CASE DOCTRINES IN SPECIAL PROCEEDINGS (Rules 74-76)
Prepared
by Glenn Rey Anino
University of Cebu
RULE 74. SUMMARY SETTLEMENT
OF ESTATE
CASES:
1.
Rodriguez v. Tan, G.R. No.
L-6044, November 24, 1952 (92 Phil 273)
Section 1 of Rule 74 does not
preclude the heirs from instituting administration proceedings, even if the
estate has no debts or obligations, if they do not desire to resort for good
reasons to an ordinary action of partition. While section 1 allows the heirs to
divide the estate among themselves as they may see fit, or to resort to an
ordinary action of partition, it does not compel them to do so if they have
good reasons to take a different course of action. Said section is not
mandatory or compulsory as may be gleaned from the use made therein of the word may.
If the intention were otherwise the framer of the rule would have employed the
word shall as was done in other provisions that are mandatory
in character. Note that the word may is used not only once but
in the whole section which indicates an intention to leave the matter entirely
to the discretion of the heirs.
Petitioner asks this Court to
declare that the properties specified do not belong to the estate of the
deceased on the basis of her bare allegations as aforestated and a handful of
documents. Inasmuch as this Court is not a trier of facts, We cannot order an
unqualified and final exclusion or non-exclusion of the property involved from
the estate of the deceased.
The resolution of this issue
is better left to the probate court before which the administration proceedings
are pending. The trial court is in the best position to receive evidence on the
discordant contentions of the parties as to the assets of the decedent's
estate, the valuations thereof and the rights of the transferees of some of the
assets, if any. The function of resolving whether or not a certain
property should be included in the inventory or list of properties to be
administered by the administrator is one clearly within the competence of the
probate court. However, the court's determination is only provisional in
character, not conclusive, and is subject to the final decision in a separate
action which may be instituted by the parties.
It should be noted that
recourse to an administration proceeding even if the estate has no debts is
sanctioned only if the heirs have good reasons for not resorting to an action
for partition. Where partition is possible, either in or out of court, the
estate should not be burdened with an administration proceeding without good
and compelling reasons.
Thus, it has been repeatedly
held that when a person dies without leaving pending obligations to be paid,
his heirs, whether of age or not, are not bound to submit the property to a
judicial administration, which is always long and costly, or to apply for the
appointment of an administrator by the Court. It has been uniformly held that
in such case the judicial administration and the appointment of an
administrator are superfluous and unnecessary proceedings.
The only conceivable reason
why private respondent seeks appointment as administratrix is for her to obtain
possession of the alleged properties of the deceased for her own purposes,
since these properties are presently in the hands of petitioner who supposedly
disposed of them fraudulently. We are of the opinion that this is not a
compelling reason which will necessitate a judicial administration of the
estate of the deceased. To subject the estate of Andres de Guzman Pereira,
which does not appear to be substantial especially since the only real property
left has been extrajudicially settled, to an administration proceeding for no
useful purpose would only unnecessarily expose it to the risk of being wasted
or squandered. In most instances of a similar nature, 16 the claims
of both parties as to the properties left by the deceased may be properly
ventilated in simple partition proceedings where the creditors, should there be
any, are protected in any event.
We, therefore, hold that the
court below before which the administration proceedings are pending was not
justified in issuing letters of administration, there being no good reason for
burdening the estate of the deceased Andres de Guzman Pereira with the costs
and expenses of an administration proceeding.
3.
Cease v. CA, G.R. No. L-33172 October 18, 1979 (93 SCRA 483)
If there were a valid genuine
claim of Exclusive ownership of the inherited properties on the part of
petitioners to respondents' action for partition, then under the Miranda
ruling, petitioners would be sustained, for as expressly held therein "
the general rule of partition that an appeal will not lie until the partition
or distribution proceedings are terminated will not apply where appellant
claims exclusive ownership of the whole property and denies the adverse party's
right to any partition."
4.
Sampilo v. CA, G.R. No. L-10474, February 28, 1958 (103 Phil 71)
There are two significant
provisions in Sections 1 and 4 of Rule 74. In Section 1, it is required that if
there are two or more heirs, both or all of them should take part in the
extrajudicial settlement. This requirement is made more imperative in the old
law (Section 596, Act No. 190) by the addition of the clause "and not
otherwise." By the title of Section 4, the "distributees and
estate" are indicates the persons to answer for rights violated by the
extrajudicial settlement. On the other hand, it is also significant that no
mention is made expressly of the effect of the extrajudicial settlement on
persons who did not take part therein or had no notice or knowledge thereof.
There cannot be any doubt that those who took part or had knowledge of the
extrajudicial settlement are bound thereby. As to them the law is clear that if
they claim to have been in any manner deprived of their lawful right or share
in the estate by the extrajudicial settlement, they may demand their rights or
interest within the period of two years, and both the distributes and estate
would be liable to them for such rights or interest. Evidently, they are the
persons in accordance with the provision, may seek to remedy, the prejudice to
their rights within the two-year period. But as to those who did not take part
in the settlement or had no notice of the death of the decedent or of the
settlement, there is no direct or express provision is unreasonable and unjust
that they also be required to assert their claims within the period of two
years. To extend the effects of the settlement to them, to those who did not
take part or had no knowledge thereof, without any express legal provision
to that effect, would be violative of the fundamental right to due process of
law.
The procedure outlined in
Section 1 of Rule 74 of extrajudicial settlement, or by affidavit, is an ex
parteproceeding. It cannot by any reason or logic be contended that such
settlement or distribution would affect third persons who had no knowledge
either of the death of the decedent or of the extrajudicial settlement or
affidavit, especially as no mention of such effect is made, either directly or
by implication.
The provisions of Section 4 of
Rule 74, barring distributees or heirs from objecting to an extrajudicial
partition after the expiration of two years from such extrajudicial partition,
is applicable only (1) to persons who have participated or taken part or had
notice of the extrajudicial partition, and, in addition, (2) when the
provisions of Section 1 of Rule 74 have been strictly complied with, i.e., that
all the persons or heirs of the decedent have taken part in the extrajudicial
settlement or are represented by themselves or through guardians.
There is nothing in Section 4
of Rule 74, or in its source (Section 596 of Act 190), which shows clearly a
statute of limitations and a bar of action against third person's. It is only a
bar against the parties who had taken part in the extrajudicial proceedings but
not against third persons not Parties thereto. In the second place, the statute
of limitations is contained in a different chapter of Act No. 190, Chapter XL,
and if Section 596 of the Act had been meant to be a statute of limitations, it
would naturally have been included in the chapter which defines the statute.
5.
Amerol v. Bagumbaran, G.R. No. L-33261. September 30, 1987 (154 SCRA
396)
Indubitably, the act of
respondent in misrepresenting that he was in actual possession and occupation
of the property in question, obtaining a patent and Original Certificate of
Title No. P- 466 in his name, created an implied trust in favor of the actual possessor
of the said property. In this case, the
land in question was patented and titled in respondent's name by and through
his false pretenses. Molok Bagumbaran fraudulently misrepresented that he was
the occupant and actual possessor of the land in question when he was not
because it was Liwalug Datomanong. Bagumbaran falsely pretended that there was
no prior applicant for a free patent over the land but there was — Liwalug
Datomanong. By such fraudulent acts, Molok Bagumbaran is deemed to hold the title
of the property in trust and for the benefit of petitioner Liwalug Datomanong.
Notwithstanding the
irrevocability of the Torrens title already issued in the name of respondent,
he, even being already the registered owner under the Torrens system, may still
be compelled under the law to reconvey the subject property to Liwalug
Datomanong. After all, the Torrens system was not designed to shield and
protect one who had committed fraud or misrepresentation and thus holds title
in bad faith. Further, contrary to the erroneous claim of the
respondent, reconveyance does not work to set aside and put under review
anew the findings of facts of the Bureau of Lands. In an action for
reconveyance, the decree of registration is respected as incontrovertible. What
is sought instead is the transfer of the property, in this case the title
thereof, which has been wrongfully or erroneously registered in another
person's name, to its rightful and legal owner, or to one with a better
right. That is what reconveyance is all about.
An action for reconveyance
based on an implied or constructive trust must perforce prescribed in ten years
and not otherwise. A long line of decisions of this Court, and of very recent
vintage at that, illustrates this rule. Undoubtedly, it is now well-settled
that an action for reconveyance based on an implied or constructive trust
prescribes in ten years from the issuance of the Torrens title over the
property. The only discordant note, it seems, isBalbin vs.
