G.R. No.

174975

January 20, 2009

LUISA KHO MONTAER, ALEJANDRO MONTAER, JR., LILLIBETH MONTAERBARRIOS, AND RHODORA ELEANOR MONTAER-DALUPAN, Petitioners, vs. SHARI'A DISTRICT COURT, FOURTH SHARI'A JUDICIAL DISTRICT, MARAWI CITY, LILING DISANGCOPAN, AND ALMAHLEEN LILING S. MONTAER, Respondents. DECISION PUNO, C.J.: This Petition for Certiorari and Prohpibition seeks to set aside the Orders of the Sharia District Court, Fourth Sharia Judicial District, Marawi City, dated August 22, 20061 and September 21, 2006.2 On August 17, 1956, petitioner Luisa Kho Montaer, a Roman Catholic, married Alejandro Montaer, Sr. at the Immaculate Conception Parish in Cubao, Quezon City.3 Petitioners Alejandro Montaer, Jr., Lillibeth Montaer-Barrios, and Rhodora Eleanor Montaer-Dalupan are their children.4 On May 26, 1995, Alejandro Montaer, Sr. died.5 On August 19, 2005, private respondents Liling Disangcopan and her daughter, Almahleen Liling S. Montaer, both Muslims, filed a "Complaint" for the judicial partition of properties before the Sharia District Court.6 The said complaint was entitled "Almahleen Liling S. Montaer and Liling M. Disangcopan v. the Estates and Properties of Late Alejandro Montaer, Sr., Luisa Kho Montaer, Lillibeth K. Montaer, Alejandro Kho Montaer, Jr., and Rhodora Eleanor K. Montaer," and docketed as "Special Civil Action No. 7-05."7 In the said complaint, private respondents made the following allegations: (1) in May 1995, Alejandro Montaer, Sr. died; (2) the late Alejandro Montaer, Sr. is a Muslim; (3) petitioners are the first family of the decedent; (4) Liling Disangcopan is the widow of the decedent; (5) Almahleen Liling S. Montaer is the daughter of the decedent; and (6) the estimated value of and a list of the properties comprising the estate of the decedent.8 Private respondents prayed for the Sharia District Court to order, among others, the following: (1) the partition of the estate of the decedent; and (2) the appointment of an administrator for the estate of the decedent.9 Petitioners filed an Answer with a Motion to Dismiss mainly on the following grounds: (1) the Sharia District Court has no jurisdiction over the estate of the late Alejandro Montaer, Sr., because he was a Roman Catholic; (2) private respondents failed to pay the correct amount of docket fees; and (3) private respondents complaint is barred by prescription, as it seeks to establish filiation between Almahleen Liling S. Montaer and the decedent, pursuant to Article 175 of the Family Code.10 On November 22, 2005, the Sharia District Court dismissed the private respondents complaint. The district court held that Alejandro Montaer, Sr. was not a Muslim, and its jurisdiction extends only to the settlement and distribution of the estate of deceased Muslims.11 On December 12, 2005, private respondents filed a Motion for Reconsideration.12 On December 28, 2005, petitioners filed an Opposition to the Motion for Reconsideration, alleging that the motion for reconsideration lacked a notice of hearing.13 On January 17, 2006, the Sharia District Court denied petitioners opposition.14Despite finding that the said motion for reconsideration "lacked notice of hearing," the district court held that such defect was cured as petitioners "were notified of the existence of the pleading," and it took cognizance of the said motion.15 The Sharia District Court also reset the hearing for the motion for reconsideration.16

In its first assailed order dated August 22, 2006, the Sharia District Court reconsidered its order of dismissal dated November 22, 2005.17 The district court allowed private respondents to adduce further evidence.18 In its second assailed order dated September 21, 2006, the Sharia District Court ordered the continuation of trial, trial on the merits, adducement of further evidence, and pre-trial conference.19 Seeking recourse before this Court, petitioners raise the following issues: I. RESPONDENT SHARIA DISTRICT COURT MARAWI CITY LACKS JURISDICTION OVER PETITIONERS WHO ARE ROMAN CATHOLICS AND NON-MUSLIMS. II. RESPONDENT SHARIA DISTRICT COURT MARAWI CITY DID NOT ACQUIRE JURISDICTION OVER "THE ESTATES AND PROPERTIES OF THE LATE ALEJANDRO MONTAER, SR." WHICH IS NOT A NATURAL OR JURIDICAL PERSON WITH CAPACITY TO BE SUED. III. RESPONDENT SHARIA DISTRICT COURT DID NOT ACQUIRE JURISDICTION OVER THE COMPLAINT OF PRIVATE RESPONDENTS AGAINST PETITIONERS DUE TO NON-PAYMENT OF THE FILING AND DOCKETING FEES. IV. RESPONDENT SHARIA DISTRICT COURTMARAWI CITY COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT DENIED THE OPPOSITION OF PETITIONERS AND THEN GRANTED THE MOTION FOR RECONSIDERATION OF RESPONDENTS LILING DISANGCOPAN, ET AL. WHICH WAS FATALLY DEFECTIVE FOR LACK OF A "NOTICE OF HEARING." V. RESPONDENT SHARIA DISTRICT COURTMARAWI CITY COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT SET SPL. CIVIL ACTION 7-05 FOR TRIAL EVEN IF THE COMPLAINT PLAINLY REVEALS THAT RESPONDENT ALMAHLEEN LILING S. MONTAER SEEKS RECOGNITION FROM ALEJANDRO MONTAER, SR. WHICH CAUSE OF ACTION PRESCRIBED UPON THE DEATH OF ALEJANDRO MONTAER, SR. ON MAY 26, 1995. In their Comment to the Petition for Certiorari, private respondents stress that the Sharia District Court must be given the opportunity to hear and decide the question of whether the decedent is a Muslim in order to determine whether it has jurisdiction.20 Jurisdiction: Settlement of the Estate of Deceased Muslims Petitioners first argument, regarding the Sharia District Courts jurisdiction, is dependent on a question of fact, whether the late Alejandro Montaer, Sr. is a Muslim. Inherent in this argument is the premise that there has already been a determination resolving such a question of fact. It bears emphasis, however, that the assailed orders did not determine whether the decedent is a Muslim. The assailed orders did, however, set a hearing for the purpose of resolving this issue.

Article 143(b) of Presidential Decree No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines, provides that the Sharia District Courts have exclusive original jurisdiction over the settlement of the estate of deceased Muslims: ARTICLE 143. Original jurisdiction. (1) The Shari'a District Court shall have exclusive original jurisdiction over: xxxx (b) All cases involving disposition, distribution and settlement of the estate of deceased Muslims, probate of wills, issuance of letters of administration or appointment of administrators or executors regardless of the nature or the aggregate value of the property. The determination of the nature of an action or proceeding is controlled by the averments and character of the relief sought in the complaint or petition.21 The designation given by parties to their own pleadings does not necessarily bind the courts to treat it according to the said designation. Rather than rely on "a falsa descriptio or defective caption," courts are "guided by the substantive averments of the pleadings."22 Although private respondents designated the pleading filed before the Sharia District Court as a "Complaint" for judicial partition of properties, it is a petition for the issuance of letters of administration, settlement, and distribution of the estate of the decedent. It contains sufficient jurisdictional facts required for the settlement of the estate of a deceased Muslim,23 such as the fact of Alejandro Montaer, Sr.s death as well as the allegation that he is a Muslim. The said petition also contains an enumeration of the names of his legal heirs, so far as known to the private respondents, and a probable list of the properties left by the decedent, which are the very properties sought to be settled before a probate court. Furthermore, the reliefs prayed for reveal that it is the intention of the private respondents to seek judicial settlement of the estate of the decedent.24 These include the following: (1) the prayer for the partition of the estate of the decedent; and (2) the prayer for the appointment of an administrator of the said estate. We cannot agree with the contention of the petitioners that the district court does not have jurisdiction over the case because of an allegation in their answer with a motion to dismiss that Montaer, Sr. is not a Muslim. Jurisdiction of a court over the nature of the action and its subject matter does not depend upon the defenses set forth in an answer25 or a motion to dismiss.26 Otherwise, jurisdiction would depend almost entirely on the defendant27 or result in having "a case either thrown out of court or its proceedings unduly delayed by simple stratagem.28 Indeed, the "defense of lack of jurisdiction which is dependent on a question of fact does not render the court to lose or be deprived of its jurisdiction."29 The same rationale applies to an answer with a motion to dismiss.30 In the case at bar, the Sharia District Court is not deprived of jurisdiction simply because petitioners raised as a defense the allegation that the deceased is not a Muslim. The Sharia District Court has the authority to hear and receive evidence to determine whether it has jurisdiction, which requires an a priori determination that the deceased is a Muslim. If after hearing, the Sharia District Court determines that the deceased was not in fact a Muslim, the district court should dismiss the case for lack of jurisdiction. Special Proceedings The underlying assumption in petitioners second argument, that the proceeding before the Sharia District Court is an ordinary civil action against a deceased person, rests on an erroneous understanding of the proceeding before the court a quo. Part of the confusion may

