceptance of the donation.

Montinola’s Secretary, Gloria Salvilla, afterwards presented the deed for recording in the Property Registry, and the Register of Deeds cancelled TCT No. T-16105 (the donor’s title) and, in it place, issued TCT No. T-16622 on February 7, 1980, in the names of the donees. [2] Montinola however retained the owner’s duplicate copy of the new title (No. T-16622), as well as the property itself, until she transferred the  same ten (10) years later, on July 10, 1990, to the spouses, Ernesto and Evelyn Sicad.

On March 12, 1987, Aurora Montinola drew up a deed of revocation of the donation,[3] and caused it to be annotated as an adverse claim on TCT No. T-16622 (issued, as aforestated, in her grandchildren’s names).  Then on August 24, 1990, she filed a petition with the Regional Trial Court in Roxas City for the cancellation of said TCT No. T-16622 and the reinstatement of TCT No. T-16105 (in her name), the case being docketed as Special Proceeding No. 3311.  Her petition was founded on the theory that the donation to her three (3) grandchildren was one mortis causa which thus had to comply with the formalities of a will; and since it had not, the donation was void and could not effectively serve as basis for the cancellation of TCT No. T-16105 and the issuance in its place of TCT No. T-16622.

The donees (Montinola’s grandchildren) opposed the petition.  In their opposition dated August 29, 1990, they averred that the donation in their favor was one inter vivos which, having fully complied with the requirements therefor set out in Article 729 of the Civil Code, was perfectly valid and efficacious.  They

also expressed doubt about the sincerity of their grandmother’s intention to recover the donated property, since she had not pursued the matter of its revocation after having it annotated as an adverse claim.

The case, originally treated as a special proceeding, was subsequently considered by the lower Court as an ordinary civil action in view of the allegations and issues raised in the pleadings.  Pre-trial was had, followed by trial on the merits which was concluded with the filing of the parties’ memoranda.  The Trial Court then rendered judgment on March 27, 1991, holding that the donation was indeed one inter vivos, and dismissing Aurora Montinola’s petition for lack of merit.[4] The matter of its revocation was not passed upon.

Montinola elevated the case to the Court of Appeals, her appeal being docketed as CA-G.R. CV No. 33202.  She however died on March 10, 1993,[5] while appeal was pending.

 Shortly after Montinola’s demise, a “Manifestation and Motion” dated March 31, 1993 was filed by Ernesto Sicad and Evelyn Bofill-Sicad, herein petitioners,[6] in which they (a) alleged that they had become the owners of the property covered by TCT No. T-16622 in virtue of a “deed of definite sale dated May 25, 1992” accomplished by Montinola in their favor, which was confirmed by “an affidavit dated November 26, 1997 also executed by the latter, and (b) prayed that they be substituted as appellants and allowed to prosecute the case in their own behalf.

Another motion was subsequently presented under date of April 7, 1993, this time by the legal heirs of Aurora Montinola, namely:  Ofelia M. de Leon, Estela M. Jaen and Teresita M. Valderrma.  They declared that they were not interested in pursuing the case, and asked that the appeal be withdrawn.  Montinola’s counsel opposed the motion.

On June 21, 1993, the Court of Appeals issued a Resolution: (a) ordering the substitution of the persons above mentioned –  Ofelia M. de Leon, Estela M. Jaen and Teresita M. Valderama – as plaintiffs-appellant in place of the late Aurora Montinola, as well as the joinder of the spouses Ernesto and Evelyn Bofill-Sicad as additional appellants;[7] and (b) denying the motion for the withdrawal of the appeal.

On June 30, 1995, the Eighth Division of the Court of Appeals promulgated its Decision on the case affirming the judgment of the Regional Trial Court;[8] and on July 31, 1996, it denied the separate motions for reconsideration filed by Ofelia M. de Leon, Estela M. Jaen, and Teresita M. Valderrama, on the one hand, and by the spouses, Ernest and Evelyn Sicad, on the other.[9]

The Sicad Spouses have appealed to this Court; and here, they contend that the following errors were committed by the Appellate Tribunal, to wit:

1)   “** in ruling that the donation was inter vivos and in not giving due weight to the revocation of the donation; and

2)  “ ** in not ordering that the case be remanded for further reception of evidence.”[10]

The Comment filed for private respondents (the donees) under date of December 19, 1996 deals with what they consider the “principal issue in this case ** (i.e.) whether the donation is mortis causa or inter vivos” and set forth the argument that the “donor clearly intended to effect the immediate transfer of ownership to the donees,” that the prohibition in the deed of donation “against selling the property within ten (10) years after the death of the donor does not indicate that the donation is mortis causa,”  that the donor’s “alleged act of physically keeping the title does not suggest any intention to defer the effectivity of the donation,” that the “payment of real property taxes is consistent with the donor’s reservation of the right of usufruct,” that the donor’s intent “is not determined by ** (her) self-serving post execution declarations,” the “donation was never effectively revoked,” and petitioners “have waived their right to question the proceedings in the trial court.”[11]

The Reply of the Sicad Spouses dated March 14, 1997 reiterates their thesis that the donation was mortis causa, that “the circumstances surrounding the execution of the deed, and the subsequent actions of the donor incontrovertibly signify the donor’s intent to transfer the property only after her death,” that the donor “did not intend to give effect to the donation,” and that the procedure adopted by the Trial Court in the case was fatally defective.[12] A “Rejoinder” dated April 3, 1997 was then submitted by the Valderamas, traversing the assertions of the Reply.[13]

Considering the focus of the opposing parties, and their conflicting theories, on the intention of Aurora Montinola in executing the document entitled “Deed of Donation Inter Vivos,” it is needful to review the circumstances of the signing of that document by Montinola, as ostensible donor, and her grandchildren, as ostensible donees.

The evidence establishes that on December 11, 1979, when the deed of donation prepared by Montinol’s lawyer (Atty. Treñas) was read and explained by the latter to the parties.  Montinola expressed her wish that the donation take effect only after ten (10) years from her death, and that the deed include a prohibition on the sale of the poperty for such period.  Accordingly, a new proviso was inserted in the deed reading:  “however, the donees shall not sell or encumber the properties herein donated within 10 years after the death of the donor.”[14] The actuality of the subsequent insertion of this new proviso is apparent on the face of the instrument; the intercalation is easily perceived and identified – it was clearly typed on a different machine, and is crammed into the space between the penultimate paragraph of the deed and that immediately preceding it.[15]

Not only did Aurora Montinola ordered the insertion in the deed of that restrictive proviso, but also, after recordation of the deed of donation, she never stopped treating the property as her own.  She continued, as explicitly authorized

in the deed itself, to possess he property, enjoy its fruits and otherwise exercise the rights of dominion, paying the property taxes as they fell due – all these she did until she transferred the property to the Sicad Spouses on July 10, 1990.  She did not give the new certificate of title to the ostensible donees but retained too, until she delivered it to the Sicads on the occasion of the sale of the property to them.  In any event, the delivery of the title to the donees would have served no useful purpose since, as just stated, they were prohibited to effect any sale or encumbrance thereof  for a period of ten (10) years after the ostensible donor’s decease.  And consistent with these acts denoting retention of ownership of the property was Montinola’s openly expressed view that the donation was ineffectual and could not be given affect even after ten (10) years from her death.  For this view she sought to obtain judicial approval.  She brought suit on August 24, 1990 to cancel TCT no. T-16622 (issued to her grandchildren) premised precisely on the invalidity of the donation for failure to comply with the requisites of testamentary dispositions.  Before that, she attempted to undo the conveyance to her grandchildren  by execution  a deed of revocation of the donation on March 12, 1987, and causing annotation thereof as an adverse claim on said TCT No. T-16622.  She also exercised indisputable acts of ownership over said property by executing, as just stated, deeds intended to pass title over it to third parties – petitioner herein.[16]

