ERNESTO M. GUEVARA, Petitioner, vs. ROSARIO GUEVARA and PEDRO C. QUINTO, Respondents.

The case reached the former Court of Appeals in due course and was decided in /osario (uevara5s favor ,-+hibit -.7 chan roblesvirtualawlibrarybut upon certiorari, the Supreme Court modified the 9udgment in 0ecember, #$8%, as follows ,-+hibit .7 ;@herefore, that part of the decision of the Court of Appeals which declares in effect that notwithstanding e+hibit ! and the issuance of original certificate of title ?o. 1#"$# in the name of -rnesto A. (uevara, one3half of the land described in said certificate of title belongs to the estate of &ictorino '. (uevara and the other half to -rnesto A. (uevara in consideration of the latter5s assumption of the obligation to pay all the debts of the deceased, is hereby affirmed7 chan roblesvirtualawlibrarybut the 9udgment of said court insofar as it awarded any relief to the Respondent /osario (uevara in this action is hereby reversed and set aside, and the parties are hereby ordered to present the document -+hibit A to the proper court for probate in accordance with law, without pre9udice to such action as the provincial fiscal of *angasinan may ta2e against the responsible party or parties under section 8 of /ule :". After the said document is approved and allowed by the court as the last will and testament of the deceased &ictorino '. (uevara, the heirs and legatees herein named may ta2e such action, 9udicial or e+tra9udicial, as may be necessary to partition the estate of the testator, ta2ing into consideration the pronouncements made in part BB of this opinion. ?o finding as to costs in any of the three instances.5 ,Appellant5s )rief, pp. #%3#8.. Claiming to act pursuant to the foregoing decision, /osario (uevara commenced on <ctober 1, #$81, special proceedings ?o. !"8" in the Court of irst Bnstance of *angasinan for the probate of the will of &ictorino (uevara. Bn paragraph #6 of the petition, it was alleged:chanroblesvirtuallawlibrary ;#6. Cue dicho testamento, o sus disposiciones testamentarias, ha sido de 9ure revocado, o revocados, en cuanto a la parcela de terreno de !1$ hectareas descrita en dicho testamento, por haber el testador ena9enado o dispuesto intervivos de la misma en la forma mencionada en las tres decisiones supra3 mencionadas7 chan roblesvirtualawlibraryy que la solicitante pide la legali>acion de dicho testamento tan solo para los efectos del reconocimiento de hi9a natural hecha en dicho testamento a favor de la demandante y en obediencia al mandato de la Corte Suprema en su decision supra.5 ,/ecord on Appeal, p. 1.. ?otice of the petition having been duly published pursuant to /ule of Court ::, section 8, -rnesto (uevara appeared and opposed the probate. *edro '. Cuinto, counsel for /osario in the former litigation, was allowed to intervene in view of his duly recorded attorney5s lien. <n =anuary %#, #$8", -rnesto (uevara, through counsel, filed a motion to dismiss the petition on the grounds that ,a. the petition itself alleged that the will was revo2ed7 chan roblesvirtualawlibrary,b. that ;whatever right to probate the parties may have has already prescribed5 ,/ecord on Appeal, p. #8.7 chan roblesvirtualawlibraryand ,c. that the purpose of the probate was solely to have Petitioner /osario declared an ac2nowledged natural child of the deceased. )y order of 0ecember $, #$8", =udge Sotero /odas denied the motion to dismiss7 chan roblesvirtualawlibrarybut upon motion of reconsideration, =udge

DECISION CONCEPCION, J.: This is a petition for review by certiorari of a decision of the Court of Appeals. The pertinent facts are set forth in said decision, from which we quote:chanroblesvirtuallawlibrary This case being the sequel to, and aftermath of, a previous litigation between the parties that reached the Supreme Court, through the former Court of Appeals, it becomes necessary to restate the essential antecedent facts to view the issues in proper perspective. or this purpose, it is important to recall that on August !", #$%#, &ictorino '. (uevara, a resident of )ayambang, *angasinan, e+ecuted a will ,-+hibit A., distributing assorted movables and a residential lot among his children, /osario and -rnesto (uevara, and his stepchildren, &ivencio, -duvigis, 0ionista, Candida, and *io (uevara. To his second wife Augustia *osadas, the testator bequeathed, in addition to various movables, a portion of !1 hectares to be ta2en out of a !1$ odd hectare parcel outlined in *lan *su3"4"#4, plus another five ,1. hectares in settlement of her widow5s usufruct. The balance of the !1$ odd hectares he distributed as follows:chanroblesvirtuallawlibrary #66 hectares reserved for disposal during the testator5s lifetime and for payment of his debts and family e+penses7 #64.6418 hectares to his legitimate son -rnesto (uevara, including therein 8%.!%8! hectares by way of me9ora7 !#."#:# hectares to ;mi hi9a natural reconocida /osario (uevara.5 -rnesto (uevara was appointed e+ecutor without bond. <n =uly #!, #$%%, the same testator e+ecuted a deed of sale in favor of -rnesto (uevara, conveying to the latter the southern half of the !1$3hectare lot heretofore mentioned, and e+pressly recogni>ed -rnesto (uevara as owner of the northern half. *rior to this sale, on ?ovember #, #$%!, &ictorino and his son -rnesto had 9ointly applied for registration of the big parcel ,case ?o. #1#:8., but in view of the sale from the former to the latter, the decree was issued in the name of -rnesto (uevara e+clusively and for the whole tract, a certificate of title ,?o. 1#"$# of *angasinan. being issued in his sole name on <ctober #!, #$%%. ifteen days previously, i.e., on September !:, #$%%, &ictorino (uevara died, but his will was not filed for probate. About four years later, /osario (uevara, claiming to be a recogni>ed natural child of the deceased &ictorino, and on the assumption that he had died intestate, brought suit against -rnesto (uevara to recover 8!%,8$! square meters of the tract covered by certificate of title ?o. 1#"$# as the portion that should correspond to her ,/osario. by way of legitime.

AaDalac of the same court, on =une !%, #$%:, reconsidered and set aside the previous resolution and ordered the petition dismissed on the ground that /osario (uevara5s petition did not as2 for the probate in toto of the will, contrary to the order of the Supreme Court7 chan roblesvirtualawlibrarythat her right to petition for the probate of the testament of &ictorino '. (uevara had prescribed7 chan roblesvirtualawlibraryand that her action for 9udicial declaration of ac2nowledgment had li2ewise prescribed. An amended petition for the probate of the will in toto and another petition to reconsider the previous order were subsequently denied7 chan roblesvirtualawlibrarythe former on the ground that there was a radical change of theory from that embodied in the original petition, and the second for the same reasons stated in the order of =une !%, #$8:. /osario '. (uevara and *edro '. Cuinto thereupon brought the case on appeal to this Court, assigning no less than twenty ,!6. alleged errors committed by the court below.E ,(uevara vs. (uevara, C.A. F (. /. ?o. 18#"3/, promulgated 0ecember !", #$1#7 chan roblesvirtualawlibrarysee Appendi+ to brief for the Petitioner3Appellant, pp. #3".. The dispositive part of the decision of the Court of Appeals reads as follows:chanroblesvirtuallawlibrary The order of dismissal of the petition for probate is reversed and the court of origin ordered to reinstate the petition, and to hear and decide whether the will of &ictorino (uevara, deceased, should be allowed to probate. Costs against Appellees in both instances.E ,Bbid.. Bn his appeal therefrom, Petitioner -rnesto A. (uevara raises the following questions, to wit:chanroblesvirtuallawlibrary ,a. 0id Respondents herein duly perfect their appeal from the decision of the Court of irst Bnstance of *angasinanG ,b. 0id the Court of Appeals have 9urisdiction to entertain said appealG ,c. Bs the petition for probate of the alleged will of the deceased &ictorino '. (uevara barred by the statute of limitationsG ,#. @ith reference to the first question, Petitioner has submitted the following statement # of the steps ta2en since =une !%, #$8:, date of the resolution of =udge AaDalac, dismissing the petition for probate of the last will and testament of &ictoriano '. (uevara:chanroblesvirtuallawlibrary =une !%, #$8: F 0ate of /esolution appealed from. =uly #8, #$8: F 0ate of =oint *etition for /econsideration filed by Appellants. =uly !1, #$8: F 0ate of Amended petition for probate of will. =uly !1, #$8: F Aotion for admission of Amended *etition. August !, #$8: F

Appellants5 motion to postpone hearing on petition for reconsideration and motion for admission of Amended *etition. August #6, #$8: F Appellants5 urgent motion for continuance of hearing on 9oint petition for /econsideration as well as Aotion to Admit Amended *etition. August !1, #$8: F Aotion for e+tension of time to file memorandum. September #, #$8: F Aemorandum for Appellants submitted. <ctober :, #$8: F Aemorandum for Appellee submitted. <ctober #8, #$8: F Appellants5 petition for ten ,#6. days to file reply memorandum. ?ovember #, #$8: F Appellants5 petition to file reply memorandum on or before ?ovember $, #$8:. ?ovember 4, #$8: F Appellants5 petition for e+tension to file reply memorandum. ?ovember #4, #$8: F &erified reply of Appellant /osario (uevara. ?ovember !8, #$8: F /eply memorandum of *edro C. Cuinto filed. =anuary #!, #$84 F Court denies both petitions of =uly #8 and !1, #$8:. =anuary !8, #$84 F ?otice of appeal to Supreme Court and petition for thirty ,%6. days5 e+tension by Appellant/osario (uevara. =anuary !$, #$84 F <rder granting petition for e+tension. ebruary #, #$84 F Another notice of appeal to Supreme Court and motion for thirty ,%6. days e+tension byAppellant /osario (uevara. ebruary !4, #$84 F Appellants5 e+3parte petition for further e+tension.

Aarch ", #$84 F <riginal 9oint /ecord on Appeal filed. ,This was so defective and incomplete it consisted of mere dis9ointed sheets of paper intercalated with one another and was a mere to2en record on appeal.. Aarch 4, #$84 F Another 9oint petition for reconsideration of Appellants. Aarch ##, #$84 F Appellee5s ob9ection to record on appeal. Aarch #:, #$84 F &erified reply of Appellants to ob9ection. Aarch #4, #$84 F Appellee5s ob9ection to 9oint petition for reconsideration. =une #$, #$84 F Appellants5 memorandum in support of the 9oint petition for reconsideration. =uly !%, #$84 F <rder of denial of =oint *etition and disapproving original record on appeal as incomplete and giving Appellants within #6 days from notice. =uly !", #$84 F Amended ?otice of Appeal to the Court of Appeals instead of to the Supreme Court. =uly !4 and !$, #$84 F Appellants received copy of order of =uly !%, #$84. August #, #$84 F *etition for five ,1. days e+tension to file amended /ecord on Appeal filed by Appellant *edro C. Cuinto. August #6, #$84 F Appellants5 =oint *etition for last e+tension of two ,!. days. August #6, #$84 F iling of amended 9oint record on appeal. ,This is also again so defective and incomplete as to constitute another mere to2en record on appeal as required by the /ules.. August !8, #$84 F Appellants5 petition for ten ,#6. days period to reply to ob9ection, if any was to be filed.

August !:, #$84 F Appellee5s ob9ection to amended record on appeal. September 4, #$84 F Appellants5 reply to ob9ection. <ctober !6, #$84 F Court order sustaining ob9ection and gives Appellants fifteen ,#1. days from notice to redraft record on appeal. ?ovember %, #$84 F Appellants5 9oint petition to reconsider order of disapproval of Amended /ecord on Appeal. ?ovember %, #$84 F Appellants file re3amended 9oint record on appeal. ,This again disregarded the orders of the court regarding the contents of the record on appeal... ?ovember !!, #$84 F Appellee ob9ected to approval of re3amended 9oint record on appeal and prayed that order appealed from be declared final. Aarch !!, #$8$ F Court sustains Appellee5s ob9ection to record on appeal denying petition for reconsideration and Appellants given fifteen ,#1. days from notice to satisfy requirements of court5s previous order. April 4, #$8$ F Appellants file in Supreme Court petition for certiorari and mandamus attac2ing order of =une !%, #$8:. April ##, #$8$ F Appellant Cuinto5s petition for fifteen ,#1. days e+tension to file /e3amended /ecord on Appeal. April #!, #$8$ F Supreme Court denies petition off3hand. April #", #$8$ F Appellant /osario (uevara5s motion for fifteen ,#1. days e+tension for the same purpose. April !#, #$8$ F Court granted e+tension prayed for to e+pire Aay #, #$84. April !#, #$8$ F

Second /e3Amended /ecord on Appeal filed. =une ##, #$8$ F Appellee5s opposition to ;Second /e3Amended /ecord on Appeal5. =une !$, #$8$ F Appellants5 9oint notice of hearing on Second /e3Amended /ecord on Appeal for =uly #!, #$8$. =uly #6, #$8$ F Appellants5 9oint reply to opposition. =uly #!, #$8$ F Action on record on appeal deferred on petition of Atty. Cuinto. September %, #$8$ F Appellant Cuinto5s notice of hearing on Second /e3Amended /ecord on Appeal for September !4, #$8$. September !4, #$8$ F <rder of court approving same. 0ecember 4, #$8$ F Cler2 of lower court sends records to appellate court. 0ecember #6, #$8$ F Appellant Cuinto5s motion e+3parte to have records sent up to appellate court.E ,Petitioner3Appellant5s )rief, pp. 8#38:.. )ased upon the foregoing, Oppositor and Appellee -rnesto A. (uevara filed, with the Court of Appeals, a motion praying that the appeal be dismissed:chanroblesvirtuallawlibrary ,a. )ecause due to the Appellant5s many and repeated dilatory tactics, the prosecution of their appeal has been unduly and unreasonably delayed for a period which should stri2e anyone as totally without 9ustification. The resolution appealed from was dictated by the lower court on =une !%, #$8:, so that a period of over two ,!. years and nine ,$. months until the date of this writing has elapsed, thus establishing a record3holding delay which should not be sanctioned by the Courts as pre9udicial to the administration of 9ustice. ,b. )ecause Appellants, in violation of /ule 84, section %, did not diligently prosecute their appeal by failing to have the record sent up to this Honorable Court within thirty ,%6. days from the time their Second /e3amended /ecord on Appeal was approved on September !4, #$8$7 chan roblesvirtualawlibraryand it was only so transmitted on 0ecember 4, #$8$, that is after the lapse of two ,!. months and ten ,#6. days.