be attributed to the proceeding before the Sharia District Court, where the parties were designated either as plaintiffs or defendants and the case was denominated as a special civil action. We reiterate that the proceedings before the court a quo are for the issuance of letters of administration, settlement, and distribution of the estate of the deceased, which is a special proceeding. Section 3(c) of the Rules of Court (Rules) defines a special proceeding as "a remedy by which a party seeks to establish a status, a right, or a particular fact." This Court has applied the Rules, particularly the rules on special proceedings, for the settlement of the estate of a deceased Muslim.31 In a petition for the issuance of letters of administration, settlement, and distribution of estate, the applicants seek to establish the fact of death of the decedent and later to be duly recognized as among the decedents heirs, which would allow them to exercise their right to participate in the settlement and liquidation of the estate of the decedent.32 Here, the respondents seek to establish the fact of Alejandro Montaer, Sr.s death and, subsequently, for private respondent Almahleen Liling S. Montaer to be recognized as among his heirs, if such is the case in fact. Petitioners argument, that the prohibition against a decedent or his estate from being a party defendant in a civil action33 applies to a special proceeding such as the settlement of the estate of the deceased, is misplaced. Unlike a civil action which has definite adverse parties, a special proceeding has no definite adverse party. The definitions of a civil action and a special proceeding, respectively, in the Rules illustrate this difference. A civil action, in which "a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong"34 necessarily has definite adverse parties, who are either the plaintiff or defendant.35 On the other hand, a special proceeding, "by which a party seeks to establish a status, right, or a particular fact,"36 has one definite party, who petitions or applies for a declaration of a status, right, or particular fact, but no definite adverse party. In the case at bar, it bears emphasis that the estate of the decedent is not being sued for any cause of action. As a special proceeding, the purpose of the settlement of the estate of the decedent is to determine all the assets of the estate,37 pay its liabilities,38 and to distribute the residual to those entitled to the same.39 Docket Fees Petitioners third argument, that jurisdiction was not validly acquired for non-payment of docket fees, is untenable. Petitioners point to private respondents petition in the proceeding before the court a quo, which contains an allegation estimating the decedents estate as the basis for the conclusion that what private respondents paid as docket fees was insufficient. Petitioners argument essentially involves two aspects: (1) whether the clerk of court correctly assessed the docket fees; and (2) whether private respondents paid the correct assessment of the docket fees. Filing the appropriate initiatory pleading and the payment of the prescribed docket fees vest a trial court with jurisdiction over the subject matter.40 If the party filing the case paid less than the correct amount for the docket fees because that was the amount assessed by the clerk of court, the responsibility of making a deficiency assessment lies with the same clerk of court.41 In such a case, the lower court concerned will not automatically lose jurisdiction, because of a partys reliance on the clerk of courts insufficient assessment of the docket fees.42As "every citizen has the right to assume and trust that a public officer charged by law with certain duties knows his duties and performs them in accordance with law," the party filing the case cannot be penalized with the clerk of courts insufficient assessment.43 However, the party concerned will be required to pay the deficiency.44 In the case at bar, petitioners did not present the clerk of courts assessment of the docket fees. Moreover, the records do not include this assessment. There can be no determination of whether private respondents correctly paid the docket fees without the clerk of courts assessment.

Exception to Notice of Hearing Petitioners fourth argument, that private respondents motion for reconsideration before the Sharia District Court is defective for lack of a notice of hearing, must fail as the unique circumstances in the present case constitute an exception to this requirement. The Rules require every written motion to be set for hearing by the applicant and to address the notice of hearing to all parties concerned.45 The Rules also provide that "no written motion set for hearing shall be acted upon by the court without proof of service thereof."46 However, the Rules allow a liberal construction of its provisions "in order to promote [the] objective of securing a just, speedy, and inexpensive disposition of every action and proceeding."47 Moreover, this Court has upheld a liberal construction specifically of the rules of notice of hearing in cases where "a rigid application will result in a manifest failure or miscarriage of justice especially if a party successfully shows that the alleged defect in the questioned final and executory judgment is not apparent on its face or from the recitals contained therein."48 In these exceptional cases, the Court considers that "no party can even claim a vested right in technicalities," and for this reason, cases should, as much as possible, be decided on the merits rather than on technicalities.49 The case at bar falls under this exception. To deny the Sharia District Court of an opportunity to determine whether it has jurisdiction over a petition for the settlement of the estate of a decedent alleged to be a Muslim would also deny its inherent power as a court to control its process to ensure conformity with the law and justice. To sanction such a situation simply because of a lapse in fulfilling the notice requirement will result in a miscarriage of justice. In addition, the present case calls for a liberal construction of the rules on notice of hearing, because the rights of the petitioners were not affected. This Court has held that an exception to the rules on notice of hearing is where it appears that the rights of the adverse party were not affected.50 The purpose for the notice of hearing coincides with procedural due process,51 for the court to determine whether the adverse party agrees or objects to the motion, as the Rules do not fix any period within which to file a reply or opposition.52 In probate proceedings, "what the law prohibits is not the absence of previous notice, but the absolute absence thereof and lack of opportunity to be heard."53 In the case at bar, as evident from the Sharia District Courts order dated January 17, 2006, petitioners counsel received a copy of the motion for reconsideration in question. Petitioners were certainly not denied an opportunity to study the arguments in the said motion as they filed an opposition to the same. Since the Sharia District Court reset the hearing for the motion for reconsideration in the same order, petitioners were not denied the opportunity to object to the said motion in a hearing. Taken together, these circumstances show that the purpose for the rules of notice of hearing, procedural process, was duly observed. Prescription and Filiation Petitioners fifth argument is premature. Again, the Sharia District Court has not yet determined whether it has jurisdiction to settle the estate of the decedent. In the event that a special proceeding for the settlement of the estate of a decedent is pending, questions regarding heirship, including prescription in relation to recognition and filiation, should be raised and settled in the said proceeding.54 The court, in its capacity as a probate court, has jurisdiction to declare who are the heirs of the decedent.55 In the case at bar, the determination of the heirs of the decedent depends on an affirmative answer to the question of whether the Sharia District Court has jurisdiction over the estate of the decedent. IN VIEW WHEREOF, the petition is DENIED. The Orders of the Sharia District Court, dated August 22, 2006 and September 21, 2006 respectively, are AFFIRMED. Cost against petitioners.

G.R. No. L-40502 November 29, 1976 VIRGINIA GARCIA FULE, and HONORABLE SEVERO A. MALVAR, Presiding Judge, Court of First Instance of Laguna, Branch Vl, petitioners, vs. THE HONORABLE COURT OF APPEALS, * PRECIOSA B. GARCIA and AGUSTINA B. GARCIA, respondents. G.R. No. L-42670 November 29, 1976 VIRGINIA GARCIA FULE, petitioner, vs. HONORABLE ERNANI C. PAO, Presiding Judge of Court of First Instance of Rizal, Quezon City, Branch XVIII, and PRECIOSA B. GARCIA, respondents. Francisco Carreon for petitioners. Augusto G. Gatmaytan for private respondents.

MARTIN, J.: These two interrelated cases bring to Us the question of what the word "resides" in Section 1, Rule 73 of the Revised Rules Of Court, referring to the situs of the settlement of the estate of deceased persons, means. Additionally, the rule in the appointment of a special administrator is sought to be reviewed. On May 2, 1973, Virginia G. Fule filed with the Court of First Instance of Laguna, at Calamba, presided over by Judge Severo A. Malvar, a petition for letters of administration, docketed as Sp. Proc. No. 27-C, alleging, inter alia, "that on April 26, 1973, Amado G. Garcia, a property owner of Calamba, Laguna, died intestate in the City of Manila, leaving real estate and personal properties in Calamba, Laguna, and in other places, within the jurisdiction of the Honorable Court." At the same time, she moved ex parte for her appointment as special administratrix over the estate. On even date, May 2, 1973, Judge Malvar granted the motion. A motion for reconsideration was filed by Preciosa B. Garcia on May 8, 1973, contending that the order appointing Virginia G. Fule as special administratrix was issued without jurisdiction, since no notice of the petition for letters of administration has been served upon all persons interested in the estate; there has been no delay or cause for delay in the proceedings for the appointment of a regular administrator as the surviving spouse of Amado G. Garcia, she should be preferred in the appointment of a special administratrix; and, Virginia G. Fule is a debtor of the estate of Amado G. Garcia. Preciosa B. Garcia, therefore, prayed that she be appointed special administratrix of the estate, in lieu of Virginia G. Fule, and as regular administratrix after due hearing. While this reconsideration motion was pending resolution before the Court, Preciosa B. Garcia filed on May 29, 1973 a motion to remove Virginia G. Fule as special administratrix alleging, besides the jurisdictional ground raised in the motion for reconsideration of May 8, 1973 that her appointment was obtained through erroneous, misleading and/or incomplete misrepresentations; that Virginia G. Fule has adverse interest against the estate; and that she has shown herself unsuitable as administratrix and as officer of the court.

In the meantime, the notice of hearing of the petition for letters of administration filed by Virginia G. Fule with the Court of First Instance of Calamba, Laguna, was published on May 17, 24, and 31, 1973, in the Bayanihan, a weekly publication of general circulation in Southern Luzon. On June 6, 1973, Preciosa B. Garcia received a "Supplemental Petition for the Appointment of Regular Administrator ' filed by Virginia G. Fule. This supplemental petition modified the original petition in four aspects: (1) the allegation that during the lifetime of the deceased Amado G. Garcia, he was elected as Constitutional Delegate for the First District of Laguna and his last place of residence was at Calamba, Laguna; (2) the deletion of the names of Preciosa B. Garcia and Agustina Garcia as legal heirs of Amado G. Garcia; (3) the allegation that Carolina Carpio, who was simply listed as heir in the original petition, is the surviving spouse of Amado G. Garcia and that she has expressly renounced her preferential right to the administration of the estate in favor of Virginia G. Fule; and (4) that Virginia G. Fule be appointed as the regular administratrix. The admission of this supplemental petition was opposed by Preciosa B. Garcia for the reason, among others, that it attempts to confer jurisdiction on the Court of First Instance of Laguna, of which the court was not possessed at the beginning because the original petition was deficient. On July 19, 1973, Preciosa B. Garcia filed an opposition to the original and supplemental petitions for letters of administration, raising the issues of jurisdiction, venue, lack of interest of Virginia G. Fule in the estate of Amado G. Garcia, and disqualification of Virginia G Fule as special administratrix. An omnibus motion was filed by Virginia G. Fule on August 20, 1973, praying for authority to take possession of properties of the decedent allegedly in the hands of third persons as well as to secure cash advances from the Calamba Sugar Planters Cooperative Marketing Association, Inc. Preciosa B. Garcia opposed the motion, calling attention to the limitation made by Judge Malvar on the power of the special administratrix, viz., "to making an inventory of the personal and real properties making up the state of the deceased." However, by July 2, 1973, Judge Malvar and already issued an order, received by Preciosa B. Garcia only on July 31, 1973, denying the motion of Preciosa B. Garcia to reconsider the order of May 2, 1973, appointing Virginia G. Fule as special administratrix, and admitting the supplementation petition of May 18,1973. On August 31, 1973, Preciosa B. Garcia moved to dismiss the petition, because (1) jurisdiction over the petition or over the parties in interest has not been acquired by the court; (2) venue was improperly laid; and (3) Virginia G. Fule is not a party in interest as she is not entitled to inherit from the deceased Amado G. Garcia. On September 28, 1973, Preciosa B. Garcia filed a supplemental motion to substitute Virginia G. Fule as special administratrix, reasoning that the said Virginia G. Fule admitted before before the court that she is a full-blooded sister of Pablo G. Alcalde, an illegitimate son of Andrea Alcalde, with whom the deceased Amado G. Garcia has no relation. Three motions were filed by Preciosa B. Garcia on November 14, 1973, one, to enjoin the special administratrix from taking possession of properties in the hands of third persons which have not been determined as belonging to Amado G. Garcia; another, to remove the special administratrix for acting outside her authority and against the interest of the estate; and still another, filed in behalf of the minor Agustina B. Garcia, to dismiss the petition for want of cause of action, jurisdiction, and improper venue.