As already intimated, the real nature of a deed is to be ascertained by both its language and the intention of the parties as demonstrated by the circumstances attendant upon its execution.  In this respect, case law has laid down significant parameters.  Thus, in a decision handed down in 1946,[17] this Court construed a deed purporting to be a donation inter vivos to be in truth one mortis causa because it stipulated (like the one now being inquired into) “that all rents, proceeds, fruits, of the donated properties shall remain for the exclusive benefit and disposal of the donor, Margarita David, during her lifetime; and that, without the knowledge and consent of the donor, the donated properties could not be disposed of in any way, whether by sale, mortgage, barter, or in any other way possible.”  On these essential premises, the Court said, such a donation must be deemed one “mortis causa, because the combined effect of the circumstances surrounding the execution of the deed of donation and of the above-quoted clauses thereof ** (was that) the most essential elements of ownership – the right to dispose of the donated properties and the right to enjoy the products, profits, possession – remained with Margarita David during her lifetime, and would accrue to the donees only after Margarita David’s death.”  So, too, in the case at bar, did these rights remain with Aurora Montinola during her lifetime, and could not pass to the donees until ten (10) years after her death.

In another case decided in 1954 involving similar issue, Bonsato v. Court of Appeals,[18] this Court emphasized that the decisive characteristics of a donation mortis causa, which it had taken into account in David v. Sison, were that “the donor not only reserved for herself all the fruits of the property allegedly conveyed, but what is even more important, especially provided that ‘without knowledge and consent of the donor, the donated properties could not be

disposed of in any way,; thereby denying to the transferees the most essential attribute of ownership, the power to dispose of the properties.”

A donation which purports to be one inter vivos but withholds form the donee that right to dispose of the donated property during the donor’s lifetime is in truth one mortis causa. In a donation mortis causa “ the right of disposition is not transferred to the donee while the donor is still alive.”[19]

In the instant case, nothing of any consequence was transferred by the deed of donation in question to Montinola’s grandchildren, the ostensible donees.  They did not get possession of the property donated.  They did not acquire the right to the fruits thereof, or any other right of dominion over the property.  More importantly, they did not acquire the right to dispose of the property – this would accrue to them only after ten (10) years from Montinola’s death.  Indeed, they never even laid hands on the certificate of title to the same.  They were therefore simply “paper owners” of the donated property.  All these circumstances, including, to repeat, the explicit provisions of the deed of donation – reserving the exercise of rights of ownership to the donee and prohibiting the sale or encumbrance of the property until ten (10) years after her death – ineluctably lead to the conclusion that the donation in question was a donation mortis causa, contemplating a transfer of ownership to the donees only after the donor’s demise.

The case of Alejandro v. Geraldez[20] cited by the Court of Appeals in support of its challenged judgment is not quite relevant.  For in the deed of donation there in issue, there was a partial relinquishment of the right to dispose of the property, in the event only that this became necessary “to defray the expenses and support of the donors.”  That limited right to dispose of the donated lots, said this Court, “implies that ownership had passed to ** (the donees) by means of the donation and **, therefore, the donation was already effective during the donor’s lifetime.  That is the characteristic of a donation inter vivos.”  On the other hand, in the case at bar, the donees were expressly prohibited to make any disposition of any nature or for any purpose whatever during the donor’s lifetime, and until ten (10) years after her death – a prohibition which, it may be added, makes inapplicable the ruling in Castro v. Court of Appeals[21] where no such prohibition was imposed, and the donor retained only the usufruct over the property.

The Valderramas’ argument that the donation is inter vivos in character and that the prohibition against their disposition of the donated property is merely a condition which, if violated, would give cause for its revocation, begs the question.  It assumes that they have the right to make a disposition of the property, which they do not.  The argument also makes no sense, because if they had the right to dispose of the property and did in fact dispose of it to a third person, the revocation of the donation they speak of would be of no utility or benefit to the donor, since such a revocation would not necessarily result in the restoration of the donor’s ownership and enjoyment of the property.

It is also error to suppose that the donation under review should be deemed one inter vivos simply because founded on considerations of love and

affection.  In Alejandro v. Geraldez, supra,[22] this Court also observed that “the fact that the donation is given in consideration of love and affection ** is not a characteristic of donation inter vivos (solely) because transfers mortis causa may also be made for the same reason.”  Similarly, in Bonsato v. Court of Appeals, supra, this Court opined that the fact “that the conveyance was due to the affection of the donor to the donees and services rendered by the latter,is of no particular significance in determining whether the deeds, Exh. ‘1’ and ‘2,’ constitute transfersinter vivos or not, because a legacy may have identical motivation.”[23]

Finally, it is germane to advert to the legal principle in Article 1378 of the Civil Code to the effect that in the case of doubt relative to a gratuitous contract, the construction must be that entailing “the least transmission of rights and interests.”[24]

The donation in question, though denominated inter vivos, is in truth one mortis causa; it is void because the essential requisites for its validity have not been complied with.

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CV No. 33202 dated June 30, 1995 as well as the Resolution denying reconsideration thereof and the Decision of the Regional Trial Court in Special Case No. 3311 are SET ASIDE.  The Deed of Donation Inter Vivos (Exh. “A”) executed  by Aurora Virto Vda. De Montinola on December 11, 1979 in favor of Catalino M. Valderrama, Judy Cristina M. Valderrama and Jesus Antonio M. Valderrama is declared null and void.  The Register of Deed of Roxas City is directed to cancel Transfer Certificate of Title No. T-16622, revive and reinstate Transfer Certificate of Title No. T-16105.

SO ORDERED.

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

D E C I S I O N

NARVASA, C.J.:

On November 20, 1989, being then ninety-four (94) years of age, Carmen Cañiza, a spinster, a retired pharmacist, and former professor of the College of Chemistry and Pharmacy of the University of the Philippines, was declared incompetent by judgment[1] of the Regional Trial Court of Quezon City, Branch 107,[2] in a guardianship proceeding instituted by her niece, Amparo A. Evangelista.[3] She was so adjudged because of her advanced age and physical

infirmities which included cataracts in both eyes and senile dementia. Amparo A. Evangelista was appointed legal guardian of her person and estate.

