RULE 73 REGALADO,J.:G.R. No. 97906 May 21, 1992REPUBLIC OF THE PHILIPPINES vs.COURT OF APPEALS and MAXIMO WONGPetitioner seeks to set aside the judgment of respondent Court ofAppeals1in affirmance of the decision of the courta quo2granting the petition filed by herein private respondent Maximo Wong for the change of his name to Maximo Alcala, Jr. which was his name prior to his adoption by Hoong Wong and Concepcion Ty Wong.The facts are undisputed. Private respondent Maximo Wong is the legitimate son of Maximo Alcala, Sr. and Segundina Y. Alcala. When he was but two and a half years old and then known as Maximo Alcala, Jr., and his sister Margaret Alcala, was then nine years old, they were, with the consent of their natural parents3and by order of the court in Special Case No. 5934issued on September 9, 1967, adopted by spouses Hoong Wong and Concepcion Ty Wong, both naturalized Filipinos. Hoong Wong, now deceased, was an insurance agent while Concepcion Ty Wong was a high school teacher. They decided to adopt the children as they remained childless after fifteen years of marriage. The couples showered their adopted children with parental love and reared them as their own children.Upon reaching the age of twenty-two, herein private respondent, by then married and a junior Engineering student at Notre Dame University, Cotabato City, filed a petition to change his name to Maximo Alcala, Jr. It was averred that his use of the surname Wong embarrassed and isolated him from his relatives and friends, as the same suggests a Chinese ancestry when in truth and in fact he is a Muslim Filipino residing in a Muslim community, and he wants to erase any implication whatsoever of alien nationality; that he is being ridiculed for carrying a Chinese surname, thus hampering his business and social life; and that his adoptive mother does not oppose his desire to revert to his former surname.As earlier stated, on July 2, 1986, the matter was resolved in favor of private respondent, the trial court decreeing that, the jurisdictional requirements having been fully complied with, petitioner's prayer to change his name from Maximo Wong to Maximo Alcala, Jr. was granted.5On appeal to respondent court, and over the opposition of petitioner Republic through the Solicitor General, the decision of the court below was affirmed in full, hence, this petition for review oncertiorari.The lone issue to be settled is whether or not the reasons given by private respondent in his petition for change of name are valid, sufficient and proper to warrant the granting of said petition.The Solicitor General contends that private respondent's allegations of ridicule and/or isolation from family and friends were unsubstantiated and cannot justify the petition for change of name. He claims that for private respondent to cast aside the name of his adoptive father is crass ingratitude to the memory of the latter and to his adoptive mother who is still alive, despite her consent to the petition for change of name. Further, the Solicitor General posits that the reversion of Maximo Wong to his old name violates Articles 341 and 365 of the Civil Code, which requires an adopted child to use the surname of the adopter, and would identify him with his parents by nature, thus giving the impression that he has severed his relationship with his adoptive parents.6In refutation, private respondent argues that he did as the law required, that is, upon adoption he used the surname of the adopter. However, being already emancipated, he can now decide what is best for and by himself. It is at this time that he realized that the Chinese name he carries causes him undue ridicule and embarrassment and affects his business and social life. In fact, his adoptive mother, being aware of his predicament, gave her consent to the petition for change of name, albeit making it clear that the same shall in no way affect the legal adoption, and even underwent the rigors of trial to substantiate her sworn statement. If his adoptive mother does not take offense nor feel any resentment, abhorrence or insecurity about his desire to change his name, private respondent avers that there can be no possible prejudice on her, much less the State.7We feel that we should preface our review of this case with a clear comprehension of the legal significance of a person's name. For all practical and legal purposes, a man's name is the designation by which he is known and called in the community in which be lives and is best known. It is defined as the word or combination of words by which a person is distinguished from other individuals and, also, as the label or appellation which he bears for the convenience of the world at large addressing him, of in speaking of or dealing with him.8Names are used merely as one method of indicating the identity of persons; they are descriptive of persons for identification, since, the identity is the essential thing and it has frequently been held that, when identity is certain, a variance in, or misspelling of, the name is immaterial.9The names of individuals usually have two parts: the given name or proper name, and the surname or family name. The given or proper name is that which is given to the individual at birth or baptism, to distinguish him from other individuals. The name or family name is that which identifies the family to which he belongs and is continued from parent to child. The given name may be freely selected by the parents for the child; but the surname to which the child is entitled is fixed by law.10A name is said to have the following characteristics: (1) It is absolute, intended to protect the individual from being confused with others. (2) It is obligatory in certain respects, for nobody can be without a name. (3) It is fixed, unchangeable, or immutable, at least at the start, and may be changed only for good cause and by judicial proceedings. (4) It is outside the commerce of man, and, therefore, inalienable and intransmissible by actinter vivosormortis causa. (5) It is imprescriptible.11Title XIII, Book I of the Civil Code, in Articles 364 to 380, provides the substantive rules which regulate the use of surnames. Considering the subject and personalities involved in this present review, particular attention must be called to Article 365 which mandates that "(a)n adopted child shall bear the surname of the adopter," in correlation with Article 341 on the effects of adoption, among which is to"(e)ntitle the adopted person to use the adopter's surname." This same entitlement of an adopted child is maintained in Article 39(3), Title II of Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code. More recently, Executive Order No. 209, as amended by Executive Order No. 227, or the Family Code, echoes the same statutory right of an adopted child to use the surname of the adopter.12Clearly, from the very wordings of the law, it may be inferred that this use of the surname of the adopter by the adopted child is both an obligation and a right.Under Article 376 by the Civil Code, "(n)o person can change his name or surname without judicial authority." The application for change of name thereunder involves a special proceeding governed by and conducted under the strictures of Rule 103 of the Rules of Court and one which involves substantial changes, with the declared objective of such judicial proceedings being the prevention of fraud. The purpose of the statutory procedure authorizing a change of personal name is simply to have, wherever possible, a record of the change, and in keeping with the object of the statute, court to which application is made should normally make its decree recording such change of name.13A change of name is a special proceeding to establish the status of a person involving his relation with others, that is, his legal position in, or with regard to, the rest of the community. It is a proceedingin rem14and, as such, strict compliance with all jurisdictional requirements, particularly on publication, is essential in order to vest the court with jurisdiction thereover.15For this purpose, the only name that may be changed is the true or official name recorded in the civil register.16To digress a little for purposes of clarification, the change of name contemplated under Article 376 and reglementarily implemented by Rule 103 must not be confused with and cannot be effected through the summary proceeding proposed in Article 412 of the some Code, as procedurally regulated by Rule 108 of the Rules, which refers only to correction of clerical errors, such as those which are visible to the eye or obvious to the understanding, or an error made by a clerk or transcriber, or a mistake in copying or writing, or some harmless or innocuous change,17and not those which will involve substantial changes.18Turning now to the case at bar, we are guided by the jurisprudential dictum that the State has an interest in the names borne by individuals and entities for the purpose of identification, and a change of name is not a matter of right but of sound judicial discretion, to be exercised in the light of reasons adduced and the consequences that will likely follow;19it is a privilege which may be granted only upon a showing of a proper or reasonable cause or compelling reason therefor.20We find unacceptable the assertion of the Solicitor General that private respondent's allegation of ridicule and embarrassment due to the use of his present surname is unsubstantiated.The testimony of private respondent in the lower court bears out the existence of valid cause in his bid for change of name:ATTY. DUMAMBA:Q Now, after adoption, when you went to school, what did you use as your surname?A "Wong," sir.Q Now, after you adopted the surname "Wong?" in your studies, what did you observe?A I observed that "Wong" as a surname embarrassed me to my friends and when I go with Chinese friends I cannot talk Chinese. I am living in Campo Muslim, a Muslim community but no one can believe that I am Muslim. I have a little business of Furniture but I have little (sic) customer because no one believes me that I am Muslim.Q You want to inform this Honorable Court that this family name you are using which is "Wong" embarrassed you from (sic) your friends and relatives and also cause(d) damage to your business?A Yes sir.xxx xxx xxxATTY. DUMAMBA:Q Now, considering that according to you, you are embarrassed because of the family name you are using, your friends shy away from you and it is a handicap in your business, what is your desire for the Court to do in order to help you?A Change my family name.Q From "Wong" to what do you want your surname changed?A "Alcala, Jr.", sir.xxx xxx xxxCOURT:Q What is your purpose in changing your family name from Maximo Wong to Maximo Alcala, Jr.?A I feel embarrassed to my friends and also to my relatives and as I said I have a little business of furniture and only a few customers buying for the fact that they don't believe I am Muslim.Cross.ATTY. SERO:With the permission of the Honorable Court.Q Your father's name is Maximo Alcala, Sr., is he still alive?A Yes, sir.Q And what does your father say to this proposed changed (sic) of your name, your family name to your real family name given to you?A Yes, sir.Q They have no objection to it?A No, sir.Q Stated before this Honorable Court, the purpose why you wanted to change your name from "Wong" to "Alcala" is so that to avoid embarrassment because you are a Muslim and your Muslim relatives think that you are Chinese.A Yes, sir.Q Not for the purpose to hide anything or what not?A No, sir.21The foregoing testimony of private respondent is materially corroborated by the testimony of private respondent's adoptive mother:Q Now, what did you observe to (sic) your son Maximo Wong after you and your husband adopted him?A When I adopted him and he used the surname "Wong" I observed that some of his relatives, cousins and friends seem to shy away from him and despise him in school that is why I agreed to change his name.22We uphold these observations in the decision of respondent appellate court:The purpose of the law an allowing of change of name as contemplated by the provisions of Rule 103 of the Rules of Court is to give a person an opportunity to improve his personality and to provide his best interest. (Calderon vs. Republic, 19 SCRA 721). In granting or denying the petition for change of name, the question of proper and reasonable cause is left to the discretion of the court. The evidence presented need only be satisfactory to the court and not all the best evidence available is required. (Uy vs. Republic, L-22712, Nov. 25, 1965; Nacionales vs. Republic,L-18067, April 29, 1966; both cases cited in 1 SCRA 843). In the present case, We believe that the courta quohad exercised its discretion judiciously when it granted the petition.From the testimony of petitioner-appellee and of