On November 28, 1973, Judge Malvar resolved the pending omnibus motion of Virgina G. Fule and the motion to dismiss filed by Preciosa B. Garcia. Resolving the motion to dismiss, Judge Malvar ruled that the powers of the special administratrix are those provided for in Section 2, Rule 80 of the Rules of Court, 1 subject only to the previous qualification made by the court that the administration of the properties subject of the marketing agreement with the Canlubang Sugar Planters Cooperative Marketing Association should remain with the latter; and that the special administratrix had already been authorized in a previous order of August 20, 1973 to take custody and possession of all papers and certificates of title and personal effects of the decedent with the Canlubang Sugar Planters Cooperative Marketing Association, Inc. Ramon Mercado, of the Canlubang Sugar Planters Cooperative Marketing Association, Inc., was ordered to deliver to Preciosa B. Garcia all certificates of title in her name without any qualifying words like "married to Amado Garcia" does not appear. Regarding the motion to dismiss, Judge Malvar ruled that the issue of jurisdiction had already been resolved in the order of July 2, 1973, denying Preciosa B. Garcia's motion to reconsider the appointment of Virginia G. Fule and admitting the supplemental petition, the failure of Virginia G. Fule to allege in her original petition for letters of administration in the place of residence of the decedent at the time of his death was cured. Judge Malvar further held that Preciosa B. Garcia had submitted to the jurisdiction of the court and had waived her objections thereto by praying to be appointed as special and regular administratrix of the estate. An omnibus motion was filed by Preciosa B. Garcia on December 27, 1973 to clarify or reconsider the foregoing order of Judge Malvar, in view of previous court order limiting the authority of the special administratrix to the making of an inventory. Preciosa B. Garcia also asked for the resolution of her motion to dismiss the petitions for lack of cause of action, and also that filed in behalf of Agustina B. Garcia. Resolution of her motions to substitute and remove the special administratrix was likewise prayed for. On December 19, 1973, Judge Malvar issued two separate orders, the first, denying Preciosa B. Garcia's motions to substitute and remove the special administratrix, and the second, holding that the power allowed the special administratrix enables her to conduct and submit an inventory of the assets of the estate. On January 7, 1974, Preciosa B. Garcia moved for reconsideration of the foregoing orders of November 28, 1973 and December 19, 1973, insofar as they sustained or failed to rule on the issues raised by her: (a) legal standing (cause of action) of Virginia G. Fule; (b) venue; (c) jurisdiction; (d) appointment, qualification and removal of special administratrix; and (e) delivery to the special administratrix of checks and papers and effects in the office of the Calamba Sugar Planters Cooperative Marketing Association, Inc. On March 27, 1973, Judge Malvar issued the first questioned order denying Preciosa B. Garcia's motion for reconsideration of January 7, 1974. On July 19, 1974, Judge Malvar issued the other three questioned orders: one, directing Ramon Mercado, of the Calamba Sugar Planters Cooperative Marketing Association, Inc., to furnish Virginia G. Fule, as special administratrix, copy of the statement of accounts and final liquidation of sugar pool, as well as to deliver to her the corresponding amount due the estate; another, directing Preciosa B. Garcia to deliver to Virginia G. Fule two motor vehicles presumably belonging to the estate; and another, directing Ramon Mercado to deliver to the court all certificates of title in his possession in the name of Preciosa B. Garcia, whether qualified with the word "single" or "married to Amado Garcia." During the hearing of the various incidents of this case (Sp. Proc. 27-C) before Judge Malvar, 2Virginia G. Fule presented the death certificate of Amado G. Garcia showing that his residence at the time of his death was Quezon City. On her part, Preciosa B. Garcia presented the residence certificate of the decedent for 1973 showing that three months before his death his residence was in Quezon City. Virginia G. Fule also testified that Amado G. Garcia was

residing in Calamba, Laguna at the time of his death, and that he was a delegate to the 1971 Constitutional Convention for the first district of Laguna. On July 26, 1974, Preciosa B. Garcia and Agustina B. Garcia commenced a special action for certiorari and/or prohibition and preliminary injunction before the Court of Appeals, docketed as CA-G.R. No. 03221-SP. primarily to annul the proceedings before Judge Malvar in Sp. Proc. No. 27-C of the Court of First Instance of Laguna, or, in the alternative, to vacate the questioned four orders of that court, viz., one dated March 27, 1974, denying their motion for reconsideration of the order denying their motion to dismiss the criminal and supplemental petitions on the issue, among others, of jurisdiction, and the three others, all dated July 19, 1974, directing the delivery of certain properties to the special administratrix, Virginia G. Fule, and to the court. On January 30, 1975, the Court of Appeals rendered judgment annulling the proceedings before Judge Severo A. Malvar in Sp. Proc. 27-C of the Court of First Instance of Calamba, Laguna, for lack of jurisdiction. Denied of their motion for reconsideration on March 31, 1975, Virginia G. Fule forthwith elevated the matter to Us on appeal by certiorari. The case was docketed as G.R. No. L-40502. However, even before Virginia G. Fule could receive the decision of the Court of Appeals, Preciosa B. Garcia had already filed on February 1, 1975 a petition for letters of administration before the Court of First Instance of Rizal, Quezon City Branch, docketed as Sp. Proc. No. Q19738, over the same intestate estate of Amado G. Garcia. On February 10, 1975, Preciosa B. Garcia urgently moved for her appointment as special administratrix of the estate. Judge Vicente G. Ericta granted the motion and appointed Preciosa B. Garcia as special administratrix upon a bond of P30,000.00. Preciosa B. Garcia qualified and assumed the office. For the first time, on February 14, 1975, Preciosa B. Garcia informed Judge Ericta of the pendency of Sp. Proc. No. 27-C before Judge Malvar of the Court of First Instance of Laguna, and the annulment of the proceedings therein by the Court of Appeals on January 30, 1975. She manifested, however, her willingness to withdraw Sp. Proc. Q-19738 should the decision of the Court of Appeals annulling the proceedings before the Court of First Instance of Laguna in Sp. Proc. No. 27-C have not yet become final, it being the subject of a motion for reconsideration. On March 10, 1973, Judge Ericta ordered the suspension of the proceedings before his court until Preciosa B. Garcia inform the court of the final outcome of the case pending before the Court of Appeals. This notwithstanding, Preciosa B. Garcia filed on December 11, 1975, an "Urgent Petition for Authority to Pay Estate Obligations." On December 13, 1975, Virginia G. Fule filed a "Special Appearance to Question Venue and Jurisdiction" reiterating the grounds stated in the previous special appearance of March 3, 1975, and calling attention that the decision of the Court of Appeals and its resolution denying the motion for reconsideration had been appealed to this Court; that the parties had already filed their respective briefs; and that the case is still pending before the Court. On December 17, 1975, Judge Ernani Cruz Pano, who succeeded Judge Ericta, issued an order granting Preciosa B. Garcia's "Urgent Petition for Authority to Pay Estate Obligations" in that the payments were for the benefit of the estate and that there hangs a cloud of doubt on the validity of the proceedings in Sp. Proc. No. 27-C of the Court of First Instance of Laguna. A compliance of this Order was filed by Preciosa B. Garcia on January 12,1976.

On February 4,1974, VIRGINIA G. FULE instituted G.R. No. L-42670, a petition for certiorari with temporary restraining order, to annul the proceedings in Sp. Proc. No. Q-19738 and to restrain Judge Ernani Cruz Pao from further acting in the case. A restraining order was issued on February 9, 1976. We dismiss the appeal in G.R. No. L-40502 and the petition for certiorari in G.R. No. L42670 for the reasons and considerations hereinafter stated. 1. Section 1, Rule 73 of the Revised Rules of Court provides: "If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record." With particular regard to letters of administration, Section 2, Rule 79 of the Revised Rules of Court demands that the petition therefor should affirmatively show the existence of jurisdiction to make the appointment sought, and should allege all the necessary facts, such as death, the name and last residence of the decedent, the existence, and situs if need be, of assets, intestacy, where this is relied upon, and the right of the person who seeks administration, as next of kin, creditor, or otherwise, to be appointed. The fact of death of the intestate and his last residence within the country are foundation facts upon which all subsequent proceedings in the administration of the estate rest, and that if the intestate was not an inhabitant of the state at the time of his death, and left no assets in the state, no jurisdiction is conferred on the court to grant letters of administration. 3 The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the clause "so far as it depends on the place of residence of the decedent, or of the location of the estate," is in reality a matter of venue, as the caption of the Rule indicates: "Settlement of Estate of Deceased Persons.Venue and Processes. 4 It could not have been intended to define the jurisdiction over the subject matter, because such legal provision is contained in a law of procedure dealing merely with procedural matters. Procedure is one thing; jurisdiction over the subject matter is another. The power or authority of the court over the subject matter "existed and was fixed before procedure in a given cause began." That power or authority is not altered or changed by procedure, which simply directs the manner in which the power or authority shall be fully and justly exercised. There are cases though that if the power is not exercised conformably with the provisions of the procedural law, purely, the court attempting to exercise it loses the power to exercise it legally. However, this does not amount to a loss of jurisdiction over the subject matter. Rather, it means that the court may thereby lose jurisdiction over the person or that the judgment may thereby be rendered defective for lack of something essential to sustain it. The appearance of this provision in the procedural law at once raises a strong presumption that it has nothing to do with the jurisdiction of the court over the subject matter. In plain words, it is just a matter of method, of convenience to the parties. 5 The Judiciary Act of 1948, as amended, confers upon Courts of First Instance jurisdiction over all probate cases independently of the place of residence of the deceased. Because of the existence of numerous Courts of First Instance in the country, the Rules of Court, however, purposedly fixes the venue or the place where each case shall be brought. A fortiori, the place of residence of the deceased in settlement of estates, probate of will, and issuance of letters of administration does not constitute an element of jurisdiction over the subject matter. It is merely constitutive of venue. And it is upon this reason that the Revised Rules of Court