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

The amended Complaint[5] pertinently alleged that plaintiff Cañiza was the absolute owner of the property in question, covered by TCT No. 27147; that out of kindness, she had allowed the Estrada Spouses, their children, grandchildren and sons-in-law to temporarily reside in her house, rent-free; that Cañiza already had urgent need of the house on account of her advanced age and failing health, "so funds could be raised to meet her expenses for support, maintenance and medical treatment;" that through her guardian, Cañiza had asked the Estradas verbally and in writing to vacate the house but they had refused to do so; and that "by the defendants' act of unlawfully depriving plaintiff of the possession of the house in question, they ** (were) enriching themselves at the expense of the incompetent, because, while they ** (were) saving money by not paying any rent for the house, the incompetent ** (was) losing much money as her house could not be rented by others." Also alleged was that the complaint was "filed within one (1) year from the date of first letter of demand dated February 3, 1990."

In their Answer with Counterclaim, the defendants declared that they had been living in Cañiza's house since the 1960's; that in consideration of their faithful service they had been considered by Cañiza as her own family, and the latter had in fact executed a holographic will on September 4, 1988 by which she "bequeathed" to the Estradas the house and lot in question.

Judgment was rendered by the MetroTC on April 13, 1992 in Cañiza's favor,[6] the Estradas being ordered to vacate the premises and pay Cañiza P5,000.00 by way of attorney's fees.

But on appeal,[7] the decision was reversed by the Quezon City Regional Trial Court, Branch 96.[8] By judgment rendered on October 21, 1992, [9] the RTC held that the "action by which the issue of defendants' possession should be resolved is accion publiciana, the obtaining factual and legal situation ** demanding adjudication by such plenary action for recovery of possession cognizable in the first instance by the Regional Trial Court."

Cañiza sought to have the Court of Appeals reverse the decision of October 21, 1992, but failed in that attempt. In a decision [10] promulgated on June 2, 1993, the Appellate Court[11] affirmed the RTC's judgment in toto. It ruled that (a) the proper remedy for Cañiza was indeed an accion publiciana in the RTC, not an accion interdictal in the MetroTC, since the "defendants have not been in the subject premises as mere tenants or occupants by tolerance, they have been there as a sort of adopted family of Carmen Cañiza," as evidenced by what

purports to be the holographic will of the plaintiff; and (b) while "said will, unless and until it has passed probate by the proper court, could not be the basis of defendants' claim to the property, ** it is indicative of intent and desire on the part of Carmen Cañiza that defendants are to remain and are to continue in their occupancy and possession, so much so that Cañiza's supervening incompetency can not be said to have vested in her guardian the right or authority to drive the defendants out."[12]

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

In the responsive pleading filed by them on this Court's requirement, [14] the Estradas insist that the case against them was really not one of unlawful detainer; they argue that since possession of the house had not been obtained by them by any "contract, express or implied," as contemplated by Section 1, Rule 70 of the Rules of Court, their occupancy of the premises could not be deemed one "terminable upon mere demand (and hence never became unlawful) within the context of the law." Neither could the suit against them be deemed one of forcible entry, they add, because they had been occupying the property with the prior consent of the "real owner," Carmen Cañiza, which "occupancy can even ripen into full ownership once the holographic will of petitioner Carmen Cañiza is admitted to probate." They conclude, on those postulates, that it is beyond the power of Cañiza's legal guardian to oust them from the disputed premises.

Carmen Cañiza died on March 19, 1994, [15] and her heirs -- the aforementioned guardian, Amparo Evangelista, and Ramon C. Nevado, her niece and nephew, respectively -- were by this Court's leave, substituted for her.[16]

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

I

It is axiomatic that what determines the nature of an action as well as which court has jurisdiction over it, are the allegations of the complaint and the character of the relief sought.[17] An inquiry into the averments of the amended complaint in the Court of origin is thus in order.[18]

The amended Complaint alleges:[19]

"6.     That the plaintiff, Carmen Cañiza, is the sole and absolute owner of a house and lot at No. 61 Scout Tobias, Quezon City, which property is now the subject of this complaint;

**        **        **

9.       That the defendants, their children, grandchildren and sons-in-law, were allowed to live temporarily in the house of plaintiff, Carmen Cañiza, for free, out of her kindness;

10.     That the plaintiff, through her legal guardian, has duly notified the defendants, for them to vacate the said house, but the two (2) letters of demand were ignored and the defendants refused to vacate the same.   **

11.     That the plaintiff, represented by her legal guardian, Amparo Evangelista, made another demand on the defendants for them to vacate the premises, before Barangay Captain Angelina A. Diaz of Barangay Laging Handa, Quezon City, but after two (2) conferences, the result was negative and no settlement was reached. A photocopy of the Certification to File Action dated July 4, 1990; issued by said Barangay Captain is attached, marked Annex "D" and made an integral part hereof;

12.     That the plaintiff has given the defendants more than thirty (30) days to vacate the house, but they still refused to vacate the premises, and they are up to this time residing in the said place;

13.     That this complaint is filed within one (1) year from the date of first letter of demand dated February 3, 1990 (Annex "B") sent by the plaintiff to the defendants, by her legal guardian -- Amparo Evangelista;

14.     By the defendants' act of unlawfully depriving the plaintiff of the possession of the house in question, they are enriching themselves at the expense of the incompetent plaintiff, because, while they are saving money by not paying any rent for the house, the plaintiff is losing much money as her house could not be rented by others;

15.     That the plaintiff's health is failing and she needs the house urgently, so that funds could be raised to meet her expenses for her support, maintenance and medical treatment;

16.     That because of defendants' refusal to vacate the house at No. 61 Scout Tobias, Quezon City, the plaintiff, through her legal guardian, was compelled to go to court for justice, and she has to spendP10,000.00 as attorney's fees."

Its prayer[20] is quoted below:

"WHEREFORE, in the interest of justice and the rule of law, plaintiff, Carmen Cañiza, represented by her legal guardian. Amparo Evangelista, respectfully prays to this Honorable Court, to render judgment in favor of plaintiff and against the defendants as follows:

1.            To order the defendants, their children, grandchildren, sons-in-law and other persons claiming under them, to vacate the house and premises at No. 61 Scout Tobias, Quezon City, so that its possession can be restored to the plaintiff, Carmen Cañiza: and

2.            To pay attorney's fees in the amount of P10,000.00;

3.            To pay the costs of the suit."

In essence, the amended complaint states:

1)      that the Estradas were occupying Cañiza's house by tolerance -- having been "allowed to live temporarily **  (therein) for free, out of ** (Cañiza's) kindness;"

2)      that Cañiza needed the house "urgently" because her "health ** (was) failing and she ** (needed) funds ** to meet her expenses for her support, maintenance and medical treatment;"

3)      that through her general guardian, Cañiza requested the Estradas several times, orally and in writing, to give back possession of the house;

4)      that the Estradas refused and continue to refuse to give back the house to Cañiza, to her continuing prejudice; and

5)      that the action was filed within one (1) year from the last demand to vacate.

Undoubtedly, a cause of action for desahucio has been adequately set out. It is settled that in an action for unlawful detainer, it suffices to allege that the defendant is unlawfully withholding possession from the plaintiff is deemed sufficient,[21] and a complaint for unlawful detainer is sufficient if it alleges that the

withholding of possession or the refusal to vacate is unlawful without necessarily employing the terminology of the law.[22]

The Estradas' first proffered defense derives from a literal construction of Section 1, Rule 70 of the Rules of Court which inter alia authorizes the institution of an unlawful detainer suit when "the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied." They contend that since they did not acquire possession of the property in question "by virtue of any contract, express or implied" -- they having been, to repeat, "allowed to live temporarily ** (therein) for free, out of ** (Cañiza's) kindness" -- in no sense could there be an "expiration or termination of ** (their) right to hold possession, by virtue of any contract, express or implied." Nor would an action for forcible entry lie against them, since there is no claim that they had "deprived (Cañiza) of the possession of ** (her property) by force, intimidation, threat, strategy, or stealth."