Medalla, which states that the prescriptive period for a reconveyance
action is four years. However, this variance can be explained by the erroneous
reliance on Gerona vs. de Guzman. But in Gerona, the fraud was
discovered on June 25, 1948, hence Section 43(3) of Act No. 190, was applied,
the new Civil Code not coming into effect until August 30, 1950 as mentioned
earlier. It must be stressed, at this juncture, that Article 1144 and Article
1456, are new provisions. They have no counterparts in the old Civil Code or in
the old Code of Civil Procedure, the latter being then resorted to as legal
basis of the four-year prescriptive period for an action for reconveyance of
title of real property acquired under false pretenses.
It is abundantly clear from
all the foregoing that the action of petitioner Datomanong for reconveyance, in
the nature of a counterclaim interposed in his Answer, filed on December 4,
1964, to the complaint for recovery of possession instituted by the respondent,
has not yet prescribed. Between August 16, 1955, the date of reference, being
the date of the issuance of the Original Certificate of Title in the name of
the respondent, and December 4, 1964, when the period of prescription was
interrupted by the filing of the Answer cum Counterclaim, is less than ten
years.
The respondent also interposed
as a deterrent to reconveyance the existence of a mortgage on the property. It
is claimed by the respondent that reconveyance would not be legally possible
because the property under litigation has already been mortgaged by him to the Development
Bank of the Philippines. This claim is untenable otherwise the judgment
for reconveyance could be negated at the will of the holder of the title. By
the simple expedient of constituting a mortgage or other encumbrance on the
property, the remedy of reconveyance would become illusory. In the instant
case, the respondent being doubly in bad faith — for applying for and obtaining
a patent and the Original Certificate of Title therefor without being in
possession of the land and for mortgaging it to the Development Bank knowing
that his Original Certificate of Title was issued under false pretenses — must
alone suffer the consequences.
Besides, given the undisputed
facts, we cannot consider the mortgage contracted by the respondent in favor of
the Development Bank of the Philippines as valid and binding against petitioner
Liwalug Datomanong. It would be most unjust to saddle him, as owner of the
land, with a mortgage lien not of his own making and from which he derived no
benefit whatsoever. The consequences of the void mortgage must be left between
the mortgagor and the mortgagee. In no small measure the Development Bank of
the Philippines might even be faulted for not making the requisite
investigation on the possession of the land mortgaged.
6.
Marquez v. CA, G.R. No. 125715, December 29, 1998 (300 SCRA 653)
As such, when Rafael Marquez
Sr., for one reason or another, misrepresented in his unilateral affidavit that
he was the only heir of his wife when in fact their children were still alive,
and managed to secure a transfer of certificate of title under his name, a
constructive trust under Article 1456 was established. Constructive
trusts are created in equity in order to prevent unjust enrichment. They arise
contrary to intention against one who, by fraud, duress or abuse of confidence,
obtains or holds the legal, right to property which he ought not, in equity and
good conscience, to hold.
Prescinding from the foregoing
discussion, did the action for reconveyance filed by the petitioners prescribe,
as held by the Court of Appeals?
In this regard, it is settled
that an action for reconveyance based on an implied or constructive trust
prescribes in ten years from the isuance of the Torrens title over the
property. For the purpose of this case, the prescriptive period shall
start to run when TCT No. 33350 was issued, which was on June 16, 1982. Thus,
considering that the action for reconveyance was filed on May 31, 1991, or
approximately nine years later, it is evident that prescription had not yet barred
the action.
To bolster the foregoing
position, the Court of Appeal's reliance on Gerona v. de Guzman, is
misplaced. In Amerol v. Bagumbaran, we ruled that the doctrine laid down
in the earlier Gerona case was based on the old Code of Civil
Procedure which provided that an action based on fraud prescribes within
four years from the date of discovery. However, with the effectivity of the
present Civil Code on August 30, 1950, the provisions on prescriptive periods
are now governed by Articles 1139 to 1155. Since implied or constructive trusts
are obligations created by law then the prescriptive period to enforce the same
prescribes in ten years.
While we rule in favor of
petitioners, we cannot grant their plea for moral damages and attorney's
fees 20since they have not satisfactorily shown that they have suffered
"mental anguish" as provided in Article 2219 and Article 2290 of the
Civil Code.
7.
GSIS v. Santiago, G.R. No. 155206, October 28, 2008 (414 SCRA 563)
At the outset, it bears
emphasis that the jurisdiction of this Court in a petition for review on
certiorari under Rule 45 of the Rules of Court, as amended, is limited to
reviewing only errors of law. This Court is not a trier of facts. Case law has
it that the findings of the trial court especially when affirmed by the CA are
binding and conclusive upon this Court. Although there are exceptions to the
said rule, we find no reason to deviate therefrom. By assailing the
findings of facts of the trial court as affirmed by the CA, that it acted in
bad faith, the petitioner thereby raised questions of facts in its petition.
The Court agrees with the
findings and conclusion of the trial court and the CA. The petitioner is not an
ordinary mortgagee. It is a government financial institution and, like banks,
is expected to exercise greater care and prudence in its dealings, including
those involving registered lands.8 Due diligence required of banks extend even
to persons, or institutions like the petitioner, regularly engaged in the
business of lending money secured by real estate mortgages.
On the issue of prescription,
generally, an action for reconveyance of real property based on fraud
prescribes in four years from the discovery of fraud; such discovery is deemed
to have taken place upon the issuance of the certificate of title over the
property. Registration of real property is a constructive notice to all persons
and, thus, the four-year period shall be counted therefrom.12 On
the other hand, Article 1456 of the Civil Code provides:
Art. 1456. If property is
acquired through mistake or fraud, the person obtaining it is, by force of law,
considered a trustee of an implied trust for the benefit of the person from
whom the property comes.
An action for reconveyance
based on implied or constructive trust prescribes in ten years from the alleged
fraudulent registration or date of issuance of the certificate of title over
the property.
The petitioner’s defense of
prescription is untenable. As held by the CA, the general rule that the
discovery of fraud is deemed to have taken place upon the registration of real
property because it is "considered a constructive notice to all persons"
does not apply in this case. The CA correctly cited the cases of Adille v.
Court of Appeals and Samonte v. Court of Appeals, where this
Court reckoned the prescriptive period for the filing of the action for
reconveyance based on implied trust from the actual discovery of fraud.
Following the Court’s
pronouncements in Adille and Samonte, the institution of the action for
reconveyance in the court a quo in 1990 was thus well within the prescriptive
period. Having acted in bad faith in securing titles over the subject lots, the
petitioner is a holder in bad faith of certificates of title over the subject
lots. The petitioner is not entitled to the protection of the law for the law
cannot be used as a shield for frauds.
RULE 75. PRODUCTION OF
WILL. ALLOWANCE OF WILL NECESSARY.
CASES:
8.
Mang-oy v. CA, G.R. No. L-27421, September 12, 1986 (144 SCRA 33)
After examining the musty records, we sustain the
ruling-made both by the trial court and the Court of Appeals-that the will, not
having been probated as required by law, was inoperative as such. The settled
principle, as announced in a long line of decisions in accordance with the
Rules of Court, is that no will shall pass either real or personal property
unless it is proved or allowed in court. 9
None of these objections is valid in law. The
appellants evidently fail to realize that Article 1056 of the Civil Code of
1889 authorizes a testator to partition inter vivos his property, and distribute them among his heirs, and that this
partition is not necessarily either a donation nor a testament, but an
instrument of a special character, sui
generis, which is revocable at
any time by the causante during his lifetime, and does not operate as a
conveyance of title until his death. It derives its binding force on the heirs
from the respect due to the will of the owner of the property, limited only by
his creditors and the intangibility of the legitime of the forced heirs. 'El
testador es libre y sus herederos han de pasar por lo que haga en cuanto no
perjudique la legitime de los forsozos. Inutil es sonar en otras limitaciones
que no existen.' (7 Manresa Commentaries, 6th Ed., p. 639.
That such partition is not governed by the rules of
wills or donations inter
vivos is a consequence of its
special nature.
There is no difference in legal effect between Agustin
Albela's deed of partition and Old Man Tumpao's "last will and
testament." Both are sustainable under Article 1056 of the Civil Code,
which was in force at the time they were executed Even as Agustin Albela's
partition was signed by the two daughters themselves, so was Old Man Tumpao's
"will" affirmed by the beneficiaries in their agreement of September
7, 1937, which reiterated and recognized the terms of such "will."
While not valid as a partition inter vivos under Articles 816 and 1271 of the old Civil Code, it was nevertheless
binding on the parties as proof of their conformity to the dispositions made by
Old Man Tumpao in his "last will and testament."