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properly considers the province where the estate of a deceased person shall be settled as "venue." 6 2. But, the far-ranging question is this: What does the term "resides" mean? Does it refer to the actual residence or domicile of the decedent at the time of his death? We lay down the doctrinal rule that the term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence or domicile." This term "resides," like, the terms "residing" and "residence," is elastic and should be interpreted in the light of the object or purpose of the statute or rule in which it is employed. 7 In the application of venue statutes and rules Section 1, Rule 73 of the Revised Rules of Court is of such nature residence rather than domicile is the significant factor. Even where the statute uses the word "domicile" still it is construed as meaning residence and not domicile in the technical sense. Some cases make a distinction between the terms "residence" and "domicile" but as generally used in statutes fixing venue, the terms are synonymous, and convey the same meaning as the term "inhabitant." 8 In other words, "resides" should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and actual stay thereat. In this popular sense, the term means merely residence, that is, personal residence, not legal residence or domicile. 9 Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one's domicile. 10 No particular length of time of residence is required though; however, the residence must be more than temporary. 11 3. Divergent claims are maintained by Virginia G. Fule and Preciosa B. Garcia on the residence of the deceased Amado G. Garcia at the time of his death. In her original petition for letters of administration before the Court of First Instance of Calamba, Laguna, Virginia G. Fule measely stated "(t)hat on April 26,1973, Amado G. Garcia, a property owner of Calamba, Laguna, died intestate in the City of Manila, leaving real estate and personal properties in Calamba, Laguna, and in other places within the jurisdiction of this Honorable Court." Preciosa B. Garcia assailed the petition for failure to satisfy the jurisdictional requirement and improper laying of venue. For her, the quoted statement avers no domicile or residence of the deceased Amado G. Garcia. To say that as "property owner of Calamba, Laguna," he also resides in Calamba, Laguna, is, according to her, non sequitur. On the contrary, Preciosa B. Garcia claims that, as appearing in his death certificate presented by Virginia G. Fule herself before the Calamba court and in other papers, the last residence of Amado G. Garcia was at 11 Carmel Avenue, Carmel Subdivision, Quezon City. Parenthetically, in her amended petition, Virginia G. Fule categorically alleged that Amado G. Garcia's "last place of residence was at Calamba, Laguna." On this issue, We rule that the last place of residence of the deceased Amado G. Garcia was at 11 Carmel Avenue, Carmel Subdivision, Quezon City, and not at Calamba, Laguna. A death certificate is admissible to prove the residence of the decedent at the time of his death. 12 As it is, the death certificate of Amado G. Garcia, which was presented in evidence by Virginia G. Fule herself and also by Preciosa B. Garcia, shows that his last place of residence was at 11 Carmel Avenue, Carmel Subdivision, Quezon City. Aside from this, the deceased's residence certificate for 1973 obtained three months before his death; the Marketing Agreement and Power of Attorney dated November 12, 1971 turning over the administration of his two parcels of sugar land to the Calamba Sugar Planters Cooperative Marketing Association, Inc.; the Deed of Donation dated January 8, 1973, transferring part of his interest in certain parcels of land in Calamba, Laguna to Agustina B. Garcia; and certificates of titles covering parcels of land in Calamba, Laguna, show in bold documents that Amado G. Garcia's last place of residence was at Quezon City. Withal, the conclusion becomes imperative that the venue for Virginia C. Fule's petition for letters of administration was improperly laid in the Court of First Instance of Calamba, Laguna. Nevertheless, the long-settled rule is that objection to improper venue is subject to waiver. Section 4, Rule 4 of the Revised Rules of Court states: "When improper venue is not objected to in a motion to dismiss, it is deemed waived." In the case before Us the

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Court of Appeals had reason to hold that in asking to substitute Virginia G. Fule as special administratrix, Preciosa B. Garcia did not necessarily waive her objection to the jurisdiction or venue assumed by the Court of First Instance of Calamba, Laguna, but availed of a mere practical resort to alternative remedy to assert her rights as surviving spouse, while insisting on the enforcement of the Rule fixing the proper venue of the proceedings at the last residence of the decedent. 4. Preciosa B. Garcia's challenge to Virginia G. Fule's appointment as special administratrix is another issue of perplexity. Preciosa B. Garcia claims preference to the appointment as surviving spouse. Section 1 of Rule 80 provides that "(w)hen there is delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or disallowance of a will, the court may appoint a special administrator to take possession and charge of the estate of the deceased until the questions causing the delay are decided and executors or administrators appointed. 13 Formerly, the appointment of a special administrator was only proper when the allowance or disallowance of a will is under appeal. The new Rules, however, broadened the basis for appointment and such appointment is now allowed when there is delay in granting letters testamentary or administration by any cause e.g., parties cannot agree among themselves. 14 Nevertheless, the discretion to appoint a special administrator or not lies in the probate court. 15 That, however, is no authority for the judge to become partial, or to make his personal likes and dislikes prevail over, or his passions to rule, his judgment. Exercise of that discretion must be based on reason, equity, justice and legal principle. There is no reason why the same fundamental and legal principles governing the choice of a regular administrator should not be taken into account in the appointment of a special administrator. 16Nothing is wrong for the judge to consider the order of preference in the appointment of a regular administrator in appointing a special administrator. After all, the consideration that overrides all others in this respect is the beneficial interest of the appointee in the estate of the decedent. 17 Under the law, the widow would have the right of succession over a portion of the exclusive property of the decedent, besides her share in the conjugal partnership. For such reason, she would have as such, if not more, interest in administering the entire estate correctly than any other next of kin. The good or bad administration of a property may affect rather the fruits than the naked ownership of a property. 18 Virginia G. Fule, however, disputes the status of Preciosa B. Garcia as the widow of the late Amado G. Garcia. With equal force, Preciosa B. Garcia maintains that Virginia G. Fule has no relation whatsoever with Amado G. Garcia, or that, she is a mere illegitimate sister of the latter, incapable of any successional rights. 19 On this point, We rule that Preciosa B. Garcia is prima facie entitled to the appointment of special administratrix. It needs be emphasized that in the issuance of such appointment, which is but temporary and subsists only until a regular administrator is appointed, 20 the appointing court does not determine who are entitled to share in the estate of the decedent but who is entitled to the administration. The issue of heirship is one to be determined in the decree of distribution, and the findings of the court on the relationship of the parties in the administration as to be the basis of distribution. 21 The preference of Preciosa B. Garcia is with sufficient reason. In a Donation Inter Vivos executed by the deceased Amado G. Garcia on January 8, 1973 in favor of Agustina B. Garcia, he indicated therein that he is married to Preciosa B. Garcia. 22 In his certificate of candidacy for the office of Delegate to the Constitutional Convention for the First District of Laguna filed on September 1, 1970, he wrote therein the name of Preciosa B. Banaticla as his spouse. 23 Faced with these documents and the presumption that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage, Preciosa B. Garcia can be reasonably believed to be the surviving spouse of the late Amado G. Garcia. Semper praesumitur pro matrimonio.24 5. Under these circumstances and the doctrine laid down in Cuenco vs. Court of Appeals, 25 this Court under its supervisory authority over all inferior courts may properly decree that venue in the instant case was properly assumed by and transferred to Quezon City and that it is in the

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interest of justice and avoidance of needless delay that the Quezon City court's exercise of jurisdiction over the settlement of the estate of the deceased Amado G. Garcia and the appointment of special administratrix over the latter's estate be approved and authorized and the Court of First Instance of Laguna be disauthorized from continuing with the case and instead be required to transfer all the records thereof to the Court of First Instance of Quezon City for the continuation of the proceedings. 6. Accordingly, the Order of Judge Ernani Cruz Pano of December 17, 1975, granting the "Urgent Petition for Authority to Pay Estate Obligations" filed by Preciosa B. Garcia in Sp. Proc. No. Q-19738, subject matter of G.R. No. L-42670, and ordering the Canlubang Sugar Estate to deliver to her as special administratrix the sum of P48,874.70 for payment of the sum of estate obligations is hereby upheld. IN VIEW OF THE FOREGOING, the petitions of petitioner Virginia Garcia Fule in G.R. No. L-40502 and in G.R. No. L42670 are hereby denied, with costs against petitioner. G.R. No. 159507 April 19, 2006

ANICETO G. SALUDO, JR., Petitioner, vs. AMERICAN EXPRESS INTERNATIONAL, INC., and/or IAN T. FISH and DOMINIC MASCRINAS, Respondents. DECISION CALLEJO, SR., J.: Before the Court is the Petition for Review on Certiorari filed by Aniceto G. Saludo, Jr. seeking to reverse and set aside the Decision1 dated May 22, 2003 of the Court of Appeals in CA-G.R. SP No. 69553. The assailed decision directed the Regional Trial Court (RTC) of Maasin City, Southern Leyte, Branch 25 thereof, to vacate and set aside its Orders dated September 10, 2001 and January 2, 2002 in Civil Case No. R-3172, and enjoined the presiding judge2 thereof from conducting further proceedings in said case, except to dismiss the complaint filed therewith on ground of improper venue. The petition also seeks to reverse and set aside the appellate court's Resolution dated August 14, 2003 denying the motion for reconsideration of the assailed decision. The factual and procedural antecedents are as follows: Aniceto G. Saludo, Jr. filed a complaint for damages against the American Express International, Inc. (AMEX) and/or its officers Ian T. Fish, Vice-President and Country Manager, and Dominic Mascrinas, Head of Operations, with the RTC of Maasin City, Southern Leyte. The case was raffled to Branch 25 of the said court. The complaint alleged, inter alia, that plaintiff (herein petitioner Saludo) "is a Filipino citizen, of legal age, and a member of the House of Representatives and a resident of Ichon, Macrohon, Southern Leyte, Philippines." On the other hand, defendant (herein respondent AMEX, Inc.) "is a corporation doing business in the Philippines and engaged in providing credit and other credit facilities and allied services with office address at 4th floor, ACE Building, Rada Street, Legaspi Village, Makati City." The other defendants (herein respondents Fish and Mascrinas) are officers of respondent AMEX, and may be served with summons and other court processes at their office address.