,c. )ecause, at any rate, the first Amended =oint /ecord on Appeal was filed beyond the e+tension granted by the Court and, consequently, the Appellants5 right to appeal has lapsed.E ,-+hibit A, pp. #3!.. The Court of Appeals denied said motion to dismiss for the following reasons:chanroblesvirtuallawlibrary A preliminary question was posed by the Appellee who prayed for the dismissal of the appeal on the ground that Petitioners3Appellants had unreasonably delayed the perfection of the appeal, as the Second /e3amended =oint /ecord on Appeal was not certified to this Court until 0ecember, #$8$. After considering the voluminous record, and the arguments of both parties, we are of the opinion that both parties have contributed to the delay with lengthy memoranda, and repeated motions and ob9ections. Aoreover, the points in question are important enough to deserve adequate consideration upon the merits. @herefore, the motion to dismiss the appeal should be and is hereby, overruled and denied.E ,Appendi+ to )rief for the Petitioner3Appellant, pp. "3 :.. Bt is urged by Petitioner herein that Respondents5 appeal from the decision of the Court of irst Bnstance of *angasinan had not been duly perfected because:chanroblesvirtuallawlibrary ,a. the original of the record on appeal did not comply with the /ules of Court7 chan roblesvirtualawlibrary,b. the record on appeal was filed after the lapse of the reglementary period7 chan roblesvirtualawlibrary,c. there has been an unprecedented delay in the filing of a satisfactory record on appeal7 chan roblesvirtualawlibraryand ,d. the appeal should be deemed abandoned for violation of /ule 84, section %, of the /ules of Court. The first ground is predicated upon the fact that, instead of transcribing the motions, petitions, orders and resolutions incorporated in the original record on appeal, Respondents herein merely attached to the original copy of said record on appeal, filed with the Court of irst Bnstance of *angasinan, their own copies of said motions, petitions, orders and resolutions. Accordingly, the copy of said record on appeal furnished to Petitioner herein did not contain or enclose the aforementioned parts of the record. Bt appears, however, that the Respondentswere given several e+tensions of time within which to comply with the pertinent provisions of the /ules of Court and that Respondents eventually did so. There being no question about the authority of the court of first instance to grant said e+tensions of time, it is clear that the first ground, relied upon by Petitioner herein, is untenable. Bn support of the second ground, it is alleged:chanroblesvirtuallawlibrary ,a. that the original record on appeal was filed by *edro C. Cuinto only, and does not inure to the benefit of /osario (uevara7 chan roblesvirtualawlibraryand ,b. thatRespondents had lost their right to appeal by the lapse of the reglementary period. As regards the first proposition, Petitioner asserts that Respondent *edro C. Cuinto had withdrawn his appearance as counsel for Respondent /osario (uevara7 chan roblesvirtualawlibrarythat Cuinto had, thereafter, intervened in the case in his own behalf, in order to enforce his attorney5s lien, as former counsel for /osario (uevara7 chan roblesvirtualawlibrarythat, consequently, the original record on appeal and the petitions for e+tension of time to file an amended record

on appeal, filed by *edro C. Cuinto, were good only insofar as he is concerned, and cannot profit /osario (uevara, she having ceased to be his client long before the filing of said original record on appeal and petitions for e+tension of time7 chan roblesvirtualawlibrarythat this interest in the case arises from his rights as former attorney forRespondent /osario (uevara, and, as such, is subordinate to, and dependent upon, the interest therein of said /osario (uevara and the success of her claim therein7 chan roblesvirtualawlibraryand that, her appeal not having been duly perfected, his appeal must be deemed to have no legal effect. There is no merit in this pretense, for it appears, at the foot of said record on appeal, that *edro C. Cuinto had filed the same, for himself as Appellant and in behalf of /osario (uevara, who authori>ed him to perfect the appeal for both Appellants,E and that similar statements were made in the body and at the foot of said petitions for e+tension of time. Bt is clear, therefore, that the aforementioned record on appeal and motions should be deemed submitted, also, byRespondent /osario (uevara. The position then held by *edro C. Cuinto, as special prosecutor in the office of the Solicitor (eneral, did not nullify his aforesaid acts on behalf of /osario (uevara. )esides, said acts would seem to have been performed by him, more as attorney3in3 fact than as counsel for /osario (uevara, and this merely in connection with the perfection of her appeal. @e do not find therein anything ob9ectionable, either legally or morally, in the light of the circumstances surrounding the case. The second proposition is reasons:chanroblesvirtuallawlibrary based upon the following

Said petition for reconsideration appears, however, to be predicated, in effect, upon the ground that the evidence is insufficient to 9ustify the decision of the court of first instance, and that said decision is contrary to law. Bt parta2es, therefore, of the nature of a motion for new trial, stating specifically the reasons in support thereof, and, hence, it suspended the period to appeal until the determination of said motion. /elative to the alleged unprecedented delay in the filing of a satisfactory record on appeal, we agree with the finding of the Court of Appeals to the effect that the delay was due to the acts of the Respondents, as well as of the Petitioner herein, for both had as2ed several postponements and e+tensions of time, filed memoranda and reply memoranda, and raised or provo2ed a number of other issues or incidents which necessarily delayed the perfection of the appeal. <bviously, Petitioner should not be allowed to profit by said delay, to which he had actively contributed. # 'astly, Petitioner maintains that, although the record on appeal had been approved on September !4, #$8$, it was not forwarded to the Court of Appeals until 0ecember 4, #$8$. Section % of /ule 84 of the /ules of Court provides:chanroblesvirtuallawlibrary Bf the record on appeal is not received by the Court of Appeals within thirty days after the approval thereof, the Appellee may, upon notice to the Appellant, move the court to grant an order directing the cler2 of the lower court forthwith to transmit such record on appeal or to declare the same abandoned for failure to prosecute.E Considering that Respondents herein were not notified of the approval of the record on appeal until 0ecember 4, #$8$, on which date the record on appeal was forwarded to the Court of Appeals, and that the aforementioned provision of the /ules of Court does impose upon said court the mandatory duty to declare the appeal abandoned for failure to prosecute, we believe that no error was committed in giving due course to the appeal and that the same has been duly perfected. ,!. 0id the Court of Appeals have 9urisdiction to try the case, on appeal from the decision of the court of first instanceG Petitioner maintains the negative, upon the ground that the appeal involved only questions of law. This is not correct, for the very motion for reconsideration adverted to above, indicated that the appeal raised some issues of fact, such as, for instance, whether or not the will in question was in the possession of Respondent /osario (uevara and whether Respondent Cuinto had been authori>ed by her to perfect the appeal on her behalf. At any rate, the case is now before us and, upon e+amination of the record and consideration of all the issues therein raised, we are of the opinion that, had the appeal been forwarded directly to this Court, we would have disposed of it in the manner set forth in the decision of the Court of Appeals, the review of which is sought by herein Appellant. ,%. The last question for determination in this case is whether or not the petition for probate of the will of &ictorino '. (uevara is barred by the statute of limitations, considering that the testator died on September !:, #$%%, and that the petition for

,a. The aforementioned record on appeal and motions for e+tension of time filed by Cuinto on behalf of /osario (uevara did not inure to her benefit, for which reason the reglementary period to appeal had e+pired before the perfection of her appeal. or the reasons already adverted to, this argument is clearly untenable. ,b. The petition for reconsideration filed by Respondents on =uly #8, #$8:, did not suspend the running of the period to perfect the record on appeal, because said petition did not comply with the provisions of /ule %:, section #, of the /ules of Court, reading as follows:chanroblesvirtuallawlibrary @ithin thirty days after notice of the 9udgment in an action, the aggrieved party may move the trial court to set aside the 9udgment end grant a new trial for one or more of the following causes materially affecting the substantial rights of said party:chanroblesvirtuallawlibrary ,a. raud, accident, mista2e or e+cusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights7 ,b. ?ewly discovered evidence, which he could not, with reasonable diligence, have discovered, and produced at the trial, and which if presented would probably alter the result7 ,c. )ecause e+cessive damages have been awarded, or the evidence was insufficient to 9ustify the decision, or it is against the law.E

probate of said will was filed twelve ,#!. years later, or, to be e+act, on <ctober 1, #$81. The Court of Appeals resolved the question in the negative, upon the following grounds:chanroblesvirtuallawlibrary @e are of the opinion that the Court below was in error when it declared that the petition for probate of the will of &ictorino (uevara was barred by prescription. The provision of Article :1" of the old Civil Code ,#68! of the ?ew. and of /ule :" of the /ules of Court, reiterating those of the old Code of Civil *rocedure ,Act #$6., point out that the presentation of a decedent5s will to the competent court has always been deemed by our law as more of a duty than a right, and the neglect of such obligation carries with it the corresponding penalty and it is inconsistent with that policy that the court should refuse to admit wills to probate, without inquiry into their validity. The authority given to testators to dispose freely of a portion of their estate would be imperfectly safeguarded, unless adequate measures were provided by the state to assure that the wishes of the deceased would be carried out. )ecause the decedent may no longer act to have his testamentary dispositions duly e+ecuted, the state authority must ta2e over the opposite vigilance and supervision, so that free testamentary disposition does not remain a delusion and a dream. This was e+pressly recogni>ed by the Supreme Court in its previous decision, (. /. ?o. 84486 ,-+hibit -. when it said:chanroblesvirtuallawlibrary ; cralaw @e hold that under section # of /ule :8, in relation to /ule :", if the decedent left a will and no debts and the heirs and legatees desire to ma2e an e+tra9udicial partition of the estate, they must first present that will to the court for probate and divide the estate in accordance with the will. They may not disregard the provisions of the will unless those provisions are contrary to law. ?either may they do away with the presentation of the will to the court for probate, because such suppression of the will is contrary to law and public policy. The law en9oins the probate of the will and public policy requires it, because unless the will is probated and notice thereof given to the whole world, the right of a person to dispose of his property by will may be rendered nugatory, as is attempted to be done in the instant case. Absent legatees and devisees, or such of them as may have no 2nowledge of the will, could be cheated of their inheritance thru the collusion of some of the heirs who might agree to the partition of the estate among themselves to the e+clusion of others.5 ,Btalics supplied. Bn holding the statute of limitations applicable to the probate of wills, the court below failed to notice that its doctrine was destructive of the right of testamentary disposition and violative of the owner5s right to control his property within the legal limits. The appealed order in fact leaves wills at the mercy and whim of custodians and heirs interested in their suppression. The lower court would in effect abdicate the tutelary power that passed to the /epublic from the former sovereigns, that ;potestad suprema que en mi reside para velar por el puntual cumplimiento de las ultimas voluntades5, asserted as one of the royal prerogatives in the ;/eal Cedula5 of Aarch #4, #::". Bt is not without purpose that /ule of Court :: prescribes that any ;person interested in the estate may, at any time after the death of the testator, petition the court having 9urisdiction to have the will allowed5. Ta2en from the Code of *rocedure of California, this provision has been interpreted as meaning that the

statute of limitations has no application to probate of wills. Bn the case of Bn re Hume5s -state, #:$ Calif. %%4, #:" *ac. "4#, the California Supreme Court ruled that:chanroblesvirtuallawlibrary ;The chapter of the Code relating to the probate of wills does not provide for opposition to such probate on the ground of the bar of the statute of limitations, but, in effect, e+cludes it from the category of grounds allowed as a basis for such opposition. Section #!$$ declares that any person interested in the estate ;may at any time after the death of the testator, petition the court having 9urisdiction to have the will proved.5 This implies that there is no arbitrary time limit.5 As additional reasons, the same Court stated:chanroblesvirtuallawlibrary ; cralaw Section #%#: declares:chanroblesvirtuallawlibrary Bf the court is satisfied, upon the proof ta2en or from the facts found by the 9ury that the will was duly e+ecuted and that the will testator at the time of its e+ecution was of sound and disposing mind and not acting under duress menace fraud, or undue influence, a certificate of the proof and the facts found, signed by the 9udge and attested by the seal of the court, must be attached to the will.5 ;This e+cludes the bar of the statute of limitation from consideration as one of the matters which may be shown in opposition to the probate. This is further emphasi>ed by section #%8#, which, in substance, declares that, if upon the verdict of the 9ury the facts mentioned in section #%#: as aforesaid appear to be established, the court ;must5 admit the will to probate. Section #%#8 thus ma2es it imperative that the court shall admit the will to probate if the e+ecution is proven and the grounds of opposition authori>ed by section #%#! are not established. This clearly implies that no grounds of opposition other than those enumerated in section #%#! may be set up, and it leaves no place for the application of the statute of limitations. ;Bt is further to be observed that, notwithstanding the positive and comprehensive language of sections %8% and %"$, if ta2en literally, there can be no doubt that they cannot apply to all special proceedings of a civil nature. *roceedings for a change of name, or in arbitration, or for voluntary dissolution of a corporation, or for guardianship, or for a married woman to become a sole trader, are all within the definition of the phrase, and each is enumerated, classed, and defined as such proceeding by the Code. Bf the statute of limitations applied, it would begin to run against such proceedings as soon as the right to institute them accrued. Iet from the very nature of these proceedings it is obvious that neither of them could be sub9ect to such limitation. ;This construction of these Code provisions is confirmed by the long3continued and uniform practice and the universal understanding of the bench and bar of the state on the sub9ect.5 +++ +++ +++

;Action to quiet title frequently involve wills of persons who have died many years before the action was begun. The section contemplates that such a will, although not yet probated, may be construed in the action and may be afterwards probated, and it clearly shows that the 'egislature did not understand that the right to

probate such will would be barred if the testator had died more than four years before the petition for probate was filed. ;This uniform practice and understanding of the bench and bar, and of the legislative department of the state also, is a strong argument to the effect that the statute of limitations does not apply to such proceedings. The authorities on the effect of such long acquiescence are numerous.5 The Statute of 'imitations upon which the court below has relied, sections %4 to 16 of the old Code of Civil *rocedure, Act #$6, underta2es to fi+ limits for the filing of ;civil actions5, but none for ;special proceedings5 of which probate is admittedly one. The distinction is not purely verbal, but based on differences that ma2e the limitation to ;actions5 inapplicable to ;special proceedings5. Bn this regard, the Supreme Court of ?ew Ior2 has adequately remar2ed ,Bn re Canfield5s @ill, %66 ?IS 16!.:chanroblesvirtuallawlibrary ;A Respondent in a private proceeding owes no legal duty or obligation to the proponent as such, wherefore it is impossible for him to violate such non3e+istent obligation. urthermore such a proceeding is not instituted for the vindication of any personal right to the proponent. The sub9ect3matter is therefore wholly absent which could give rise to any ;cause of action5 against any Respondent therein. ;The primary purpose of the proceeding is not to establish the e+istence of the right of any living person, but to determine whether or not the decedent has performed the acts specified by the pertinent statutes which are the essential prerequisites to personal direction of the mode of devolution of his property on death. There is no legal but merely a moral duty resting upon a proponent to attempt to validate the wishes of the departed, and he may and frequently does receive no personal benefit from the performance of the act. ;<ne of the most fundamental conceptions of probate law, is that it is the duty of the court to effectuate, in so far as may be compatible with the public interest, the devolutionary wishes of a deceased person ,Aatter of @atson5s @ill, !"! ?.I. !48, !$8, #4" ?.-. :4:7 chan roblesvirtualawlibraryAatter of Aarriman5s -state, #!8 Aisc. %!6, %!1, !64 ?.I.S. ":!7 chan roblesvirtualawlibrary oley, S. affirmed !#: App. 0iv. :%%, !#" ?.I.S. 48!7 chan roblesvirtualawlibraryAatter of 'ensman5s -state, #%: Aisc. ::, :4, !8% ?.I.S. #!", Henderson, S., Aatter of 0ra2e5s -state, #"6 Aisc. 14:, 1$4, !$6 ?.I.S. 14#.. To that end, the court is, in effect, an additional party to every litigation affecting the disposal of the assets of the deceased. Aatter of &an &al2enburgh5s -state, #"8 Aisc. !$1, !$", !$4 ?.I.S. !#$. A determination, therefore, that the mere non3action of a person upon whom no legal duty rested in this regard, could have the effect of subverting the wishes of one who was no longer able to protect his own unquestionable rights, would stri2e at the very foundation of all conceptions of 9ustice as administered in probate courts.5 These decisions are of high persuasive value ,Cu vs. /epublic, (. /. '3%6#4, =uly #4, #$1#.7 chan roblesvirtualawlibrarythey represent the trend of authority ,1: Am. =ur. 141., and enable us to conclude that reason and precedent re9ect the applicability of the Statute of 'imitations to probate proceedings, because these are not e+clusively established in the interest of the surviving heirs, but primarily

for the protection of the testator5s e+pressed wishes, that are entitled to respect as an effect of his ownership and right of disposition. Bf the probate of validly e+ecuted wills is required by public policy, as declared by the Supreme Court in the previous case, (./. 84486 ,-+hibit -., the state could not have intended the statute of limitations to defeat that policy. Bt is true, as ruled by the trial court, that the rights of parties ;should not be left hanging in uncertainty for periods of time far in e+cess of the ma+imum period of ten years allowed by law57 chan roblesvirtualawlibrarybut the obvious remedy is for the other interested persons to petition for the production of the will and for its probate, or to inflict upon the guilty party the penalties prescribed by /ule :" or declare the unworthiness of the heir under the Civil Code for concealing or suppressing the testament7 chan roblesvirtualawlibrarybut not to dismiss the petition for probate, however belatedly submitted, and thereby refuse sanction to testamentary dispositions e+ecuted with all the formalities prescribed by law, incidentally pre9udicing also those testamentary heirs who do not happen to be successors ab intestato. That in this particular case the appealed rule may not wor2 in9ustice would not e+cuse its adoption as a general norm applicable to all cases. Bt is li2ewise reasonable to assume that if the Supreme Court had considered the ten3year limitation applicable to probate proceedings, it would not have ordered the parties on 0ecember !$, #$8% ;to present the document -+hibit A to the proper court for probate in accordance with law5, because the ten years from the death of the testator e+pired in September of that same year, two months before the decision. Bt is safe to assume that the high Court would not order a useless step. The reasoning that the phrase ;in accordance with law5 was a qualification signifying ;if still legally possible5, appears to be far3fetched and un9ustified. The plain import of the words employed by the high Court is that the probate should follow the procedure provided for the purpose.E +++ +++ +++