his adopter mother Concepcion Ty-Wong, We discern that said appellee was prompted to file the petition for change of name because of the embarrassment and ridicule his family name "Wong" brings in his dealings with his relatives and friends, he being a Muslim Filipino and living in a Muslim community. Another cause is his desire to improve his social and business life. It has been held that in the absence of prejudice to the state or any individual, a sincere desire to adopt a Filipino name to erase signs of a former alien nationality which only hamper(s) social and business life, is a proper and reasonable cause for change of name (Uy vs. Republic, L-22712, Nov. 25, 1965, Que Liong Sian vs. Republic, L-23167, Aug. 17, 1967, 20 SCRA 1074). Justice dictates that a person should be allowed to improve his social standing as long as in doing so, he does not cause prejudice or injury to the interest of the State or other persons (Calderon vs. Republic,supra). Nothing whatsoever is shown in the record of this case that such prejudice or injury to the interest of the state or of other persons would result in the change of petitioner's name.23It bears stressing at this point that to justify a request for change of name, petitioner must show not only some proper or compelling reason therefor but also that he will be prejudiced by the use of his true and official name.24Among the grounds for change of name which have been held valid are: (a) When the name is ridiculous, dishonorable or extremely difficult to write or pronounce; (b) When the change results as a legal consequence, as in legitimation; (c) When the change will avoid confusion;25(d) Having continuously used and been known since childhood by a Filipino name, unaware of her alien parentage;26(e) A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody;27and (f) When the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name would prejudice public interest.28In granting or denying petitions for change of name, the question of proper and reasonable cause is left to the sound discretion of the court. The evidence presented need only be satisfactory to the court and not all the best evidence available.29Summarizing, in special proceedings for change of name, what is involved is not a mere matter of allowance or disallowance of the request, but a judicious evaluation of the sufficiency and propriety of the justifications advanced in support thereof, mindful of the consequent results in the event of its grant and with the sole prerogative for making such determination being lodged in the courts.While it is true that the statutory fiat under Article 365 of the Civil Code is to the effect that an adopted child shall bear the surname of the adopter, it must nevertheless be borne in mind thatthe change of the surname of the adopted child is more an incident rather than the object of adoption proceedings.30The act of adoption fixes a status,viz., that of parent and child. More technically, it is an act by which relations of paternity and affiliation are recognized as legally existing between persons not so related by nature. It has been defined as the taking into one's family of the child of another as son or daughter and heir and conferring on it a title to the rights and privileges of such. The purpose of an adoption proceeding is to effect this new status of relationship between the child and its adoptive parents, the change of name which frequently accompanies adoption being more an incident than the object of the proceeding.31The welfare of the child is the primary consideration in the determination of an application for adoption. On this point, there is unanimous agreement.32It is the usual effect of a decree of adoption to transfer from the natural parents to the adoptive parents the custody of the child's person, the duty of obedience owing by the child, and all other legal consequences and incidents of the natural relation, in the same manner as if the child had been born of such adoptive parents in lawful wedlock, subject, however, to such limitations and restrictions as may be by statute imposed.33More specifically under the present state of our law, the Family Code, superseding the pertinent provisions of the Civil Code and of the Child and Youth Welfare Code on the matter,34relevantly provides in this wise with regard to the issue involved in this case:Art. 189. Adoption shall have the following effects:(1) For civil purposes, the adopted shall be deemed to be the legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, includingthe right of the adopted to use the surname of the adopters;(Emphasis supplied.)xxx xxx xxxThe Solicitor General maintains the position that to sustain the change of name would run counter to the behest of Article 365 of the Civil Code and the ruling inManuel vs.Republic35that "one should not be allowed to use a surname which otherwise he is not permitted to employ under the law," and would set a bad example to other persons who might also seek a change of their surnames on lame excuses.36While we appreciate the Solicitor General's apprehensions and concern, we find the same to be unfounded. We do not believe that by reverting to his old name, private respondent would then be using a name which he is prohibited by law from using. True, the law prescribes the surname that a person may employ; but the law does not go so far as to unqualifiedly prohibit the use of any other surname, and only subjects such recourse to the obtention of the requisite judicial sanction. What the law does not prohibit, it permits.If we were to follow the argument of the Solicitor General to its conclusion, then there will never be any possibility or occasion for any person, regardless of status, to change his name, in view of the supposed subsequent violation of the legal imperative on the use of surnames in the event that the petition is granted. Rule 103 of the Rules of Court would then be rendered inutile. This could hardly have been the intendment of the law.A petition for change of name is a remedy allowed under our law only by way of exception to the mandatory provisions of the Civil Code on the use of surnames. The law fixes the surname that may be used by a person, at least inceptively, and it may be changed only upon judicial permission granted in the exercise of sound discretion. Section 1 of Rule 103, in specifying the parties who may avail of said remedy, uses the generic term "persons" to signify all natural persons regardless of status. If a legitimate person may, under certain judicially accepted exceptional circumstances, petition the court for a change of name, we do not see any legal basis or logic in discriminating against the availment of such a remedy by an adopted child. In other words, Article 365 is not an exception, much less can it bar resort, to Rule 103.We are of the view that the circumstances herein obtaining are within the ambit of the established exceptions and find merit in private respondent's submission:Rule 103 of the Rules of Court has its primordial purpose which (State) is to give a person in opportunity to improve his personality and provide his best interest (Calderon vs. Republic, 19 SCRA 721). In the instant case, the courta quofound the petition of Maximo Wong for change of name justifiable after due hearing, thus its factual findings and appreciation of testimonies count heavily and need not be disturbed unless for strong and cogent reasons because the trial court is in a better position to examine real evidence as well as to observe the demeanor of the witnesses while testifying in the case (Baliwag Transit, Inc. vs. CA, 147 SCRA 82). Moreover, the trial court could take judicial notice of other existing factors in the community where herein respondent lives which it considers material in its judicious determination of the case. . . .Additionally, herein respondent is already of age and as such he can decide what is best for him. His experience with regards (sic) his social and business dealings is personal and it is only him (sic) who can attest to the same. Finding his predicament's proper remedy is solely through legal process, herein respondent accordingly filed a petition pursuant to Rule 103 of the Rules of Court which was granted by the Courta quo.37Besides, we have faith in the circumspection of our lower courts and that, in the exercise of their discretion, said courts shall consider petitions for change of name only on cogent and meritorious grounds as would justify the granting of such applications. We do not expect our trial courts to cater or give in to the whim or caprice of an applicant, aside from the fact that there is always the safeguard and corrective interdiction of appellate review.It is not fair to construe the desired reversion of private respondent to the use of the name of his parents by nature as cross ingratitude. To go by the Solicitor General's suggestion that private respondent should have his adoption revoked if he wants to use the surname of his natural father would be to exact too clear a toll for making use of an appropriate and valid remedy available under the law.Herein private respondent, before he filed the petition for change of name, asked for his adoptive mother's permission to do so:Q Now, in filing this petition for change of surname, you had talked with your adopted mother?A Yes, sir.Q Did you ask permission from her whether she wants you to change the surname?A Yes, sir.38True enough, the above testimony of private respondent was confirmed by his adoptive mother in this manner:Q How are you related to Maximo Wong?A My adopted son.Q He is your adopted son, did your son talk to you when he filed this petition for change of his surname?A Yes, he even tried to ask me and I said, alright if you want to change.xxx xxx xxxQ Now, when you agreed to the filing of this petition for change of name, did you reduce your consent in writing?A Yes, sir, I agreed also so that his business will prosper becausehe is already Alcila and not Wong because Wong they said is Chinese.39As proof of her assent to the filing of said petition (her husband having already passed away), Concepcion Ty Vda. de Wong executed an affidavit in Cotabato City on May 27, 1985, with these textual declarations:That I am the same and identical person, who is the surviving adapted (sic) parent of Maximo Wong.That I personally discovered it myself from the time my adapted (sic) son Maximo used the surname of my late husband Wong, his relatives and childhood friends shy away from him because he is branded as a son of a chinese which is different from them whose parents are muslim Filipinos;That I pity my son who is often rediculed (sic) by his friends and relatives because of his family name Wong, hence, in order not to humper (sic) his social and business life in the future, I am voluntarily and of my own free will without being forced, coerced, or intimidated give (sic) my consent to his desire to change his desire to change his surname without affecting however the legal adoption granted by the Court on September 9, 1967, making him as one of my legal and compulsory heir (sic).That I am executing this affidavit to attest to the truth of all the above mentioned facts and for all legal intent (sic) and purposes.40There could be no other plausible reason for private respondent to first secure has adoptive mother's consent before resorting to the questioned legal recourse other than the parental respect and reverence which is owed by and to be expected of a dutiful child. If private respondent was such an ingrate, as the Solicitor General would have us believe, he would not have bothered to seek his adoptive mother's counsel. In the same breath, had his adoptive mother regarded him as an ungrateful adoptee, she would not have executed the affidavit above quoted, much less testify in his behalf at the hearing of his petition.Moreover, worthy of note is the fact that private respondent's adoptive mother emphasized that she executed the above affidavit "without affecting the legal adoption granted by the Court on September 9, 1967, making him as one of my legal and compulsory heir(s)." This is incontrovertible proof that she never entertained any misgivings or reservations with respect to her consent to his petition. This likewise dispels any possible confusion as to private respondent's legal status or adoptive paternity and his successional rights. Concordantly, we have heretofore held that a change of name does not define or effect a change in one's existing family relations or in the rights and duties flowing therefrom. It does not alter one's legal capacity, civil status or citizenship; what is altered is only the name.41WHEREFORE, the petition is DENIED and the decision of respondent Court of Appeals is hereby AFFIRMEDin toto.SO ORDERED. Narvasa, C.J., Paras, Padilla and Nocon, JJ., concur.