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The complaint's cause of action stemmed from the alleged wrongful dishonor of petitioner Saludo's AMEX credit card and the supplementary card issued to his daughter. The first dishonor happened when petitioner Saludo's daughter used her supplementary credit card to pay her purchases in the United States some time in April 2000. The second dishonor occurred when petitioner Saludo used his principal credit card to pay his account at the Hotel Okawa in Tokyo, Japan while he was there with other delegates from the Philippines to attend the Congressional Recognition in honor of Mr. Hiroshi Tanaka. The dishonor of these AMEX credit cards were allegedly unjustified as they resulted from respondents' unilateral act of suspending petitioner Saludo's account for his failure to pay its balance covering the period of March 2000. Petitioner Saludo denied having received the corresponding statement of account. Further, he was allegedly wrongfully charged for late payment in June 2000. Subsequently, his credit card and its supplementary cards were canceled by respondents on July 20, 2000. Petitioner Saludo claimed that he suffered great inconvenience, wounded feelings, mental anguish, embarrassment, humiliation and besmirched political and professional standing as a result of respondents' acts which were committed in gross and evident bad faith, and in wanton, reckless and oppressive manner. He thus prayed that respondents be adjudged to pay him, jointly and severally, actual, moral and exemplary damages, and attorney's fees. In their answer, respondents specifically denied the allegations in the complaint. Further, they raised the affirmative defenses of lack of cause of action and improper venue. On the latter, respondents averred that the complaint should be dismissed on the ground that venue was improperly laid because none of the parties was a resident of Leyte. They alleged that respondents were not residents of Southern Leyte. Moreover, notwithstanding the claim in his complaint, petitioner Saludo was not allegedly a resident thereof as evidenced by the fact that his community tax certificate, which was presented when he executed the complaint's verification and certification of non-forum shopping, was issued at Pasay City. To buttress their contention, respondents pointed out that petitioner Saludo's complaint was prepared in Pasay City and signed by a lawyer of the said city. Respondents prayed for the dismissal of the complaint a quo. Thereafter, respondents filed an Opposition to Ex-Parte Motion (to Set Case for Pre-Trial) and Motion for Preliminary Hearing (on Affirmative Defense of Improper Venue) to which petitioner Saludo filed his Comments and/or Objections to the Affirmative Defense of Improper Venue. He asserted that any allegation refuting his residency in Southern Leyte was baseless and unfounded considering that he was the congressman of the lone district thereof at the time of the filing of his complaint. He urged the court a quo to take judicial notice of this particular fact. As a member of Congress, he possessed all the qualifications prescribed by the Constitution including that of being a resident of his district. He was also a member of the Integrated Bar of the Philippines-Southern Leyte Chapter, and has been such ever since his admission to the Bar. His community tax certificate was issued at Pasay City only because he has an office thereat and the office messenger obtained the same in the said city. In any event, the community tax certificate is not determinative of one's residence. In the Order dated September 10, 2001, the court a quo denied the affirmative defenses interposed by respondents. It found the allegations of the complaint sufficient to constitute a cause of action against respondents. The court a quo likewise denied respondents' affirmative defense that venue was improperly laid. It reasoned, thus: x x x [T]he fact alone that the plaintiff at the time he filed the complaint was and still is, the incumbent Congressman of the Lone District of Southern Leyte with residence at Ichon, Macrohon, Southern Leyte, is enough to dispell any and all doubts about his actual residence.

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As a high-ranking government official of the province, his residence there can be taken judicial notice of. As such his personal, actual and physical habitation or his actual residence or place of abode can never be in some other place but in Ichon, Macrohon, Southern Leyte. It is correctly stated by the plaintiff, citing the case of Core v. Core, 100 Phil. 321 that, "residence, for purposes of fixing venue of an action, is synonymous with domicile. This is defined as the permanent home, the place to which, whenever absent for business or pleasure, one intends to return, and depends on the facts and circumstances, in the sense that they disclose intent. A person can have but one domicile at a time. A man can have but one domicile for one and the same purpose at any time, but he may have numerous places of residence. Venue could be at place of his residence. (Masa v. Mison, 200 SCRA 715 [1991])3 Respondents sought the reconsideration thereof but the court a quo denied the same in the Order dated January 2, 2002. They then filed with the appellate court a petition for certiorari and prohibition alleging grave abuse of discretion on the part of the presiding judge of the court a quo in issuing the September 10, 2001 and January 2, 2002 Orders. Upon respondents' posting of a bond, the appellate court issued on March 14, 2002 a temporary restraining order which enjoined the presiding judge of the court a quo from conducting further proceedings in Civil Case No. R-3172. On May 22, 2003, the appellate court rendered the assailed decision granting respondents' petition for certiorari as it found that venue was improperly laid. It directed the court a quo to vacate and set aside its Orders dated September 10, 2001 and January 2, 2002, and enjoined the presiding judge thereof from further proceeding in the case, except to dismiss the complaint. The appellate court explained that the action filed by petitioner Saludo against respondents is governed by Section 2, Rule 4 of the Rules of Court. The said rule on venue of personal actions basically provides that personal actions may be commenced and tried where plaintiff or any of the principal plaintiffs resides, or where defendant or any of the principal defendants resides, at the election of plaintiff. Venue was improperly laid in the court a quo, according to the appellate court, because not one of the parties was a resident of Southern Leyte. Specifically, it declared that petitioner Saludo was not a resident thereof. The appellate court pronounced that, for purposes of venue, the residence of a person is his personal, actual or physical habitation, or his actual residence or place of abode, which may not necessarily be his legal residence or domicile provided he resides therein with continuity and consistency.4 The appellate court quoted the following discussion in Koh v. Court of Appeals5 where the Court distinguished the terms "residence" and "domicile" in this wise: x x x [T]he term domicile is not exactly synonymous in legal contemplation with the term residence, for it is [an] established principle in Conflict of Laws that domicile refers to the relatively more permanent abode of a person while residence applies to a temporary stay of a person in a given place. In fact, this distinction is very well emphasized in those cases where the Domiciliary Theory must necessarily supplant the Nationality Theory in cases involving stateless persons. xxxx "There is a difference between domicile and residence. Residence is used to indicate a place of abode, whether permanent or temporary; domicile denotes a fixed permanent residence to which when absent, one has the intention of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile, but domicile is residence coupled

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with intention to remain for an unlimited time. A man can have but one domicile for one and the same purpose at any time, but he may have numerous places of residence. His place of residence generally is his place of domicile, but is not by any means, necessarily so since no length of residence without intention of remaining will constitute domicile."6 (Italicized for emphasis) In holding that petitioner Saludo is not a resident of Maasin City, Southern Leyte, the appellate court referred to his community tax certificate, as indicated in his complaint's verification and certification of non-forum shopping, which was issued at Pasay City. Similarly, it referred to the same community tax certificate, as indicated in his complaint for deportation filed against respondents Fish and Mascrinas. Under Republic Act No. 7160,7 the community tax certificate shall be paid in the place of residence of the individual, or in the place where the principal office of the juridical entity is located.8 It also pointed out that petitioner Saludo's law office, which was also representing him in the present case, is in Pasay City. The foregoing circumstances were considered by the appellate court as judicial admissions of petitioner Saludo which are conclusive upon him and no longer required proof. The appellate court chided the court a quo for stating that as incumbent congressman of the lone district of Southern Leyte, judicial notice could be taken of the fact of petitioner Saludo's residence thereat. No evidence had yet been adduced that petitioner Saludo was then the congressman of Southern Leyte and actual resident of Ichon, Macrohon of the said province. The appellate court held that, based on his complaint, petitioner Saludo was actually residing in Pasay City. It faulted him for filing his complaint with the court a quo when the said venue is inconvenient to the parties to the case. It opined that under the rules, the possible choices of venue are Pasay City or Makati City, or any place in the National Capital Judicial Region, at the option of petitioner Saludo. It stressed that while the choice of venue is given to plaintiff, said choice is not left to his caprice and cannot deprive a defendant of the rights conferred upon him by the Rules of Court.9 Further, fundamental in the law governing venue of actions that the situs for bringing real and personal civil actions is fixed by the rules to attain the greatest possible convenience to the party litigants by taking into consideration the maximum accessibility to them - i.e., to both plaintiff and defendant, not only to one or the other - of the courts of justice.10 The appellate court concluded that the court a quo should have given due course to respondents' affirmative defense of improper venue in order to avoid any suspicion that petitioner Saludo's motive in filing his complaint with the court a quo was only to vex and unduly inconvenience respondents or even to wield influence in the outcome of the case, petitioner Saludo being a powerful and influential figure in the said province. The latter circumstance could be regarded as a "specie of forum shopping" akin to that in Investors Finance Corp. v. Ebarle11 where the Court mentioned that the filing of the civil action before the court in Pagadian City "was a specie of forum shopping" considering that plaintiff therein was an influential person in the locality. The decretal portion of the assailed Decision dated May 22, 2003 of the appellate court reads: UPON THE VIEW WE TAKE OF THIS CASE, THUS, the challenged orders must be, as they hereby are, VACATED and SET ASIDE and the respondent judge, or any one acting in his place or stead, is instructed and enjoined to desist from further proceeding in the case, except to dismiss it. The temporary restraining order earlier issued is hereby converted into a writ of preliminary injunction, upon the posting this time by petitioners [herein respondents], within five (5) days from receipt of this decision, of a bond in the amount of Five Million Pesos (P5,000,000.00), to answer for all damages that private respondent [herein petitioner] may