The argument is arrant sophistry. Cañiza's act of allowing the Estradas to occupy her house, rent-free, did not create a permanent and indefeasible right of possession in the latter's favor. Common sense, and the most rudimentary sense of fairness clearly require that act of liberality be implicitly, but no less certainly, accompanied by the necessary burden on the Estradas of returning the house to Cañiza upon her demand. More than once has this Court adjudged that a person who occupies the land of another at the latter's tolerance or permission without any contract between them is necessarily bound by an implied promise that he will vacate upon demand, failing which a summary action for ejectment is the proper remedy against him.[23] The situation is not much different from that of a tenant whose lease expires but who continues in occupancy by tolerance of the owner, in which case there is deemed to be an unlawful deprivation or withholding of possession as of the date of the demand to vacate. [24] In other words, one whose stay is merely tolerated becomes a deforciant illegally occupying the land or property the moment he is required to leave. [25] Thus, in Asset Privatization Trust vs. Court of Appeals,[26] where a company, having lawfully obtained possession of a plant upon its undertaking to buy the same, refused to return it after failing to fulfill its promise of payment despite demands, this Court held that "(a)fter demand and its repudiation, ** (its) continuing possession ** became illegal and the complaint for unlawful detainer filed by the ** (plant's owner) was its proper remedy."

It may not be amiss to point out in this connection that where there had been more than one demand to vacate, the one-year period for filing the complaint for unlawful detainer must be reckoned from the date of the last demand, [27] the reason being that the lessor has the option to waive his right of action based on previous demands and let the lessee remain meanwhile in the premises. [28] Now, the complaint filed by Cañiza's guardian alleges that the same was "filed within one (1) year from the date of the first letter of demand dated February 3, 1990." Although this averment is not in accord with law because there is in fact a second letter of demand to vacate, dated February 27, 1990, the mistake is

inconsequential, since the complaint was actually filed on September 17, 1990, well within one year from the second (last) written demand to vacate.

The Estradas' possession of the house stemmed from the owner's express permission. That permission was subsequently withdrawn by the owner, as was her right; and it is immaterial that the withdrawal was made through her judicial guardian, the latter being indisputably clothed with authority to do so. Nor is it of any consequence that Carmen Cañiza had executed a will bequeathing the disputed property to the Estradas; that circumstance did not give them the right to stay in the premises after demand to vacate on the theory that they might in future become owners thereof, that right of ownership being at best inchoate, no transfer of ownership being possible unless and until the will is duly probated.

Thus, at the time of the institution of the action of desahucio, the Estradas had no legal right to the property, whether as possessors by tolerance or sufferance, or as owners. They could not claim the right of possession by sufferance, that had been legally ended. They could not assert any right of possession flowing from their ownership of the house; their status as owners is dependent on the probate of the holographic will by which the property had allegedly been bequeathed to them -- an event which still has to take place; in other words; prior to the probate of the will, any assertion of possession by them would be premature and inefficacious.

In any case, the only issue that could legitimately be raised under the circumstances was that involving the Estradas' possession by tolerance, i.e., possession de facto, not de jure. It is therefore incorrect to postulate that the proper remedy for Cañiza is not ejectment but accion publiciana, a plenary action in the RTC or an action that is one for recovery of the right to possession de jure.

II

The Estradas insist that the devise of the house to them by Cañiza clearly denotes her intention that they remain in possession thereof, and legally incapacitated her judicial guardian, Amparo Evangelista, from evicting them therefrom, since their ouster would be inconsistent with the ward's will.

A will is essentially ambulatory; at any time prior to the testator's death, it may be changed or revoked;[29] and until admitted to probate, it has no effect whatever and no right can be claimed thereunder, the law being quite explicit: "No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court" (ART. 838, id.). [30] An owner's intention to confer title in the future to persons possessing property by his tolerance, is not inconsistent with the former's taking back possession in the meantime for any reason deemed sufficient. And that in this case there was sufficient cause for the owner's resumption of possession is apparent: she needed to generate income from the house on account of the physical infirmities afflicting her, arising from her extreme age.

Amparo Evangelista was appointed by a competent court the general guardian of both the person and the estate of her aunt, Carmen Cañiza. Her

Letters of Guardianship[31]dated December 19, 1989 clearly installed her as the "guardian over the person and properties of the incompetent CARMEN CAÑIZA with full authority to take possession of the property of said incompetent in any province or provinces in which it may be situated and to perform all other acts necessary for the management of her properties ** " [32] By that appointment, it became Evangelista's duty to care for her aunt's person, to attend to her physical and spiritual needs, to assure her well-being, with right to custody of her person in preference to relatives and friends. [33] It also became her right and duty to get possession of, and exercise control over, Cañiza's property, both real and personal, it being recognized principle that the ward has no right to possession or control of his property during her incompetency. [34] That right to manage the ward's estate carries with it the right to take possession thereof and recover it from anyone who retains it,[35] and bring and defend such actions as may be needful for this purpose. [36]

Actually, in bringing the action of desahucio, Evangelista was merely discharging the duty to attend to "the comfortable and suitable maintenance of the ward" explicitly imposed on her by Section 4, Rule 96 of the Rules of Court, viz.:

"SEC. 4.        Estate to be managed frugally, and proceeds applied to maintenance of ward. — A guardian must manage the estate of his ward frugally and without waste, and apply the income and profits thereof, so far as maybe necessary, to the comfortable and suitable maintenance of the ward and his family, if there be any; and if such income and profits be insufficient for that purpose, the guardian may sell or encumber the real estate, upon being authorized by order to do so, and apply to such of the proceeds as may be necessary to such maintenance."

Finally, it may be pointed out in relation to the Estradas's defenses in the ejectment action, that as the law now stands, even when, in forcible entry and unlawful detainer cases, the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts nevertheless have the undoubted competence to resolve. "the issue of ownership ** only to determine the issue of possession."[37]

III

As already stated, Carmen Cañiza passed away during the pendency of this appeal. The Estradas thereupon moved to dismiss the petition, arguing that Cañiza's death automatically terminated the guardianship, Amaparo Evangelista lost all authority as her judicial guardian, and ceased to have legal personality to represent her in the present appeal. The motion is without merit.

While it is indeed well-established rule that the relationship of guardian and ward is necessarily terminated by the death of either the guardian or the ward,

[38] the rule affords no advantage to the Estradas. Amparo Evangelista, as niece of Carmen Cañiza, is one of the latter's only two (2) surviving heirs, the other being Cañiza's nephew, Ramon C. Nevado. On their motion and by Resolution of this Court[39] of June 20, 1994, they were in fact substituted as parties in the appeal at bar in place of the deceased, in accordance with Section 17, Rule 3 of the Rules of Court, viz.:[40]

"SEC. 18.      Death of a party. — After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and be substituted for the deceased within a period of thirty (30) days, or within such time as may be granted. If the legal representative fails to appear within said time, the court may order the opposing party to procure the appointment of a legal representative of the deceased within a time to be specified by the court, and the representative shall immediately appear for and on behalf of the interest of the deceased. The court charges involved in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint guardian ad litem for the minor heirs.