Makalintal, J.: May 31, 1969 G.R. No. L-22761ROSE BUSH MALIG and JOE, THOMAS, and JOHN all surnamed BUSH, represented in this suit by their attorney-in-fact, ROSE BUSH MALIGvs.MARIA SANTOS BUSH

This is an appeal by the plaintiffs from two orders of the Court of First Instance of Manila in Civil Case No. 51639, the first dismissing the complaint and the second denying the motion to reconsider the order of dismissal.

On September 19, 1962 the plaintiffs filed the complaint, alleging that they were the acknowledged natural children and the only heirs in the direct line of the deceased John T. Bush, having been born of the common-law relationship of their father with Apolonia Perez from 1923 up to August, 1941; that said John T. Bush and Apolonia Perez, during the conception of the plaintiffs, were not suffering from any disability to marry each other; that they lived with their alleged father during his lifetime and were considered and treated by. him as his acknowledge natural children; that said John T. Bush, at the time of his death, left several real and personal properties; that the defendant, by falsely alleging that she was the legal wife of the deceased was able to secure her appointment as administratrix of the estate of the deceased in Testate Proceedings No. 29932 of the Court of First Instance of Manila; that she submitted to the court for approval a project of partition, purporting to show that the deceased left a will whereby he bequeathed his estate to three persons, namely: Maria Santos Bush, Anita S. Bush and Anna Berger; that the defendant then knew that the plaintiffs were the acknowledged natural children of the deceased; and that they discovered the fraud and misrepresentation perpetrated by the defendant only in July, 1962. They prayed that the project of partition be annulled; that the defendant be ordered to submit a complete inventory and accounting of all the properties left by the deceased and another project of partition adjudicating to the plaintiffs their legal participation in the said estate and/or in the event that the defendant had disposed of all or part of the estate, that she be ordered to pay them the market value thereof; and that the defendant be ordered to pay for the value of the fruits received, damages and attorneys fees.

The defendant moved to dismiss, alleging lack of cause of action, res judicata and statute of limitations. The plaintiffs opposed and the defendant filed a reply to the opposition. On January 10, 1963 the lower court denied the motion, it appearing that the grounds upon which said motion is based are not indubitable. In time, the defendant filed her answer specifically denying all the material averments of the complaint and invoking laches, res judicata and statute of limitations as affirmative defenses.

After the issues were joined the case was set for hearing, but on the date thereof the hearing was postponed upon the defendants manifestation that she would file a written motion to dismiss. The motion, when filed, challenged the jurisdiction of the court, stating that since the action was one to annul a project of partition duly approved by the probate court it was that court alone which could take cognizance of the case, citing Rule 75, Section 1, of the Rules of Court. On October 31, 1963 the lower court granted the motion and dismissed the complaint, not on the ground relied upon by the defendant but because the action had prescribed. The plaintiffs moved to reconsider but were turned down; hence, this appeal.

The procedural question posed by appellants is: May the lower court dismiss an action on a ground not alleged in the motion to dismiss?

It must be remembered that the first motion to dismiss, alleging lack of cause of action, res judicata and statute of limitations, was denied because those grounds did not appear to the court to be indubitable. The second motion reiterated none of those grounds and raised only the question of jurisdiction. In dismissing the complaint upon a ground not relied upon, the lower court in effect did so motu proprio, without offering the plaintiffs a chance to argue the point. In fact the court did not even state in its order why in its opinion the action had prescribed, and why in effect, without any evidence or new arguments on the question, it reversed its previous ruling that the ground of prescription was not indubitable.

In Manila Herald Publishing Co., Inc. vs. Ramos, et al., 88 Phil. 94, it was held:Section 1 of Rule 8 enumerates the grounds upon which an action may be dismissed, and it specifically ordains that a motion to this end be filed. In the light of this express requirement we do not believe that the court had power to dismiss the case without the requisite motion duly presented. The fact that the parties filed memoranda upon the courts indication or order in which they discussed the proposition that the action was unnecessary and was improperly brought outside and independently of the case for libel did not supply the deficiency. Rule 30 of the Rules of Court provides for the cases in which an action may be dismissed, and the inclusion of those therein provided excludes any other, under the familiar maxims, inclusio unius est exclusivo ulterius. The only instance in which, according to said Rules, the court may dismiss upon the courts own motion an action is, when the plaintiff fails to appear at the time of the trial or to prosecute his action for an unreasonable length of time or to comply with the Rules or any order of the court.

The foregoing ruling is applicable in this case, because although a motion to dismiss had been presented defendant the resolution of the court granting the same was based upon a ground not alleged in said motion. But assuming that the lower court could properly consider the question of prescription anew, the same still did not appear to be indubitable on the face of the allegations in the complaint. The defendant cites Article 137 of the Civil Code, which provides that an action for acknowledgment of natural children may be commenced only during the lifetime of the putative parents, except in two instances not obtaining in this case, and that the present action was commenced after the death of the putative father of the plaintiffs. The said provision is not of indubitable application, since the plaintiffs do not seek acknowledgment but allege as a matter of fact that they are the acknowledged natural children and the only heirs in the direct line of the late John T. Bush. Whether or not this allegation is true will, of course, depend upon the evidence to be presented at the trial.

The defendant insists in this instance on the jurisdictional ground posed in her motion to dismiss, citing Rule 75, Section 1, of the Rules of Court formerly in force (now Rule 73, Section 1), which says:

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 resides 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.

It will be noted that the foregoing rule fixes jurisdiction for purposes of the special proceeding for the settlement of the estate of a deceased person, so far as it depends on the place of residence of the decedent, or of the location of his estate. The matter really concerns venue, as the caption of Rule cited indicates, and in order to preclude different courts which may properly assume jurisdiction from doing so, the Rule specifies that the court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts.In the final analysis this action is not necessarily one to annul the partition already made and approved by the probate court, and to reopen the estate proceeding so that a new partition may be made, but for recovery by the plaintiffs of the portion of their alleged inheritance of which, through fraud, they have been deprived. Without prejudice to whatever defenses may be available to the defendant, this Court believes that the plaintiffs cause should not be foreclosed without a hearing on the merits. WHEREFORE, the orders appealed from are set aside and the case remanded for further proceedings. Costs against the defendant-appellee in this instance.

G.R. No. L-24742, October 26, 1973Rosa Cayerano Cuenco vs. CA, Manuel Cuenco, Lourdes Cunco, Concepcion Cuenco Manguerra, Carmen Cuenco, Consuelo Cuenco reyes, and Teresita cuenco Gonzalez

The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courtsFACTS: Senator Mariano Jesus Cuenco died in Manila. He was survived by his widow and two minor sons, residing in Quezon City, and children of the first marriage, residing in Cebu. Lourdes, one of the children from the first marriage, filed a Petition for Letters of Administration with the Court of First Instance (CFI) Cebu, alleging that the senator died intestate in Manila but a resident of Cebu with properties in Cebu and Quezon City.