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sustain by reason of the issuance of such injunction should the Court finally decide that petitioners are not entitled thereto. Private respondent, if he so minded, may refile his case for damages before the Regional Trial Court of Makati City or Pasay City, or any of the Regional Trial Courts of the National Capital Judicial Region. Without costs. SO ORDERED.12 Petitioner Saludo sought the reconsideration of the said decision but the appellate court, in the Resolution dated August 14, 2003, denied his motion for reconsideration. Hence, he filed the instant petition for review with the Court alleging that: The Court of Appeals, (Special Fourth Division), in promulgating the afore-mentioned Decision and Resolution, has decided a question of substance in a way probably not in accord with law or with applicable decisions of this Honorable Court. (a) the Court of Appeals erred in not taking judicial notice of the undisputed fact that herein petitioner is the incumbent congressman of the lone district of Southern Leyte and as such, he is a residence (sic) of said district; (b) the Court of Appeals erred in dismissing the complaint on the basis of improper venue due to the alleged judicial admission of herein petitioner; (c) the Court of Appeals in dismissing the complaint ignored applicable decisions of this Honorable Court; and
1avvphil.net

(d) the Court of Appeals erred in deciding that herein petitioner violated the rules on venue, and even speculated that herein petitioner's motive in filing the complaint in Maasin City was only to vex the respondents.13 In gist, the sole substantive issue for the Court's resolution is whether the appellate court committed reversible error in holding that venue was improperly laid in the court a quo in Civil Case No. R-3172 because not one of the parties, including petitioner Saludo, as plaintiff therein, was a resident of Southern Leyte at the time of filing of the complaint. The petition is meritorious. Petitioner Saludo's complaint for damages against respondents before the court a quo is a personal action. As such, it is governed by Section 2, Rule 4 of the Rules of Courts which reads: SEC. 2. Venue of personal actions. - All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff. The choice of venue for personal actions cognizable by the RTC is given to plaintiff but not to plaintiff's caprice because the matter is regulated by the Rules of Court.14 The rule on venue, like other procedural rules, is designed to insure a just and orderly administration of justice, or the impartial and evenhanded determination of every action and proceeding.15 The option of plaintiff in personal actions cognizable by the RTC is either the place where defendant resides or may be found, or the place where plaintiff resides. If plaintiff opts for the latter, he is limited to that place.16

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Following this rule, petitioner Saludo, as plaintiff, had opted to file his complaint with the court a quo which is in Maasin City, Southern Leyte. He alleged in his complaint that he was a member of the House of Representatives and a resident of Ichon, Macrohon, Southern Leyte to comply with the residency requirement of the rule. However, the appellate court, adopting respondents' theory, made the finding that petitioner Saludo was not a resident of Southern Leyte at the time of the filing of his complaint. It hinged the said finding mainly on the fact that petitioner Saludo's community tax certificate, indicated in his complaint's verification and certification of non-forum shopping, was issued at Pasay City. That his law office is in Pasay City was also taken by the appellate court as negating petitioner Saludo's claim of residence in Southern Leyte. The appellate court committed reversible error in finding that petitioner Saludo was not a resident of Southern Leyte at the time of the filing of his complaint, and consequently holding that venue was improperly laid in the court a quo. In Dangwa Transportation Co., Inc. v. Sarmiento,17 the Court had the occasion to explain at length the meaning of the term "resides" for purposes of venue, thus: In Koh v. Court of Appeals, we explained that the term "resides" as employed in the rule on venue on personal actions filed with the courts of first instance means the place of abode, whether permanent or temporary, of the plaintiff or the defendant, as distinguished from "domicile" which denotes a fixed permanent residence to which, when absent, one has the intention of returning. "It is fundamental in the law governing venue of actions (Rule 4 of the Rules of Court) that the situs for bringing real and personal civil actions are fixed by the rules to attain the greatest convenience possible to the parties-litigants by taking into consideration the maximum accessibility to them of the courts of justice. It is, likewise, undeniable that the term domicile is not exactly synonymous in legal contemplation with the term residence, for it is an established principle in Conflict of Laws that domicile refers to the relatively more permanent abode of a person while residence applies to a temporary stay of a person in a given place. In fact, this distinction is very well emphasized in those cases where the Domiciliary Theory must necessarily supplant the Nationality Theory in cases involving stateless persons. "This Court held in the case of Uytengsu v. Republic, 50 O.G. 4781, October, 1954, reversing its previous stand in Larena v. Ferrer, 61 Phil. 36, and Nuval v. Guray, 52 Phil. 645, that 'There is a difference between domicile and residence. Residence is used to indicate a place of abode, whether permanent or temporary; domicile denotes a fixed permanent residence to which when absent, one has the intention of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited time. A man can have but one domicile for one and the same purpose at any time, but he may have numerous places of residence. His place of residence generally is his place of domicile, but is not by any means, necessarily so since no length of residence without intention of remaining will constitute domicile.' (Italicized for emphasis) "We note that the law on venue in Courts of First Instance (Section 2, of Rule 4, Rules of Court) in referring to the parties utilizes the words 'resides or may be found,' and not 'is domiciled,' thus: 'Sec. 2(b) Personal actions - All other actions may be commenced and tried where the defendant or any of the defendants resides or may be found, or where the plaintiff or any of the plaintiffs resides, at the election of the plaintiff.' (Italicized for emphasis)

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"Applying the foregoing observation to the present case, We are fully convinced that private respondent Coloma's protestations of domicile in San Nicolas, Ilocos Norte, based on his manifested intention to return there after the retirement of his wife from government service to justify his bringing of an action for damages against petitioner in the C.F.I. of Ilocos Norte, is entirely of no moment since what is of paramount importance is where he actually resided or where he may be found at the time he brought the action, to comply substantially with the requirements of Sec. 2(b) of Rule 4, Rules of Court, on venue of personal actions." (Koh v. Court of Appeals, supra, pp. 304-305.) The same construction of the word "resides" as used in Section 1, Rule 73, of the Revised Rules of Court, was enunciated in Fule v. Court of Appeals, et al. (G.R. No. L-40502) and Fule v. Hon. Ernani C. Pao, et al. (G.R. No. L-42670), decided on November 29, 1976. Thus, this Court, in the aforecited cases, stated: "2. But, the far-ranging question is this: What does the term 'resides' mean? Does it refer to the actual residence or domicile of the decedent at the time of his death? We lay down the doctrinal rule that the term 'resides' connotes ex vi termini 'actual residence' as distinguished from 'legal residence or domicile.' This term 'resides,' like the terms 'residing' and 'residence' is elastic and should be interpreted in the light of the object or purposes of the statute or rule in which it is employed. In the application of venue statutes and rules - Section 1, Rule 73 of the Revised Rules of Court is of such nature - residence rather than domicile is the significant factor. Even where the statute uses the word 'domicile' still it is construed as meaning residence and not domicile in the technical sense. Some cases make a distinction between the terms 'residence' and 'domicile' but as generally used in statutes fixing venue, the terms are synonymous, and convey the same meaning as the term 'inhabitant.' In other words, 'resides' should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and actual stay thereat. In this popular sense, the term means merely residence, that is, personal residence, not legal residence or domicile. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one's domicile. No particular length of time of residence is required though; however, the residence must be more than temporary."18 There is no dispute that petitioner Saludo was the congressman or the representative of the lone district of Southern Leyte at the time of filing of his complaint with the court a quo. Even the appellate court admits this fact as it states that "it may be conceded that private respondent ever so often travels to Maasin City, Southern Leyte, because he is its representative in the lower house."19 As a member of the House of Representatives, petitioner Saludo was correctly deemed by the court a quo as possessing the requirements for the said position,20 including that he was then a resident of the district which he was representing, i.e., Southern Leyte. Significantly, for purposes of election law, the term "residence" is synonymous with "domicile," thus: x x x [T]he Court held that "domicile" and "residence" are synonymous. The term "residence," as used in the election law, imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. "Domicile" denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. x x x21 It can be readily gleaned that the definition of "residence" for purposes of election law is more stringent in that it is equated with the term "domicile." Hence, for the said purpose, the term "residence" imports "not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention."22 When parsed, therefore, the

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term "residence" requires two elements: (1) intention to reside in the particular place; and (2) personal or physical presence in that place, coupled with conduct indicative of such intention. As the Court elucidated, "the place where a party actually or constructively has a permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain, i.e., his domicile, is that to which the Constitution refers when it speaks of residence for the purposes of election law."23 On the other hand, for purposes of venue, the less technical definition of "residence" is adopted. Thus, it is understood to mean as "the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and actual stay thereat. In this popular sense, the term means merely residence, that is, personal residence, not legal residence or domicile. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one's domicile."24 Since petitioner Saludo, as congressman or the lone representative of the district of Southern Leyte, had his residence (or domicile) therein as the term is construed in relation to election laws, necessarily, he is also deemed to have had his residence therein for purposes of venue for filing personal actions. Put in another manner, Southern Leyte, as the domicile of petitioner Saludo, was also his residence, as the term is understood in its popular sense. This is because "residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited time." Reliance by the appellate court on Koh v. Court of Appeals25 is misplaced. Contrary to its holding,26 the facts of the present case are not similar to the facts therein. In Koh, the complaint was filed with the Court of First Instance in San Nicolas, Ilocos Norte by plaintiff who admitted that he was a resident of Kamias, Quezon City. Save for the fact that he grew up in San Nicolas, Ilocos Norte and that he manifested the intent to return there after retirement, plaintiff therein had not established that he was actually a resident therein at the time of the filing of his complaint. Neither did he establish that he had his domicile therein because although he manifested the intent to go back there after retirement, the element of personal presence in that place was lacking. To reiterate, domicile or residence, as the terms are taken as synonyms, imports "not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention."27 In contrast, petitioner Saludo was the congressman or representative of Southern Leyte at the time of filing of his complaint with the court a quo. Absent any evidence to the contrary, he is deemed to possess the qualifications for the said position, including that he was a resident therein. And following the definition of the term "residence" for purposes of election law, petitioner Saludo not only had the intention to reside in Southern Leyte, but he also had personal presence therein, coupled with conduct indicative of such intention. The latter element, or his bodily presence as an inhabitant in Southern Leyte, was sufficient for petitioner Saludo to be considered a resident therein for purposes of venue. The following ratiocination of the court a quo is apt: Residence in civil law is a material fact, referring to the physical presence of a person in a place. A person can have two or more residences, such as a country residence and a city residence. (Quetulio v. Ruiz, S.C. Off. Gaz. 156, Commentaries and Jurisprudence in Civil Law, Vol. 1, page 211, Tolentino). Residence is acquired by living in a place; on the other hand, domicile can exist without actually living in the place. The important thing for domicile is that, once residence has been established in one place, there be an intention to stay there permanently, even if residence is also established in some other place.