We may add that the agreement entered into by the
parties in implementation of Old Man Tumpao's "will" did not have to
be approved by the Director of the Bureau of Non-Christian Tribes because the
Administrative Code of Mindanao and Sulu was not extended to the Mountain
Province. Moreover, the document was not a
conveyance of properties or property right.
It remains to state that the property in dispute
having been registered in 1917, the presumption is that it was acquired during
the second marriage and so cannot be claimed by the respondents as the conjugal
property of their mother and Old Man Tumpao. Hence, they are not entitled to
retain the entire land as their exclusive inheritance or to collect rentals for
the lots occupied by the petitioners.
The trial judge, the Hon. Feliciano Belmonte, was
correct in ordering the reconveyance to the petitioners of their respective
shares. We affirm his decision in toto.
9.
Nufable v. Nufable, G.R. No. 126950, July 2, 1999 (309 SCRA 692)
As a general rule, courts in probate proceedings are
limited only to passing upon the extrinsic validity of the will sought to be probated,
the due execution thereof, the testator's testamentary capacity and the
compliance with the requisites or solemnities prescribes by law. Said court at
this stage of the proceedings is not called to rule on the rule on the
intrinsic validity or efficacy of the will. The
question of the intrinsic validity of a will normally comes only after the
court has declared that the will has been duly authenticated.
when Angel Nufable and his spouses mortgaged the
subject property to DBP on March 15, 1966, they had no right to mortgage the
entire property. Angel's right over the subject property was limited only to
1/4 pro indivisoshare.
As co-owner of the subject property, Angel's right to sell, assign or mortgage
is limited to that portion that may be allotted to him upon termination of the
co-ownership. Well-entrenched is the rule that a co-owner can only alienate his pro indiviso share in the co-owned property.
The Court of Appeals did not err in ruling that Angel
Custodio Nufable "had no right to mortgage the subject property in its
entirety. His right to encumber said property was limited only to 1/4 pro indiviso share of the property in question." Article 493 of the Civil Code spells out the rights or
co-owners over a co-owned property. Pursuant to said Article, a co-owner shall
have full ownership of his part and of the fruits and benefits pertaining
thereto. He has the right to alienate, assign or mortgage it, and even
substitute another person in its enjoyment. As a mere part owner, he cannot
alienate the shares of the other co-owners. The prohibition is premised on the
elementary rule that "no one can give what he does not have."
Moreover, respondents stipulated that they were not
aware of the mortgage by petitioners of the subject property. This being the case, a co-owner does not lose his part
ownership of a co-owned property when his share is mortgaged by another
co-owner without the former's knowledge and consent as in the case at bar. It has likewise been ruled that
the mortgage of the inherited property is not binding against co-heirs who
never benefitted.
The rule is that indispensable parties, i.e.,
parties in interest without whom no final determination can be had of an
action, shall be joined either as plaintiffs or defendants; the inclusion as a
party, i.e., persons who are not indispensable but
ought to be parties if complete relief is to be accorded as between those
already parties, the court may, in its discretion, proceed in the action
without making such persons parties, and the judgment rendered therein shall be
without prejudice to the rights of such persons. Proper parties, therefore, have been described as
parties whose presence in necessary in order to adjudicate the whole
controversy, but whose interests are so far separable that a final decree can
be made in their absence without affecting them. Any claim against a party may be severed and proceeded
with separately.
Private respondents do not question the legality of
the foreclosure of the mortgaged property and the subsequent sale of the same
to DBP. The subject property was already purchased by petitioner Nelson from
DBP and latter, by such sale, transferred its rights and obligations to the
former. Clearly, petitioners' interest in the controversy is distinct and
separable from the interest of DBP and a final determination can be had of the
action despite the non-inclusion of DBP as party-defendant. Hence, DBP, not
being an indispensable party, did not have to be impleaded in this case.
10.
Nuguid v. Nuguid, G.R. No.
L-23445, June 23, 1966 (17 SCRA 449)
In
a proceeding for the probate of a will, the Court's area of inquiry is limited
to an examination of, and resolution on, 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 that issue.
Where the deceased
left no descendants, legitimate or illegitimate, but she left forced heirs in
the direct ascending line - her parents, and her holographic will does not
explicitly disinherit them but simply omits their names altogether, the case is
one of preterition of the parents, not a case of ineffective disinheritance.
Preterition
"consists in the omission in the testator's will of the forced heirs or
anyone of them, either because they are not mentioned therein, or, though
mentioned, they are neither instituted as heirs nor are expressly
disinherited." (Neri vs. Akutin, 72 Phil. 325). Disinheritance, in turn,
"is a testamentary disposition depriving any compulsory heirs of his share
in the legitimate for a cause authorized by law." (Justice J.B.L. Reyes
and R.C. Puno, "An Outline of Philippine Civil Law", 1956 ed., Vol.
III, p. 8, citing cases) Disinheritance is always "voluntary", preterition
upon the other hand, is presumed to be "involuntary" (Sanchez Roman,
Estudios de Derecho Civil 2nd edition, Volume 2.o p. 1131).
The
effects flowing from preterition are totally different from those of
disinheritance. Pretention under Article 854 of the New Civil Code shall annul
the institution of heir. This annulment is in toto, unless in the wail there
are, in addition, testamentary dispositions in the form of devises or legacies.
In ineffective disinheritance under Article 918 of the same Code, such
disinheritance shall also "annul the institution of heirs", but only
"insofar as it may prejudice the person disinherited", which last
phrase was omitted in the case of preterition (III Tolentino, Civil Code of the
Philippines, 1961 Edition, p. 172). Better stated yet, in disinheritance the
nullity is limited to that portion of the estate of which the disinherited
heirs have been illegally deprived.
Where the
one-sentence will institutes petitioner as the sole, universal heir and
preterits the parents of the testatrix, and it contains no specific legacies or
bequests, such universal institution of petitioner, by itself, is void. And intestate succession ensues.
Legacies and
devises merit consideration only when they are so expressly given as such in a
will. Nothing in Article 854 suggests that the mere institution
of a universal heir in a will — void because of preterition — would give the
heir so instituted a share in the inheritance. As to him, the will is
inexistent. There must be, in addition to such institution, a testamentary
disposition granting him bequests or legacies apart and separate from the
nullified institution of heir.
If every case of institution
of heirs may be made to fall into the concept of legacies and betterments
reducing the bequest accordingly, then the provisions of Articles 814 and 851
regarding total or partial nullity of the institution, would. be absolutely
meaningless and will never have any application at all. And the remaining
provisions contained in said article concerning the reduction of inofficious
legacies or betterments would be a surplusage
because they would be absorbed by Article 817 of the same Code.
11. Alvarado v. Gaviola, G.R. No. 74695, September
14, 1993 (226 SCRA 347)
Clear from the
foregoing is that Art. 808 applies not only to blind testators but also to
those who, for one reason or another, are "incapable of reading the(ir)
will(s)." Since Brigido Alvarado was incapable of reading the final drafts
of his will and codicil on the separate occasions of their execution due to his
"poor," "defective," or "blurred" vision, there
can be no other course for us but to conclude that Brigido Alvarado comes
within the scope of the term "blind" as it is used in Art. 808.
Unless the contents were read to him, he had no way of ascertaining whether or
not the lawyer who drafted the will and codicil did so confortably with his
instructions.
Article 808 requires
that in case of testators like Brigido Alvarado, the will shall be read twice;
once, by one of the instrumental witnesses and, again, by the notary public
before whom the will was acknowledged. The purpose is to make known to the
incapacitated testator the contents of the document before signing and to give
him an opportunity to object if anything is contrary to his instructions.
This Court has held
in a number of occasions that substantial compliance is acceptable where the
purpose of the law has been satisfied, the reason being that the solemnities
surrounding the execution of wills are intended to protect the testator from
all kinds of fraud and trickery but are never intended to be so rigid and
inflexible as to destroy the testamentary privilege.
The spirit behind the
law was served though the letter was not. Although there should be strict
compliance with the substantial requirements of the law in order to insure the
authenticity of the will, the formal imperfections should be brushed aside when
they do not affect its purpose and which, when taken into account, may only
defeat the testator's will.
12.
Pastor v. CA, G.R. No. L-56340, June 24, 1983 (122 SCRA 85)
In
a special proceeding for the probate of a will, the issue by and large is
restricted to the extrinsic validity of the will, i.e., whether the testator,
being of sound mind, freely executed the will in accordance with the
formalities prescribed by law. (Rules of Court, Rule 75, Section 1; Rule 76,
Section 9.) As a rule, the question of ownership is an extraneous matter which
the Probate Court cannot resolve with finality. Thus, for the purpose of
determining whether a certain property should or should not be included in the
inventory of estate properties, the Probate Court may pass upon the title
thereto, but such determination is provisional, not conclusive, and is subject
to the final decision in a separate action to resolve title.