The petition still pending with CFI Cebu, Rosa Cayetano Cuenco, the second wife, filed a petition with CFI Rizal for the probate of the last will and testament, where she was named executrix. Rosa also filed an opposition and motion to dismiss in CFI Cebu but this court held in abeyance resolution over the opposition until CFI Quezon shall have acted on the probate proceedings.

Lourdes filed an opposition and motion to dismiss in CFI Quezon, on ground of lack of jurisdiction and/or improper venue, considering that CFI Cebu already acquired exclusive jurisdiction over the case. The opposition and motion to dismiss were denied. Upon appeal CA ruled in favor of Lourdes and issued a writ of prohibition to CFI Quezon.

ISSUEs: Whether or not CA erred in issuing the writ of prohibitionWhether or not CFI Quezon acted without jurisdiction or grave abuse of discretion in taking cognizance and assuming exclusive jurisdiction over the probate proceedings in pursuance to CFI Cebu's order expressly consenting in deference to the precedence of probate over intestate proceedings

HELD: The Supreme Court found that CA erred in law in issuing the writ of prohibition against the Quezon City court from proceeding with the testate proceedings and annulling and setting aside all its orders and actions, particularly its admission to probate of the last will and testament of the deceased and appointing petitioner-widow as executrix thereof without bond pursuant to the deceased testator's wish.

On Venue and JurisdictionUnder Rule 73, the court first taking cognizance of the settlement of the estate of a decent, shall exercise jurisdiction to the exclusion of all other courts.

The residence of the decent or the location of his estate is not an element of jurisdiction over the subject matter but merely of venue. If this were otherwise, it would affect the prompt administration of justice.

The court with whom the petition is first filed must also first take cognizance of the settlement of the estate in order to exercise jurisdiction over it to the exclusion of all other courts.

~*~*~*~*~*~*~*~Unlike a civil action which has definite adverse parties, a special proceeding has no definite adverse party. The definitions of a civil action and a special proceeding, respectively, in the Rules illustrate this difference. A civil action, in which "a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong"34 necessarily has definite adverse parties, who are either the plaintiff or defendant.35 On the other hand, a special proceeding, "by which a party seeks to establish a status, right, or a particular fact,"36 has one definite party, who petitions or applies for a declaration of a status, right, or particular fact, but no definite adverse party. In the case at bar, it bears emphasis that the estate of the decedent is not being sued for any cause of action. As a special proceeding, the purpose of the settlement of the estate of the decedent is to determine all the assets of the estate,37 pay its liabilities,38 and to distribute the residual to those entitled to the same.39

~*~*~*~*~*~*~*~*~A CIVIL ACTION is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. (See. 3[a], Rule 1, 1997 Rules of Civil Procedure), while a SPECIAL PROCEEDING is a remedy by which a party seeks to establish a status, a right or a particular fact. (Sec. 3[C]. Rule 1,1997 Rules of Civil Procedure.)

BAUTISTA ANGELO,J.: G.R. No. L-7635 July 25, 1955TASIANA ONGSINGCO, Guardian of Francisco de Borja vs. HON. BIENVENIDO A. TAN, as Judge of the CFI of Rizal and JOSE DE BORJA, administrator of the estate of the late Josefa Tangco,Petitioner Tasiana Ongsingco is the wife and judicial guardian of one Francisco de Borja who was declared incompetent by the Court of First Instance of Rizal in Special Proceedings No. 1764. Francisco de Borja is the surviving spouse of Josefa Tangco whose estate is being settled in Special Proceedings No. 7866 of the same court. Respondent Jose de Borja is the son of Francisco de Borja, who, on June 29, 1953, was appointed administrator of the estate of Josefa Tangco.Francisco de Borja, according to petitioner, is the owner of two parcels of land situated in Santa Rosa, Nueva Ecija, which he acquired by inheritance from his late father Marcelo de Borja and as such form part of his separate properties. On October 27, 1953, Francisco de Borja was declared incompetent by the court as aforesaid, and petitioner, his second wife, was appointed his guardian. As such guardian, petitioner took over from her husband the possession of said two parcels of land and commenced the threshing of the palay crop standing thereon for the benefit of her ward.On January 16, 1954, respondent Jose de Borja, as administrator of the estate of Josefa Tangco, filed a motion in the estate proceedings of the latter praying that petitioner be restrained from threshing the palay on the lands until the ownership thereof has been definitely determined either by the court or by agreement of the parties. Petitioner opposed the motion challenging the jurisdiction of the court and contending that if its purpose is to pass on the question of ownership, such can only be threshed out elsewhere and not by the probate court.Because it became obvious to petitioner that respondent administrator would insist in his motion whose main aim is to prevent petitioner and her laborers from threshing the crop standing on the lands and, on the other hand, the several attempts made to agree on the identity of the lands had failed, petitioner filed an action on January 21, 1954 in the Court of First Instance of Nueva Ecija to restrain respondent administrator from interferring with the harvesting and threshing of the crop on the claim that the lands were the exclusive property of her ward Francisco de Borja (Civil Case No. 1350). On the same date, the court granted the preliminary injunction prayed for upon the filing by petitioner of a bond of P5,000. On January 25, 1954, respondent Jose de Borja filed an urgent petition in the same case asking the court to dismiss the action for lack of jurisdiction and to dissolve the preliminary injunction that was issued. This petition was denied.On January 29, 1954, respondent court issued an order the dispositive part of which reads:IN VIEW OF THE FOREGOING CONSIDERATIONS, the guardian Tasiana Ongsingco is hereby ordered not to meddle in the threshing of the palay harvested in the lands declared under Tax Declaration No. 540 (Annexes A and A-1). The administrator and the guardian are ordered to find from among the properties of the incapacitated Francisco de Borja in Tabuanting, Sta. Rosa, Nueva Ecija, the two parcels of land having an approximate area as those two lots adjudicated in his favor by the Commissioners on Partition, and once found, let the parties agree on the matter, so as to avoid any future controversy, and to notify this Court of their agreement. IT IS SO ORDERED.On February 10, 1954, petitioner filed a motion for reconsideration calling attention to the fact that both the guardian and the administrator had already attempted to arrive at an agreement as to the identity of the lots which are claimed to be the exclusive property of Francisco de Borja, but they failed to do so, and because of such inability and the immediate need of harvesting and threshing the crop standing thereon, petitioner filed an action in the Court of First Instance of Nueva Ecija precisely to determine once and for all the title to, and ownership of, said lands and to issue a preliminary injunction restraining respondent Jose de Borja from interferring with the work of petitioner; but, in view of respondent Borja's opposition, respondent court denied the motion for reconsideration.The present petition poses the following issues: (1) considering that the dispute between petitioner and respondent administrator involves the ownership of two parcels of land now the subject of an action in the Court of First Instance of Nueva Ecija, has respondent court jurisdiction to determine said dispute in the estate proceedings of the late Josefa Tangco?; and (2) having the Court of First Instance of Nueva Ecija issued a writ of preliminary injunction to restrain respondent administrator from interferring with the threshing of the crop standing on said lands, can respondent court, after having been apprised of said order, issue an order the effect of which is to nullify and render ineffective said writ of preliminary injunction?.There is no dispute that the two parcels of land in Santa Rosa, Nueva Ecija are claimed by petitioner as part of the separate property of Francisco de Borja so much so that she took possession thereof when she assumed her commission as guardian on October 27, 1953. That she succeeded in taking actual possession of said lands is shown by the fact that when she commenced the threshing of the crop standing thereon, respondent Jose de Borja filed a petition in the estate proceedings of Josefa Tangco to restrain her from threshing said crop. Then a dispute arose as to the ownership of said parcels of land. On one hand, petitioner claims that they belong exclusively to her ward having inherited them from his late father Marcelo de Borja, while, on the other, respondent administrator contends that they are not the land adjudicated to the incompetent by the commissioners on partition. The parties had made several attempts to arrive at an agreement as to the identity of the disputed lands, but they failed, and because there was a pressing need of immediately threshing the crop standing thereon, petitioner filed an action in the Court of First Instance of Nueva Ecija to determine once and for all the title and ownership of said lands. In the same case, the court issued a preliminary injunction restraining respondent administrator from interferring with the administration of said properties. But such action notwithstanding, respondent court issued the orders in question which not only go into the issue of ownership but render ineffective the writ of injunction issued by the Court of First Instance of Nueva Ecija. Can respondent court do so?It is a well-settled rule in this jurisdiction, sanctioned and reiterated in a long line of decisions that, "the question of ownership of property is one which should be determined in an ordinary action and not in probate proceedings, and this whether or not the property is alleged to belong to the estate" (Francovs.O'Brien, 13 Phil., 359). In another case, it was held that "The general rule is that questions as to title to property cannot be passed upon in testate or intestate proceedings" (Pascualvs.Pascual, 73 Phil., 561, 562;Seealso Cordova Vda. de Maalacvs.Ocampo, 73 Phil., 661, 662), or stating the rule more elaborately, "When questions arise as to the ownership of property alleged to be a part of the estate of a deceased person, but claimed by some other person to be his property, not by virtue of any right of inheritance from the deceased, but by title adverse to that of the deceased and his estate, such questions cannot be determined in the courts of administrative proceedings. The Court of First Instance, acting as a probate court, has no jurisdiction to adjudicate such contentions, which must be submitted to the court in the exercise of its general jurisdiction as a court of first instance . . .." (Guzmanvs.Anog, 37 Phil., 61.)The dispute between petitioner and respondent administrator involving, as it does, the ownership of two parcels of land situated in Santa Rosa, Nueva Ecija, and this question having been squarely raised in an action pending in the court of first instance of said province, which was instituted by petitioner against respondent administrator precisely because of the dispute that had arisen between them over said property, it is the sense of this Tribunal that respondent court exceeded its jurisdiction in acting upon the said question in its capacity as probate court. On the face of such issue which necessarily involves the ownership of the properties, we consider of no consequence the claim that what respondent court merely did was to look into the identity of said properties. This question is necessarily imbibed in the greater issue of ownership and being interwoven one can hardly draw the line of demarcation that would separate one from the other.As regards the question whether the order of respondent court restraining petitioner from threshing the palay crop standing on the lands has been properly issued on the face of the writ of preliminary injunction issued by the Court of First Instance of Nueva Ecija, the answer is not difficult to find: the court should not have issued the order, for "It is settled by an overwhelming weight of authority that no court has power to interfere by injunction with the judgments or decree of a court of concurrent or coordinate jurisdiction having equal power to grant the relief sought by injunction. . . . The various branches of the Court of First Instance of Manila are in a sense coordinate courts and to allow them to interfere with each other's judgments or decrees by injunctions would obviously lead to confusion and might seriously hinder the administration of justice." (Cabigaovs.Del Rosario, 44 Phil., 182;Seealso Philippine National Bankvs.Javellana, 92 Phil., 525; Montesavs.Manila Cordage Company, 92 Phil., 25.)Wherefore, petition is granted without costs. The orders of respondent court dated January 29, 1954 and February 18, 1954 are hereby set aside.