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Thus, if a person lives with his family habitually in Quezon City, he would have his domicile in Quezon City. If he also has a house for vacation purposes in the City of Baguio, and another house in connection with his business in the City of Manila, he would have residence in all three places (Tolentino, Commentaries and Jurisprudence on Civil Law, Vol. 1, Page 212, 1990 Edition) so that one[']s legal residence or domicile can also be his actual, personal or physical residence or habitation or place of abode if he stays there with intention to stay there permanently. In the instant case, since plaintiff has a house in Makati City for the purpose of exercising his profession or doing business and also a house in Ichon, Macrohon, Southern Leyte, for doing business and/or for election or political purposes where he also lives or stays physically, personally and actually then he can have residences in these two places. Because it would then be preposterous to acknowledge and recognize plaintiff Aniceto G. Saludo, Jr. as congressman of Southern Leyte without also recognizing him as actually, personally and physically residing thereat, when such residence is required by law.28 The fact then that petitioner Saludo's community tax certificate was issued at Pasay City is of no moment because granting arguendo that he could be considered a resident therein, the same does not preclude his having a residence in Southern Leyte for purposes of venue. A man can have but one domicile for one and the same purpose at any time, but he may have numerous places of residence.29 That petitioner Saludo was the congressman or representative of the lone district of Southern Leyte at the time of the filing of his complaint was admitted as a fact by the court a quo. In this connection, it consequently held that, as such, petitioner Saludo's residence in Southern Leyte, the district he was the representing, could be taken judicial notice of. The court a quo cannot be faulted for doing so because courts are allowed "to take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions." 30 Courts are likewise bound to take judicial notice, without the introduction of evidence, of the law in force in the Philippines, 31 including its Constitution. The concept of "facts of common knowledge" in the context of judicial notice has been explained as those facts that are "so commonly known in the community as to make it unprofitable to require proof, and so certainly known to as to make it indisputable among reasonable men." 32 Moreover, "though usually facts of 'common knowledge' will be generally known throughout the country, it is sufficient as a basis for judicial notice that they be known in the local community where the trial court sits." 33 Certainly, the fact of petitioner Saludo being the duly elected representative of Southern Leyte at the time could be properly taken judicial notice of by the court a quo, the same being a matter of common knowledge in the community where it sits. Further, petitioner Saludo's residence in Southern Leyte could likewise be properly taken judicial notice of by the court a quo. It is bound to know that, under the Constitution, one of the qualifications of a congressman or representative to the House of Representatives is having a residence in the district in which he shall be elected. In fine, petitioner Saludo's act of filing his complaint with the court a quo cannot be characterized as a "specie of forum-shopping" or capricious on his part because, under the rules, as plaintiff, he is precisely given this option. Finally, respondents' claim that the instant petition for review was not properly verified by petitioner Saludo deserves scant consideration.

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Section 4, Rule 7 of the Rules of Court reads: Sec. 4. Verification. - Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit. A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records. A pleading required to be verified which contains a verification based on "information and belief," or upon "knowledge, information and belief," or lacks proper verification, shall be treated as an unsigned pleading. Petitioner Saludo's verification and certification of non-forum shopping states that he has "read the contents thereof [referring to the petition] and the same are true and correct of my own personal knowledge and belief and on the basis of the records at hand." The same clearly constitutes substantial compliance with the above requirements of the Rules of Court. WHEREFORE, premises considered, the petition is GRANTED. The Decision dated May 22, 2003 and Resolution dated August 14, 2003 of the Court of Appeals in CA-G.R. SP No. 69553 are REVERSED and SET ASIDE. The Orders dated September 10, 2001 and January 2, 2002 of the Regional Trial Court of Maasin City, Southern Leyte, Branch 25 thereof, in Civil Case No. R3172 are REINSTATED. G.R. Nos. L-21938-39 May 29, 1970 VICENTE URIARTE, petitioner, vs. THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL (12th Judicial District) THE COURT OF FIRST INSTANCE OF MANILA, BRANCH IV, JUAN URIARTE ZAMACONA and HIGINIO URIARTE, respondents. Norberto J. Quisumbing for petitioner. Taada, Teehankee & Carreon for respondents.

DIZON, J.: On October 3, 1963 petitioner Vicente Uriarte filed an original petition for certiorari docketed as G.R. L-21938 against the respondents Juan Uriarte Zamacona, Higinio Uriarte, and the Courts of First Instance of Negros Occidental and of Manila, Branch IV, who will be referred to hereinafter as the Negros Court and the Manila Court, respectively praying: ... that after due proceedings judgment be rendered annulling the orders of 19 April 1963 (Annex 'H') and 11 July 1963 (Annex 'I') of respondent Negros court dismissing the first instituted Special Proceeding No. 6344, supra, and the order of 1 July 1963 (Annex 'K') of respondent Manila court denying petitioner's omnibus motion to intervene and to dismiss the later-instituted Special Proceeding No. 51396, supra, both special proceedings pertaining to the settlement of the same estate of the same deceased, and consequently annulling

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all proceedings had in Special Proceeding No. 51396; supra, of the respondent Manila court as all taken without jurisdiction. For the preservation of the rights of the parties pending these proceedings, petitioner prays for the issuance of a writ of preliminary injunction enjoining respondents Manila court, Juan Uriarte Zamacona and Higinio Uriarte from proceeding with Special Proceeding No. 51396, supra, until further orders of this Court. Reasons in support of said petition are stated therein as follows: 6. Respondent Negros court erred in dismissing its Special Proceeding No. 6344, supra, and failing to declare itself 'the court first taking cognizance of the settlement of the estate of' the deceased Don Juan Uriarte y Goite as prescribed in Rule 75 section 1 of the Rules of Court. Respondent Manila court erred in failing to dismiss its Special Proceeding No. 51396, supra, notwithstanding proof of prior filing of Special Proceeding No. 6344, supra, in the Negros court. The writ of preliminary injunction prayed for was granted and issued by this Court on October 24, 1963. On April 22, 1964 petitioner filed against the same respondents a pleading entitled SUPPLEMENTAL PETITION FOR MANDAMUS docketed in this Court as G.R. No. L-21939 praying, for the reasons therein stated, that judgment be rendered annulling the orders issued by the Negros Court on December 7, 1963 and February 26, 1964, the first disapproving his record on appeal and the second denying his motion for reconsideration, and further commanding said court to approve his record on appeal and to give due course to his appeal. On July 15, 1964 We issued a resolution deferring action on this Supplemental Petition until the original action for certiorari (G.R. L-21938) is taken up on the merits. On October 21, 1963 the respondents in G.R. L-21938 filed their answer traversing petitioner's contention that the respondent courts had committed grave abuse of discretion in relation to the matters alleged in the petition forcertiorari. It appears that on November 6, 1961 petitioner filed with the Negros Court a petition for the settlement of the estate of the late Don Juan Uriarte y Goite (Special Proceeding No. 6344) alleging therein, inter alia, that, as a natural son of the latter, he was his sole heir, and that, during the lifetime of said decedent, petitioner had instituted Civil Case No. 6142 in the same Court for his compulsory acknowledgment as such natural son. Upon petitioner's motion the Negros Court appointed the Philippine National Bank as special administrator on November 13, 1961 and two days later it set the date for the hearing of the petition and ordered that the requisite notices be published in accordance with law. The record discloses, however, that, for one reason or another, the Philippine, National Bank never actually qualified as special administrator. On December 19, 1961, Higinio Uriarte, one of the two private respondents herein, filed an opposition to the above-mentioned petition alleging that he was a nephew of the deceased Juan Uriarte y Goite who had "executed a Last Will and Testament in Spain, a duly authenticated copy whereof has been requested and which shall be submitted to this Honorable Court upon receipt thereof," and further questioning petitioner's capacity and interest to commence the intestate proceeding. On August 28, 1962, Juan Uriarte Zamacona, the other private respondent, commenced Special Proceeding No. 51396 in the Manila Court for the probate of a document alleged to be

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the last will of the deceased Juan Uriarte y Goite, and on the same date he filed in Special Proceeding No. 6344 of the Negros Court a motion to dismiss the same on the following grounds: (1) that, as the deceased Juan Uriarte y Goite had left a last will, there was no legal basis to proceed with said intestate proceedings, and (2) that petitioner Vicente Uriarte had no legal personality and interest to initiate said intestate proceedings, he not being an acknowledged natural son of the decedent. A copy of the Petition for Probate and of the alleged Will were attached to the Motion to Dismiss. Petitioner opposed the aforesaid motion to dismiss contending that, as the Negros Court was first to take cognizance of the settlement of the estate of the deceased Juan Uriarte y Goite, it had acquired exclusive jurisdiction over same pursuant to Rule 75, Section 1 of the Rules of Court. On April 19, 1963, the Negros Court sustained Juan Uriarte Zamacona's motion to dismiss and dismissed the Special Proceeding No. 6344 pending before it. His motion for reconsideration of said order having been denied on July 27, 1963, petitioner proceeded to file his notice of appeal, appeal bond and record on appeal for the purpose of appealing from said orders to this court on questions of law. The administrator with the will annexed appointed by the Manila Court in Special Proceeding No. 51396 objected to the approval of the record on appeal, and under date of December 7, 1963 the Negros Court issued the following order: Oppositor prays that the record on appeal filed by the petitioner on July 27, 1963, be dismissed for having been filed out of time and for being incomplete. In the meantime, before the said record on appeal was approved by this Court, the petitioner filed a petition for certiorari before the Supreme Court entitled Vicente Uriarte, Petitioner, vs. Court of First Instance of Negros Occidental, et al., G.R. No. L-21938, bringing this case squarely before the Supreme Court on questions of law which is tantamount to petitioner's abandoning his appeal from this Court. WHEREFORE, in order to give way to the certiorari, the record on appeal filed by the petitioner is hereby disapproved. In view of the above-quoted order, petitioner filed the supplemental petition for mandamus mentioned heretofore. On April 15, 1963 Vicente Uriarte filed an Omnibus Motion in Special Proceeding No. 51396 pending in the Manila Court, asking for leave to intervene therein; for the dismissal of the petition and the annulment of the proceedings had in said special proceeding. This motion was denied by said court in its order of July 1 of the same year. It is admitted that, as alleged in the basic petition filed in Special Proceeding No. 6344 of the Negros Court, Vicente Uriarte filed in the same court, during the lifetime of Juan Uriarte y Goite, Civil Case No. 6142 to obtain judgment for his compulsory acknowledgment as his natural child. Clearly inferrable from this is that at the time he filed the action, as well as when he commenced the aforesaid special proceeding, he had not yet been acknowledged as natural son of Juan Uriarte y Goite. Up to this time, no final judgment to that effect appears to have been rendered. The record further discloses that the special proceeding before the Negros Court has not gone farther than the appointment of a special administrator in the person of the Philippine National Bank who, as stated heretofore, failed to qualify. On the other hand, it is not disputed that, after proper proceedings were had in Special Proceeding No. 51396, the Manila Court admitted to probate the document submitted to, it as