The other reasons advanced by the court a quo in support of its order dismissing the petition are also untenable. The allegation contained in paragraph #6 of the original petition, that ;the will, or its testamentary dispositions, had been de 9ure revo2ed in so far as the parcel of !1$ hectares described in said will5 is concerned, does not 9ustify the finding that the probate would be pointless. @hat is alleged is a partial revocation, only as to the parcel of land affected7 chan roblesvirtualawlibrarybut as previously shown, the will disposed of other property besides that one. And even granting that the ne+t allegation to the effect that Plaintiff sought to probate ;only for the purposes of her ac2nowledgment as natural child in said will5, constitutes an averment that the will had been fully revo2ed, the same would at the most constitute a conclusion or inference that the lower court was not bound to admit. )ecause the Appellant claimed or believed that the revocation of the will as to the large parcel of land, constituted a total revocation of the testament is no reason why the court should concur in the same belief or conclusion, especially when the will itself, appended to the petition, showed that there were other properties and other heirs or legatees, and the trial court had before it the decision of the Supreme Court ordering the filing of the will for its probate because, as stated in its decision, such a step was en9oined by law

and public policy. Aoreover, the defect, if any, incurred in failing to as2 for the probate in toto of the will, was subsequently cured and corrected in the amended petition, where not only the ob9ectionable statements were eliminated, but others added indicating the e+istence of a partible estate. Assuming that the original petition violated the order of the Supreme Court in so far as it did not as2 for the allowance of the entire will, the court below erred in dismissing the petition, for it thereby sanctioned further disobedience to the order of the superior court. <nce again, it must be repeated that the order of dismissal failed to ta2e into account that the case involved not only the interests of /osario (uevara, and those of the Appellee -rnesto (uevara and the other legatees, but specially the e+press desires of the testator7 chan roblesvirtualawlibraryand that the protection and defense of the latter developed upon the court itself, since no one else made any move to enforce them. -ven if the other heirs had failed to show interest in the case ,a fact not properly inferable from their non3intervention in the case, because the order of publication of the petition only called for those interested to ;appear to contest the allowance5 and not to support it. ,/ec. on App., p. :., and even if the other heirs had already received their shares, the order refusing the probate remains indefensible. Bf the other heirs were not interested, there remained the wishes of the testator to be supported and protected, if validly e+pressed. Bf the heirs had distributed the estate, the distribution was illegal and improper unless the will be first probated. The Supreme Court so ruled in its previous decision ,(. /. 84486. heretofore quoted. ;-ven if the decedent left no debts and nobody raises any question as to the authenticity and due e+ecution of the will, none of the heirs may sue for the partition of the estate in accordance with that will without first securing its allowance or probate by the court:chanroblesvirtuallawlibrary first, because the law e+pressly provides that ;no will shall pass either real or personal estate unless it is proved and allowed in the proper court7 chan roblesvirtualawlibraryand, second, because the probate of a will, which is a proceeding in rem, cannot be dispensed with and substituted by any other proceeding, 9udicial or e+tra9udicial, without offending against public policy designed to effectuate the testator5s right to dispose of his property by will in accordance with law and to protect the rights of the heirs and legatees under the will thru the means provided by law, among which are the publication and the personal notices to each and all of said heirs and legatees. ?or may the court approve and allow the will presented in evidence in such an action for partition, which is one in personam, any more than it could decree the registration under the Torrens system of the land involved in an ordinary action for revindicacion or partition.5 rom whatever angle the case is viewed, a hearing on the allowance of the will is unavoidable. The persistent, albeit obno+ious, attempts of /osario (uevara to sidetrac2 the will are not remedied by dismissing the petition for probate of will, and allowing -rnesto to retain a greater interest than that intended by the testator.E ,Appendi+ to brief for the Petitioner3Appellant, pp. :3#1, #:3!6.. @e are fully in accord with these findings which we adopt as ours.

Bn view of the foregoing, the decision appealed from is hereby affirmed, with the costs of this instance against the Petitioner.

IN RE: INTESTATE ESTATE OF THE LATE PIO DURAN. CIPRIANO DURAN and MIGUEL DURAN, petitioners3appellants, vs. JOSEFINA B. DURAN, movant3oppositor and appellee. *io 0uran died without testament on ebruary !4, #$"# in (uinobatan Albay. Among his alleged heirs are =osefina 0uran, as surviving spouse7 several brothers and sisters7 nephews and nieces. Subsequent to his death, on =une !, #$"!, Cipriano 0uran, one of the surviving brothers, e+ecuted a public instrument assigning and renouncing his hereditary rights to the decedentJs estate in favor of =osefina 0uran, for the consideration of *!,166.66. A year later, on =une 4, #$"%, Cipriano 0uran filed in the Court of irst Bnstance of Albay a petition for intestate proceedings to settle *io 0uranJs estate, further as2ing that he be named the administrator. An ex parte motion to be appointed special administrator was also filed by him. Against said petition, =osefina 0uran filed on August $, #$"% an opposition, praying for its dismissal upon the ground that the petitioner is not an Kinterested personK in the estate, in view of the deed of transfer and renunciation the estate, in view of afore3stated, attaching a copy of the same7 in the alternative, she as2ed to be appointed administratri+. /eplying to this, Cipriano alleged, on September ##, #$"%, alleged in his opposition to the motion to dismiss, that =osefina 0uran was not the decedentJs wife. Anent the deed of assignment, he contended that the same was procured thru fraud, with gross inadequacy of price and vitiated by lesion. Still later, another brother of the decedent, Aiguel 0uran, filed on September #8, #$"%, a petition to be 9oined as co3petitioner of Cipriano. =osefina 0uran moved to stri2e out said petition as an improper attempt to intervene in the case. She also filed a reply to CiprianoJs opposition to her motion to dismiss. Bn turn, Aiguel filed an opposition to =osefinaJs motion to stri2e out.1wph1.t Acting on said motions, on =une %, #$"8, the Court of irst Bnstance issued an order dismissing the petition of Cipriano for his lac2 of interest in the estate. Said lac2 of interest was premised on the deed of transfer e+ecuted by Cipriano, regarding which the court declared itself without power to e+amine in said proceedings, collaterally, the alleged fraud, inadequacy of price and lesion that would render it rescissible or voidable. And with the petitionJs dismissal, AiguelJs petition to be 9oined as co3petitioner was deemed without leg to stand on. Appeal to Ls directly, on questions of law, was ta2en by Cipriano and Aiguel 0uran.

The /ules of Court provides that a petition for administration and settlement of an estate must be filed by an Kinterested personK ,See. !, /ule :$.. Appellants contend that the deed of assignment e+ecuted by Cipriano did not operate to render him a person without interest in the estate. /elying on In re Irene Santos, '3##484, Aay %#, #$"!, they argue that an assignment by one heir of his share in the estate to a co3heir amounts to a partition needing approval by the settlement court to be effective7 and that the assigning heir does not lose his status as a person interested in the estate, even after said assignment is approved by the court. The situation in the Santos case involves an assignment between co3 heirs pendente lite, during the course of settlement proceedings, properly and validly commenced. At the time of said assignment, therefore, the settlement court had already acquired 9urisdiction over the properties of estate. As a result, any assignment regarding the same had to be approved by said court. And since the approval the court is not deemed final until the estate is closed the assigning heir remains an interested person in proceedings even after said approval, which can be vacated is given. Bn the present case, however, the assignment too2 place when no settlement proceedings was pending. The properties sub9ect matter of the assignment were not under the 9urisdiction of a settlement court. Allowing that the assignment must be deemed a partition as between the assignor and assignee, the same does not need court approval to be effective as between the parties. An e+tra9udicial partition is valid as between the participants even if the requisites of Sec. #, /ule :8 for e+tra9udicial partition are not followed, since said requisites are for purposes of binding creditors and non3participating heirs only ,Hernande> v. Andal, :4 *hil. #$".. Should it be contended that said partition was attended with fraud, lesion or inadequacy of price, the remedy is to rescind or to annul the same in an action for that purpose. And in the meanwhile, assigning heir cannot initiate a settlement proceedings, for until the deed of assignment is annulled or rescinded, it is deemed valid and effective against him, so that he is left without that KinterestK in the estate required to petite for settlement proceedings. Anent appellant Aiguel 0uran, he sought in his petition below to K9oin petitioner Cipriano 0uran as co3petitioner in the latterJs petition . . . and incorporates herein by adoption all the allegations made in said petition.K ,/ecord on Appeal, pp. 813 8".. The same, therefore, amounted to a petition to intervene in the settlement proceedings. As aptly ruled by the court a quo, since there was really no settlement proceedings in the first place, the petition to intervene must be denied. inally, although =osefina 0uran prayed to be appointed administratri+, her doing so did not amount to ratification of the petition for settlement under the ruling in usebio !. "al#ores, $: *hil. #"%, since she did so merely by way of an alternative prayer, should her motion to dismiss fail. And said motion to dismiss was properly sustained. @herefore, the dismissal order appealed from is hereby affirmed, with costs against appellants. So ordered.

FRANCISCO SALAZAR, petitioner, vs. THE COURT OF FIRST INSTANCE OF LAGUNA and SABINA RIVERA, respondents. The petitioner instituted special proceeding ?o. %#6$ in the court of irst Bnstance of 'aguna and, in the petition filed by him, prayed for the probate of the will allegedly made on Aay #%, #$!8, by his deceased mother 0amiana Capistrano, who died in the municipality of *agsan9an, 'aguna, on 0ecember !#, #$%". The petition was opposed by the respondent Sabina /ivera, who filed a pleading entitled K<pposition and Counter3*etition.K Bn her pleading the respondent, after opposing the probate of said will for the reasons stated therein, prayed for the probate of the will of the deceased alleged made on Aay ##, #$%6, copy of which was attached thereto, and for the issuance, to that effect, of the order setting the hearing thereof and directing such publications as required by law. The court denied the motion for publication and ordered the respondent to institute another proceeding and apply separately for the probate of the alleged will. The respondent filed a motion for reconsideration and the court, on Aarch %#, #$$%:, issued an order setting aside the former one and directing that the will presented by the respondent be set for hearing, that the publications required by law be made and that said will be heard 9ointly with the will presented by the petitioner in the same proceeding instituted by the latter. Sometime later, the court ordered that the e+penses for the publications made in the newspapers be defrayed by the respondent. The petitioner filed two motions for reconsideration which were denied and, finally, instituted this $ertiorari proceeding. Bn order that the hearing and publications ordered by the court may be carried out, the respondent, on =uly !6, #$%:, deposited *!8 and filed the original of the will the probate of which had been sought by her. B. The petitioner raises only one question of law, to wit: that the court acquired no 9urisdiction to ta2e cogni>ance of the counter3petition for the probate of the second will, or to set the same for hearing of said will to be held in the same proceeding 9ointly with the first will, on the ground that the respondent had not previously filed her pleading nor paid the fees of the cler2 of court fi+ed by section :44 of the Code of Civil *rocedure, as amended by Act ?o. %%$1. The pertinent part of said section, as amended, reads as follows: S-C. :44. %ees of $ler&s of 'ourt of %irst Instan$e. F ees shall assessed in accordance with the following schedule: ,(. or all clerical services in the allowance of wills, granting letters of administration, appointment of guardians, trustees, settlement of the accounts of e+ecutors, administrators, guardians, trustees, and recording final and interlocutory orders, 9udgment, and decrees therein, filing all inventories and appraisements, and for all other wor2 as cler2 pertaining to any one estate, fees payable out of the estate shall be collected in

accordance with the value of the property involved in each proceeding, as follows: The 9urisdiction of the Courts of irst Bnstance in probate matters is determined in the following sections of the above3cited Code: S-C. 1$$. )urisdi$tion. F Courts of irst Bnstance shall have 9urisdiction in all matters relating to the settlement of estate and probate of wills of deceased persons, the appointment and removal of guardians and trustees, and the powers, duties, and rights of guardians and wards, trustees, and $estuis que trust. This 9urisdiction shall be called probate 9urisdicton. S-C. "66. *here resident+s estate settled. F Bf an inhabitant of the *hilippine Bslands dies, whether a citi>en or alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of irst Bnstance in the province in which he resided at the time of his death. S-C. "6#. *here nonresident+s estate settled. F Bf a person resided out of the *hilippine Bslands at the time of his death, his will shall be allowed and recorded, and letters testamentary or of administration shall be granted in the Court of irst Bnstance of any province in which he had estate. S-C. "!". 'ustodian of will to deli!er. F The person who has the custody of a will shall, within thirty days after he 2nows of the death of the testator, deliver the will into the court which has 9urisdiction, or to the e+ecutor named in the will. S-C. "!:. xe$utor to present will and a$$ept or refuse trust. F A person named as e+ecutor in a will, shall within thirty days after he 2nows of the death of the testator, or within thirty days after he 2nows that he is named e+ecutor, if he obtained such 2nowledge after 2nowing of the death of the testator, present such will to the court which has 9urisdiction, unless the will has been otherwise returned to said court, and shall, within such period, signify to the court his acceptance of the trust, or ma2e 2nown in writing his refusal to accept it. S-C. "%6. 'ourt to appoint hearin( on will. F @hen a will is delivered to a court having 9urisdiction of the same, the court shall appoint a time and place when all concerned may appear to contest the allowance of the will, and shall cause public notice thereof to be given by publication in such newspapers as the court directs general circulation in the province, three wee2s successively, previous to the time appointed, and no will shall be allowed until such notice has been given. At the hearing all

testimony shall be ta2en under oath, reduced to writing and signed by the witnesses. Lnder the foregoing provisions, a Court of irst Bnstance acquires 9urisdiction to probate a will when it is shown by evidence before it: ,#. That a person has died leaving a will7 ,!. in the case of a resident of this country, that he died in the province where the court e+ercises territorial 9urisdiction7 ,%. in the case of a nonresident, that he has left a estate in the province where the court is situated, and ,8. that the testament or last will of the deceased has been delivered to the court and is in the possession thereof. The law is silent as to the specific manner of bringing the 9urisdictional allegations before the court but practice and 9urisprudence have established that they should be made in the form of an application and filed with the original of the will attached thereto. Bt has been the practice in some courts to permit attachment of a mere copy of the will to the application, without pre9udice to producing the original thereof at the hearing or when the court so requires. This precaution has been adapted by some attorneys to forestall its disappearance, which has ta2en place in certain cases. According to the facts alleged and admitted by the parties, it is evident that the court has acquired 9urisdiction to probate the second will, in view of the presence of all the 9urisdictional facts above3stated. The respondentJs counter3petition should, in this case, be considered as a petition for the probate of the second will, the original of which was filed by her on =uly !6, #$%:. BB. The payment of the fees of the cler2 of court for all services to be rendered by him in connection with the probate of the second will and for the successive proceedings to be conducted and others to be issued, in accordance with section :44, as amended, is not 9urisdiction in the sense that its omission does not deprive the court of its authority to proceed with the probate of a will, as e+pressly provided for by section "%6. Bt is the inevitable duty of the court, when a will is presented to it, to appoint hearing for its allowance and to cause notice thereof to be given by publication. The duty imposed by said section is imperative and noncompliance therewith would be a moc2ery at the law and at last will of the testator. Section :41 ,a. of the Code of Civil *rocedure, as amended recently by Act ?o. %!16, permits the remission or postponement of the payment of the cler2Js fees in cases of poverty, at the discretion of the court, and if this were done in one case and the payment of the fees for filing the application were 9urisdictional, is claimed, then the court, in admitting the will to probate and in allowing it, would have acted entirely without 9urisdiction. inally, it should be ta2en into consideration that the court, in this case, did not e+empt the respondents from paying the fees in question but merely failed to ma2e provision therefor. BBB. @hen the court ordered that the second will be set for hearing that publication be made thereof and that said will be heard in the same proceeding 9ointly with the first will, it merely ordered the consolidation of the two applications and the

two hearing on the probate of both wills, instead of conducting separate hearing, undoubtedly because it understood that the form so chosen was the most convenient for the parties and their attorneys. There are three ways of consolidation action or special proceedings where the questions at issue and the parties in interest are the same. The first consists in recasting the cases already instituted, conducting only one hearing and rendering only one decision7 the second ta2es place when the e+isting cases are consolidated, only one hearing held and only one decision rendered7 and the third ta2es place when, without recasting or consolidating the cases, the principal one is heard, the hearing on the others being suspended until 9udgment has been rendered in the first case. The court, in the e+ercise of its sound discretion, may adopt any of these three forms of consolidation whenever in its opinion the proceeding is beneficial to and convenient for the parties. The power so e+ercised is discretionary. Bn the case under consideration, the court acquired 9urisdiction from the moment the counter3petition was presented and the second will came to its possession and under its control and, consequently, it li2ewise had full discretion to order, as it did, the probate thereof in the proceeding already instituted for the purpose of rendering later only one decision. Bt should furthermore be ta2en into consideration that the consolidation so ordered was the form most convenient for and beneficial to the parties as well as to the court because if the first will were opposed on the ground that it was revo2ed by the second will, the best evidence of the revocation would be said second will and once the publications are made, if the second will was e+ecuted with the formalities prescribed by law, the court could order the probate thereof, without the necessity of multiplying the proceedings. The decisions inserted hereinbelow are in support of the consolidation of special proceedings in the cases where more than one will of a deceased person has been presented: The question involved in the two cases is, which, if either, of the instruments presented for probate is the last will of Aargaret /oulett. The trial of one case would not necessarily determine the other, as a verdict in one for the caveat would not establish the instrument propounded in the other, and a verdict in /oulettJs case, finding that the paper offered by him was the last will of Aargaret /oulett, would not be binding upon Aulherin, because he is not a party to /oulettJs proceeding. @e are, therefore, of the opinion, in view of the complications that might arise from separate trials and the facility with which the whole matter may be determined by consolidating the cases, that the trial 9udge might, in his discretion, pass an order directing that the two cases be consolidated and heard together, and in this manner have all the issues disposed of by a 9udgment binding and conclusive upon all the parties before the court. Bn such trial the person who filed the first application in the court of ordinary would be entitled to open and conclude. ,/oulett !s Aulherin, #66 (a., 1$8..