The rule is that execution of a judgment must conform
to that decreed in the dispositive part of the decision. (Philippine-American
Insurance Co. vs. Honorable Flores, 97 SCRA 811.) However, in case of ambiguity
or uncertainty, the body of the decision may be scanned for guidance in
construing the judgment. (Heirs of Presto vs. Galang, 78 SCRA 534; Fabular vs.
Court of Appeals, 119 SCRA 329; Robles vs. Timario. 107 Phil. 809.)
Nowhere in the dispositive portion is there a
declaration of ownership of specific properties. On the contrary, it is
manifest therein that ownership was not resolved. For it confined itself to the
question of extrinsic validity of the will, and the need for and propriety of
appointing a special administrator. Thus it allowed and approved the
holographic win "with respect to its extrinsic validity, the same having
been duly authenticated pursuant to the requisites or solemnities prescribed by
law." It declared that the intestate estate administration aspect must
proceed " subject to the outcome of the suit for reconveyance of ownership
and possession of real and personal properties in Civil Case 274-T before
Branch IX of the CFI of Cebu." [Parenthetically, although the statement
refers only to the "intestate" aspect, it defies understanding how
ownership by the estate of some properties could be deemed finally resolved for purposes of testate administration,
but not so for intestate purposes. Can the estate be the owner of a property
for testate but not for intestate purposes?] Then again, the Probate Order
(while indeed it does not direct the implementation of the legacy)
conditionally stated that the intestate administration aspect must proceed
"unless . . . it is proven . . . that the legacy to be given and delivered
to the petitioner does not exceed the free portion of the estate of the
testator," which clearly implies that the issue of impairment of legitime
(an aspect of intrinsic validity) was in fact not resolved. Finally, the
Probate Order did not rule on the propriety of allowing QUEMADA to remain as
special administrator of estate properties not covered by the holographic will,
"considering that this (Probate) Order should have been properly issued
solely as a resolution on the issue of whether or not to allow and approve the
aforestated will. "
What, therefore, the Court of Appeals and, in effect,
the Supreme Court affirmed en toto when
they reviewed the Probable Order were only the matters properly adjudged in the
said Order.
It was, therefore, error for the assailed implementing
Orders to conclude that the Probate Order adjudged with finality the question
of ownership of the mining properties and royalties, and that, premised on this
conclusion, the dispositive portion of the said Probate Order directed the
special administrator to pay the legacy in dispute.
When PASTOR, SR. died in 1966, he was survived by his
wife, aside from his two legitimate children and one illegitimate son. There is
therefore a need to liquidate the conjugal partnership and set apart the share
of PASTOR, SR.'s wife in the conjugal partnership preparatory to the
administration and liquidation of the estate of PASTOR, SR. which will include,
among others, the determination of the extent of the statutory usufructuary
right of his wife until her death. * When
the disputed Probate order was issued on December 5, 1972, there had been no
liquidation of the community properties of PASTOR, SR. and his wife.
So, also, as of the same date, there had been no prior
definitive determination of the assets of the estate of PASTOR, SR. There was
an inventory of his properties presumably prepared by the special
administrator, but it does not appear that it was ever the subject of a hearing
or that it was judicially approved. The reconveyance or recovery of properties
allegedly owned but not in the name of PASTOR, SR. was still being litigated in
another court. There was no appropriate
determination, much less payment, of the debts of the decedent and his estate.
Under the circumstances of the case at bar, the
challenge must be rejected. Grave abuse of discretion amounting to lack of
jurisdiction is much too evident in the actuations of the probate court to be
overlooked or condoned.
Without a final, authoritative adjudication of the
issue as to what properties compose the estate of PASTOR, SR. in the face of
conflicting claims made by heirs and a non-heir (MA. ELENA ACHAVAL DE PASTOR)
involving properties not in the name of the decedent, and in the absence of a
resolution on the intrinsic validity of the will here in question, there was no
basis for the Probate Court to hold in its Probate Order of 1972, which it did
not, that private respondent is entitled to the payment of the questioned
legacy. Therefore, the Order of Execution of August 20, 1980 and the subsequent
implementing orders for the payment of QUEMADA's legacy, in alleged
implementation of the dispositive part of the Probate Order of December 5,
1972, must fall for lack of basis.
The ordered payment of legacy would be violative of
the rule requiring prior liquidation of the estate of the deceased, i.e., the
determination of the assets of the estate and payment of all debts and
expenses, before apportionment and distribution of the residue among the heirs
and legatees. (Bernardo vs. Court of Appeals, 7 SCRA 367.)
Neither has the estate tax been paid on the estate of
PASTOR, SR. Payment therefore of the legacy to QUEMADA would collide with the
provision of the National Internal Revenue Code requiring payment of estate tax
before delivery to any beneficiary of his distributive share of the estate
(Section 107 [c])
The above provision clearly authorizes execution to
enforce payment of debts of estate. A legacy is not a debt of the estate;
indeed, legatees are among those against whom execution is authorized to be
issued.
It is within a court's competence to order the
execution of a final judgment; but to order the execution of a final order
(which is not even meant to be executed) by reading into it terms that are not
there and in utter disregard of existing rules and law, is manifest grave abuse
of discretion tantamount to lack of jurisdiction. Consequently, the rule that
certiorari may not be invoked to defeat the right of a prevailing party to the
execution of a valid and final judgment, is inapplicable. For when an order of
execution is issued with grave abuse of discretion or is at variance with the
judgment sought to be enforced (PVTA vs. Honorable Gonzales, 92 SCRA 172), certiorari
will lie to abate the order of execution.
Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of
PASTOR, JR., is the holder in her own right of three mining claims which are
one of the objects of conflicting claims of ownership. She is not an heir of PASTOR,
SR. and was not a party to the probate proceedings. Therefore, she could not
appeal from the Order of execution issued by the Probate Court. On the other
hand, after the issuance of the execution order, the urgency of the relief she
and her co-petitioner husband seek in the petition for certiorari states
against requiring her to go through the cumbersome procedure of asking for
leave to intervene in the probate proceedings to enable her, if leave is
granted, to appeal from the challenged order of execution which has ordered the immediate transfer and/or garnishment of the royalties derived from mineral
properties of which she is the duly registered owner and/or grantee together
with her husband. She could not have intervened before the issuance of the
assailed orders because she had no valid ground to intervene. The matter of
ownership over the properties subject of the execution was then still being
litigated in another court in a reconveyance suit filed by the special
administrator of the estate of PASTOR, SR.
13.
Maninang v. CA, G.R. No. L-57848, June 19, 1982 (114 SCRA 473)
Generally, the probate of a Will is mandatory. The law enjoins the probate of the Will and
public policy requires it, because unless the Will is probated and notice
thereof given to the whole world, the right of a person to dispose of his
property by Will may be rendered nugatory.
Normally, the probate of a Will does not look into its
intrinsic validity.
The authentication of a will decides no other question
than such as touch upon the capacity of the testator and the compliance with
those requisites or solemnities which the law prescribes for the validity of
wills. It does not determine nor even by implication prejudge the validity or
efficiency (sic) of the provisions, these may be impugned as being vicious or
null, notwithstanding its authentication. The questions relating to these
points remain entirely unaffected, and may be raised even after the will has
been authenticated ....
Preterition "consists in the omission in the
testator's will of the forced heirs or anyone of them, either because they are
not mentioned therein, or, though mentioned, they are neither instituted as
heirs nor are expressly disinherited." (Neri vs. Akutin, 72 Phil. 325).
Disinheritance, in turn, "is a testamentary disposition depriving any
compulsory heirs of his share in the legitimate for a cause authorized by
law." (Justice J.B.L. Reyes and R.C. Puno, "An Outline of Philippine
Civil Law", 1956 ed., Vol. III, p. 8, citing cases) Disinheritance is
always "voluntary", preterition upon the other hand, is presumed to
be "involuntary" (Sanchez Roman, Estudios de Derecho Civil 2nd
edition, Volume 2.o p. 1131).
The effects flowing from preterition are totally
different from those of disinheritance. Pretention under Article 854 of the New
Civil Code shall annul the institution of heir. This annulment is in toto,
unless in the wail there are, in addition, testamentary dispositions in the
form of devises or legacies. In ineffective disinheritance under Article 918 of
the same Code, such disinheritance shall also "annul the institution of
heirs", but only "insofar as it may prejudice the person
disinherited", which last phrase was omitted in the case of preterition
(III Tolentino, Civil Code of the Philippines, 1961 Edition, p. 172). Better
stated yet, in disinheritance the nullity is limited to that portion of the
estate of which the disinherited heirs have been illegally deprived.