GR No. L-21938-39, May 29, 1970VICENTE URIARTE vs. CFI of Negros Or., CFI of Manila, JUAN URIARTE ZAMACONA and HIGINIO URIARTE

Short summary:alleged natural child of the deceased filed petition for settlement of INTESTATE estate of Don Juan Uriarte y Goite in Negros Occidental Court. PNB was even appointed as special administrator, but PNB failed to qualified. MTD filed by nephew of Don Juan, alleging that while he was in Spain, the deceased made a will AND that petitioner had doubtful interest (proceeding for his recognition as a natural child not yet done). Pending this, the nephews instituted a petition for probate of the will of Don Juan in Manila. Alleged natural son opposed, contending that Negros courts already had exclusive jurisdiction of the case.But Negros court dismissed the special proceeding, and the Manila court proceeded to probate the will. Petitioner contested it. Court held that since the decedent was a non-resident, both Manila and Negros courts may be proper venues for the proceedings. But since probate proceedings enjoy priority over intestate proceedings, action by Manila court proper. Even if the venue was improper, petitioner considered to have waived the defect by laches. Lastly, the court held that if ever recognized as the natural child of the decedent, he could opt to intervene in the probate proceedings, or to have it opened if already finished.

Facts: -Don Juan Uriarte y Goite died in Spain, left properties both in Manila and Negros-The alleged natural son of Don Juan, VICENTE URIARTE, filed petition for settlement of INTESTATE ESTATE of Don Juan before the Negros Occidental court. Note that during that time, the proceedings for compulsory acknowledgment as the natural son of Don Juan was still pending-PNB also was appointed as special administrator of the estate, but PNB failed to qualify-OPPOSITION TO PETITION by HIGINIO URIARTE (nephew of Don Juan):Don Juan left a will, executed in Spain, duly authenticated - submitted before Negros courtViCENTE's capacity and interest are questionable-JUAN URIARTE ZAMACONA (di ko alam how related) commenced SPECPRO for PROBATE OF LAST WILL OF DON JUAN before Manila courts + MTD in Negros CourtsSince there's a will, no need for intestate proceedings before Negros CourtsVicente had no legal personality to sue>>>OPPOSED by VICENTE: Negros Courts first took cognizance, it had acquired exclusive jurisdiction over the sameNEGROS COURT: DISMISS proceedings before it-VICENTE filed OMNIBUS MOTION in Manila Court for leave to intervene + dismissal of petition for probate + annulmentof proceedings - DENIED-Manila court admitted to probate the last will

WON NEGROS COURT ERRED IN DISMISSING THE INTESTATE PROCEEDINGS BEFORE IT?NO.Decedent is an inhabitant of a foreign country (Spain) during the time of his death, so the courts in the province s where he left property may take cognizance of settlement of his estate-here, decedent left properties both in Manila and in NegrosEven if Negros court first took cognizance of the case, still has to give way to Manila courtspecial proceeding intended to effect the distribution of the estate of a deceased person, whether in accordance with the law on intestate succession or in accordance with his will, is a "probate matter" or a proceeding for the settlement of his estate.BUT testate proceedings, for the settlement of the estate of a deceased person take precedence over intestate proceedings for the same purpose.So even pending Intestate proceedings, if it is found it hat the decedent had left a last will, proceedings for the probate of the latter should replace the intestate proceedings even if at that stage an administrator had already been appointed, the latter being required to render final account and turn over the estate in his possession to the executor subsequently appointed.If will rejected or disproved, proceedings shall continue as intestacyVICENTE already waived procedural defect of VENUE IMPROPERLY LAID-He knew that there was a will when a MTD was filed in Negros court, so he should have filed a MTD in Manila courtearlier: Manila court already*appointed an administrator*admitted the will to probate more than 5 months earlier-court would not annul proceedings regularly had in a lower court even if the latter was not theproper venuetherefor, if the net result would be to have the same proceedings repeated in some other court of similar jurisdictionAs to interest of Vicente in the case-two alternatives for an acknowledged natural child to prove his status and interest in the estate of the deceased parent:(1) to intervene in the probate proceeding if it is still open; and(2) to ask for its reopening if it has already been closed.

MEDIALDEA,J.:GR No. 83484 February 12, 1990CELEDONIA SOLIVIO vs.THE HONORABLE COURT OF APPEALS and CONCORDIA JAVELLANA VILLANUEVA

This is a petition for review of the decision dated January 26, 1988 of the Court of Appeals in CA GR CV No. 09010 (Concordia Villanueva v. Celedonia Solivio) affirming the decision of the trial court in Civil Case No. 13207 for partition, reconveyance of ownership and possession and damages.

This case involves the estate of the late novelist, Esteban Javellana, Jr., author of the first post-war Filipino novel "Without Seeing the Dawn," who died a bachelor, without descendants, ascendants, brothers, sisters, nephews or nieces. His only surviving relatives are: (1) his maternal aunt, petitioner Celedonia Solivio, the spinster half-sister of his mother, Salustia Solivio; and (2) the private respondent, Concordia Javellana-Villanueva, sister of his deceased father, Esteban Javellana, Sr. He was a posthumous child. His father died barely ten (10) months after his marriage in December, 1916 to Salustia Solivio and four months before Esteban, Jr. was born. Salustia and her sister, Celedonia (daughter of Engracio Solivio and his second wife Josefa Fernandez), a teacher in the Iloilo Provincial High School, brought up Esteban, Jr.Salustia brought to her marriage paraphernal properties (various parcels of land in Calinog, Iloilo covered by 24 titles) which she had inherited from her mother, Gregoria Celo, Engracio Solivio's first wife (p. 325, Record), but no conjugal property was acquired during her short-lived marriage to Esteban, Sr.

On October 11, 1959, Salustia died, leaving all her properties to her only child, Esteban, Jr., including a house and lot in La Paz, Iloilo City, where she, her son, and her sister lived. In due time, the titles of all these properties were transferred in the name of Esteban, Jr.During his lifetime, Esteban, Jr. had, more than once, expressed to his aunt Celedonia and some close friends his plan to place his estate in a foundation to honor his mother and to help poor but deserving students obtain a college education. Unfortunately, he died of a heart attack on February 26,1977 without having set up the foundation.

Two weeks after his funeral, Concordia and Celedonia talked about what to do with Esteban's properties. Celedonia told Concordia about Esteban's desire to place his estate in a foundation to be named after his mother, from whom his properties came, for the purpose of helping indigent students in their schooling. Concordia agreed to carry out the plan of the deceased. This fact was admitted by her in her "Motion to Reopen and/or Reconsider the Order dated April 3, 1978" which she filed on July 27, 1978 in Special Proceeding No. 2540, where she stated:4. That petitioner knew all along the narrated facts in the immediately preceding paragraph [that herein movant is also the relative of the deceased within the third degree, she being the younger sister of the late Esteban Javellana, father of the decedent herein], becauseprior to the filing of the petition they (petitioner Celedonia Solivio and movant Concordia Javellana) have agreed to make the estate of the decedent a foundation,besides they have closely known each other due to their filiation to the decedent and they have been visiting each other's house which are not far away for (sic) each other. (p. 234, Record; Emphasis supplied.)