Bn probate proceeding it was a proper course to try the validity of two alleged wills, the latest of which had been lost or destroyed at the same time, and evidence as to the revo2ing clause in the lost will was admissible, but its effect on the earlier will must be determined in view of the admissibility of the latter will to probate as a will. ,In re ThompsonJs -state, #$4: *ac., :$1... @here two wills are offered for probate and applications consolidated, submission of both for determination as to whether one, or if not that the other, is true will, held not erroneous. ,'illard !s Tolliver, !41 S. @., 1:"... @here two instruments are propounded by different parties as wills, and several application are made for probate, they will be consolidated and tried together as one proceeding. ,In re *otterJs @ill, #11 ?. I. S., $%$... The question of consolidation is discretionary with the court. Bn both of the above3entitled proceedings, the parties are identical. ?o issues have been tried in either proceeding. Bt therefore would be an unnecessary e+pense to both the parties in interest and the country, and an unnecessary delay in the determination of both proceedings, not to consolidate them. B am therefore of the opinion that a seasonable demand was made for a 9ury trial of the issues raised by the ob9ections filed to the probate of the will dated Aay 4, #$#!, and that the proceedings should be consolidated, and also that the issues raised in said proceedings can be more speedily and conveniently tried before the acting surrogate and a 9ury. ,In re *otterJs @ill, #14 ?.I., #66#.. @here separate scripts are propounded for probate as the last will and testament of an alleged testator, the probate proceedings in a proper case may be consolidated for trial. ,In re AartinJs @ill, #8# ?. I. S., :48.. 'onsolidation of pro$eedin(s. F At common law the court could order all testamentary papers to be produced in court in a proceeding to probate any one of them, and now, under the statutory procedure in effect in the various 9urisdiction, the validity of two or more papers claimed to be the last will and testament of deceased may be tried at the same time, or a consolidation of separate proceedings to probate or contest various testamentary papers purported to be by the same testator may be made. A motion for such a consolidation, however, is addressed to the surrogate presiding at the trial and should be made when the trial of the probate proceeding comes on for the hearing and not prior thereto, or before the surrogate sitting for the dispatch of chambers business. ,"4 C. =., #6%4. #6%$, sec. 4%6... The court may, in its discretion, consolidate proceedings instituted by different persons for the purpose of having different instrument each

probated as the last will and testament of decedent. Separate contests of a will and a codicil, or of two wills, each claimed to be the last will of testator, may be consolidated by the court and heard together. ,*age on @ills, *age %:1, paragraph %!%.. Bt is the conclusion of this court, therefore, that the respondent court did not act in e+cess of its sound discretion in issuing the other of Aarch %#, #$%:, and for the foregoing reasons, the remedy applied for is hereby denied, with costs to the petitioner. So ordered.

IN THE MATTER OF THE PETITION TO APPROVE THE ILL OF CIPRIANO ABUT, d!"!as!d. GENEROSO ABUT, #!$%$%&n!', GAVINA ABUT, petitioner3 appellant, vs. FELIPE ABUT, PRESENTACION DE RODRIGUEZ and ABSOLUTO ABUT, oppositors3appellees. %elipe ,. -ontesa for petitioner.appellant. /o#obono A. Ada0a for oppositors.appellees.

in his favor. Bn an amended order dated September #, #$"1 the court a quo #otu proprio set the petition for hearing and further directed compliance with Sections % and 8 of /ule :" of the /ules of Court. ) These procedural steps admittedly too2 place. <pposition to the petition was filed by the children of Cipriano Abut by his first marriage, namely, elipe Abut, *resentacion de /odrigue> and Absoluto Abut, now appellees here. 0uring the pendency of the case below but before the court a quo could even start the formal hearing of the petition, which had been delayed by several postponements, (eneroso Abut, the original petitioner who initiated the probate proceeding, died on =anuary #6, #$"". This eventuality prompted (avina Abut, a sister of (eneroso Abut and an heir and devisee under the will of the testator Cipriano Abut, to as2 the court a quo to substitute her in lieu of (eneroso Abut and to admit an amended petition wherein she prayed that the probate of the will be allowed and that letters of administration with the will anne+ed be issued in her favor. or reasons stated in its order of =uly !, #$"", hereinabove quoted, the court a quo dismissed the petition originally brought by the deceased (eneroso Abut, Kwithout pre9udice to the filing of another petition pursuant to the requirements of the /ules of Court.K The issue is whether or not the probate court correctly dismissed the petition simply because the original petitioner F who was the e+ecutor named in the will sought to be probated F died before the petition could be heard andMor terminated. Stated otherwise, after the court had acquired 9urisdiction over the case involving probate of the will, did the demise of the original petitioner during the pendency of the proceeding divest the court of such 9urisdiction and preclude the continuation of the case on the theory that the amended petition filed by herein petitioner, who admittedly was a person having an interest in the estate, see2ing to substitute her in place of the original petitioner, but with a similar prayer for the allowance of the same will, required a new publication in order to invest the court with 9urisdiction. @e find the dismissal of the original petition for probate and the refusal of the probate court to admit the amended petition without a new publication thereof to be untenable. The 9urisdiction of the court became vested upon the filing of the original petition and upon compliance with Sections % and 8 of /ule :". * A proceeding for the probate of a will is one in re#, such that with the corresponding publication of the petition the courtJs 9urisdiction e+tends to all persons interested in said will or in the settlement of the estate of the deceased. The fact that the amended petition named additional heirs not included in the original petition + did not require that notice of the amended petition be published anew. All that Section 8 of /ule :" provides is that those heirs be notified of the hearing for the probate of the will, either by mail or personally. Bn the case of Pere0 !s. Pere0 , this Court e+plained:

MA(ALINTAL, J.:p This is an appeal from an order dated =uly !, #$"" of the Court of irst Bnstance of Aisamis <riental ,)r. B&. in its Sp. *roc. ?o. $##. The said order states: (avina Abut, through counsel, see2s the admission of the amended petition in which she substitutes for the original petitioner, (eneroso Abut, who died after his original petition was filed, published and the Court had ta2en 9urisdiction thereof. Bn the original petition the deceased (eneroso Abut appears to have been named e+ecutor of the will of the deceased Cipriano Abut7 that he was in possession and custody of the latterJs will7 and that he sought to be named e+ecutor of the will of the deceased Cipriano Abut. Bn the amended petition (avina Abut alleges that the will was delivered to her by (eneroso Abut before his death and that it is now in her custody and possession, and she prays that she be appointed administratri+ of the estate of the deceased Cipriano Abut. Considering the foregoing amendments embodied in the amended petition, and the fact that publication of the petition is a 9urisdictional matter intended to inform whomsoever may be interested in said petition and to afford him or her an opportunity to assert his or her rights, the Court believes that the original petition should be, as it is hereby dismissed, without pre9udice to the filing of another petition pursuant to the requirements of the /ules of Court. The decisive facts are largely matters of record. <n August 8, #$"1 (eneroso Abut, one of the children of the deceased Cipriano Abut by his second marriage and the person named as e+ecutor in a will allegedly e+ecuted by the said deceased, filed a petition before the court a quo praying that after due notice and hearing the said will be approved and allowed and that letters testamentary issue

Thus it appears that such Kno noticeK argument has no legal foundation. At any rate the omission, if any, did not affect the 9urisdiction of the court7 it constituted a mere procedural error that may or may not be the basis of reversal ,=ocson vs. ?able, 84 <.(. $6.. Bndeed, this Tribunal has ruled that the court acquires 9urisdiction over all persons interested in the estate through the publication of the petition in the newspapers ,Bn re -state of =ohnson, %$ *hil. #1$7 =ocson vs. ?able, supra. F which in this case admittedly too2 place. Service of notice on individual heirs or legatees or devisees is a matter of procedural convenience, not 9urisdictional requisite. So much so that even if the names of some legatees or heirs had been omitted from the petition for allowance of the will F and therefore were not advised F the decree allowing the will does not ipso fa$to become void for want of 9urisdiction ... =urisdiction of the court once acquired continues until the termination of the case, - and remains unaffected by subsequent events. The court below erred in holding that it was divested of 9urisdiction 9ust because the original petitioner died before the petition could be formally heard. *arties who could have come in and opposed the original petition, as herein appellees did, could still come in and oppose the amended petition, having already been notified of the pendency of the proceeding by the publication of the notice thereof. The admission of the amended petition, of course, does not mean that (avina AbutJs prayer that she be appointed administratri+ with the will anne+ed is necessarily meritorious. Bt simply recogni>es that since the lower court has acquired 9urisdiction over the res, such 9urisdiction continues until the termination of the case. The first question that the lower court should hear and decide is the probate of the will7 and the question of whether or not (avina Abut should be appointed administratri+ must be decided on the basis of the facts to be presented and after the will is proved and allowed, as provided in Section " of /ule :4. @H-/- </-, the order dated =uly !, #$"" is set aside and the case is remanded below, with direction for the lower court to admit the amended petition and thereafter proceed accordingly. Costs against oppositors3appellees.

JOAQUINA R.INFANTE DE ARANZ, ANTONIO R.INFANTE, CARLOS R. INFANTE, MERCEDES R.INFANTE DE LEDNIC(/, ALFREDO R.INFANTE, TERESITA R.INFANTE, RAMON R.INFANTE, FLORENCIA R.INFANTE DE DIAS, MARTIN R.INFANTE, JOSE R.INFANTE LIN( and JOAQUIN R. INFANTE CAMPBELL, petitioners, vs. THE HON. NICOLAS GALING, PRESIDING JUDGE, REGIONAL TRIAL COURT, NATIONAL CAPITAL JUDICIAL REGION, BRANCH NO. )00, PASIG, METRO MANILA AND JOAQUIN R.INFANTE, respondents. This is a petition for review on certiorari of the decision ) of the Court of Appeals, dated #% =anuary #$4:, in CA3(./. S* ?o. 6$"!!, entitled K=oaquina /3Bnfante de Aran>, et al., petitioners vs. Hon. ?icolas (aling, etc., et al., respondents,K dismissing petitionersJ petition for certiorari and prohibition as3, sailing the orders * of the /egional Trial Court of *asig, )ranch #"", dated #! Aay #$4" and %6 Aay #$4", respectively, in Sp. *roc. ?o. $$$1, entitled, KBn the Aatter of *etition for Approval of the 'ast @ill and Testament of Aontserrat /3Bnfante y (3 *ola =oaquin /. Bnfante, *etitioner.K <n % Aarch #$4", private respondent filed with the /egional Trial Court of *asig, )ranch #"", a petition for the probate and allowance of the last will and testament of the late Aontserrat /3Bnfante y (3*ola The petition specified the names and ad3 dresses of herein petitioners as legatees and devisees, as follows: =oaquina /3Bnfante /o+as de Aran> residing at ?o. 4" #6th St., ?ew Aanila, Cue>on City, Aetro Aanila7 Antonio /3Bnfante /o+as residing at N$# Cambridge, ?orth orbes, Aa2ati, Aetro Aanila7 Carlos /3Bnfante /o+as residing at N8" @ashington St., (reenhills, San =uan, Aetro Aanila7 Aercedes /3Bnfante /o+as de 'ednic2y residing at N%4" *. (uevarra St., San =uan, Aetro Aanila7 Alfredo /3Bnfante /o+as residing at N!: A Scout Tobias St., Cue>on City, Aetro Aanila7 Teresita /3Bnfante /o+as residing at N#!# $th Street, ?ew Aanila, Cue>on City, Aetro Aanila7 /amon /3Bnfante /o+as residing at N!: ) Scout Tobias St., Cue>on City, Aetro Aanila7

lorencia /3Bnfante /o+as de 0ia> residing at Calle Sancho 0avila, #%3#$30, Aadrid, !46!4 Spain7 Aartin /3Bnfante /o+as residing at N! )ongavilla St., Cubao, Cue>on City, Aetro Aanila7 =ose /3Bnfante 'in2 residing at #:8/3*ascual St., San =uan, Aetro Aanila7 =oaquin /3Bnfante Campbell CM< *ilar Campbell, #1 )riones, Aa2ati, Aetro Aarta. + <n #! Aarch #$4", the probate court issued an order selling the petition for hearing on 1 Aay #$4" at 4:%6 oJcloc2 in the morning. Said order was published in the K?ueva -raK A newspaper of general circulation in Aetro Aanila once a wee2 for three ,%. consecutive wee2s. <n the date of the hearing, no oppositor appeared. The hearing was then reset to #! Aay #$4", on which date, the probate court issued the following order: There being no opposition to this instant case, as prayed for, the oner to3receive )ranch Cler2 of Court is hereby designated Co evidence e+3parte of the petitioner. S< </0-/-0. , <n the same day ,#! Aay #$4"., private respondent presented his evidence ex. parte and placed Arturo Arceo one of the testamentary witnesses, on the witness stand. 0uring the proceedings, private respondent was appointed e+ecutor. <n #8 Aay #$4", petitioners filed a motion for reconsideration of the order of #! Aay #$4" alleging that, as named legatees, no notices were sent to them as required by Sec. 8, /ule :" of the /ules of Court and they prayed that they be given a period of ten ,#6. days within which to file their opposition to the probate of the will. <n %6 Aay #$4", the probate court, acting on the opposition of private respondent and the reply thereto of petitioners, issued an order denying petitioners motion for reconsideration. Thereafter, petitioners filed with this Court a petition for certiorari and prohibition which was, however, referred to the Court of Appeals. <n #% =anuary #$4:, the Court of Appeals promulgated a decision dismissing the petition. -Hence, the instant petition.