As held in the case of Vda. de Precilla vs. Narciso
... it is as
important a matter of public interest that a purported will is not denied
legalization on dubious grounds. Otherwise, the very institution of
testamentary succession will be shaken to its foundation, ...
Coming now to the procedural aspect, suffice it to
state that in view of our finding that respondent Judge had acted in excess of
his jurisdiction in dismissing the Testate Case, certiorari is a proper remedy.
An act done by a Probate Court in excess of its jurisdiction may be corrected
by Certiorari. And
even assuming the existence of the remedy of appeal, we harken to the rule that
in the broader interests of justice, a petition for certiorari may be
entertained, particularly where appeal would not afford speedy and adequate
relief.
14.
Coronado v. CA, G.R. No. 78778, December 3, 1990 (191 SCRA 894)
As found by the
respondent appellate court, Monterola never claimed ownership over the property
in question. As a matter of fact, one of the deeds of donation executed by
Monterola in favor of Leonida Coronado acknowledged that the boundary owner on
the property conveyed to her is JUANA. This is precisely the reason why during
the lifetime of the late Dalmacio Monterola, JUANA had always been allowed to
enter and reap the benefits or produce of the said property. It was only after
the death of said Monterola in 1970 that Leonida Coronado prohibited JUANA from
entering it.
Even assuming
arguendo that Monterola was indeed in continued possession of the said property
for over ten years since 1934, said possession is insufficient to constitute
the fundamental basis of the prescription. Possession, under the Civil Code, to
constitute the foundation of a prescriptive right, must be possession under
claim of title (en concepto de dueno), or to use the common law equivalent of
the term, it must be adverse. Acts of possessory character performed by one who
holds by mere tolerance of the owner are clearly not en concepto de dueno, and
such possessory acts, no matter how long so continued, do not start the running
of the period of prescription.
While it is true that no will
shall pass either real or personal property unless it is proved and allowed in
the proper court (Art. 838, Civil Code), the questioned will, however, may be
sustained on the basis of Article 1056 of the Civil Code of 1899, which was in
force at the time said document was executed by Melecio Artiaga in 1918. The
said article read as follows:
"Article 1056. If the
testator should make a partition of his properties by an act inter vivos, or by
will, such partition shall stand in so far as it does not prejudice the
legitime of the forced heir." (Mang-Oy v. Court of Appeals, 144 SCRA 33
[1986])
It does not determine nor even
by implication prejudge the validity or efficiency of the provisions of the will,
thus may be impugned as being vicious or null, notwithstanding its
authentication. The question relating to these points remain entirely
unaffected, and may be raised even after the will has been authenticated
(Maninang, et al., v. Court of Appeals, 114 SCRA 473 [1982]). Consequently,
JUANA is not estopped from questioning the ownership of the property in
question, notwithstanding her having objected to the probate of the will
executed by Monterola under which Leonida Coronado is claiming title to the said
property.
Moreover, the lower court
found sufficient evidence to support the conclusion that the property in
question is the same property adjudicated to JUANA under the will of Melecio
Artiaga, and that CORONADO has no right whatsoever to said property (Ibid., p.
20). Such findings are conclusive upon this Court (Reynolds Philippine
Corporation v. Court of Appeals, 169 SCRA 220 [1989]).
15.
Balanay v. Martinez, G.R. No. L-39247, June 27, 1975
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.
The
rule is that "the invalidity of one of several dispositions contained in a
will does not result in the invalidity of the other dispositions, unless it is
to be presumed that the testator would not have made such other dispositions if
the first invalid disposition had not been made"
The statement of the testatrix that she owned the
"southern half of the conjugal lands is contrary to law because, although
she was a coowner thereof, her share was inchoate and proindiviso (Art. 143, Civil Code; Madrigal and Paterno vs. Rafferty and Concepcion,
38 Phil. 414). But That illegal declaration does not nullify the entire will.
It may be disregarded.
The
provision of the will that the properties of the testatrix should not be
divided among her heirs during her husband's lifetime but should be kept intact
and that the legitimes should be paid in cash is contrary to article 1080 of
the Civil Code. The testatrix in her
will made a partition of the entire conjugal estate among her six children (her
husband had renounced his hereditary rights and his one-half conjugal share).
She did not assign the whole estate to one or more children as envisaged in
article 1080. Hence, she had no right to require that the legitimes be paid in
cash. On the other hand, her estate may remain undivided only for a period of
twenty years.
Felix Balanay, Sr. could validly renounce his
hereditary rights and his one-half share of the conjugal partnership (Arts.
179[1] and 1041, Civil Code) but insofar as said renunciation partakes of a
donation of his hereditary rights and his one-half share in the conjugal estate
(Art. 1060[1] Civil Code), it should be subject to the limitations prescribed
in articles 750 and 752 of the Civil Code. A portion of the estate should be
adjudicated to the widower for his support and maintenance. Or at least his
legitime should be respected.
It should be stressed that by reason of the surviving
husband's conformity to his wife's will and his renunciation of his hereditary
rights, his one-half conjugal share became a part of his deceased wife's
estate. His conformity had the effect of validating the partition made in
paragraph V of the will without prejudice, of course, to the rights of the
creditors and the legitimes of the compulsory heirs.
In the instant case, the preterited heir was the
surviving spouse. His preterition did not produce intestacy. Moreover, he
signified his conformity to his wife's will and renounced his hereditary
rights. .
Testacy
is favored. Doubts are resolved in favor of testacy especially where the will
evinces an intention on the part of the testator to dispose of practically his
whole estate. So compelling is the principle that intestacy should be avoided
and that the wishes of the testator should prevail that sometimes the language
of the will can be varied for the purpose of giving it effect.
A notice to creditors is not in order if only a
special administrator has been appointed. Section 1, Rule 86 of the Rules of
Court, in providing that "immediately after granting letters of
testamentary or of administration, the court shall issue a notice requiring all
persons having money claims against the decedent to file them in the office of
the clerk of said court" clearly contemplates the appointment of an
executor or regular administrator and not that of a special administrator.
The probate court's appointment of its branch clerk of
court as special administrator (p. 30, Rollo) is
not a salutary practice because it might engender the suspicion that the
probate Judge and his clerk of court are in cahoots in milking the decedent's
estate. Should the branch clerk of court commit any abuse or devastavit in the
course of his administration, the probate Judge might find it difficult to hold
him to a strict accountability. A court employee should devote his official
time to his official duties and should not have as a sideline the
administration of a decedent's estate.
16.
Ajero v. CA, G.R. No. 106720, September 15, 1994 (236 SCRA 488)
Section 9, Rule 76 of the Rules of Court provides the
cases in which wills shall be disallowed.
In the same vein, Article 839 of the New Civil Code enumerates the
grounds for disallowance of wills. These
lists are exclusive; no other grounds can serve to disallow a will. 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.
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, 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.
Thus, unless the unauthenticated alterations, cancellations or insertions were
made on the date of the holographic will or on testator's signature, their
presence does not invalidate the will itself. 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.
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.
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. 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.
17.
Acain v. IAC, G.R. No. 72706, October 27, 1987
Preterition consists in the omission in the testator's
will of the forced heirs or anyone of them either because they are not
mentioned therein, or, though mentioned, they are neither instituted as heirs
nor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang
v. Court of Appeals, 114 SCRA 478 [1982]). Insofar as the widow is concerned,
Article 854 of the Civil Code may not apply as she does not ascend or descend
from the testator, although she is a compulsory heir. Stated otherwise, even if
the surviving spouse is a compulsory heir, there is no preterition even if she
is omitted from the inheritance, for she is not in the direct line.
(Art. 854, Civil code) however, the same thing cannot be said of the other
respondent Virginia A. Fernandez, whose legal adoption by the testator has not
been questioned by petitioner (.Memorandum for the Petitioner, pp. 8-9). Under
Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption
gives to the adopted person the same rights and duties as if he were a
legitimate child of the adopter and makes the adopted person a legal heir of
the adopter. It cannot be denied that she has totally omitted and preterited in
the will of the testator and that both adopted child and the widow were
deprived of at least their legitime. Neither can it be denied that they were
not expressly disinherited. Hence, this is a clear case of preterition of the
legally adopted child.