Pursuant to their agreement that Celedonia would take care of the proceedings leading to the formation of the foundation, Celedonia in good faith and upon the advice of her counsel, filed on March 8, 1977 Spl. Proceeding No. 2540 for her appointment as special administratrix of the estate of Esteban Javellana, Jr. (Exh. 2). Later, she filed an amended petition (Exh. 5) praying that letters of administration be issued to her; that she be declared sole heir of the deceased; and that after payment of all claims and rendition of inventory and accounting, the estate be adjudicated to her (p. 115, Rollo).

After due publication and hearing of her petition, as well as her amended petition, she was declared sole heir of the estate of Esteban Javellana, Jr. She explained that this was done for three reasons: (1) because the properties of the estate had come from her sister, Salustia Solivio; (2) that she is the decedent's nearest relative on his mother's side; and (3) with her as sole heir, the disposition of the properties of the estate to fund the foundation would be facilitated. On April 3, 1978, the court (Branch II, CFI, now Branch 23, RTC) declared her the sole heir of Esteban, Jr. Thereafter, she sold properties of the estate to pay the taxes and other obligations of the deceased and proceeded to set up the"SALUSTIA SOLIVIO VDA. DE JAVELLANA FOUNDATION"which she caused to be registered in the Securities and Exchange Commission on July 17,1981 under Reg. No. 0100027

Four months later, or on August 7, 1978, Concordia Javellana Villanueva filed a motion for reconsideration of the court's order declaring Celedonia as "sole heir" of Esteban, Jr., because she too was an heir of the deceased. On October 27, 1978, her motion was denied by the court for tardiness (pp. 80-81, Record). Instead of appealing the denial, Concordia filed on January 7, 1980 (or one year and two months later), Civil Case No. 13207 in the Regional Trial Court of Iloilo, Branch 26, entitled"Concordia Javellana- Villanueva v. Celedonia Solivio"for partition, recovery of possession, ownership and damages. On September 3, 1984, the said trial court rendered judgment in Civil Case No. 13207, in favor of Concordia Javellana-Villanueva. On Concordia's motion, the trial court ordered the execution of its judgment pending appeal and required Celedonia to submit an inventory and accounting of the estate. In her motions for reconsideration of those orders, Celedonia averred that the properties of the deceased had already been transferred to, and were in the possession of, the 'Salustia Solivio Vda. de Javellana Foundation." The trial court denied her motions for reconsideration.

In the meantime, Celedonia perfected an appeal to the Court of Appeals (CA GR CV No. 09010). On January 26, 1988, the Court of Appeals, Eleventh Division, rendered judgment affirming the decision of the trial courtin toto.Hence, this petition for review wherein she raised the following legal issues:1. whether Branch 26 of the RTC of Iloilo had jurisdiction to entertain Civil Case No. 13207 for partition and recovery of Concordia Villanueva's share of the estate of Esteban Javellana, Jr. even while the probate proceedings (Spl. Proc. No. 2540) were still pending in Branch 23 of the same court;2. whether Concordia Villanueva was prevented from intervening in Spl. Proc. No. 2540 through extrinsic fraud;3. whether the decedent's properties were subject toreserva troncalin favor of Celedonia, his relative within the third degree on his mother's side from whom he had inherited them; and4. whether Concordia may recover her share of the estate after she had agreed to place the same in the Salustia Solivio Vda. de Javellana Foundation, and notwithstanding the fact that conformably with said agreement, the Foundation has been formed and properties of the estate have already been transferred to it.

I. The question of jurisdictionAfter a careful review of the records, we find merit in the petitioner's contention that the Regional Trial Court, Branch 26, lacked jurisdiction to entertain Concordia Villanueva's action for partition and recovery of her share of the estate of Esteban Javellana, Jr. while the probate proceedings (Spl, Proc. No. 2540) for the settlement of said estate are still pending in Branch 23 of the same court, there being as yet no orders for the submission and approval of the administratix's inventory and accounting, distributing the residue of the estate to the heir, and terminating the proceedings (p. 31, Record).It is the order of distribution directing the delivery of the residue of the estate to the persons entitled thereto that brings to a close the intestate proceedings, puts an end to the administration and thus far relieves the administrator from his duties (Santiesteban v. Santiesteban, 68 Phil. 367, Philippine Commercial and Industrial Bank v. Escolin, et al., L-27860, March 29, 1974, 56 SCRA 266).The assailed order of Judge Adil in Spl. Proc. No. 2540 declaring Celedonia as the sole heir of the estate of Esteban Javellana, Jr. did not toll the end of the proceedings. As a matter of fact, the last paragraph of the order directed the administratrix to "hurry up the settlement of the estate." The pertinent portions of the order are quoted below:2. As regards the second incident [Motion for Declaration of Miss Celedonia Solivio as Sole Heir, dated March 7, 1978], it appears from the record that despite the notices posted and the publication of these proceedings as required by law, no other heirs came out to interpose any opposition to the instant proceeding. It further appears that herein Administratrix is the only claimant-heir to the estate of the late Esteban Javellana who died on February 26, 1977.During the hearing of the motion for declaration as heir on March 17, 1978, it was established that the late Esteban Javellana died single, without any known issue, and without any surviving parents. His nearest relative is the herein Administratrix, an elder [sic] sister of his late mother who reared him and with whom he had always been living with [sic] during his lifetime.x x x x x x x x x2. Miss Celedonia Solivio, Administratrix of this estate, is hereby declared as the sole and legal heir of the late Esteban S. Javellana, who died intestate on February 26, 1977 at La Paz, Iloilo City.The Administratrix is hereby instructed to hurry up with the settlement of this estate so that it can be terminated. (pp, 14-16, Record)

In view of the pendency of the probate proceedings in Branch 11 of the Court of First Instance (now RTC, Branch 23), Concordia's motion to set aside the order declaring Celedonia as sole heir of Esteban, and to have herself (Concordia) declared as co-heir and recover her share of the properties of the deceased, was properly filed by her in Spl. Proc. No. 2540. Her remedy when the court denied her motion, was to elevate the denial to the Court of Appeals for review on certiorari. However, instead of availing of that remedy, she filed more than one year later, a separate action for the same purpose in Branch 26 of the court. We hold that the separate action was improperly filed for it is the probate court that hasexclusivejurisdiction to make a just and legal distribution of the estate.In the interest of orderly procedure and to avoid confusing and conflicting dispositions of a decedent's estate, a court should not interfere with probate proceedings pending in a co-equal court. Thus, did we rule inGuilas v. Judge of the Court of First Instance of Pampanga, L-26695, January 31, 1972,43 SCRA 111, 117, where a daughter filed a separate action to annul a project of partition executed between her and her father in the proceedings for the settlement of the estate of her mother:The probate court loses jurisdiction of an estate under administration only after the payment of all the debts and the remaining estate delivered to the heirs entitled to receive the same. The finality of the approval of the project ofThe probate court, in the exercise of its jurisdiction to make distribution, has power to determine the proportion or parts to which each distributed is entitled. ... The power to determine the legality or illegality of the testamentary provision is inherent in the jurisdiction of the court making a just and legal distribution of the inheritance. ... To hold that a separate and independent action is necessary to that effect, would be contrary to the general tendency of the jurisprudence of avoiding multiplicity of suits; and is further, expensive, dilatory, and impractical. (Marcelino v. Antonio, 70 Phil. 388)A judicial declaration that a certain person is the only heir of the decedent is exclusively within the range of the administratrix proceedings and can not properly be made an independent action. (Litam v. Espiritu, 100 Phil. 364)A separate action for the declaration of heirs is not proper. (Pimentel v. Palanca, 5 Phil. 436)partition by itself alone does not terminate the probate proceeding (Timbol v. Cano, 1 SCRA 1271, 1276, L-15445, April 29, 1961; Siguiong v. Tecson, 89 Phil. pp. 28, 30). As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated Siguiong v. Tecson,supra); because a judicial partition is not final and conclusive and does not prevent the heirs from bringing an action to obtain his share, provided the prescriptive period therefore has not elapsed (Mari v. Bonilia, 83 Phil. 137).The better practice, however, for the heir who has not received his share, is to demand his share through a proper motion in the same probate or administration proceedings, or for reopening of the probate or administrative proceedings if it had already been closed, and not through an independent action,which would be tried by another court or Judge which may thus reverse a decision or order of the probate or intestate court already final and executed and re-shuffle properties long ago distributed and disposed of. (Ramos v. Ortuzar, 89 Phil. 730,; Timbol v. Cano,supra;Jingco v. Daluz, L-5107, April 24, 1953, 92 Phil. 1082; Roman Catholic v. Agustines, L-14710, March 29, 1960, 107 Phil. 455

InLitam et al., v. Rivera,100 Phil. 364, where despite the pendency of the special proceedings for the settlement of the intestate estate of the deceased Rafael Litam the plaintiffs-appellants filed a civil action in which they claimed that they were the children by a previous marriage of the deceased to a Chinese woman, hence, entitled to inherit his one-half share of the conjugal properties acquired during his marriage to Marcosa Rivera, the trial court in the civil case declared that the plaintiffs-appellants were not children of the deceased, that the properties in question were paraphernal properties of his wife, Marcosa Rivera, and that the latter was his only heir. On appeal to this Court, we ruled that "such declarations (that Marcosa Rivera was the only heir of the decedent) is improper, in Civil Case No. 2071,it being within the exclusive competence of the court in Special Proceedings No. 1537,in which it is not as yet, in issue, and, will not be, ordinarily, in issue until the presentation of the project of partition.