Bt is the view of petitioners that the Court of Appeals erred in holding that personal notice of probate proceedings to the 2nown legatees and devisees is not a 9urisdictional requirement in the probate of a will. Contrary to the holding of the Court of Appeals that the requirement of notice on individual heirs, legatees and devisees is merely a matter of procedural convenience to better satisfy in some instances the requirements of due process, petitioners allege that under Sec. 8 of /ule :" of the /ules of Court, said requirement of the law is mandatory and its omission constitutes a reversible error for being constitutive of grave abuse of discretion. 0 @e grant the petition: Sec. 8, /ule :" of the /ules of Cof reads: S-C. 8. /eirs1 de!isees1 le(atees1 and exe$utors to be notified b2 #ail or personall2. F The court shag also cause copies of the notice of the time and place fi+ed for proving the will to be addressed to the designated or other 2nown heirs, legatees, and devisees of the testator resident in the *hilippines at their places of residence, and deposited in the post office with the postage thereon prepaid at least twenty ,!6. days before the hearing, if such places of residence be 2nown. A copy of the notice must in li2e manner be mailed to the person named as e+ecutor, if he be not, the petitioner7 also, to any person named as co3e+ecutor not petitioning, if their places of residence be 2nown. *ersonal service of copies of the notice at least ten ,#6. days before the day of hearing shall be equivalent to mailing. Bt is clear from the aforecited rule that notice of the time and place of the hearing for the allowance of a will shall be forwarded to the designated or other 2nown heirs, legatees, and devisees residing in the *hilippines at their places of residence, if such places of residence be 2nown. There is no question that the residences of herein petitioners legatees and devisees were 2nown to the probate court. The petition for the allowance of the wig itself indicated the names and addresses of the legatees and devisees of the testator. 1 )ut despite such 2nowledge, the probate court did not cause copies of the notice to be sent to petitioners. The requirement of the law for the allowance of the will was not satisfied by mere publication of the notice of hearing for three ,%. wee2s in a newspaper of general circulation in the province. The case of )oson !s. ,able 2 cited by the Court of Appeals in its assailed decision to support its theory is not applicable in the present case. Bn that case, petitioners *urificacion =oson and -rotica =oson failed to contest the will of Tomas =oson because they had not been notified of the hearing of the petition for probate. he the petition included the residence of petitioners as 0agupan Street ?o. 4%, Aanila, petitioners claimed that their residence was not 0agupan Street ?o. 4%, Aanila. There the Court said:

*etitioners maintain that no notice was received by them partly because their residence was not 0agupan Street ?o. 4% as alleged in the petition for probate. Bf the allegation of the petition was wrong and the true residence of petitioners was not 2nown, then notice upon them individually was not necessary. Lnder the provision abovequoted, individual notice upon heirs, legatees and devisees is necessary only when they are 2nown or when their places of residence are 2nown. Bn other instances, such notice is not necessary and the court may acquire and e+ercise 9urisdiction simply upon the publication of the notice in a newspaper of general circulation. ... 3 Bn Re3 4estate state of Sunta2, )4 the Court, spea2ing thru Ar. =ustice Sabino *adilla, said: ... Bt is a proceedings in rem and for the validity of such proceedings personal notice or by publication or both to all interested parties must be made. The interested parties in the case were 2nown to reside in the *hilippines. The evidence shows that no such notice was received by the interested parties residing in the *hilippines ,pp. 8:8, 8:", 84#, 16%38, t.s.n., hearing of !8 ebruary #$84.. The proceedings had in the municipal district court of Amoy, China, may be li2ened to a deposition or to a perpetuation of testimony, and even if it were so it does not measure or come up to the standard of such proceedings in the *hilippines for lac2 of notice to all interested parties and the proceedings were held at the bac2 of such interested parties. +++ +++ +++ ... Bn view thereof, the will and the alleged probate thereof cannot be said to have been done in accordance with the accepted basic and fundamental concepts and principles followed in the probate and allowance of wills. Consequently, the authenticated transcript of proceedings held in the municipal district court of Amoy, China, cannot be deemed and accepted as proceedings leading to the probate or allowance of a will and, therefore, the will referred to therein cannot be allowed, filed and recorded by a competent court of court. )) @H-/- </-, the decision of the Court of Appeals dated #% =anuary #$4: is hereby A??L''-0 and S-T ASB0-. The case is hereby ordered remanded to the /egional Trial Court of *asig for further proceedings in accordance with this decision. ?o costs. S< </0-/-0.

n re !s$a$! &5 $6! d!"!as!d In!s Basa d! M!'"ad&. JOAQUINA BASA, ET AL., petitioners3appellants, vs. ATILANO G. MERCADO, respondent3appellee. )y virtue of an order dated =une !:, #$%#, the Honorable Hermogenes /eyes, =udge of the Court of irst Bnstance of *ampanga, allowed and probated the last will and testament of Bnes )asa, deceased. <n =anuary %6, #$%!, the same 9udge approved the account of the administrator of the estate, declared him the only heir of the deceased under the will and closed the administration proceedings. <n April ##, #$%8, the herein petitioners3appellants filed a motion in which they prayed that said proceedings be reopened and alleged that the court lac2ed 9urisdiction to act in the matter because there was a failure to comply with requirements as to the publication of the notice of hearing prescribed in the following section of the Code of Civil *rocedure: S-C. "%6. 'ourt to appoint hearin( on will. F @hen a will is delivered to a court having 9urisdiction of the same, the court shall appoint a time and place when all concerned may appear to contest the allowance of the will, and shall cause public notice thereof to be given by publication in such newspaper or newspapers as the court directs of general circulation in the province, three wee2s successively, previous to the time appointed, and no will shall be allowed until such notice has been given. At the hearing all testimony shall be ta2en under oath, reduced to writing and signed by the witnesses. Bn this motion the appellants claim that the provisions of section "%6 of the Code of Civil *rocedure have not been complied with in view of the fact that although the trial 9udge, on Aay !$, #$%#, ordered the publication of the required notice for Kthree wee2s successivelyK previous to the time appointed for the hearing on the will, the first publication was on =une ", #$%#, the third on =une !6, #$%#, and the hearing too2 place on the !:th of that month, only twenty3one days after the date of the first publication instead of three full wee2s before the day set for the hearing. Section "%6 of our Code of Civil *rocedure is ta2en from the Code of Civil *rocedure of the State of &ermont. The Supreme Court of that State, commenting on the phrase Kthree wee2s successivelyK, held: The date of e+amining and allowing *.A. )arlettJs final account of administration, and for decreeing the residue of the estate to the lawful claimants of the same, was set by the probate court for 0ecember #$, #$#$, at the probate office in )righton, and an order was made to this effect on ?ovember !4, #$#$. The order provided also that notice should be given by publication for three wee2s successively in the ssex 'ount2 /erald. Bn accordance with this order, the notice was published in the issues for 0ecember 8, ## and #4, respectively. This was Kpublic

noticeK to all persons interested of the time and place of e+amining and allowing said account and ma2ing decree of distribution, and was sufficient under the provisions of (.'. %!:". ,'enehen !s. Spaulding, 1: &t., ##1.. KThe proceeding was according to law in all respects, and being in the nature of a proceeding in rem, it binds everybody by its legal effect.K ,)urbec2 !s. 'ittle, 16 &t., :#%.. At the time and place set for the hearing none of the petitioners or other legatees under the will of ?ic2erson @arner appeared. Thereupon the 9udge of probate then and there continued the hearing until April ", #$!6, at which time the final account of *.A .)arlett as administrator de bonis non with will anne+ed was filed and, no one appearing to ob9ect, the same was allowed, and the decree of distribution was entered. ,In re@arnerJs -state OSupreme Court of &ermontP #$!17 #!: Atl. /ep., %"!, %"87 $4 &t., !18, !"#.. Bt will be noted that in the above cited case the last of the three publications was on 0ecember #4, #$#$, and the hearing on the administratorsJs final account was set for 0ecember #$ of that year, only fifteen days after the date of the first publication. Bn view of the foregoing, it is held that the language used in section "%6 of the Code of Civil *rocedure does not mean that the notice, referred to therein, should be published for three full wee2s before the date set for the hearing on the will. Bn other words the first publication of the notice need not be made twenty3one days before the day appointed for the hearing. The appellants also contend that the trial court erred in ruling that the wee2ly newspaper, In( 5atipunan, in which the notice of hearing was published, was a newspaper of general circulation in the *rovince of *ampanga. The record shows that In( 5atipunan is a newspaper of general circulation in view of the fact that it is published for the dissemination of local news and general information7 that it has a bona fide subscription list of paying subscribers7 that it is published at regular intervals and that the trial court ordered the publication to be made inIn( 5atipunan precisely because it was a Knewspaper of general circulation in the *rovince of *ampanga.K urthermore no attempt has been made to prove that it was a newspaper devoted to the interests or published for the entertainment of a particular class, profession, trade, calling, race or religious denomination. The fact that there is another paper published in *ampanga that has a few more subscribers ,:! to be e+act. and that certain Aanila dailies also have a larger circulation in that province is unimportant. The law does not require that publication of the notice, referred to in the Code of Civil *rocedure, should be made in the newspaper with the largest numbers is necessary to constitute a newspaper of general circulation. The assignments of error of the appellants are overruled and the appealed order of the trial court is affirmed with costs in this instance against the appellants.

IN THE MATTER OF THE PETITION TO APPROVE THE ILL OF RICARDO B. BONILLA d!"!as!d, MARCELA RODELAS, petitioner3appellant, vs. AMPARO ARANZA, ET AL., oppositors3appellees, ATT/. LORENZO SUMULONG, intervenor. This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section %, /ule 16 of the /ules of Court. As found by the Court of Appeals: ... <n =anuary ##, #$::, appellant filed a petition with the Court of irst Bnstance of /i>al for the probate of the holographic will of /icardo ). )onilla and the issuance of letters testamentary in her favor. The petition, doc2eted as Sp. *roc. ?o. 48%!, was opposed by the appellees Amparo Aran>a )onilla, @ilferine )onilla Treyes -+pedita )onilla rias and -phraim )onilla on the following grounds: ,#. Appellant was estopped from claiming that the deceased left a will by failing to produce the will within twenty days of the death of the testator as required by /ule :1, section ! of the /ules of Court7 ,!. The alleged copy of the alleged holographic will did not contain a disposition of property after death and was not intended to ta2e effect after death, and therefore it was not a will ,%. The alleged hollographic will itself,and not an alleged copy thereof, must be produced, otherwise it would produce no effect, as held in (am v. Iap, #68 *hil. 16$7 and ,8 . The deceased did not leave any will, holographic or otherwise, e+ecuted and attested as required by law. The appellees li2ewise moved for the consolidation of the case with another case Sp. *roc. ?o, 4!:1.. Their motion was granted by the court in an order dated April 8, #$::. <n ?ovember #%, #$:4, following the consolidation of the cases, the appellees moved again to dismiss the petition for the probate of the will. They argued that:

,#. The alleged holographic was not a last will but merely an instruction as to the management and improvement of the schools and colleges founded by decedent /icardo ). )onilla7 and ,!. 'ost or destroyed holographic wills cannot be proved by secondary evidence unli2e ordinary wills. Lpon opposition of the appellant, the motion to dismiss was denied by the court in its order of ebruary !%, #$:$. The appellees then filed a motion for reconsideration on the ground that the order was contrary to law and settled pronouncements and rulings of the Supreme Court, to which the appellant in turn filed an opposition. <n =uly !%, #$:$, the court set aside its order of ebruary !%, #$:$ and dismissed the petition for the probate of the will of /icardo ). )onilla. The court said: ... Bt is our considered opinion that once the original copy of the holographic will is lost, a copy thereof cannot stand in lieu of the original. Bn the case of (am vs. Iap, #68 *hil. 16$, 1!!, the Supreme Court held that Jin the matter of holographic wills the law, it is reasonable to suppose, regards the document itself as the material proof of authenticity of said wills. A</-<&-/, this Court notes that the alleged holographic will was e+ecuted on =anuary !1, #$"! while /icardo ). )onilla died on Aay #%, #$:". Bn view of the lapse of more than #8 years from the time of the e+ecution of the will to the death of the decedent, the fact that the original of the will could not be located shows to our mind that the decedent had discarded before his death his allegedly missing Holographic @ill. AppellantJs motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is contended that the dismissal of appellantJs petition is contrary to law and well3settled 9urisprudence. <n =uly :, #$46, appellees moved to forward the case to this Court on the ground that the appeal does not involve question of fact and alleged that the trial court committed the following assigned errors:

B. TH- '<@-/ C<L/T -//-0 B? H<'0B?( THAT A '<ST H<'<(/A*HBC @B'' AAI ?<T )- */<&-0 )I A C<*I TH-/-< 7 BB. TH- '<@-/ C<L/T -//-0 B? H<'0B?( THAT TH0-C-0-?T HAS 0BSCA/0-0 )- </- HBS 0-ATH THABSSB?( H<'<(/A*HBC @B''7 BBB. TH- '<@-/ C<L/T -//-0 B? 0BSABSSB?( A**-''A?TJS @B''. The only question here is whether a holographic will which was lost or cannot be found can be proved by means of a photostatic copy. *ursuant to Article 4## of the Civil Code, probate of holographic wills is the allowance of the will by the court after its due e+ecution has been proved. The probate may be uncontested or not. Bf uncontested, at least one Bdentifying witness is required and, if no witness is available, e+perts may be resorted to. Bf contested, at least three Bdentifying witnesses are required. However, if the holographic will has been lost or destroyed and no other copy is available, the will can not be probated because the best and only evidence is the handwriting of the testator in said will. Bt is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. )ut, a photostatic copy or +ero+ copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. Bn the case of (am vs. Iap, #68 *HB'. 16$, the Court ruled that Kthe e+ecution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen andMor read such will. The will itself must be presented7 otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity.K )ut, in ootnote 4 of said decision, it says that K*erhaps it may be proved by a photographic or photostatic copy. -ven a mimeographed or carbon copy7 or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be e+hibited and tested before the probate court,K -vidently, the photostatic or +ero+ copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court.

SALUD TEODORO VDA. DE PEREZ, petitioner, vs. HON. ZOTICO A. TOLETE %n 6%s "a#a"%$7 as P'!s%d%n8 J9d8!, B'an"6 )2, RTC, B9:a"an, respondent. This is a petition for $ertiorari under /ule "1 of the /evised /ules of Court to set aside the <rder dated ?ovember #$, #$4" of the /egional Trial Court, )ranch #4, )ulacan presided by respondent =udge Qotico A. Tolete, in Special *roceedings ?o. #:$%3A. @e grant the petition. BB 0r. =ose . Cunanan and his wife, 0r. -velyn *ere>3Cunanan, who became American citi>ens, established a successful medical practice in ?ew Ior2, L.S.A. The Cunanans lived at ?o. !4$" Citation 0rive, *ompey, Syracuse, ?ew Ior2, with their children, =ocelyn, #47 =acqueline, #"7 and =osephine, #8. <n August !%, #$:$, 0r. Cunanan e+ecuted a last will and testament, bequeathing to his wife Kall the remainderK of his real and personal property at the time of his death Kwheresoever situatedK ,Rollo, p. %1.. Bn the event he would survive his wife, he bequeathed all his property to his children and grandchildren with 0r. /afael (. Cunanan, =r. as trustee. He appointed his wife as e+ecutri+ of his last will and testament and 0r. /afael (. Cunanan, =r. as substitute e+ecutor. Article &BBB of his will states: Bf my wife, -&-'I? *-/-Q3CL?A?A?, and B shall die under such circumstances that there is not sufficient evidence to determine the order of our deaths, then it shall be presumed that B predeceased her, and my estate shall be administered and distributed, in all respects, in accordance with such presumption ,Rollo, p. 8#.. our days later, on August !:, 0r. -velyn *. Cunanan e+ecuted her own last will and testament containing the same provisions as that of the will of her husband. Article &BBB of her will states: Bf my husband, =<S- . CL?A?A?, and B shall die under such circumstances that there is not sufficient evidence to determine the order of our deaths, then it shall be presumed that he predeceased me, and my estate shall be administered and distributed in all respects, in accordance with such presumption. ,Rollo, p. %#..

<n =anuary $, #$4!, 0r. Cunanan and his entire family perished when they were trapped by fire that gutted their home. Thereafter, 0r. /afael (. Cunanan, =r. as trustee and substitute e+ecutor of the two wills, filed separate proceedings for the probate thereof with the Surrogate Court of the County of <nondaga, ?ew Ior2. <n April :, these two wills were admitted to probate and letters testamentary were issued in his favor. <n ebruary !#, #$4%, Salud Teodoro *ere>, the mother of 0r. -velyn *. Cunanan, and petitioner herein, filed with the /egional *. Cunanan, and petitioner herein, filed with the /egional Trial Court, Aalolos, )ulacan a petition for the reprobate of the two bills ancillary to the probate proceedings in ?ew Ior2. She also as2ed that she be appointed the special administratri+ of the estate of the deceased couple consisting primarily of a farm land in San Aiguel, )ulacan. <n Aarch $, the /egional Trial Court, )ranch #", Aalolos, )ulacan, presided by =udge (ualberto =. de la 'lana, issued an order, directing the issuance of letters of special administration in favor of petitioner upon her filing of a *#6,666.66 bond. The following day, petitioner posted the bond and too2 her oath as special administration. As her first act of administration, petitioner filed a motion, praying that the *hilippine 'ife Bnsurance Company be directed to deliver the proceeds in the amount of *16,666.66 of the life insurance policy ta2en by 0r. =ose . Cunanan with 0r. -velyn *ere>3Cunanan and their daughter =ocelyn as beneficiaries. The trial court granted the motion. Counsel for the *hilippine American 'ife Bnsurance Company then filed a manifestation, stating that said company then filed a manifestation, stating that said company had delivered to petitioner the amount of *8$,:"1.41, representing the proceeds of the life insurance policy of 0r. =ose . Cunanan. Bn a motion dated Aay #$, #$4%, petitioner as2ed that 0r. /afael Cunanan, Sr. be ordered to deliver to her a *hilippine Trust Company passboo2 with *!1,1$8.66 in savings deposit, and the amily Savings )an2 time deposit certificates in the total amount of *#!,8#!.1!. <n Aay %#, Atty. ederico Alday filed a notice of appearance as counsel for the heirs of 0r. =ose . Cunanan, namely, 0r. /afael Cunanan, Sr., *riscilla Cunanan )autista, 'ydia Cunanan Bgnacio, elipe . Cunanan and 'oreto Cunanan Concepcion ,Cunanan heirs.. He also manifested that before receiving petitionerJs motion of Aay #$, #$4%, his clients were unaware of the filing of the testate estate case and therefore, Kin the interest of simple fair play,K they should be notified of the proceedings ,/ecords, p. ##6.. He prayed for deferment of the hearing on the motions of Aay #$, #$4%.