To be sure, an ejectment case survives the death of a party. Cañiza's demise did not extinguish the desahucio suit instituted by her through her guardian.[41] That action, not being a purely personal one, survived her death; her heirs have taken her place and now represent her interests in the appeal at bar.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals promulgated on June 2, 1993 -- affirming the Regional Trial Court's judgment and dismissing petitioner's petition for certiorari -- is REVERSED and SET ASIDE, and the Decision dated April 13, 1992 of the Metropolitan Trial Court of Quezon City, Branch 35, in Civil Case No. 3410 is REINSTATED and AFFIRMED. Costs against private respondents.

SO ORDERED.

G.R. No. 156536             October 31, 2006

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

D E C I S I O N

AZCUNA, J.:

This is a petition for review under Rule 45 of the Rules of Court seeking the reversal of the decision1 dated March 26, 2002, and the resolution2 dated December 17, 2002, of the Court of Appeals in CA-G.R. SP No. 59869 entitled "Gloria A. Vargas, Aurora Vargas, Ramon Vargas, Marites Vargas, Edelina Vargas and Gemma Vargas v. Joseph Cua."

The facts are as follows:

A parcel of residential land with an area of 99 square meters located in San Juan, Virac, Catanduanes was left behind by the late Paulina Vargas. On February 4, 1994, a notarized Extra Judicial Settlement Among Heirs was executed by and among Paulina Vargas' heirs, namely Ester Vargas, Visitacion Vargas, Juan Vargas, Zenaida V. Matienzo, Rosario V. Forteza, Andres Vargas, Gloria Vargas, Antonina Vargas and Florentino Vargas, partitioning and adjudicating unto themselves the lot in question, each one of them getting a share of 11 square meters. Florentino, Andres, Antonina and Gloria, however, did not sign the document. Only Ester, Visitacion, Juan, Zenaida and Rosario signed it. The Extra Judicial Settlement Among Heirs was published in the Catanduanes Tribune for three consecutive weeks.3

On November 15, 1994, an Extra Judicial Settlement Among Heirs with Sale4 was again executed by and among the same heirs over the same property and also with the same sharings. Once more, only Ester, Visitacion, Juan, Zenaida and Rosario signed the document and their respective shares totaling 55 square meters were sold to Joseph Cua, petitioner herein.

According to Gloria Vargas, the widow of Santiago Vargas and one of respondents herein, she came to know of the Extra Judicial Settlement Among Heirs with Sale dated November 16, 1994 only when the original house built on the lot was being demolished sometime in May 1995.5 She likewise claimed she was unaware that an earlier Extra Judicial Settlement Among Heirs dated February 4, 1994 involving the same property had been published in the Catanduanes Tribune.6

After knowing of the sale of the 55 square meters to petitioner, Gloria Vargas tried to redeem the property, with the following letter7 sent to petitioner on her behalf:

29th June 1995

Mr. Joseph CuaCapilihan, Virac, Catanduanes

Sir:

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

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

This is to serve you notice that my client shall exercise her right of legal redemption of said five (5) shares as well as other shares which you may likewise have acquired by purchase. And you are hereby given an option to agree to legal redemption within a period of fifteen (15) days from your receipt hereof.

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

Thank you.

Very truly yours,

(Sgd.)JUAN G. ATENCIA

When the offer to redeem was refused and after having failed to reach an amicable settlement at the barangay level,9 Gloria Vargas filed a case for annulment of Extra Judicial Settlement and Legal Redemption of the lot with the Municipal Trial Court (MTC) of Virac, Catanduanes against petitioner and consigned the amount of P100,000 which is the amount of the purchase with the Clerk of Court on May 20, 1996.10 Joining her in the action were her children with Santiago, namely, Aurora, Ramon, Marites, Edelina and Gemma, all surnamed Vargas.

Subsequently, Carlos Gianan, Jr. and Gloria Arcilla, heirs of the alleged primitive owner of the lot in question, Pedro Lakandula, intervened in the case.11

Respondents claimed that as co-owners of the property, they may be subrogated to the rights of the purchaser by reimbursing him the price of the sale. They likewise alleged that the 30-day period following a written notice by the vendors to their co-owners for them to exercise the right of redemption of the property had not yet set in as no written notice was sent to them. In effect, they claimed that the Extra Judicial Settlement Among Heirs and the Extra Judicial Settlement Among Heirs with Sale were null and void and had no legal and binding effect on them.12

After trial on the merits, the MTC rendered a decision13 in favor of petitioner, dismissing the complaint as well as the complaint-in-intervention for lack of merit, and declaring the Deed of Extra Judicial Settlement Among Heirs with Sale valid and binding. The MTC upheld the sale to petitioner because the transaction purportedly occurred after the partition of the property among the co-owner heirs. The MTC opined that the other heirs could validly dispose of their respective shares. Moreover, the MTC found that although there was a failure to strictly comply with the requirements under Article 1088 of the Civil Code14 for a written notice of sale to be served upon respondents by the vendors prior to the exercise of the former's right of redemption, this deficiency was cured by respondents' actual knowledge of the sale, which was more than 30 days before the filing of their complaint, and their consignation of the purchase price with the Clerk of Court, so that the latter action came too late. Finally, the MTC ruled that respondents failed to establish by competent proof petitioner's bad faith in purchasing the portion of the property owned by respondents' co-heirs.15

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

The CA reversed the ruling of both lower courts in the assailed decision dated March 26, 2002, declaring that the Extra Judicial Settlement Among Heirs and the Extra Judicial Settlement Among Heirs with Sale, dated February 4, 1994 and November 15, 1994, respectively, were void and without any legal effect. The CA held that, pursuant to Section 1, Rule 74 of the Rules of Court, 16 the extrajudicial settlement made by the other co-heirs is not binding upon respondents considering the latter never participated in it nor did they ever signify their consent to the same.

His motion for reconsideration having been denied, petitioner filed the present petition for review.

The issues are:

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

Assuming a published extrajudicial settlement and partition does not bind persons who did not participate therein, whether the written notice required to be served by an heir to his co-heirs in connection with the sale of hereditary rights to a stranger before partition under Article 1088 of the Civil Code17 can be dispensed with when such co-heirs have actual knowledge of the sale such that the 30-day period within which a co-heir can exercise the right to be subrogated to the rights of a purchaser shall commence from the date of actual knowledge of the sale.

Petitioner argues, as follows:

Firstly, the acquisition by petitioner of the subject property subsequent to the extrajudicial partition was valid because the partition was duly published. The publication of the same constitutes due notice to respondents and signifies their implied acquiescence thereon. Respondents are therefore estopped from denying the validity of the partition and sale at this late stage. Considering that the partition was valid, respondents no longer have the right to redeem the property.

Secondly, petitioner is a possessor and builder in good faith.