However, in the Guilas case,supra,since the estate proceedings had been closed and terminated for over three years, the action for annulment of the project of partition was allowed to continue. Considering that in the instant case, the estate proceedings are still pending, but nonetheless, Concordia had lost her right to have herself declared as co-heir in said proceedings, We have opted likewise to proceed to discuss the merits of her claim in the interest of justice.The orders of the Regional Trial Court, Branch 26, in Civil Case No. 13207 setting aside the probate proceedings in Branch 23 (formerly Branch 11) on the ground of extrinsic fraud, and declaring Concordia Villanueva to be a co-heir of Celedonia to the estate of Esteban, Jr., ordering the partition of the estate, and requiring the administratrix, Celedonia, to submit an inventory and accounting of the estate, were improper andofficious,to say the least, for these matters he within the exclusive competence of the probate court.

II. The question of extrinsic fraudWas Concordia prevented from intervening in the intestate proceedings byextrinsic fraudemployed by Celedonia? It is noteworthy that extrinsic fraud wasnot allegedin Concordia's original complaint in Civil Case No. 13207. It was only in her amended complaint of March 6, 1980, that extrinsic fraud was alleged for the first time.Extrinsic fraud, as a ground for annulment of judgment, is any act or conduct of the prevailing party which prevented a fair submission of the controversy (Francisco v. David, 38 O.G. 714). A fraud 'which prevents a party from having a trial or presenting all of his case to the court, or one which operates upon matters pertaining, not to the judgment itself, but to the manner by which such judgment was procured so much so that there was no fair submission of the controversy. For instance, if through fraudulent machination by one [his adversary], a litigant was induced to withdraw his defense or was prevented from presenting an available defense or cause of action in the case wherein the judgment was obtained, such that the aggrieved party was deprived of his day in court through no fault of his own, the equitable relief against such judgment may be availed of. (Yatco v. Sumagui, 44623-R, July 31, 1971). (cited in Philippine Law Dictionary, 1972 Ed. by Moreno; Varela v. Villanueva, et al., 96 Phil. 248)

The charge of extrinsic fraud is, however, unwarranted for the following reasons:1. Concordia was not unaware of the special proceeding intended to be filed by Celedonia. She admitted in her complaint that she and Celedonia had agreed that the latter would "initiate the necessary proceeding" and pay the taxes and obligations of the estate. Thus paragraph 6 of her complaint alleged:6. ... for the purpose of facilitating the settlement of the estate of the late Esteban Javellana, Jr. at the lowest possible cost and the least effort,the plaintiff and the defendant agreed that the defendant shall initiate the necessary proceeding,cause the payment of taxes and other obligations, and to do everything else required by law, and thereafter, secure the partition of the estate between her and the plaintiff, [although Celedonia denied that they agreed to partition the estate, for their agreement was to place the estate in a foundation.] (p. 2, Record; emphasis supplied)

Evidently, Concordia wasnot preventedfrom intervening in the proceedings. She stayed awayby choice.Besides, she knew that the estate came exclusively from Esteban's mother, Salustia Solivio, and she had agreed with Celedonia to place it in a foundation as the deceased had planned to do. The court noted that Concordia's motion did not comply with the requisites of a petition for relief from judgment nor a motion for new trial.The rule is stated in 49 Corpus Juris Secundum 8030 as follows:Where petition was sufficient to invoke statutory jurisdiction of probate court andproceeding was in remno subsequent errors or irregularities are available on collateral attack. (Bedwell v. Dean 132 So. 20)

Celedonia's allegation in her petition that she was the sole heir of Esteban within the third degree on hismother's sidewas not false. Moreover, it was made in good faith and in the honest belief that because the properties of Esteban had come from his mother, not his father, she, as Esteban's nearest surviving relative on his mother's side, is the rightful heir to them. It would have been self-defeating and inconsistent with her claim ofsole heirshipif she stated in her petition that Concordia was her co-heir. Her omission to so state did not constitute extrinsic fraud.Failure to disclose to the adversary, or to the court, matters which would defeat one's own claim or defense is not such extrinsic fraud as will justify or require vacation of the judgment. (49 C.J.S. 489, citing Young v. Young, 2 SE 2d 622; First National Bank & Trust Co. of King City v. Bowman, 15 SW 2d 842; Price v. Smith, 109 SW 2d 1144, 1149)

It should be remembered that a petition for administration of a decedent's estate may be filed by any "interested person" (Sec. 2, Rule 79, Rules of Court). The filing of Celedonia's petition did not preclude Concordia from filing her own.

III. On the question of reserva troncalWe find no merit in the petitioner's argument that the estate of the deceased was subject toreserva troncaland that it pertains to her as his only relative within the third degree on his mother's side. Thereserva troncalprovision of the Civil Code is found in Article 891 which reads as follows:ART. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came.The persons involved inreserva troncalare:1. The person obliged to reserve is the reservor(reservista)the ascendant who inherits by operation of law property from his descendants.2. The persons for whom the property is reserved are the reservees(reservatarios)relatives within the third degree counted from the descendant(propositus),and belonging to the line from which the property came.3. Thepropositusthe descendant who received by gratuitous title and died without issue, making his other ascendant inherit by operation of law. (p. 692, Civil Law by Padilla, Vol. II, 1956 Ed.)

Clearly, the property of the deceased, Esteban Javellana, Jr., is not reservable property, for Esteban, Jr. was not an ascendant, but the descendant of his mother, Salustia Solivio, from whom he inherited the properties in question. Therefore, he did not hold his inheritance subject to a reservation in favor of his aunt, Celedonia Solivio, who is his relative within the third degree on his mother's side. Thereserva troncalapplies to properties inherited by an ascendant from a descendant who inherited it from another ascendant or 9 brother or sister. It does not apply to property inherited by a descendant from his ascendant, the reverse of the situation covered by Article 891.Since the deceased, Esteban Javellana, Jr., died without descendants, ascendants, illegitimate children, surviving spouse, brothers, sisters, nephews or nieces, what should apply in the distribution of his estate are Articles 1003 and 1009 of the Civil Code which provide:ART. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles.ART. 1009. Should there be neither brothers nor sisters, nor children of brothers or sisters, the other collateral relatives shall succeed to the estate.The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood.Therefore, the Court of Appeals correctly held that:Both plaintiff-appellee and defendant-appellant being relatives of the decedent within the third degree in the collateral line, each, therefore, shall succeed to the subject estate 'without distinction of line or preference among them by reason of relationship by the whole blood,' and is entitled one-half (1/2) share and share alike of the estate. (p. 57, Rollo)

IV. The question of Concordia's one-half shareHowever, inasmuch as Concordia had agreed to deliver the estate of the deceased to the foundation in honor of his mother, Salustia Solivio Vda. de Javellana (from whom the estate came), an agreement which she ratified and confirmed in her "Motion to Reopen and/or Reconsider Order dated April 3, 1978" which she filed in Spl. Proceeding No. 2540:4. That ...prior to the filing of the petition they (petitioner Celedonia Solivio and movant Concordia Javellana) have agreed to make the estate of the decedent a foundation,besides they have closely known each other due to their filiation to the decedent and they have been visiting each other's house which are not far away for (sic) each other. (p. 234, Record; Emphasis supplied)she is bound by that agreement. It is true that by that agreement, she did not waive her inheritance in favor of Celedonia, but she did agree to place all of Esteban's estate in the "Salustia Solivio Vda. de Javellana Foundation" which Esteban, Jr., during his lifetime, planned to set up to honor his mother and to finance the education of indigent but deserving students as well.

Having agreed to contribute her share of the decedent's estate to the Foundation, Concordia is obligated to honor her commitment as Celedonia has honored hers.