Pretention annuls the institution of an heir and
annulment throws open to intestate succession the entire inheritance including
"la porcion libre (que) no hubiese dispuesto en virtual de legado
mejora o donacion" Maniesa as cited in Nuguid v. Nuguid, supra;
Maninang v. Court of Appeals, 114 SCRA [1982]). The only provisions which do
not result in intestacy are the legacies and devises made in the will for they
should stand valid and respected, except insofar as the legitimes are
concerned.
The universal institution of petitioner together with
his brothers and sisters to the entire inheritance of the testator results in
totally abrogating the will because the nullification of such institution of
universal heirs-without any other testamentary disposition in the will-amounts
to a declaration that nothing at all was written. Carefully worded and in clear
terms, Article 854 of the Civil Code offers no leeway for inferential
interpretation (Nuguid v. Nuguid), supra. No legacies nor devises having been
provided in the will the whole property of the deceased has been left by
universal title to petitioner and his brothers and sisters. The effect of
annulling the "Institution of heirs will be, necessarily, the opening of a
total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper
legacies and devises must, as already stated above, be respected.
We now deal with another matter. In order that a
person may be allowed to intervene in a probate proceeding he must have an
interest iii the estate, or in the will, or in the property to be affected by
it either as executor or as a claimant of the estate and an interested party is
one who would be benefited by the estate such as an heir or one who has a claim
against the estate like a creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967).
Petitioner is not the appointed executor, neither a devisee or a legatee there
being no mention in the testamentary disposition of any gift of an individual
item of personal or real property he is called upon to receive (Article 782,
Civil Code). At the outset, he appears to have an interest in the will as an
heir, defined under Article 782 of the Civil Code as a person called to the
succession either by the provision of a will or by operation of law. However,
intestacy having resulted from the preterition of respondent adopted child and
the universal institution of heirs, petitioner is in effect not an heir of the
testator. He has no legal standing to petition for the probate of the will left
by the deceased and Special Proceedings No. 591 A-CEB must be dismissed.
Special Proceedings No. 591 ACEB is for the probate of
a will. As stated by respondent Court, the general rule is that the probate
court's authority is limited only to the extrinsic validity of the will, the
due execution thereof, the testator'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. Said court at this stage of the proceedings is not
called upon to rule on the intrinsic validity or efficacy of the provisions of
the will (Nuguid v. Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra;
Maninang v. Court of Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonides, 129
SCRA 522 [1984]; and Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]).
The
rule, however, 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 (Nepomuceno v. Court of Appeals, supra). In
Nuguid v. Nuguid the oppositors to the probate moved to dismiss on the ground
of absolute preteriton The probate court acting on the motion held that the
will in question was a complete nullity and dismissed the petition without
costs. On appeal the Supreme Court upheld the decision of the probate court,
induced by practical considerations.
For private respondents to have tolerated the probate
of the will and allowed the case to progress when on its face the will appears
to be intrinsically void as petitioner and his brothers and sisters were
instituted as universal heirs coupled with the obvious fact that one of the
private respondents had been preterited would have been an exercise in
futility. It would have meant a waste of time, effort, expense, plus added futility.
The trial court could have denied its probate outright or could have passed
upon the intrinsic validity of the testamentary provisions before the extrinsic
validity of the will was resolved (Cayetano v. Leonides, supra;
Nuquid v. Nuguid, supra. The remedies of certiorari and prohibition were
properly availed of by private respondents.
As a general rule certiorari cannot be a substitute
for appeal, except when the questioned order is an oppressive exercise of j
judicial authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito
v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA
308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic
that the remedies of certiorari and prohibition are not available where the
petitioner has the remedy of appeal or some other plain, speedy and adequate
remedy in the course of law (DD Comendador Construction Corporation v. Sayo
(118 SCRA 590 [1982]). They are, however, proper remedies to correct a grave
abuse of discretion of the trial court in not dismissing a case where the
dismissal is founded on valid grounds (Vda. de Bacang v. Court of Appeals, 125
SCRA 137 [1983]).
Thus,
this Court ruled that where the grounds for dismissal are indubitable, the
defendants had the right to resort to the more speedy, and adequate remedies of
certiorari and prohibition to correct a grave abuse of discretion, amounting to
lack of jurisdiction, committed by the trial court in not dismissing the case,
(Vda. de Bacang v. Court of Appeals, supra) and
even assuming the existence of the remedy of appeal, the Court harkens to the
rule that in the broader interests of justice, a petition for certiorari may be
entertained, particularly where appeal would not afford speedy and adequate
relief.
18.
Vda. de Bacang v. CA, G.R.
No. L-50143, October 24, 1983
We hold that the appeal is palpably bereft of merit.
Petitioners' 1975 action is clearly barred by valid prior judgments and
prescription (See Ramos vs. Ramos, L-19872, December 3, 1974, 61 SCRA 284;
Gallanosa vs. Arcangel, L-29300, June 21, 1978, 83 SCRA 676; Sinco vs. Longa 51
Phil. 507). Private respondents' Torrens titles over the hacienda have long
become indefeasible. Since the grounds for dismissal are indubitable, the
defendants had the right to resort to the more speedy and adequate remedies of
certiorari and prohibition to correct a grave abuse of discretion, amounting to
lack of jurisdiction, committed by the trial court in not dismissing the case.
19.
Manahan v. Manahan, G.R. No. 38050, September 22, 1933 (58 Phil 448)
The appellant was not entitled
to notification of the probate of the will and neither had she the right to
expect it, inasmuch as she was not an interested party, not having filed an
opposition to the petition for the probate thereof. Her allegation that she had
the status of an heir, being the deceased's sister, did not confer on her the
right to be notified on the ground that the testatrix died leaving a will in
which the appellant has not been instituted heir. Furthermore, not being a
forced heir, she did not acquire any successional right.
In the phraseology of the
procedural law, there is no essential difference between the authentication of
a will and the probate thereof. The words authentication and probate are
synonymous in this case. All the law requires is that the competent court
declared that in the execution of the will the essential external formalities
have been complied with and that, in view thereof, the document, as a will, is
valid and effective in the eyes of the law.
The decree admitting a will to
probate is conclusive with respect to the due execution thereof and it cannot
be impugned on any of the grounds authorized by law, except that of a fraud, in
any separate or independent action or proceeding.
The proceedings followed in a
testamentary case being in rem, the decree admitting the will to
probate was effective and conclusive against her, in accordance with the
provisions of section 306 of the said Code of Civil Procedure.
The appellant could not appeal
from the trial court’s order denying the motion for reconsideration and a new
trial in view of the fact that said order was interlocutory in character.
After the probate court rendered its decision on 13 November 1972, and there
having been no claim presented despite publication of notice to creditors,
petitioner Fran submitted a Project of Partition which private respondent Maria
M. Vda. de Gandiongco voluntarily signed and to which private respondent Espina
expressed her conformity through a certification filed with the probate court.
Assuming for the sake of argument that private respondents did not receive a
formal notice of the decision as they claim in their Omnibus Motion for
Reconsideration, these acts nevertheless constitute indubitable proof of their
prior actual knowledge of the same. A formal notice would have been an idle
ceremony. In testate proceedings, a decision logically precedes the project of
partition, which is normally an implementation of the will and is among the
last operative acts to terminate the proceedings. If private respondents did
not have actual knowledge of the decision, they should have desisted from
performing the above acts and instead demanded from petitioner Fran the
fulfillment of his alleged promise to show them the will. The same conclusion
refutes and defeats the plea that they were not notified of the order
authorizing the Clerk of Court to receive the evidence and that the Clerk of
Court did not notify them of the date of the reception of evidence. Besides,
such plea must fail because private respondents were present when the court
dictated the said order.
Lim Tanhu then cannot be used as authority to
nullify the order of the probate court authorizing the Clerk of Court to
receive the evidence for the rule is settled that "when a doctrine of this
Court is overruled and a different view is adopted, the new doctrine should be
applied prospectively, and should not apply to parties who had relied on the
old doctrine and acted on the faith thereof." 37 It
may also be emphasized in this connection that Lim Tanhu did
not live long; it was subsequently overruled in Gochangco vs. Court of
First Instance of Negros Occidental, 38 wherein
this Court, en banc, through Justice, now Chief Justice, Andres R.
Narvasa, in reference to what the trial court termed as "the doctrinal
rule laid down in the recent case of Lim Tan Hu (sic) vs.