Thirdly, the MTC had no jurisdiction over the complaint because its subject matter was incapable of pecuniary estimation. The complaint should have been filed with the RTC.

Fourthly, there was a non-joinder of indispensable parties, the co-heirs who sold their interest in the subject property not having been impleaded by respondents.

Fifthly, the appeal to the CA should have been dismissed as it was not properly verified by respondents. Gloria Vargas failed to indicate that she was authorized to represent the other respondents (petitioners therein) to initiate the petition. Moreover, the verification was inadequate because it did not state the basis of the alleged truth and/or correctness of the material allegations in the petition.

The petition lacks merit.

The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding. The rule plainly states, however, that persons who do not participate or had no notice of an extrajudicial settlement will not be bound thereby.18 It contemplates a notice that has been sent out or issued before any deed of settlement and/or partition is agreed upon (i.e., a notice calling all interested parties to participate in the said deed of extrajudicial settlement and partition), and not after such an agreement has already been executed19 as what happened in the instant case with the publication of the first deed of extrajudicial settlement among heirs.

The publication of the settlement does not constitute constructive notice to the heirs who had no knowledge or did not take part in it because the same was notice after the fact of execution. The requirement of publication is geared for the protection of creditors and was never intended to deprive heirs of their lawful participation in the decedent's estate. In this connection, the records of the present case confirm that respondents never signed either of the settlement documents, having discovered their existence only shortly before the filing of the present complaint. Following Rule 74, these extrajudicial settlements do not bind respondents, and the partition made without their knowledge and consent is invalid insofar as they are concerned.

This is not to say, though, that respondents' co-heirs cannot validly sell their hereditary rights to third persons even before the partition of the estate. The heirs who actually participated in the execution of the extrajudicial settlements, which included the sale to petitioner of

their pro indiviso shares in the subject property, are bound by the same. Nevertheless, respondents are given the right to redeem these shares pursuant to Article 1088 of the Civil Code. The right to redeem was never lost because respondents were never notified in writing of the actual sale by their co-heirs. Based on the provision, there is a need for written notice to start the period of redemption, thus:

Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor. (Emphasis supplied.)

It bears emphasis that the period of one month shall be reckoned from the time that a co-heir is notified in writing by the vendor of the actual sale. Written notice is indispensable and mandatory,20 actual knowledge of the sale acquired in some other manner by the redemptioner notwithstanding. It cannot be counted from the time advance notice is given of an impending or contemplated sale. The law gives the co-heir thirty days from the time written notice of the actual sale within which to make up his or her mind and decide to repurchase or effect the redemption.21

Though the Code does not prescribe any particular form of written notice nor any distinctive method for written notification of redemption, the method of notification remains exclusive, there being no alternative provided by law.22 This proceeds from the very purpose of Article 1088, which is to keep strangers to the family out of a joint ownership, if, as is often the case, the presence of outsiders be undesirable and the other heir or heirs be willing and in a position to repurchase the share sold.23

It should be kept in mind that the obligation to serve written notice devolves upon the vendor co-heirs because the latter are in the best position to know the other co-owners who, under the law, must be notified of the sale.24 This will remove all uncertainty as to the fact of the sale, its terms and its perfection and validity, and quiet any doubt that the alienation is not definitive.25 As a result, the party notified need not entertain doubt that the seller may still contest the alienation. 26

Considering, therefore, that respondents' co-heirs failed to comply with this requirement, there is no legal impediment to allowing respondents to redeem the shares sold to petitioner given the former's obvious willingness and capacity to do so.

Likewise untenable is petitioner's contention that he is a builder in good faith. Good faith consists in the belief of the builder that the land the latter is building on is one's own without knowledge of any defect or flaw in one's title.27 Petitioner derived his title from the Extra Judicial Settlement Among Heirs With Sale dated November 15, 1994. He was very much aware that not all of the heirs participated therein as it was evident on the face of the document itself. Because the property had not yet been partitioned in accordance with the Rules of Court, no particular portion of the property could have been identified as yet and delineated as the object of the sale. This is because the alienation made by respondents' co-heirs was limited to the portion which may be allotted to them in the division upon the termination of the co-ownership. Despite this glaring fact, and over the protests of respondents, petitioner still constructed improvements on the property. For this reason, his claim of good faith lacks credence.

As to the issue of lack of jurisdiction, petitioner is estopped from raising the same for the first time on appeal. Petitioner actively participated in the proceedings below and sought affirmative ruling from the lower courts to uphold the validity of the sale to him of a portion of the subject property embodied in the extrajudicial settlement among heirs. Having failed to seasonably raise this defense, he cannot, under the peculiar circumstances of this case, be permitted to challenge the jurisdiction of the lower court at this late stage. While it is a rule that a jurisdictional question may be raised at any time, an exception arises where estoppel has already supervened.

Estoppel sets in when a party participates in all stages of a case before challenging the jurisdiction of the lower court. One cannot belatedly reject or repudiate its decision after voluntarily submitting to its jurisdiction, just to secure affirmative relief against one's opponent or after failing to obtain such relief. The Court has, time and again, frowned upon the undesirable practice of a party submitting a case for decision and then accepting the judgment, only if favorable, and attacking it for lack of jurisdiction when adverse.28

Petitioner's fourth argument, that there is a non-joinder of indispensable parties, similarly lacks merit. An indispensable party is a party-in-interest without whom there can be no final determination of an action and who is required to be joined as either plaintiff or defendant.29 The party's interest in the subject matter of the suit and in the relief sought is so inextricably intertwined with the other parties that the former's legal presence as a party to the proceeding is an absolute necessity. Hence, an indispensable party is one whose interest will be directly affected by the court's action in the litigation. In the absence of such indispensable party, there cannot be a resolution of the controversy before the court which is effective, complete, or equitable.30

In relation to this, it must be kept in mind that the complaint filed by respondents ultimately prayed that they be allowed to redeem the shares in the property sold by their co-heirs. Significantly, the right of the other heirs to sell their undivided share in the property to petitioner is not in dispute. Respondents concede that the other heirs acted within their hereditary rights in doing so to the effect that the latter completely and effectively relinquished their interests in the property in favor of petitioner. Petitioner thus stepped into the shoes of the other heirs to become a co-owner of the property with respondents. As a result, only petitioner's presence is absolutely required for a complete and final determination of the controversy because what respondents seek is to be subrogated to his rights as a purchaser.

Finally, petitioner contends that the petition filed by respondents with the CA should have been dismissed because the verification and certificate of non-forum shopping appended to it were defective, citing specifically the failure of respondent Gloria Vargas to: (1) indicate that she was authorized to represent her co-respondents in the petition, and (2) state the basis of the alleged truth of the allegations.

The general rule is that the certificate of non-forum shopping must be signed by all the plaintiffs or petitioners in a case and the signature of only one of them is insufficient.31Nevertheless, the rules on forum shopping, which were designed to promote and facilitate the orderly administration of justice, should not be interpreted with such absolute literalness as to subvert their own ultimate and legitimate objective. Strict compliance with the provisions regarding the certificate of non-forum shopping merely underscores its mandatory nature in that the certification cannot be altogether dispensed with or its requirements completely disregarded.32 Under justifiable circumstances, the Court has relaxed the rule requiring the submission of such certification considering that although it is obligatory, it is not jurisdictional.33

Thus, when all the petitioners share a common interest and invoke a common cause of action or defense, the signature of only one of them in the certification against forum shopping substantially complies with the rules.34 The co-respondents of respondent Gloria Vargas in this case were her children. In order not to defeat the ends of justice, the Court deems it sufficient that she signed the petition on their behalf and as their representative.