*etitioner then filed a counter manifestation dated =une #%, #$4%, asserting: ,#. that the KCunanan collaterals are neither heirs nor creditors of the late 0r. =ose . CunananK and therefore, they had Kno legal or proprietary interests to protectK and Kno right to interveneK7 ,!. that the wills of 0r. =ose . Cunanan and 0r. -velyn *ere>3Cunanan, being American citi>ens, were e+ecuted in accordance with the solemnities and formalities of ?ew Ior2 laws, and produced Keffects in this 9urisdiction in accordance with Art. #" in relation to Art. 4#" of the Civil CodeK7 ,%. that under Article &BBB of the two wills, it was presumed that the husband predeceased the wife7 and ,8. that Kthe Cunanan collaterals are neither distributees, legatees or beneficiaries, much less, heirs as heirship is only by institutionK under a will or by operation of the law of ?ew Ior2 ,/ecords, pp. ##!3 ##%.. <n =une !%, the probate court granted petitionerJs motion of Aay #$, #$4%. However, on =uly !#, the Cunanan heirs filed a motion to nullify the proceedings and to set aside the appointment of, or to disqualify, petitioner as special administratri+ of the estates of 0r. =ose . Cunanan and 0r. -velyn *ere>3 Cunanan. The motion stated: ,#. that being the Kbrothers and sisters and the legal and surviving heirsK of 0r. =ose . Cunanan, they had been Kdeliberately e+cludedK in the petition for the probate of the separate wills of the Cunanan spouses thereby misleading the )ulacan court to believe that petitioner was the sole heir of the spouses7 that such KmisrepresentationK deprived them of their right to Kdue process in violation of Section 8, /ule :" of the /evised /ules of Court7 ,!. that 0r. /afael (. Cunanan, =r., the e+ecutor of the estate of the Cunanan spouses, was li2ewise not notified of the hearings in the )ulacan court7 ,%. that the Kmisrepresentation and concealment committed byK petitioner rendered her unfit to be a special administratri+7 ,8. that 0r. /afael (. Cunanan, =r. had, by virtue of a verified power of attorney, authori>ed his father, 0r. /afael Cunanan, Sr., to be his attorney3in3fact7 and ,1. that 0r. /afael Cunanan, Sr. is qualified to be a regular administrator Kas practically all of the sub9ect estate in the *hilippines belongs to their brother, 0r. =ose . CunananK ,/ecords, pp. ##43#!!.. Hence, they prayed: ,#. that the proceedings in the case be declared null and void7 ,!. that the appointment of petitioner as special administratri+ be set aside7 and ,%. that 0r. /afael Cunanan, Sr. be appointed the regular administrator of the estate of the deceased spouses. Thereafter, the Cunanan heirs filed a motion requiring petitioner to submit an inventory or accounting of all monies received by her in trust for the estate. Bn her opposition, petitioner asserted: ,#. that she was the Ksole and only heirK of her daughter, 0r. -velyn *ere>3Cunanan to the e+clusion of the KCunanan collateralsK7 hence they were complete strangers to the proceedings and were not entitled to notice7 ,!. that she could not have KconcealedK the name and address of 0r. /afael (. Cunanan, =r. because his name was prominently mentioned not only in the two wills but also in the decrees of the American surrogate court7 ,%. that the rule applicable to the case is /ule ::, not /ule :", because it involved the allowance of wills proved outside of the *hilippines and that nowhere in Section ! of /ule :: is there a mention of notice being given to the e+ecutor who, by the

same provision, should himself file the necessary ancillary proceedings in this country7 ,8. that even if the )ulacan estate came from the KcapitalK of 0r. =ose . Cunanan, he had willed all his worldly goods to his wife and nothing to his brothers and sisters7 and ,1. that 0r. /afael (. Cunanan, =r. had unlawfully disbursed R!#1,666.66 to the Cunanan heirs, misappropriated R#1,666.66 for himself and irregularly assigned assets of the estates to his American lawyer ,/ecords, pp. #1#3#"6.. Bn their reply, the Cunanan heirs stressed that on ?ovember !8, #$4!, petitioner and the Cunanan heirs had entered into an agreement in the Lnited States Kto settle and divide equally the estates,K and that under Section ! of /ule :: the Kcourt shall fi+ a time and place for the hearing and cause notice thereof to be given as in case of an original will presented for allowanceK ,/ecords, pp. #483 #41.. *etitioner as2ed that 0r. /afael (. Cunanan, =r. be cited for contempt of court for failure to comply with the <rder of =une !%, #$4% and for appropriating money of the estate for his own benefit. She also alleged that she had impugned the agreement of ?ovember !8, #$4! before the Surrogate Court of <nondaga, ?ew Ior2 which rendered a decision on April #%, #$4%, finding that Kall assets are payable to 0r. -velyn *. Cunanan5s e+ecutor to be then distributed pursuant to -*T'83#.# subd OaP par O8PK ,Rollo, p. 1!.. <n their part, the Cunanan heirs replied that petitioner was estopped from claiming that they were heirs by the agreement to divide equally the estates. They asserted that by virtue of Section ! of /ule :: of the /ules of Court, the provisions of Sections %, 8 and 1 of /ule :" on the requirement of notice to all heirs, e+ecutors, devisees and legatees must be complied with. They reiterated their prayer: ,#. that the proceedings in the case be nullified7 ,!. that petitioner be disqualified as special administratri+7 ,%. that she be ordered to submit an inventory of all goods, chattels and monies which she had received and to surrender the same to the court7 and ,8. that 0r. /afael Cunanan, Sr. be appointed the regular administrator. *etitioner filed a re9oinder, stating that in violation of the April #%, #$4% decision of the American court 0r. /afael (. Cunanan, =r. made Kunauthori>ed disbursements from the estates as early as =uly :, #$4!K ,/ecords, p. !%#.. Thereafter, petitioner moved for the suspension of the proceedings as she had Kto attend to the settlement proceedingsK of the estate of the Cunanan spouses in ?ew Ior2 ,/ecords, p. !8!.. The Cunanans heirs opposed this motion and filed a manifestation, stating that petitioner had received R!#1,666.66 Kfrom the Surrogate5s Court as part of legacyK based on the aforesaid agreement of ?ovember !8, #$4! ,/ecords, p. !84.. <n ebruary !#, #$48, =udge de la 'lana issued an order, disallowing the reprobate of the two wills, recalling the appointment of petitioner as special administratri+, requiring the submission of petitioner of an inventory of the

property received by her as special administratri+ and declaring all pending incidents moot and academic. =udge de la 'lana reasoned out that petitioner failed to prove the law of ?ew Ior2 on procedure and allowance of wills and the court had no way of telling whether the wills were e+ecuted in accordance with the law of ?ew Ior2. Bn the absence of such evidence, the presumption is that the law of succession of the foreign country is the same as the law of the *hilippines. However, he noted, that there were only two witnesses to the wills of the Cunanan spouses and the *hilippine law requires three witnesses and that the wills were not signed on each and every page, a requirement of the *hilippine law. <n August !:, #$41, petitioner filed a motion for reconsideration of the <rder dated ebruary !#, #$48, where she had sufficiently proven the applicable laws of ?ew Ior2 governing the e+ecution of last wills and testaments. <n the same day, =udge de la 'lana issued another order, denying the motion of petitioner for the suspension of the proceedings but gave her #1 days upon arrival in the country within which to act on the other order issued that same day. Contending that the second portion of the second order left its finality to the discretion of counsel for petitioner, the Cunanans filed a motion for the reconsideration of the ob9ectionable portion of the said order so that it would conform with the pertinent provisions of the =udiciary /eorgani>ation Act of #$46 and the Bnterim /ules of Court. <n April %6, #$41, the respondent =udge of )ranch #4 of the /egional Trial Court, Aalolos, to which the reprobate case was reassigned, issued an order stating that K,@.hen the last will and testament . . . was denied probate,K the case was terminated and therefore all orders theretofore issued should be given finality. The same <rder amended the ebruary !#, #$48 <rder by requiring petitioner to turn over to the estate the inventoried property. Bt considered the proceedings for all intents and purposes, closed ,/ecords, p. %6!.. <n August #!, petitioner filed a motion to resume proceedings on account of the final settlement and termination of the probate cases in ?ew Ior2. Three days later, petitioner filed a motion praying for the reconsideration of the <rder of April %6, #$41 on the strength of the ebruary !#, #$48 <rder granting her a period of #1 days upon arrival in the country within which to act on the denial of probate of the wills of the Cunanan spouses. <n August #$, respondent =udge granted the motion and reconsidered the <rder of April %6, #$41. <n August !$, counsel for petitioner, who happens to be her daughter, ?atividad, filed a motion praying that since petitioner was ailing in ort 'ee, ?ew =ersey, L.S.A. and therefore incapacitated to act as special administratri+, she ,the counsel. should be named substitute special administratri+. She also filed a motion for the reconsideration of the <rder of ebruary !#, #$48, denying probate to the wills of the Cunanan spouses, alleging that respondent =udge Kfailed to appreciate the significant probative value of the e+hibits . . . which all refer to the

offer and admission to probate of the last wills of the Cunanan spouses including all procedures underta2en and decrees issued in connection with the said probateK ,/ecords, pp. %#%3%!%.. Thereafter, the Cunanans heirs filed a motion for reconsideration of the <rder of August #$, #$41, alleging lac2 of notice to their counsel. <n Aarch %#, #$4", respondent =udge to which the case was reassigned denied the motion for reconsideration holding that the documents submitted by petitioner proved Kthat the wills of the testator domiciled abroad were properly e+ecuted, genuine and sufficient to possess real and personal property7 that letters testamentary were issued7 and that proceedings were held on a foreign tribunal and proofs ta2en by a competent 9udge who inquired into all the facts and circumstances and being satisfied with his findings issued a decree admitting to probate the wills in question.K However, respondent =udge said that the documents did not establish the law of ?ew Ior2 on the procedure and allowance of wills ,/ecords, p. %4#.. <n April $, #$4", petitioner filed a motion to allow her to present further evidence on the foreign law. After the hearing of the motion on April !1, #$4", respondent =udge issued an order wherein he conceded that insufficiency of evidence to prove the foreign law was not a fatal defect and was curable by adducing additional evidence. He granted petitioner 81 days to submit the evidence to that effect. However, without waiting for petitioner to adduce the additional evidence, respondent =udge ruled in his order dated =une !6, #$4" that he found Kno compelling reason to disturb its ruling of Aarch %#, #$4"K but allowed petitioner to Kfile anew the appropriate probate proceedings for each of the testatorK ,/ecords, p. %$#.. The <rder dated =une !6, #$4" prompted petitioner to file a second motion for reconsideration stating that she was Kready to submit further evidence on the law obtaining in the State of ?ew Ior2K and praying that she be granted Kthe opportunity to present evidence on what the law of the State of ?ew Ior2 has on the probate and allowance of willsK ,/ecords, p. %$%.. <n =uly #4, respondent =udge denied the motion holding that to allow the probate of two wills in a single proceeding Kwould be a departure from the typical and established mode of probate where one petition ta2es care of one will.K He pointed out that even in ?ew Ior2 Kwhere the wills in question were first submitted for probate, they were dealt with in separate proceedingsK ,/ecords, p. %$1.. <n August #%, #$4", petitioner filed a motion for the reconsideration of the <rder of =uly #4, #$4", citing Section %, /ule ! of the /ules of Court, which provides that no party may institute more than one suit for a single cause of action. She

pointed out that separate proceedings for the wills of the spouses which contain basically the same provisions as they even named each other as a beneficiary in their respective wills, would go against Kthe grain of ine+pensive, 9ust and speedy determination of the proceedingsK ,/ecords, pp. 861386:.. <n September ##, #$4", petitioner filed a supplement to the motion for reconsideration, citing 6eni(no !. 7e 8a Pea, 1: *hil. %61 ,#$%!. ,/ecords, p. 8##., but respondent =udge found that this pleading had been filed out of time and that the adverse party had not been furnished with a copy thereof. Bn her compliance, petitioner stated that she had furnished a copy of the motion to the counsel of the Cunanan heirs and reiterated her motion for a Kfinal ruling on her supplemental motionK ,/ecords, p. 8!#.. <n ?ovember #$, respondent =udge issued an order, denying the motion for reconsideration filed by petitioner on the grounds that Kthe probate of separate wills of two or more different persons even if they are husband and wife cannot be underta2en in a single petitionK ,/ecords, pp. %:"3%:4.. Hence, petitioner instituted the instant petition, arguing that the evidence offered at the hearing of April ##, #$4% sufficiently proved the laws of the State of ?ew Ior2 on the allowance of wills, and that the separate wills of the Cunanan spouses need not be probated in separate proceedings. BB *etitioner contends that the following pieces of evidence she had submitted before respondent =udge are sufficient to warrant the allowance of the wills: ,a. two certificates of authentication of the respective wills of -velyn and =ose by the Consulate (eneral of the *hilippines ,-+hs. K K and K(K.7 ,b. two certifications from the Secretary of State of ?ew Ior2 and Custodian of the (reat Seal on the facts that =udge )ernard '. /eagan is the Surrogate of the Country of <nondaga which is a court of record, that his signature and seal of office are genuine, and that the Surrogate is duly authori>ed to grant copy of the respective wills of -velyn and =ose ,-+hs. K 3#K and K(3#K.7 ,c. two certificates of =udge /eagan and Chief Cler2 0onald -. Aoore stating that they have in their records and files the said wills which were recorded on April :, #$4! ,-+hs. K 3!K and K(3 !K.7

,d. the respective wills of -velyn and =ose ,-+hs. K 3%K, K 3"K and -+h. K(3%K F K(3"K.7 ,e. certificates of =udge /eagan and the Chief Cler2 certifying to the genuineness and authenticity of the e+emplified copies of the two wills ,-+hs. K 3:K and K 3:K.7 ,f. two certificates of authentication from the Consulate (eneral of the *hilippines in ?ew Ior2 ,-+h. KHK and K K.. ,g. certifications from the Secretary of State that =udge /eagan is duly authori>ed to grant e+emplified copies of the decree of probate, letters testamentary and all proceedings had and proofs duly ta2en ,-+hs. KH3#K and KB3#K.7 ,h. certificates of =udge /eagan and the Chief Cler2 that letters testamentary were issued to /afael (. Cunanan ,-+hs. KH3!K and KB3!K.7 ,i. certification to the effect that it was during the term of =udge /eagan that a decree admitting the wills to probate had been issued and appointing /afael (. Cunanan as alternate e+ecutor ,-+hs. KH3%K and KB3#6K.7 ,9. the decrees on probate of the two wills specifying that proceedings were held and proofs duly ta2en ,-+hs. KH38K and KB31K.7 ,2. decrees on probate of the two wills stating that they were properly e+ecuted, genuine and valid and that the said instruments were admitted to probate and established as wills valid to pass real and personal property ,-+hs. KH31K and KB31K.7 and ,l. certificates of =udge /eagan and the Chief Cler2 on the genuineness and authenticity of each other5s signatures in the e+emplified copies of the decrees of probate, letters testamentary and proceedings held in their court ,-+hs. KH3"K and KB3"K. ,Rollo, pp. #%3#".. *etitioner adds that the wills had been admitted to probate in the Surrogate Court5s 0ecision of April #%, #$4% and that the proceedings were terminated on ?ovember !$, #$48.