Ramolete," ruled:
Now, that declaration does not reflect long observed and established
judicial practice with respect to default cases. It is not quite consistent,
too, with the several explicitly authorized instances under the Rules where the
function of receiving evidence and even of making recommendatory findings of
facts on the basis thereof may be delegated to commissioners, inclusive of the
Clerk of Court. These instances are set out in Rule 33, . . . ; Rule 67 and 69,
. . . ; Rule 86, . . . ; Rule 136, . . . . In all these instances, the
competence of the clerk of court is assumed.
The alternative
claim that the proceedings before the Clerk of Court were likewise void because
said official did not take an oath is likewise untenable. The Clerk of Court
acted as such when he performed the delegated task of receiving evidence. It was
not necessary for him to take an oath for that purpose; he was bound by his
oath of office as a Clerk of Court. Private respondents are obviously of the
impression that by the delegation of the reception of evidence to the Clerk of
Court, the latter became a commissioner as defined under Rule
33 of the Rules of Court entitled Trial by Commissioner.
In Santos
vs. Castillo 39 and Salazar vs. Court
of First Instance of Laguna, 40 decided six (6)
months apart in 1937, this Court already ruled that it is not necessary that
the original of the will be attached to the petition. In the first, it ruled:
"The original of said document [the will] must be presented or
sufficient reasons given to justify the nonpresentation of said original and
the acceptance of the copy or duplicate thereof."
It is not likewise
disputed that the original of the will was submitted in evidence and marked as
Exhibit "F". It forms part of the records of the special proceedings
— a fact which private respondents admit in their Omnibus Motion for
Reconsideration.
Granting for the sake of argument that the non-fulfillment of said promise
constitutes fraud, such fraud is not of the kind which provides sufficient
justification for a motion for reconsideration or a petition for relief from judgment
under Rule 37 and Rule 38, respectively, of the Rules of Court, or even a
separate action for annulment of judgment. It is settled that for fraud to be
invested with, sufficiency, it must be extrinsic or collateral to the matters
involved in the issues raised during the trial which resulted in such
judgment. 48
In Our jurisdiction, the following courses of action are open to an
aggrieved party to set aside or attack the validity of a final judgment:
(1) Petition for relief under
Rule 38 of the Rules of Court which must be filed within sixty (60) days after
learning of the decision, but not more than six (6) months after such decision
is entered;
(2) By direct action, via a
special civil action for certiorari, or by collateral attack,
assuming that the decision is void for want of jurisdiction;
(3) By an independent civil
action under Article 1114 of the Civil Code, assuming that the decision was
obtained through fraud and Rule 38 can not be applied. 49
The probate judgment of 13 November 1972, long final and undisturbed by any
attempt to unsettle it, had inevitably passed beyond the reach of the court
below to annul or set the same aside, by mere motion, on the ground that the
will is a forgery. Settled is the rule that the decree of probate is conclusive
with respect to the due execution of the will and it cannot be impugned on any
of the grounds authorized by law, except that of fraud, in any separate or
independent action or proceeding. 50We wish also to
advert to the related doctrine which holds that final judgments are entitled to
respect and should not be disturbed; otherwise, there would be a wavering of
trust in the courts. 51
The non-distribution of the estate, which is vigorously denied by the
petitioners, is not a ground for the re-opening of the testate proceedings. A
seasonable motion for execution should have been filed. In De Jesus
vs.Daza, 57 this Court ruled that if the
executor or administrator has possession of the share to be delivered, the
probate court would have jurisdiction within the same estate proceeding to
order him to transfer that possession to the person entitled thereto. This is
authorized under Section 1, Rule 90 of the Rules of Court. However, if no
motion for execution is filed within the reglementary period, a separate action
for the recovery of the shares would be in order.
RULE 76. ALLOWANCE OR
DISALLOWANCE OF WILL
CASES:
21.
Leviste v. CA, G.R. No. L-29184, January 30, 1989 (169 SCRA 580)
The argument is devoid of merit. Article 1052 of the
Civil Code does not apply to this case. That legal provision protects the
creditor of a repudiating heir. Petitioner is not a creditor of Rosa del
Rosario. The payment of his fees is contingent and dependent upon the
successful probate of the holographic will. Since the petition for probate was
dismissed by the lower court, the contingency did not occur. Attorney Leviste
is not entitled to his fee.
Furthermore, Article 1052 presupposes that the obligor
is an heir. Rosa del Rosario is not a legal heir of the late Maxima C. Reselva.
Upon the dismissal of her petition for probate of the decedent's will, she lost
her right to inherit any part of the latter's estate. There is nothing for the
petitioner to accept in her name.
This Court had ruled in the case of Recto vs. Harden, 100 Phil. 1427, that "the contract (for
contingent attorney's fees) neither gives, nor purports to give, to the
appellee (lawyer) any right whatsoever, personal or real, in and to her (Mrs.
Harden's) aforesaid share in the conjugal partnership. The amount thereof is
simply a basis for the computation of said fees."
The Court of Appeals did not err in dismissing the
petition for mandamus, for while it is true that, as contended by the
petitioner, public policy favors the probate of a will, it does not necessarily
follow that every will that is presented for probate, should be allowed. The
law lays down procedures which should be observed and requisites that should be
satisfied before a will may be probated. Those procedures and requirements were
not followed in this case resulting in the disallowance of the will. There
being no valid will, the motion to withdraw the probate petition was
inconsequential.
Petitioner
was not a party to the probate proceeding in the lower court. He had no direct
interest in the probate of the will. His only interest in the estate is an
indirect interest as former counsel for a prospective heir. In Paras vs. Narciso, 35 Phil. 244, We had occassion to rule that one who is
only indirectly interested in a will may not interfere in its probate.
22.
Rodriguez v. Borja, G.R. No. L-21993, June 21, 1966 (17 SCRA 418)
The jurisdiction of a probate
court became vested upon the delivery thereto of the will, even if no petition
for its allowance was filed until later, because upon the will being deposited
the court could, motu proprio, have taken steps to fix the time and
place for proving the will, and issued the corresponding notices conformably to
what is prescribed by section 3, Rule 76, of the Revised Rules of Court (Section
3, Rule 77, of the old Rules). The use
of the disjunctive in the words "when a will is delivered to OR a petition
for the allowance of a will is filed" plainly indicates that the court may
act upon the mere deposit therein of a decedent's testament, even if no
petition for its allowance is as yet filed. Where the petition for probate is
made after the deposit of the will, the petition is deemed to relate back to
the time when the will was delivered.
The power to settle decedents'
estates is conferred by law upon all courts of first instance, and the domicile
of the testator only affects the venue but not the jurisdiction of the Court (In
re Kaw Singco, 74 Phil. 239; Reyes vs. Diaz, 73 Phil. 484; Bernabe vs.
Vergara, 73 Phil. 676).
Where the estate
proceedings were initiated in the Bulacan Court of First Instance ahead of any
other, that court is entitled to assume jurisdiction to the exclusion of all
other courts, even if it were a case of wrong venue. (Sec.1, Rule 73, Revised
Rules of Court)
Intestate succession is only
subsidiary or subordinate to the testate, since intestacy only takes place in
the absence of a valid operative will. Only
after final decision as to the nullity of testate succession could an intestate
succession be instituted. The
institution of intestacy proceedings in Rizal may not thus proceed while the
probate of the purported will of Father Rodriguez is pending.
23.
Maravilla v. Maravilla, G.R.
No. L-23225, February 27, 1971 (37 SCRA 672)
The variation in
the expressions used by the witness is the best evidence that he was being
candid and careful, and it is a clear badge of truthfulness rather than the
reverse.
A will may be
allowed even if some witnesses not remember having attested it, if other
evidence satisfactorily show due execution (V. Act 190, Section 632), and that
failure of witness to identify his signature does not bar probate.
It should be remembered, in this connection, that the test is not whether a witness did see the signing of the will but whether he was in a position to see if he chose to do so.
It should be remembered, in this connection, that the test is not whether a witness did see the signing of the will but whether he was in a position to see if he chose to do so.
In weighing the
testimony of the attesting witnesses to a will, the statements of a competent
attorney, who has been charged with the responsibility of seeing to the proper
execution of the instrument, is entitled to greater weight than the testimony of
a person casually called to participate in the act, supposing of course that no
motive is revealed that should induce the attorney to prevaricate. The reason
is that the mind of the attorney, being conversant with the requisites of
proper execution of the instrument, is more likely to become fixed on details,
and he is more likely than other persons to retain those incidents in his
memory.
To be of sound
mind, it is not necessary that the testator be in full possession of all his
reasoning faculties or that his mind be wholly unbroken, unimpaired or
unshattered by disease, injury or other cause.
24.