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

SO ORDERED.

THIRD DIVISION  CRESENCIANA TUBOG.R. No. 175720RODRIGUEZ (now deceased),substituted by SUSANA A. LLAGAS,cralawcralawcralawPetitioner,Present:

Ynares-Santiago, J. (Chairperson),- versus -cralawAustria-Martinez,

Chico-Nazario,Nachura, andReyes, JJ.

EVANGELINE RODRIGUEZ,BELEN RODRIGUEZ andPromulgated:BUENAVENTURA RODRIGUEZ,Respondents.cralaw cralawSeptember 11, 2007x ---------------------------------------------------------------------------------------- x 

DECISION YNARES-SANTIAGO, J.:  

cralawThis petition for review on certiorari assails the Decision[1] of

the Court of Appeals in CA-G.R. SP No. 91442 dated June 27, 2006,

which set aside the Decision of the Regional Trial Court (RTC) of

Makati City, Branch 134, in Civil Case No. 03-517, and reinstated the

Decision of the Metropolitan Trial Court (MTC) of Makati City, Branch

63, in Civil Case No. 75717, dismissing the complaint for ejectment;

as well as the Resolution denying the motion for reconsideration.

 

cralawJuanito Rodriguez owned a five-door apartment located at San

Jose Street, Guadalupe Nuevo,MakatiCity, and covered by TCT No.

144865.[2]On October 27, 1983, Juanito executed a Huling Habilin at

Testamentogiving petitioner Cresenciana Tubo Rodriguez, his live-in

partner, apartments D and E, and his children Benjamin Rodriguez

(the deceased husband of respondent Evangeline Rodriguez),

apartment A, respondent Buenaventura Rodriguez, apartment B, and

respondent Belen Rodriguez, apartment C.[3]

 

However, on June 14, 1984, Juanito executed a Deed of Absolute Sale

over the property in favor of petitioner.[4] Thus, TCT No. 144865 was

cancelled and a new TCT No. 150431 was issued in the name of the

petitioner.[5]chanroblesvirtuallawlibrary

 

The case arose when petitioner filed on September 20, 2001 a

complaint for unlawful detainer against the respondents, alleging

that she is the lawful and registered owner of the property; and that

in 1984, she allowed respondents Evangeline, Buenaventura and

Belen, out of kindness and tolerance, to personally occupy units A, B

and D, respectively.However, without her knowledge and consent,

respondents separately leased the units to Montano Magpantay, Mel

Navarro and Socorro Escota, who despite repeated demands, failed

and refused to vacate the premises and to pay the rentals thereof.

[6]

 

cralawIn their Answer, respondents claimed ownership over the

subject property by succession.They alleged that while petitioner is

the registered owner of the property, however, she is not the lawful

owner thereof because the June 14, 1984 Deed of Absolute Sale was

simulated and void.As in Civil Case No. 01-1641 now pending before

the RTC of Makati City, Branch 141, which they filed to assail the

validity of the said sale, respondents maintain that petitioner

exerted undue influence over their father, who at that time was

seriously ill, to agree to the sale of the property for onlyP20,000.00

after knowing that only two apartments were given to her in

the Huling Habilin at Testamento.Further, she had no cause of action

against them for being a party to the August 23, 1990 Partition

Agreement wherein they recognized each other as co-owners and

partitioned the property in accordance with the provision of the last

will and testament.[7]

 

cralawOn February 26, 2002, the MTC rendered a judgment in favor of

the respondents and held that the deed of sale was simulated

otherwise petitioner would not have entered into the Partition

Agreement, which legally conferred upon each heir exclusive

ownership over their respective shares, thus:

 

WHEREFORE, the Complaint is DISMISSED.Plaintiff is ordered to pay attorneys fees ofP10,000.00 and the costs of suit in favor of defendants. cralawSO ORDERED.[8] 

 

On appeal, the RTC reversed the decision of the MTC.It held that

petitioners certificate of title is a conclusive evidence of ownership

of the land described therein; and that unless and until said title has

been annulled by a court of competent jurisdiction, such title is

existing and valid.This is true also with respect to the deed of

sale.The present action, which involves only the issue of physical or

material possession, is not the proper action to challenge it.Further,

the MTC erred when it relied heavily on the Huling Habilin at

Testamento, which was not probated hence has no effect and no

right can be claimed therein.The Partition Agreement which was

allegedly entered into pursuant to the Huling Habilin at

Testamento should not also be considered.Thus:

 cralawWHEREFORE, premises considered, the decision rendered by the Metropolitan Trial Court, Branch 63, Makati City, is hereby ordered REVERSED AND SET ASIDE.Consequently, judgment is hereby rendered ordering the defendants and all persons claiming rights under them to vacate the premises and surrender the possession thereof to the plaintiff.Defendants are likewise ordered to pay jointly and severally the plaintiff an amount of P5,000.00 a month per unit beginning 13 August 2001 until they finally vacate the premises and the costs of this suit. cralawSO ORDERED.[9] 

 

Aggrieved, respondents filed a petition for review before the Court

of Appeals which reversed and set aside the decision of the RTC and

reinstated the decision of the MTC.It held that the MTC correctly

received evidence on ownership since the question of possession

could not be resolved without deciding the issue of

ownership.Further, the Huling Habilin at Testamento transmitted

ownership of the specific apartments not only to the respondents

but also to the petitioner; and pursuant thereto, the parties

executed the Partition Agreement in accordance with the wishes of

the testator, thus:

 WHEREFORE, this Court resolves to REVERSE and SET ASIDE the Decision of the Regional Trial Court.The decision dated February 26, 2002 of the Metropolitan Trial Court, Branch 63, Makati City in Civil Case No. 75717 dismissing the complaint for ejectment is hereby REINSTATED. SO ORDERED.[10]

 

cralawThe motion for reconsideration was denied hence, petitioner

filed the present petition for review raising the following errors:

 I. 

THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR OF LAW AND GRAVE ABUSE OF DISCRETION IN REVERSING AND SETTING ASIDE THE DECISION OF THE REGIONAL TRIAL COURT AND REINSTATING THE DECISION OF THE METROPOLITAN TRIAL COURT DISMISSING PETITIONERS COMPLAINT FOR UNLAWFUL DETAINER. 

II. 

THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR OF LAW AND GRAVE ABUSE OF DISCRETION IN DECLARING THAT THE PROPERTY, A PARCEL OF LAND UPON WHICH A FIVE-UNIT APARTMENT STANDS, BECAME THE SUBJECT OF JUANITO RODRIGUEZS HULING HABILIN AT TESTAMENTO WHEREIN THE PROPERTY WAS DISTRIBUTED TO HIS HEIRS (HEREIN RESPONDENTS) INCLUDING THE RESPONDENT (PETITIONER HEREIN).[11] cralaw

 

 

Petitioner alleges that as the registered owner of the subject

property, she enjoys the right of possession thereof and that

question of ownership cannot be raised in an ejectment case unless

it is intertwined with the issue of possession.While the court may

look into the evidence of title or ownership and possession de

jure to determine the nature of possession, it cannot resolve the

issue of ownership because the resolution of said issue would effect

an adjudication on ownership which is not proper in the summary

action for unlawful detainer.Petitioner insists that the Court of

Appeals erred in ruling that the Huling Habilin at

Testamento transmitted ownership of the specific apartments

disregarding the fact that the same is not probated yet and that the

testator changed or revoked his will by selling the property to

petitioner prior to his death.

 

cralawContrarily, respondents pray that the instant petition for review

be dismissed since the resolution of the question of ownership by

the MTC and the Court of Appeals was provisional only to resolve the

issue of possession.Petitioner can always avail of legal remedies to

have the issue of ownership passed upon by the proper court.Aware

of the provisional nature of the resolution on ownership in ejectment

cases, respondents filed Civil Case No. 01-1641 to assail the validity

of the deed of sale of the property and the registration thereof in

petitioners name.

 

cralawThe petition has merit.

 

cralawAn action for unlawful detainer exists when a person unlawfully

withholds possession of any land or building against or from a

lessor, vendor, vendee or other persons, after the expiration or

termination of the right to hold possession, by virtue of any

contract, express or implied.[12]The sole issue to be resolved is the

question as to who is entitled to the physical or material possession

of the premises or possession de facto.[13]Being a summary

proceeding intended to provide an expeditious means of protecting

actual possession or right to possession of property, the question of

title is not involved[14] and should be raised by the affected party in

an appropriate action in the proper court.[15]

 

However, when the issue of ownership is raised the court is not

ousted of its jurisdiction.Section 16 of Rule 70 of the Rules of Court

provides:

 SEC 16.Resolving defense of ownership. When the defendant raises the defense of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the

issue of ownership shall be resolved only to determine the issue of possession. 

 

Thus, all that the trial court can do is to make an initial

determination of who is the owner of the property so that it can

resolve who is entitled to its possession absent other evidence to

resolve ownership.[16]But this adjudication is only provisional and

does not bar or prejudice an action between the same parties

involving title to the property.[17]

 

In the case at bar, petitioners cause of action for unlawful detainer

was based on her alleged ownership of land covered by TCT No.

150431 and that she merely tolerated respondents stay

thereat.However, when respondents leased the apartments to other

persons without her consent, their possession as well as those

persons claiming right under them became unlawful upon their

refusal to vacate the premises and to pay the rent.On the other

hand, respondents assailed petitioners title by claiming that the

deed of sale upon which it was based was simulated and void.They

insisted that they were co-owners thus, they have the right to

possess the said property.To prove their claim, they presented

the Huling Habilin at Testamento of Juanito Rodriguez and the

Partition Agreement.

 

The lower courts considered the following documentary evidence in

arriving at their respective decisions, albeit the RTC decision

contradicts that of the MTC and Court of Appeals: 1) Huling Habilin

at Testamento executed by Juanito Rodriguez onOctober 27, 1983; 2)

Deed of Sale of the property executed by Juanito Rodriguez and the

petitioner on June 14, 1984; 3) TCT No. 150431 in the name of the

petitioner; and 4) the August 23, 1990 Partition Agreement executed

by both the respondents and the petitioner.

 

Based on the foregoing documentary evidence, we find that there is

preponderance of evidence in favor of the petitioners

claim.Respondents failed to prove their right of possession, as

the Huling Habilin at Testamento and the Partition Agreement have

no legal effect since the will has not been probated.Before any will

can have force or validity it must be probated.This cannot be

dispensed with and is a matter of public policy.[18]Article 838 of the

Civil Code mandates that [n]o will shall pass either real or personal

property unless it is proved and allowed in accordance with the

Rules of Court. As the will was not probated, the Partition

Agreement which was executed pursuant thereto can not be given

effect.Thus, the fact that petitioner was a party to said agreement

becomes immaterial in the determination of the issue of possession.

 

Moreover, at the time the deed of sale was executed in favor of the

petitioner, Juanito Rodriguez remained the owner thereof since

ownership would only pass to his heirs at the time of his death.Thus,

as owner of the property, he had the absolute right to dispose of it

during his lifetime.Now, whether or not the disposition was valid is

an issue that can be resolved only in Civil Case No. 01-1641, an

action instituted by the respondents for that purpose.

 

cralawWe are, thus, left with the deed of sale and the certificate of

title over the property to consider.

 

We agree with the RTC that a certificate of title is a conclusive

evidence of ownership of the land described therein; the validity of

which shall not be subject to a collateral attack, especially in an

ejectment case which is summary in nature.

 

In Ross Rica Sales Center, Inc. v. Ong,[19] the Court held that:

 The long settled rule is that the issue of ownership cannot be subject of a collateral attack.  In Apostol v. Court of Appeals, this Court had the occasion to clarify this: 

. . . Under Section 48 of Presidential Decree No. 1529, a certificate of title shall not be subject to collateral attack. It cannot be altered, modified or cancelled, except in a direct proceeding for that purpose in accordance with law. The issue of the validity of the title of the respondents can only be assailed in an action expressly instituted for that purpose. Whether or not the petitioners

have the right to claim ownership over the property is beyond the power of the court a quo to determine in an action for unlawful detainer.

 

Further, in Co v. Militar,[20] it was held that:

 [T]he Torrens System was adopted in this country because it was believed to be the most effective measure to guarantee the integrity of land titles and to protect their indefeasibility once the claim of ownership is established and recognized. cralawIt is settled that a Torrens Certificate of title is indefeasible and binding upon the whole world unless and until it has been nullified by a court of competent jurisdiction.Under existing statutory and decisional law, the power to pass upon the validity of such certificate of title at the first instance properly belongs to the Regional Trial Courts in a direct proceeding for cancellation of title. cralawAs the registered owner, petitioner had a right to the possession of the property, which is one of the attributes of ownership. x x x

 

cralawWe emphasize, however, that our ruling on the issue of

ownership is only provisional to determine who between the parties

has the better right of possession.   It is, therefore, not conclusive

as to the issue of ownership, which is the subject matter of Civil

Case No. 01-1641.  Our ruling that petitioner has a better right of

possession was arrived at on the basis of evidence without prejudice

to the eventual outcome of the annulment case, where the issue as

to who has title to the property in question is fully threshed out.  As

the law now stands, in an ejectment suit, the question of ownership

may be provisionally ruled upon for the sole purpose of determining

who is entitled to possession de facto.

 

cralawWHEREFORE, in view of the foregoing, the Decision of the Court

of Appeals in CA-G.R. SP No. 91442 dated June 27, 2006 is REVERSED

and SET ASIDE.The Decision of theRegionalTrialCourtofMakatiCity,

Branch 134, in Civil Case No. 03-517, reversing the Decision of the

Metropolitan Trial Court (MTC) of MakatiCity, Branch 63, in Civil Case

No. 75717, is REINSTATED.

 

cralawSO ORDERED.