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the last will of Juan Uriarte y Goite, the petition for probate appearing not to have been contested. It appears further that, as stated heretofore, the order issued by the Manila Court on July 1, 1963 denied petitioner. Vicente Uriarte's Omnibus Motion for Intervention, Dismissal of Petition and Annulment of said proceedings. Likewise, it is not denied that to the motion to dismiss the special proceeding pending before the Negros Court filed by Higinio Uriarte were attached a copy of the alleged last will of Juan Uriarte y Goite and of the petition filed with the Manila Court for its probate. It is clear, therefore, that almost from the start of Special Proceeding No. 6344, the Negros Court and petitioner Vicente Uriarte knew of the existence of the aforesaid last will and of the proceedings for its probate. The principal legal questions raised in the petition for certiorari are (a) whether or not the Negros Court erred in dismissing Special Proceeding No. 6644, on the one hand, and on the other, (b) whether the Manila Court similarly erred in not dismissing Special Proceeding No. 51396 notwithstanding proof of the prior filing of Special Proceeding No. 6344 in the Negros Court. Under the Judiciary Act of 1948 [Section 44, paragraph (e)], Courts of First Instance have original exclusive jurisdiction over "all matters of probate," that is, over special proceedings for the settlement of the estate of deceased persons whether they died testate or intestate. While their jurisdiction over such subject matter is beyond question, the matter of venue, or the particular Court of First Instance where the special proceeding should be commenced, is regulated by former Rule 75, Section 1 of the Rules of Court, now Section 1, Rule 73 of the Revised Rules of Court, which provides that the estate of a decedent inhabitant of the Philippines at the time of his death, whether a citizen or an alien, shall be in the court of first instance in the province in which he resided at the time of his death, and if he is an inhabitant of a foreign country, the court of first instance of any province in which he had estate. Accordingly, when the estate to be settled is that of a non-resident alien like the deceased Juan Uriarte y Goite the Courts of First Instance in provinces where the deceased left any property have concurrent jurisdiction to take cognizance of the proper special proceeding for the settlement of his estate. In the case before Us, these Courts of First Instance are the Negros and the Manila Courts province and city where the deceased Juan Uriarte y Goite left considerable properties. From this premise petitioner argues that, as the Negros Court had first taken cognizance of the special proceeding for the settlement of the estate of said decedent (Special Proceeding No. 6344), the Manila Court no longer had jurisdiction to take cognizance of Special Proceeding No. 51396 intended to settle the estate of the same decedent in accordance with his alleged will, and that consequently, the first court erred in dismissing Special Proceeding No. 6344, while the second court similarly erred in not dismissing Special Proceeding No. 51396. It can not be denied that a special proceeding intended to effect the distribution of the estate of a deceased person, whether in accordance with the law on intestate succession or in accordance with his will, is a "probate matter" or a proceeding for the settlement of his estate. It is equally true, however, that in accordance with settled jurisprudence in this jurisdiction, testate proceedings, for the settlement of the estate of a deceased person take precedence over intestate proceedings for the same purpose. Thus it has been held repeatedly that, if in the course of intestate proceedings pending before a court of first instance it is found it hat the decedent had left a last will, proceedings for the probate of the latter should replace the intestate proceedings even if at that stage an administrator had already been appointed, the latter being required to render final account and turn over the estate in his possession to the executor subsequently appointed. This, however, is understood to be without prejudice that should the alleged last will be rejected or is disapproved, the proceeding shall continue as an intestacy. As already adverted to, this is a clear indication that proceedings for the probate of a will enjoy priority over intestate proceedings.

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Upon the facts before Us the question arises as to whether Juan Uriarte Zamacona should have filed the petition for the probate of the last will of Juan Uriarte y Goite with the Negros Court particularly in Special Proceeding No. 6344 or was entitled to commence the corresponding separate proceedings, as he did, in the Manila Court. The following considerations and the facts of record would seem to support the view that he should have submitted said will for probate to the Negros Court, either in a separate special proceeding or in an appropriate motion for said purpose filed in the already pending Special Proceeding No. 6344. In the first place, it is not in accord with public policy and the orderly and inexpensive administration of justice to unnecessarily multiply litigation, especially if several courts would be involved. This, in effect, was the result of the submission of the will aforesaid to the Manila Court. In the second place, when respondent Higinio Uriarte filed an opposition to Vicente Uriarte's petition for the issuance of letters of administration, he had already informed the Negros Court that the deceased Juan Uriarte y Goite had left a will in Spain, of which a copy had been requested for submission to said court; and when the other respondent, Juan Uriarte Zamacona, filed his motion to dismiss Special Proceeding No. 6344, he had submitted to the Negros Court a copy of the alleged will of the decedent, from which fact it may be inferred that, like Higinio Uriarte, he knew before filing the petition for probate with the Manila Court that there was already a special proceeding pending in the Negros Court for the settlement of the estate of the same deceased person. As far as Higinio Uriarte is concerned, it seems quite clear that in his opposition to petitioner's petition in Special Proceeding No. 6344, he had expressly promised to submit said will for probate to the Negros Court. But the fact is that instead of the aforesaid will being presented for probate to the Negros Court, Juan Uriarte Zamacona filed the petition for the purpose with the Manila Court. We can not accept petitioner's contention in this regard that the latter court had no jurisdiction to consider said petition, albeit we say that it was not the proper venue therefor. It is well settled in this jurisdiction that wrong venue is merely a waiveable procedural defect, and, in the light of the circumstances obtaining in the instant case, we are of the opinion, and so hold, that petitioner has waived the right to raise such objection or is precluded from doing so by laches. It is enough to consider in this connection that petitioner knew of the existence of a will executed by Juan Uriarte y Goite since December 19, 1961 when Higinio Uriarte filed his opposition to the initial petition filed in Special Proceeding No. 6344; that petitioner likewise was served with notice of the existence (presence) of the alleged last will in the Philippines and of the filing of the petition for its probate with the Manila Court since August 28, 1962 when Juan Uriarte Zamacona filed a motion for the dismissal of Special Proceeding No. 6344. All these notwithstanding, it was only on April 15, 1963 that he filed with the Manila Court in Special Proceeding No. 51396 an Omnibus motion asking for leave to intervene and for the dismissal and annulment of all the proceedings had therein up to that date; thus enabling the Manila Court not only to appoint an administrator with the will annexed but also to admit said will to probate more than five months earlier, or more specifically, on October 31, 1962. To allow him now to assail the exercise of jurisdiction over the probate of the will by the Manila Court and the validity of all the proceedings had in Special Proceeding No. 51396 would put a premium on his negligence. Moreover, it must be remembered that this Court is not inclined to annul proceedings regularly had in a lower court even if the latter was not the proper venue therefor, if the net result would be to have the same proceedings repeated in some other court of similar jurisdiction; more so in a case like the present where the objection against said proceedings is raised too late. In his order of April 19, 1963 dismissing Special Proceeding No. 6344, Judge Fernandez of the Negros Court said that he was "not inclined to sustain the contention of the petitioner that inasmuch as the herein petitioner has instituted Civil Case No. 6142 for compulsory acknowledgment by the decedent such action justifies the institution by him of this proceedings. If the petitioner is to be consistent with the authorities cited by him in support of

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his contention, the proper thing for him to do would be to intervene in the testate estate proceedings entitled Special Proceedings No. 51396 in the Court of First Instance of Manila instead of maintaining an independent action, for indeed his supposed interest in the estate of the decedent is of his doubtful character pending the final decision of the action for compulsory acknowledgment." We believe in connection with the above matter that petitioner is entitled to prosecute Civil Case No. 6142 until it is finally determined, or intervene in Special Proceeding No. 51396 of the Manila Court, if it is still open, or to ask for its reopening if it has already been closed, so as to be able to submit for determination the question of his acknowledgment as natural child of the deceased testator, said court having, in its capacity as a probate court, jurisdiction to declare who are the heirs of the deceased testator and whether or not a particular party is or should be declared his acknowledged natural child (II Moran on Rules of Court, 1957 Ed., p. 476; Conde vs. Abaya, 13 Phil. 249; Severino vs. Severino, 44 Phil. 343; Lopez vs. Lopez, 68 Phil. 227, and Jimoga-on vs. Belmonte, 47 O. G. 1119). Coming now to the supplemental petition for mandamus (G.R. No. L-21939), We are of the opinion, and so hold, that in view of the conclusions heretofore stated, the same has become moot and academic. If the said supplemental petition is successful, it will only result in compelling the Negros Court to give due course to the appeal that petitioner was taking from the orders of said court dated December 7, 1963 and February 26, 1964, the first being the order of said court dismissing Special Proceeding No. 6344, and the second being an order denying petitioner's motion for the reconsideration of said order of dismissal. Said orders being, as a result of what has been said heretofore beyond petitioner's power to contest, the conclusion can not be other than that the intended appeal would serve no useful purpose, or, worse still, would enable petitioner to circumvent our ruling that he can no longer question the validity of said orders. IN VIEW OF THE FOREGOING CONSIDERATIONS, judgment is hereby rendered denying the writs prayed for and, as a result, the petition for certiorari filed in G.R. No. L-21938, as well as the supplemental petition for mandamusdocketed as G.R. No. L-21939, are hereby dismissed. The writ of preliminary injunction heretofore issued is set aside. With costs against petitioner.

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