Labrador v. CA, G.R. Nos. 83843-44, April 5, 1990 (184 SCRA 170)
The will has been dated in the hand of the testator
himself in perfect compliance with Article 810. It is worthy of note to quote
the first paragraph of the second page of the holographic will, viz:
And this is
the day in which we agreed that we are making the partitioning and assigning
the respective assignment of the said fishpond, and this being in the month of March, 17th day, in the year 1968, and this decision and or instruction of mine is the
matter to be followed. And the one who made this writing is no other than
MELECIO LABRADOR, their father. (emphasis supplied) (p. 46,Rollo)
The law does not specify a particular location where
the date should be placed in the will. The only requirements are that the date
be in the will itself and executed in the hand of the testator. These
requirements are present in the subject will.
Respondents are in error. The intention to show 17 March 1968 as the date of the execution of the will is plain from the tenor of the
succeeding words of the paragraph. As aptly put by petitioner, the will was not
an agreement but a unilateral act of Melecio Labrador who plainly knew that
what he was executing was a will. The act of partitioning and the declaration
that such partitioning as the testator's instruction or decision to be followed
reveal that Melecio Labrador was fully aware of the nature of the estate
property to be disposed of and of the character of the testamentary act as a
means to control the disposition of his estate.
25.
De Jesus v. De Jesus, G.R. No. L-38338, January 28, 1985 (134 SCRA 245)
This will not be the first time that this Court
departs from a strict and literal application of the statutory requirements
regarding the due execution of Wills. We should not overlook the liberal trend
of the Civil Code in the manner of execution of Wills, the purpose of which, in
case of doubt is to prevent intestacy.
Thus, the prevailing policy is to require satisfaction
of the legal requirements in order to guard against fraud and bad faith but
without undue or unnecessary curtailment of testamentary privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in substantial compliance
with the formalities of the law, and the possibility of bad faith and fraud in
the exercise thereof is obviated, said Win should be admitted to probate (Rey
v. Cartagena 56 Phil. 282).
The purpose of the solemnities surrounding the
execution of Wills has been expounded by this Court in Abangan v. Abanga 40 Phil. 476, where we ruled 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. ...
We
have carefully reviewed the records of this case and found no evidence of bad
faith and fraud in its execution nor was there any substitution of Wins and
Testaments. There is no question that the holographic Will of the deceased
Bibiana Roxas de Jesus was entirely written, dated, and signed by the testatrix
herself and in a language known to her. There is also no question as to its
genuineness and due execution. All the children of the testatrix agree on the
genuineness of the holographic Will of their mother and that she had the
testamentary capacity at the time of the execution of said Will.
As a general rule, the "date" in a
holographic Will should include the day, month, and year of its execution.
However, when as in the case at bar, there is no appearance of fraud, bad
faith, undue influence and pressure and the authenticity of the Will is
established and the only issue is whether or not the date "FEB./61"
appearing on the holographic Will is a valid compliance with Article 810 of the
Civil Code, probate of the holographic Will should be allowed under the principle
of substantial compliance.
26.
Ajero v. Court of Appeals, G.R. No. 106720, September 15, 1994 (236 SCRA 488)
Section 9, Rule 76 of the Rules of Court provides the
cases in which wills shall be disallowed.
In the same vein, Article 839 of the New Civil Code enumerates the
grounds for disallowance of wills. These
lists are exclusive; no other grounds can serve to disallow a will. 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.
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.
Thus, unless the unauthenticated alterations, cancellations or insertions were
made on the date of the holographic will or on testator's signature, their
presence does not invalidate the will itself. 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.
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.
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. 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.
27.
Kalaw v. Relova, G.R. No. L-40207 September 28, 1984 (132 SCRA 237)
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."
However, when as in this case, the holographic Will in
dispute had only one substantial provision, which was altered by substituting
the original heir with another, but which alteration did not carry the
requisite of full authentication by the full signature of the testator, the
effect must be that the entire Will is voided or revoked for the simple reason
that nothing remains in the Will after that 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,
The
ruling in Velasco, supra, must be held confined to such insertions,
cancellations, erasures or alterations in a holographic Will, which affect only
the efficacy of the altered words themselves but not the essence and validity
of the Will itself. As it is, with the erasures, cancellations and alterations
made by the testatrix herein, her real intention cannot be determined with
certitude.
28.
Vda. de Perez v. Tolete, G.R. No. 76714, June 2, 1994.
The respective wills of the Cunanan spouses, who were
American citizens, will only be effective in this country upon compliance with
the following provision of the Civil Code of the Philippines:
Art. 816. The
will of an alien who is abroad produces effect in the Philippines if made with
the formalities prescribed by the law of the place in which he resides, or
according to the formalities observed in his country, or in conformity with
those which this Code prescribes.
Thus, proof that both wills conform with the
formalities prescribed by New York laws or by Philippine laws is imperative.
The evidence necessary for the reprobate or allowance
of wills which have been probated outside of the Philippines are as follows:
(1) the due execution of the will in accordance with the foreign laws; (2) the
testator has his domicile in the foreign country and not in the Philippines;
(3) the will has been admitted to probate in such country; (4) the fact that
the foreign tribunal is a probate court, and (5) the laws of a foreign country
on procedure and allowance of wills (III Moran Commentaries on the Rules of
Court, 1970 ed., pp. 419-429; Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v.
Hix, 54 Phil. 610 [1930]).
The necessity of presenting evidence on the foreign
laws upon which the probate in the foreign country is based is impelled by the
fact that our courts cannot take judicial notice of them (Philippine Commercial
and Industrial Bank v. Escolin, 56 SCRA 266 [1974]).
Petitioner must have perceived this omission as in
fact she moved for more time to submit the pertinent procedural and substantive
New York laws but which request respondent Judge just glossed over. While the
probate of a will is a special proceeding wherein courts should relax the rules
on evidence, the goal is to receive the best evidence of which the matter is
susceptible before a purported will is probated or denied probate (Vda. de
Ramos v. Court of Appeals, 81 SCRA 393 [1978]).
There is merit in petitioner’s insistence that the
separate wills of the Cunanan spouses should be probated jointly. Respondent
Judge’s view that the Rules on allowance of wills is couched in singular terms
and therefore should be interpreted to mean that there should be separate
probate proceedings for the wills of the Cunanan spouses is too literal and
simplistic an approach. Such view overlooks the provisions of Section 2, Rule 1
of the Revised Rules of Court, which advise that the rules shall be
"liberally construed in order to promote their object and to assist the
parties in obtaining just, speedy, and inexpensive determination of every
action and proceeding."
A literal application of the Rules should be avoided
if they would only result in the delay in the administration of justice (Acain
v. Intermediate Appellate Court, 155 SCRA 100 [1987]; Roberts v. Leonidas, 129
SCRA 33 [1984]).
What the law expressly prohibits is the making of
joint wills either for the testator’s reciprocal benefit or for the benefit of
a third person (Civil Code of the Philippines, Article 818). In the case at
bench, the Cunanan spouses executed separate wills. Since the two wills contain
essentially the same provisions and pertain to property which in all
probability are conjugal in nature, practical considerations dictate their
joint probate. As this Court has held a number of times, it will always strive
to settle the entire controversy in a single proceeding leaving no root or
branch to bear the seeds of future litigation (Motoomull v. Dela Paz, 187 SCRA
743 [1990]).
The rule that the court having jurisdiction over the
reprobate of a will shall "cause notice thereof to be given as in case of
an original will presented for allowance" (Revised Rules of Court, Rule
27, Section 2) means that with regard to notices, the will probated abroad
should be treated as if it were an "original will" or a will that is
presented for probate for the first time. Accordingly, compliance with Sections
3 and 4 of Rule 76, which require publication and notice by mail or personally
to the "known heirs, legatees, and devisees of the testator resident in
the Philippines" and to the executor, if he is not the petitioner, are
required.
This petition cannot be completely resolved without
touching on a very glaring fact — petitioner has always considered herself the
sole heir of
Dr. Evelyn Perez Cunanan and because she does not consider herself an heir of Dr. Jose F. Cunanan, she noticeably failed to notify his heirs of the filing of the proceedings. Thus, even in the instant petition, she only impleaded respondent Judge, forgetting that a judge whose order is being assailed is merely a nominal or formal party (Calderon v. Solicitor General, 215 SCRA 876 [1992]).
Dr. Evelyn Perez Cunanan and because she does not consider herself an heir of Dr. Jose F. Cunanan, she noticeably failed to notify his heirs of the filing of the proceedings. Thus, even in the instant petition, she only impleaded respondent Judge, forgetting that a judge whose order is being assailed is merely a nominal or formal party (Calderon v. Solicitor General, 215 SCRA 876 [1992]).
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