The respective wills of the Cunanan spouses, who were American citi>ens, will only be effective in this country upon compliance with the following provision of the Civil Code of the *hilippines: Art. 4#". The will of an alien who is abroad produces effect in the *hilippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. Thus, proof that both wills conform with the formalities prescribed by ?ew Ior2 laws or by *hilippine laws is imperative. The evidence necessary for the reprobate or allowance of wills which have been probated outside of the *hilippines are as follows: ,#. the due e+ecution of the will in accordance with the foreign laws7 ,!. the testator has his domicile in the foreign country and not in the *hilippines7 ,%. the will has been admitted to probate in such country7 ,8. the fact that the foreign tribunal is a probate court, and ,1. the laws of a foreign country on procedure and allowance of wills ,BBB Aoran Commentaries on the /ules of Court, #$:6 ed., pp. 8#$38!$7 Suntay v. Suntay, $1 *hil. 166 O#$18P7 luemer v. Hi+, 18 *hil. "#6 O#$%6P.. -+cept for the first and last requirements, the petitioner submitted all the needed evidence. The necessity of presenting evidence on the foreign laws upon which the probate in the foreign country is based is impelled by the fact that our courts cannot ta2e 9udicial notice of them ,*hilippine Commercial and Bndustrial )an2 v. -scolin, 1" SC/A !"" O#$:8P.. *etitioner must have perceived this omission as in fact she moved for more time to submit the pertinent procedural and substantive ?ew Ior2 laws but which request respondent =udge 9ust glossed over. @hile the probate of a will is a special proceeding wherein courts should rela+ the rules on evidence, the goal is to receive the best evidence of which the matter is susceptible before a purported will is probated or denied probate ,&da. de /amos v. Court of Appeals, 4# SC/A %$% O#$:4P.. There is merit in petitioner5s insistence that the separate wills of the Cunanan spouses should be probated 9ointly. /espondent =udge5s view that the /ules on allowance of wills is couched in singular terms and therefore should be interpreted to mean that there should be separate probate proceedings for the wills of the Cunanan spouses is too literal and simplistic an approach. Such view overloo2s the provisions of Section !, /ule # of the /evised /ules of Court, which advise that the rules shall be Kliberally construed in order to promote their ob9ect and to assist the parties in obtaining 9ust, speedy, and ine+pensive determination of every action and proceeding.K

A literal application of the /ules should be avoided if they would only result in the delay in the administration of 9ustice ,Acain v. Bntermediate Appellate Court, #11 SC/A #66 O#$4:P7 /oberts v. 'eonidas, #!$ SC/A %% O#$48P.. @hat the law e+pressly prohibits is the ma2ing of 9oint wills either for the testator5s reciprocal benefit or for the benefit of a third person ,Civil Code of the *hilippines, Article 4#4.. Bn the case at bench, the Cunanan spouses e+ecuted separate wills. Since the two wills contain essentially the same provisions and pertain to property which in all probability are con9ugal in nature, practical considerations dictate their 9oint probate. As this Court has held a number of times, it will always strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seeds of future litigation ,Aotoomull v. 0ela *a>, #4: SC/A :8% O#$$6P.. This petition cannot be completely resolved without touching on a very glaring fact F petitioner has always considered herself the sole heir of 0r. -velyn *ere> Cunanan and because she does not consider herself an heir of 0r. =ose . Cunanan, she noticeably failed to notify his heirs of the filing of the proceedings. Thus, even in the instant petition, she only impleaded respondent =udge, forgetting that a 9udge whose order is being assailed is merely a nominal or formal party ,Calderon v. Solicitor (eneral, !#1 SC/A 4:" O#$$!P.. The rule that the court having 9urisdiction over the reprobate of a will shall Kcause notice thereof to be given as in case of an original will presented for allowanceK ,/evised /ules of Court, /ule !:, Section !. means that with regard to notices, the will probated abroad should be treated as if it were an Koriginal willK or a will that is presented for probate for the first time. Accordingly, compliance with Sections % and 8 of /ule :", which require publication and notice by mail or personally to the K2nown heirs, legatees, and devisees of the testator resident in the *hilippinesK and to the e+ecutor, if he is not the petitioner, are required. The brothers and sisters of 0r. =ose . Cunanan, contrary to petitionerJs claim, are entitled to notices of the time and place for proving the wills. Lnder Section 8 of /ule :" of the /evised /ules of Court, the Kcourt shall also cause copies of the notice of the time and place fi+ed for proving the will to be addressed to the designated or other 2nown heirs, legatees, and devisees of the testator, . . . K @H-/- </-, the questioned <rder is S-T ASB0-. /espondent =udge shall allow petitioner reasonable time within which to submit evidence needed for the 9oint probate of the wills of the Cunanan spouses and see to it that the brothers and s

A'<?Q< C. A?CH-TA, *etitioner,

(./. ?o. #%$4"4 *resent:

/ichard5s will was then submitted for probate before the /egional Trial Court of Aa2ati, )ranch #%4, doc2eted as Special *roceeding ?o. A3444.O:P Atty. Cuasha was appointed as ancillary administrator on =uly !8, #$4".O4P <n <ctober #$, #$4:, petitioner filed in Special *roceeding ?o. $"!1, a motion to declare /ichard and Tyle as heirs of Audrey. O$P *etitioner also filed on <ctober !%, #$4:, a pro9ect of partition of Audrey5s estate, with /ichard being apportioned the V undivided interest in the Aa2ati property, 84.%%% shares in AM( Bnteriors, Bnc., and *$,%#%.84 from the Citiban2 current account7 and Tyle, the W undivided interest in the Aa2ati property, #",### shares in AM( Bnteriors, Bnc., and *%,#68.8$ in cash.O#6P The motion and pro9ect of partition was granted and approved by the trial court in its <rder dated ebruary #!, #$44.O##P The trial court also issued an <rder on April :, #$44, directing the /egister of 0eeds of Aa2ati to cancel TCT ?o. "$:$! in the name of /ichard and to issue a new title in the 9oint names of the -state of @. /ichard (uersey ,V undivided interest. and Tyle ,W undivided interest.7 directing the Secretary of AM( Bnteriors, Bnc. to transfer 84.%%% shares to the -state of @. /ichard (uersey and #".### shares to Tyle7 and directing the Citiban2 to release the amount of *#!,8#:.$: to the ancillary administrator for distribution to the heirs.O#!P Consequently, the /egister of 0eeds of Aa2ati issued on =une !%, #$44, TCT ?o. #114!% in the names of the -state of @. /ichard (uersey and Tyle.O#%P Aeanwhile, the ancillary administrator in Special *roceeding ?o. A3444 also filed a pro9ect of partition wherein !M1 of /ichard5s V undivided interest in the Aa2ati property was allocated to respondent, while %M1 thereof were allocated to /ichard5s three children. This was opposed by respondent on the ground that under the law of the State of Aaryland, a :!8a"7 #ass!s $& $6! :!8a$!! $6! !n$%'! %n$!'!s$ &5 $6! $!s$a$&' %n $6! #'&#!'$7 s9;<!"$ &5 $6! :!8a"7 .EO#8P Since /ichard left his entire estate to respondent, e+cept for his rights and interests over the AM( Bnteriors, Bnc, shares, then his entire V undivided interest in the Aa2ati property should be given to respondent. The trial court found merit in respondent5s opposition, and in its <rder dated 0ecember ", #$$#, disapproved the pro9ect of partition insofar as it affects the Aa2ati property. The trial court also ad9udicated /ichard5s entire V undivided interest in the Aa2ati property to respondent.O#1P <n <ctober !6, #$$%, respondent filed with the Court of Appeals ,CA. an amended complaint for the annulment of the trial court5s <rders dated ebruary #!, #$44 and April :, #$44, issued in Special *roceeding ?o. $"!1. O#"P /espondent contended that petitioner willfully breached his fiduciary duty when he disregarded the laws of the State of Aaryland on the distribution of Audrey5s estate in accordance with her will. /espondent argued that since Audrey devised her entire estate to /ichard, then the Aa2ati property should be wholly ad9udicated to him, and not merely V thereof, and since /ichard left his

3 versus 3

*A?(A?B)A?, C.J. 9'hairperson: I?A/-S3SA?TBA(<, ALST/BA3AA/TB?-Q, CA''-=<, S/., and CHBC<3?AQA/B<, JJ.

CA?0-'A/BA (L-/S-I3 0A'AI(<?, *romulgated: /espondent. =une 4, !66" + 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3+

Spouses Audrey <5?eill ,Audrey. and @. /ichard (uersey ,/ichard. were American citi>ens who have resided in the *hilippines for %6 years. They have an adopted daughter, Tyle (uersey Hill ,Tyle.. <n =uly !$, #$:$, Audrey died, leaving a will. Bn it, she bequeathed her entire estate to /ichard, who was also designated as e+ecutor.O#P The will was admitted to probate before the <rphan5s Court of )altimore, Aaryland, L.S.A, which named =ames ?. *hillips as e+ecutor due to /ichard5s renunciation of his appointment. O!P The court also named Atty. Alon>o C. Ancheta ,petitioner. of the Cuasha Asperilla Ancheta *ena U ?olasco 'aw <ffices as ancillary administrator.O%P Bn #$4#, /ichard married Candelaria (uersey30alaygon ,respondent. with whom he has two children, namely, Timberly and Tevin. <n <ctober #!, #$4!, Audrey5s will was also admitted to probate by the then Court of irst Bnstance of /i>al, )ranch !1, Seventh =udicial 0istrict, *asig, in Special *roceeding ?o. $"!1.O8P As administrator of Audrey5s estate in the *hilippines, petitioner filed an inventory and appraisal of the following properties: ,#. Audrey5s con9ugal share in real estate with improvements located at !4 *ili Avenue, orbes *ar2, Aa2ati, Aetro Aanila, valued at *:"8,4"1.66 ,Aa2ati property.7 ,!. a current account in Audrey5s name with a cash balance of *#!,8#:.$:7 and ,%. "8,888 shares of stoc2 in AM( Bnteriors, Bnc. worth *"8,888.66.O1P <n =uly !6, #$48, /ichard died, leaving a will, wherein he bequeathed his entire estate to respondent, save for his rights and interests over the AM( Bnteriors, Bnc. shares, which he left to Tyle. O"P The will was also admitted to probate by the <rphan5s Court of Ann Arundel, Aaryland, L.S.A, and =ames ?. *hillips was li2ewise appointed as e+ecutor, who in turn, designated Atty. @illiam Cuasha or any member of the Cuasha Asperilla Ancheta *ena U ?olasco 'aw <ffices, as ancillary administrator.

entire estate, e+cept for his rights and interests over the AM( Bnteriors, Bnc., to respondent, then the entire Aa2ati property should now pertain to respondent. *etitioner filed his Answer denying respondent5s allegations. *etitioner contended that he acted in good faith in submitting the pro9ect of partition before the trial court in Special *roceeding ?o. $"!1, as he had no 2nowledge of the State of Aaryland5s laws on testate and intestate succession. *etitioner alleged that he believed that it is to the best interests of the surviving children that *hilippine law be applied as they would receive their 9ust shares.E *etitioner also alleged that the orders sought to be annulled are already final and e+ecutory, and cannot be set aside. <n Aarch #4, #$$$, the CA rendered the assailed 0ecision annulling the trial court5s <rders dated ebruary #!, #$44 and April :, #$44, in Special *roceeding ?o. $"!1.O#:P The dispositive portion of the assailed 0ecision provides: */ R %OR , the assailed <rders of ebruary #!, #$$4 and April :, #$44 are hereby A,,;88 7 and, in lieu thereof, a new one is entered ordering: ,a. The ad9udication of the entire estate of Audrey <5?eill (uersey in favor of the estate of @. /ichard (uersey7 and ,b. The cancellation of Transfer Certificate of Title ?o. #114% of the Aa2ati City /egistry and the issuance of a new title in the name of the estate of @. /ichard (uersey. S< </0-/-0.O#4P *etitioner filed a motion for reconsideration, but this was denied by the CA per /esolution dated August !:, #$$$.O#$P Hence, the herein petition for review on $ertiorari under /ule 81 of the /ules of Court alleging that the CA gravely erred in not holding that: A. TH- </0-/S < #! -)/LA/I #$44 A?0 6: A*/B' #$44 B? S*-CBA' */<C--0B?(S ?<. $"!1 B? THAATT-/ < TH- *-TBTB<? </ */<)AT- < TH- @B'' < TH- 0-C-AS-0 AL0/-I (L-/S-I, A'<?Q< C. A?CH-TA, A?CB''A/I A0AB?BST/AT</E, A/- &A'B0 A?0 )B?0B?( A?0 HA&- '<?( )-C<A- B?A' A?0 HA&)--? L''I BA*'-A-?T-0 A?0 -X-CLT-0 A?0 CA? ?< '<?(-/ )- A??L''-0. ). TH- A?CB''A/I A0AB?BST/AT</ HA&B?( ACT-0 B? (<<0 ABTH, 0B0 ?<T C<AABT /AL0, -BTH-/ -XT/B?SBC </ B?T/B?SBC, B? TH- *-/ </AA?C- < HBS 0LTB-S AS A?CB''A/I A0AB?BST/AT</ < AL0/-I

<5?-B' (L-/S-I5S -STAT- B? TH- *HB'B**B?-S, A?0 THAT ?< /AL0, -BTH-/ -XT/B?SBC </ B?T/B?SBC, @AS -A*'<I-0 )I OHBAP B? */<CL/B?( SAB0 </0-/S.O!6P *etitioner reiterates his arguments before the CA that the <rders dated ebruary #!, #$44 and April :, #$44 can no longer be annulled because it is a final 9udgment, which is conclusive upon the administration as to all matters involved in such 9udgment or order, and will determine for all time and in all courts, as far as the parties to the proceedings are concerned, all matters therein determined,E and the same has already been e+ecuted.O!#P *etitioner also contends that that he acted in good faith in performing his duties as an ancillary administrator. He maintains that at the time of the filing of the pro9ect of partition, he was not aware of the relevant laws of the State of Aaryland, such that the partition was made in accordance with *hilippine laws. *etitioner also imputes 2nowledge on the part of respondent with regard to the terms of Aubrey5s will, stating that as early as #$48, he already apprised respondent of the contents of the will and how the estate will be divided.O!!P /espondent argues that petitioner5s breach of his fiduciary duty as ancillary administrator of Aubrey5s estate amounted to e+trinsic fraud. According to respondent, petitioner was duty3bound to follow the e+press terms of Aubrey5s will, and his denial of 2nowledge of the laws of Aaryland cannot stand because petitioner is a senior partner in a prestigious law firm and it was his duty to 2now the relevant laws. /espondent also states that she was not able to file any opposition to the pro9ect of partition because she was not a party thereto and she learned of the provision of Aubrey5s will bequeathing entirely her estate to /ichard only after Atty. Ancheta filed a pro9ect of partition in Special *roceeding ?o. A3444 for the settlement of /ichard5s estate. A decree of distribution of the estate of a deceased person vests the title to the land of the estate in the distributees, which, if erroneous may be corrected by a timely appeal. <nce it becomes final, its binding effect is li2e any other 9udgment in re#.O!%P However, in e+ceptional cases, a final decree of distribution of the estate may be set aside for lac2 of 9urisdiction or fraud. O!8P urther, in Ra#on !. Ortu0ar,O!1P the Court ruled that a party interested in a probate proceeding may have a final liquidation set aside when he is left out by reason of circumstances beyond his control or through mista2e or inadvertence not imputable to negligence.O!"P The petition for annulment was filed before the CA on <ctober !6, #$$%, before the issuance of the #$$: /ules of Civil *rocedure7 hence, the applicable law is 6atas Pa#bansa 6l(. #!$ ,).*. #!$. or the =udiciary /eorgani>ation Act of #$46. An annulment of 9udgment filed under ).*. #!$ may be based on the ground that a 9udgment is void for want of 9urisdiction or that the 9udgment was obtained by e+trinsic fraud.O!:P or fraud to become a basis for annulment of

9udgment, it has to be e+trinsic or actual,O!4P and must be brought within four years from the discovery of the fraud.O!$P Bn the present case, respondent alleged e+trinsic fraud as basis for the annulment of the /TC <rders dated ebruary #!, #$44 and April :, #$44. The CA found merit in respondent5s cause and found that petitioner5s failure to follow the terms of Audrey5s will, despite the latter5s declaration of good faith, amounted to e+trinsic fraud. The CA ruled that under Article #" of the Civil Code, it is the national law of the decedent that is applicable, hence, petitioner should have distributed Aubrey5s estate in accordance with the terms of her will. The CA also found that petitioner was prompted to distribute Audrey5s estate in accordance with *hilippine laws in order to equally benefit Audrey and /ichard (uersey5s adopted daughter, Tyle (uersey Hill. *etitioner contends that respondent5s cause of action had already prescribed because as early as #$48, respondent was already well aware of the terms of Audrey5s will,O%6P and the complaint was filed only in #$$%. /espondent, on the other hand, 9ustified her lac2 of immediate action by saying that she had no opportunity to question petitioner5s acts since she was not a party to Special *roceeding ?o. $"!1, and it was only after Atty. Ancheta filed the pro9ect of partition in Special *roceeding ?o. A3444, reducing her inheritance in the estate of /ichard that she was prompted to see2 another counsel to protect her interest.
O%#P

presenting all of his case to the court, or where it operates upon matters, not pertaining to the 9udgment itself, but to the manner in which it was procured so that there is not a fair submission of the controversy. Bn other words, e+trinsic fraud refers to any fraudulent act of the prevailing party in the litigation which is committed outside of the trial of the case, whereby the defeated party has been prevented from e+hibiting fully his side of the case by fraud or deception practiced on him by his opponent. raud is e+trinsic where the unsuccessful party has been prevented from e+hibiting fully his case, by fraud or deception practiced on him by his opponent, as by 2eeping him away from court, a false promise of a compromise7 or where the defendant never had any 2nowledge of the suit, being 2ept in ignorance by the acts of the plaintiff7 or where an attorney fraudulently or without authority connives at his defeat7 these and similar cases which show that there has never been a real contest in the trial or hearing of the case are reasons for which a new suit may be sustained to set aside and annul the former 9udgment and open the case for a new and fair hearing.O%8P The overriding consideration when e+trinsic fraud is alleged is that the fraudulent scheme of the prevailing litigant prevented a party from having his day in court.O%1P *etitioner is the ancillary administrator of Audrey5s estate. As such, he occupies a position of the highest trust and confidence, and he is required to e+ercise reasonable diligence and act in entire good faith in the performance of that trust. Although he is not a guarantor or insurer of the safety of the estate nor is he e+pected to be infallible, yet the same degree of prudence, care and 9udgment which a person of a fair average capacity and ability e+ercises in similar transactions of his own, serves as the standard by which his conduct is to be 9udged.O%"P *etitioner5s failure to proficiently manage the distribution of Audrey5s estate according to the terms of her will and as dictated by the applicable law amounted to e+trinsic fraud. Hence the CA 0ecision annulling the /TC <rders dated ebruary #!, #$44 and April :, #$44, must be upheld. Bt is undisputed that Audrey (uersey was an American citi>en domiciled in Aaryland, L.S.A. 0uring the reprobate of her will in Special *roceeding ?o. $"!1, it was shown, among others, that at the time of Audrey5s death, she was residing in the *hilippines but is domiciled in Aaryland, L.S.A.7 her 'ast @ill and Testament dated August #4, #$:! was e+ecuted and probated before the <rphan5s Court in )altimore, Aaryland, L.S.A., which was duly authenticated and certified by the /egister of @ills of )altimore City and attested by the Chief =udge of said court7 the will was admitted by the <rphan5s Court of )altimore City on September :, #$:$7 and the will was authenticated by the Secretary of State of Aaryland and the &ice Consul of the *hilippine -mbassy.