WHEREFORE, the petition for review is granted. The decision of the trial court and the Court of Appeals are hereby SET ASIDE. Concordia J. Villanueva is declared an heir of the late Esteban Javellana, Jr. entitled to one-half of his estate. However, comformably with the agreement between her and her co-heir, Celedonia Solivio, the entire estate of the deceased should be conveyed to the "Salustia Solivio Vda. de Javallana Foundation," of which both the petitioner and the private respondent shall be trustees, and each shall be entitled to nominate an equal number of trustees to constitute the Board of Trustees of the Foundation which shall administer the same for the purposes set forth in its charter. The petitioner, as administratrix of the estate, shall submit to the probate court an inventory and accounting of the estate of the deceased preparatory to terminating the proceedings therein. SO ORDERED.

http://remediallawdoctrines.blogspot.com/2011_10_01_archive.html

Javier69 SCRA 524 (1989)Beatriz de Zuzuarregui vda. De Reyes v. CA, Pilar Ibanez vda. De zuzuarregui, Administratriz, Antonio de Zuzuarregui, Jr., Enrique de Zuzuarregui and Pacita

Short Facts: Beatriz, (not sure if illegit or legit child) opposes the correction of judgment and the re-opening of the probate proceedings to correct a alleged typographical error in the sqm of the Antipolo land in question, claiming that there was no typographical error and the parties intended to share only that area of land.Decedent: Antonio de Zuzuarregui, Sr.

Pilar Ibanez de Susuarregui: surviving spouse of decedent-administratix of the estateIllegit children:Antonio de Zuzuarregui, Jr.Enrique de ZuzuarreguiJose de Zuzuarregui*Beatriz de Zuzuarregui vda. Re reyes: daughter of Antonio Sr. by another motherPacita Javier: niece of administratix-mother of the three illegit childrenProject of partition:Pilar: 12/16, inclusive of 1/2 of the assets (share of conjugal partnership)Beatriz: 1/16Antonio, Jr.: 1/16Enrique: 1/16Jose: 1/16Antipolo, Rizal property: mentioned 4x in document-adjudicated to Pilar (12/15), Antonio Jr. (1/15), Enrique (1/15) and Jose (1/15)-Pacita relinquished her right "in lieu of her bigger share in Antipolo, Rizal, real estate property"-administratix and other three distributees filed a MOTION TO REOPEN SPECIAL PROCEEDIGNS for the purpose of correcting an alleged typographical error in the description of the parcel of land (correct land area: 803,781.51, not 83,781sqm)-opposition to motionTC:(1) opened for purpose of correcting clerical error in description of land(2) correct land area to conform with description of land area in TCT(3) correction be made in the project of partition-CA: AffirmPacita's allegation: no clerical area. The area in the project of partition is correct. She would not have relinquished her share in the Antipolo land if she new nothing would remain from the land. It was even repeated 4x in the project of partitionISSUE: WON there was a clerical error, which is an exemption to correcting or supplying a final judgment already entered?NONE.On correction of clerical errors:It is well settled that even if a decision has become final, clerical errors or mistakes or omission plainly due to inadvertence or negligence may be corrected or supplied even after the judgment has been entered. The correction of a clerical error is an exception to the general rule that no amendment or correction may be made by the court in its judgment once the latter had become final. The court may make this amendment ex parte and, for this purpose, it may resort to the pleadings filed by the parties, the court's findings of facts and its conclusions of law as expressed in the body of the decision.-TC already found that a typographical or clerical error was clearly committed by inadvertence in the project of partition-probate proceeding, nature:That a special proceeding for the settlement of an estate is filed and intended to settle the ENTIRE estate of the deceased is obvious and elementary. It would be absurd for the heirs to intentionally excluded or leave a parcel of land or a portion thereof undistributed or undivided because the proceeding is precisely designed to end the community of interests in properties held by co-partners pro indiviso without designation or segregation of shares.-It is readily apparent from the project of partition that it was meant to be, as in fact it is, a full and complete adjudication and partition of all properties of the estate, necessarily including the entire area of the land covered by Transfer Certificate of Title No. 42643. Thus as perceptively posed by the queries of the respondents, if the intention of the heirs was to make only a partial adjudication and distribution of the subject parcel of land, why is it that they did not make any further disposition of the remaining balance of 720,000 square meters? What sound reason would the heirs have in holding in suspense the distribution of the difference of 720,000 square meters?-if they cannot see eye to eye, why share properties as co-owners?-weird that the parties came up with 83,781, just omitting the zeroes. So only logical reason is that they just forgot to put zero.-according to her own computation, she already received her 1/16 share in the estate. There would not be a substantial difference in value in their shares...

REGALADO,J.:G.R. No. L-47027 January 27, 1989BEATRIZ DE ZUZUARREGUI VDA. DE REYES vs. HONORABLE COURT OF APPEALS, PILAR IBAEZ VDA. DE ZUZUARREGUI, Administratrix, ANTONIO DE ZUZUARREGUI, JR., ENRIQUE DE ZUZUARREGUI and PACITA JAVIER

In this petition for review oncertiorari, We are asked to set aside the decision of the Court of Appeals, promulgated on September 19, 1977 in CA-G.R. No. 53197-R1which affirmed the order of the Court of First Instance of Rizal, Branch IV, Quezon City dated March 26, 1973, issued in Special Proceedings Q-325, entitled "Intestate Estate of Don Antonio de Zuzuarregui, Sr.".2

Respondent administratrix, Pilar Ibaez Vda. de Zuzuarregui, is the surviving spouse of Antonio de Zuzuarregui, Sr., while petitioner Beatriz de Zuzuarregui Vda. de Reyes and the other heirs of said estate, namely, Antonio de Zuzuarregui, Jr., Enrique de Zuzuarregui and Jose de Zuzuarregui, are the illegitimate children of the decedent. The parties herein are the only heirs of the deceased whose estate was the subject of said settlement proceedings. Petitioner was the daughter of the deceased by a mother different from that of his aforesaid three (3) sons, their mother being Pacita Javier who was the niece of the herein respondent administratrix.3

According to the project of partition dated June 17, 1958 and approved by the probate court, the respective shares of said heirs in the real estate left by the deceased are as follows: Pilar Ibaez Vda. de Zuzuarregui, 12/16 thereof, inclusive of 1/2 of said assets which pertains to her share in the conjugal partnership; Beatriz, 1/16; Antonio, Jr., 1/16; Enrique, 1/16; and Jose, 1/16.4

Among the real properties in the project of partition is a parcel of land covered by and described in Transfer Certificate of Title No. 42643 located in Antipolo, Rizal. In said project of partition, its area is stated as 83,781 square meters, with an assessed value of P6,430.00. This statement of said area was repeated in said document four time,5that is, in adjudicating the corresponding portions of said land to Pilar (12/15), Antonio, Jr. (1/15). Enrique (1/15) and Jose (1/15).6The petitioner did not have a share in the aforesaid parcel of land because she relinquished her right thereto "in lieu of her bigger share in Antipolo, Rizal, real estate property."7

On January 29, 1973, the respondent administratrix and the other three distributees filed a motion to reopen Special Proceedings No. Q-325 for the purpose of correcting an alleged typographical error in the description of the parcel of land covered by Transfer Certificate of Title No. 42643 since, according to them, the correct land area is 803,781.51 square meters and not 83,781 square meters.8The heirs of Beatriz de Zuzuarregui Vda. de Reyes filed their opposition to said motion.9

The courta quoissued the contested order, with the following dispositive portion: WHEREFORE, (1) Sp. Proceeding No. Q-325 entitled, The Intestate Estate of Don Antonio de Zuzuarregui, Sr. is ordered opened for the purpose of correcting a clerical error in the description of the parcel of land covered by T.C.T. No. 42643; (2) The area of land covered by T.C.T. No. 42643 be corrected by cancelling 83,781 sq. meters and changing it to 803,781.51 sq. meters to conform with the description of land area in T.C.T. No. 42643; (3) That said corrections be made as pages 3, 6, 9, 10, and 12 of the project of Partition.10

As already stated, the affirmance of said order by the Court of Appeals eventuated in the elevation of the controversy to Us under the present recourse.It is well settled that even if a decision has become final, clerical errors or mistakes or omission plainly due to inadvertence or negligence may be corrected or supplied even after the judgment has been entered. The correction of a clerical error is an exception to the general rule that no amendment or correction may be made by the court in its judgment once the latter had become final.11The court may make this amendmentex parteand, for this purpose, it may resort to the pleadings filed by the parties, the court's findings of facts and its conclusions of law as expressed in the body of the decision.12However, according to the petitioner, there was no such clerical error. While it is not disputed that the area covered by Transfer Certificate of Title No. 42643 is 803,781.15 square meters, the petitioner insists that "the area intended by the heirs of Don Antonio de Zuzuarregui, Sr., in the Project of Partition as approved by the trial court is the area of 83,781 sq. m. and not 803,781,51 sq. m.13

She claims that she would not have relinquished her share in said parcel of land if the true area was not fraudulently concealed from her at the time the project of partition was executed.14She further contends that the fact that the description of the area as 83,781 square meters was repeated several times is sufficient evidence to show that such was the area intended in the project of partition.15

Such contentions are without merit. There is, therefore, no reason to disturb, much less to reverse, the factual finding of the lower court that a typographical or clerical error was clearly committed by inadvertence in the project of partition.

That a special proceeding for the settlement of an estate is filed and intended to settle theentireestate of the deceased is obvious and elementary. It would be absurd for the heirs to intentionally excluded or leave a parcel of land or a portion th