Bt should be pointed out that the prescriptive period for annulment of 9udgment based on e+trinsic fraud commences to run from the discovery of the fraud or fraudulent act/s. /espondent5s 2nowledge of the terms of Audrey5s will is immaterial in this case since it is not the fraud complained of. /ather, it is petitioner5s failure to introduce in evidence the pertinent law of the State of Aaryland that is the fraudulent act, or in this case, omission, alleged to have been committed against respondent, and therefore, the four3year period should be counted from the time of respondent5s discovery thereof. /ecords bear the fact that the filing of the pro9ect of partition of /ichard5s estate, the opposition thereto, and the order of the trial court disallowing the pro9ect of partition in Special *roceeding ?o. A3444 were all done in #$$#. O%!P /espondent cannot be faulted for letting the assailed orders to lapse into finality since it was only through Special *roceeding ?o. A3444 that she came to comprehend the ramifications of petitioner5s acts. <bviously, respondent had no other recourse under the circumstances but to file the annulment case. Since the action for annulment was filed in #$$%, clearly, the same has not yet prescribed. raud ta2es on different shapes and faces. Bn 'os#i$ 8u#ber 'orporation !. 'ourt of Appeals,O%%P the Court stated that man in his ingenuity and fertile imagination will always contrive new schemes to fool the unwary.E There is e+trinsic fraud within the meaning of Sec. $ par. ,!., of ).*. )lg. #!$, where it is one the effect of which prevents a party from hearing a trial, or real contest, or from

)eing a foreign national, the intrinsic validity of Audrey5s will, especially with regard as to who are her heirs, is governed by her national law, i.e., the law of the State of Aaryland, as provided in Article #" of the Civil Code, to wit: Art. #". /eal property as well as personal property is sub9ect to the law of the country where it is situated. However, intestate and testamentary succession, both with respect to the &'d!' &5 s9""!ss%&n and $& $6! a=&9n$ &5 s9""!ss%&na: '%86$s and $& $6! %n$'%ns%" va:%d%$7 &5 $!s$a=!n$a'7 #'&v%s%&ns, s6a:: ;! '!89:a$!d ;7 $6! na$%&na: :a> &5 $6! #!'s&n >6&s! s9""!ss%&n %s 9nd!' "&ns%d!'a$%&n, >6a$!v!' =a7 ;! $6! na$9'! &5 $6! #'&#!'$7 and '!8a'd:!ss &5 $6! "&9n$'7 >6!'!%n sa%d #'&#!'$7 =a7 ;! 5&9nd. ,-mphasis supplied. Article #6%$ of the Civil Code further provides that capacity to succeed is governed by the law of the nation of the decedent.E As a corollary rule, Section 8, /ule :: of the /ules of Court on Allowance of @ill *roved <utside the *hilippines and Administration of -state Thereunder, states: S-C. <. state1 how ad#inistered.F@hen a will is thus allowed, the court shall grant letters testamentary, or letters of administration with the will anne+ed, and such letters testamentary or of administration, shall e+tend to all the estate of the testator in the *hilippines. S9"6 !s$a$!, a5$!' $6! #a7=!n$ &5 <9s$ d!;$s and !?#!ns!s &5 ad=%n%s$'a$%&n, s6a:: ;! d%s#&s!d &5 a""&'d%n8 $& s9"6 >%::, s& 5a' as s9"6 >%:: =a7 &#!'a$! 9#&n %$7 and the residue, if any, shall be disposed of as is provided by law in cases of estates in the *hilippines belonging to persons who are inhabitants of another state or country. ,-mphasis supplied. @hile foreign laws do not prove themselves in our 9urisdiction and our courts are not authori>ed to ta2e 9udicial notice of them7 O%:P however, petitioner, as ancillary administrator of Audrey5s estate, was duty3bound to introduce in evidence the pertinent law of the State of Aaryland.O%4P *etitioner admitted that he failed to introduce in evidence the law of the State of Aaryland on -states and Trusts, and merely relied on the presumption that such law is the same as the *hilippine law on wills and succession. Thus, the trial court peremptorily applied *hilippine laws and totally disregarded the terms of Audrey5s will. The obvious result was that there was no fair submission of the case before the trial court or a 9udicious appreciation of the evidence presented. *etitioner insists that his application of *hilippine laws was made in good faith. The Court cannot accept petitioner5s protestation. How can petitioner

honestly presume that *hilippine laws apply when as early as the reprobate of Audrey5s will before the trial court in #$4!, it was already brought to fore that Audrey was a L.S. citi>en, domiciled in the State of Aaryland. As asserted by respondent, petitioner is a senior partner in a prestigious law firm, with a big legal staff and a large library.EO%$P He had all the legal resources to determine the applicable law. Bt was incumbent upon him to e+ercise his functions as ancillary administrator with reasonable diligence, and to discharge the trust reposed on him faithfully. Lnfortunately, petitioner failed to perform his fiduciary duties. Aoreover, whether his omission was intentional or not, the fact remains that the trial court failed to consider said law when it issued the assailed /TC <rders dated ebruary #!, #$44 and April :, #$44, declaring /ichard and Tyle as Audrey5s heirs, and distributing Audrey5s estate according to the pro9ect of partition submitted by petitioner. This eventually pre9udiced respondent and deprived her of her fullsuccessional right to the Aa2ati property. Bn =SIS !. 6en(son 'o##er$ial 6ld(s.1 In$.,O86P the Court held that when the rule that the negligence or mista2e of counsel binds the client deserts its proper office as an aid to 9ustice and becomes a great hindrance and chief enemy, its rigors must be rela+ed to admit e+ceptions thereto and to prevent a miscarriage of 9ustice, and the court has the power to e+cept a particular case from the operation of the rule whenever the purposes of 9ustice require it. The CA aptly noted that petitioner was remiss in his responsibilities as ancillary administrator of Audrey5s estate. The CA li2ewise observed that the distribution made by petitioner was prompted by his concern over Tyle, whom petitioner believed should equally benefit from the Aa2ati property. The CA correctly stated, which the Court adopts, thus: Bn claiming good faith in the performance of his duties and responsibilities, defendant Alon>o H. Ancheta invo2es the principle which presumes the law of the forum to be the same as the foreign law ,6ea# !s. >at$o1 4! *hil. %6, %4. in the absence of evidence adduced to prove the latter law ,Slade Per&ins !s. Per&ins1 1: *hil. !61, !#6.. Bn defending his actions in the light of the foregoing principle, however, it appears that the defendant lost sight of the fact that his primary responsibility as ancillary administrator was to distribute the sub9ect estate in accordance with the will of Audrey <5?eill (uersey. Considering the principle established under Article #" of the Civil Code of the *hilippines, as well as the citi>enship and the avowed domicile of the decedent, it goes without saying that the defendant was also duty3bound to prove the pertinent laws of Aaryland on the matter. The record reveals, however, that no clear effort was made to prove the national law of Audrey <5?eill (uersey during the proceedings before the court a quo. @hile there is claim of good faith in distributing the sub9ect estate in accordance with the *hilippine laws, the defendant

appears to put his actuations in a different light as indicated in a portion of his direct e+amination, to wit: + + + Bt would seem, therefore, that the eventual distribution of the estate of Audrey <5?eill (uersey was prompted by defendant Alon>o H. Ancheta5s concern that the sub9ect realty equally benefit the plaintiff5s adopted daughter Tyle (uersey. @ell3intentioned though it may be, defendant Alon>o H. Ancheta5s action appears to have breached his duties and responsibilities as ancillary administrator of the sub9ect estate. 6%:! s9"6 ;'!a"6 &5 d9$7 ad=%$$!d:7 "ann&$ ;! "&ns%d!'!d !?$'%ns%" 5'a9d 9nd!' &'d%na'7 "%'"9=s$an"!s, $6! 5%d9"%a'7 na$9'! &5 $6! sa%d d!5!ndan$@s #&s%$%&n, as >!:: as $6! '!s9:$an$ 5'9s$'a$%&n &5 $6! d!"!d!n$@s :as$ >%::, "&=;%n! $& "'!a$! a "%'"9=s$an"! $6a$ %s $an$a=&9n$ $& !?$'%ns%" 5'a9d. 0efendant Alon>o H. Ancheta5s omission to prove the national laws of the decedent and to follow the latter5s last will, in sum, resulted in the procurement of the sub9ect orders without a fair submission of the real issues involved in the case.O8#P ,-mphasis supplied. This is not a simple case of error of 9udgment or grave abuse of discretion, but a total disregard of the law as a result of petitioner5s ab9ect failure to discharge his fiduciary duties. Bt does not rest upon petitioner5s pleasure as to which law should be made applicable under the circumstances. His onus is clear. /espondent was thus e+cluded from en9oying full rights to the Aa2ati property through no fault or negligence of her own, as petitioner5s omission was beyond her control. She was in no position to analy>e the legal implications of petitioner5s omission and it was belatedly that she reali>ed the adverse consequence of the same. The end result was a miscarriage of 9ustice. Bn cases li2e this, the courts have the legal and moral duty to provide 9udicial aid to parties who are deprived of their rights.O8!P The trial court in its <rder dated 0ecember ", #$$# in Special *roceeding ?o. A3444 noted the law of the State of Aaryland on -states and Trusts, as follows: Lnder Section #3%6#, Title %, Sub3Title % of the Annotated Code of the *ublic (eneral 'aws of Aaryland on -states and Trusts, all property of a decedent shall be sub9ect to the estate of decedents law, and upon his death shall pass directly to the personal representative, who shall hold the legal title for administration and distribution,E while Section 83864 e+pressly provides that unless a contrary intent is e+pressly indicated in the will, a legacy passes to the legatee the entire interest of the testator in the property which is the sub9ect of the

legacyE. Section :3#6#, Title :, Sub3Title #, on the other hand, declares that a personal representative is a fiduciaryE and as such he is under the general duty to settle and distribute the estate of the decedent in accordance with the terms of the will and the estate of decedents law as e+peditiously and with as little sacrifice of value as is reasonable under the circumstancesE.O8%P Bn her will, Audrey devised to /ichard her entire estate, consisting of the following: ,#. Audrey5s con9ugal share in the Aa2ati property7 ,!. the cash amount of *#!,8#:.$:7 and ,%. "8,888 shares of stoc2 in AM( Bnteriors, Bnc. worth *"8,888.66. All these properties passed on to /ichard upon Audrey5s death. Aeanwhile, /ichard, in his will, bequeathed his entire estate to respondent, e+cept for his rights and interests over the AM( Bnteriors, Bnc. shares, which he left to Tyle. @hen /ichard subsequently died, the entire Aa2ati property should have then passed on to respondent. This, of course, assumes the proposition that the law of the State of Aaryland which allows a legacy to pass to the legatee the entire estate of the testator in the property which is the sub9ect of the legacy,E was sufficiently proven in Special *roceeding ?o. $"!1. ?evertheless, the Court may ta2e 9udicial notice thereof in view of the ruling in 6ohanan !. 6ohanan.O88P Therein, the Court too2 9udicial notice of the law of ?evada despite failure to prove the same. The Court held, vi>.: @e have, however, consulted the records of the case in the court below and we have found that during the hearing on <ctober 8, #$18 of the motion of Aagdalena C. )ohanan for withdrawal of *!6,666 as her share, the foreign law, especially Section $$61, Compiled ?evada 'aws, was introduced in evidence by appellantsJ ,herein. counsel as -+hibit K!K ,See pp. ::3:$, &ol. BB, and t.s.n. pp. !8388, /ecords, Court of irst Bnstance.. Again said law was presented by the counsel for the e+ecutor and admitted by the Court as -+hibit K)K during the hearing of the case on =anuary !%, #$16 before =udge /afael Amparo ,see /ecords, Court of irst Bnstance, &ol. #.. Bn addition, the other appellants, children of the testator, do not dispute the above3quoted provision of the laws of the State of ?evada. Lnder all the above circumstances, we are constrained to hold that the pertinent law of ?evada, especially Section $$61 of the Compiled ?evada 'aws of #$!1, can be ta2en 9udicial notice of by us, without proof of such law having been offered at the hearing of the pro9ect of partition. Bn this case, given that the pertinent law of the State of Aaryland has been brought to record before the CA, and the trial court in Special *roceeding ?o. A3 444 appropriately too2 note of the same in disapproving the proposed pro9ect of partition of /ichard5s estate, not to mention that petitioner or any other interested person for that matter, does not dispute the e+istence or validity of said law, then Audrey5s and /ichard5s estate should be distributed according to their respective

wills, and not according to the pro9ect of partition submitted petitioner. Consequently, the entire Aa2ati property belongs to respondent.

by Bn any case, the Court has also ruled that if land is invalidly transferred to an alien who subsequently becomes a citi>en or transfers it to a citi>en, the flaw in the original transaction is considered cured and the title of the transferee is rendered valid.O8$P Bn this case, since the Aa2ati property had already passed on to respondent who is a ilipino, then whatever flaw, if any, that attended the acquisition by the(uerseys of the Aa2ati property is now inconsequential, as the ob9ective of the constitutional provision to 2eep our lands in ilipino hands has been achieved. @H-/- </-, the petition is denied. The 0ecision dated Aarch #4, #$$$ and the /esolution dated August !:, #$$$ of the Court of Appeals are AFFIRMED. *etitioner is ADMONISHED to be more circumspect in the performance of his duties as an official of the court. ?o pronouncement as to costs. S< </0-/-0.

0ecades ago, =ustice Aoreland, in his dissenting opinion in Santos !. -anaran(,O81P wrote: A will is the testator spea2ing after death. Bts provisions have substantially the same force and effect in the probate court as if the testator stood before the court in full life ma2ing the declarations by word of mouth as they appear in the will. That was the special purpose of the law in the creation of the instrument 2nown as the last will and testament. Aen wished to spea2 after they were dead and the law, by the creation of that instrument, permitted them to do so + + + All doubts must be resolved in favor of the testatorJs having meant 9ust what he said. Honorable as it seems, petitioner5s motive in equitably distributing Audrey5s estate cannot prevail over Audrey5s and /ichard5s wishes. As stated in 6ellis !. 6ellis:O8"P + + + whatever public policy or good customs may be involved in our system of legitimes, Congress has not intended to e+tend the same to the succession of foreign nationals. or it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedentJs national 'aw. Specific provisions must prevail over general ones.O8:P )efore concluding, the Court notes the fact that Audrey and /ichard (uersey were American citi>ens who owned real property in the *hilippines, although records do not show when and how the(uerseys acquired the Aa2ati property. Lnder Article XBBB, Sections # and 8 of the #$%1 Constitution, the privilege to acquire and e+ploit lands of the public domain, and other natural resources of the *hilippines, and to operate public utilities, were reserved to ilipinos and entities owned or controlled by them. Bn Republi$ !. ?uasha,O84P the Court clarified that the *arity /ights Amendment of #$8", which re3opened to American citi>ens and business enterprises the right in the acquisition of lands of the public domain, the disposition, e+ploitation, development and utili>ation of natural resources of the *hilippines, does not include the acquisition or e+ploitation of private agricultural lands. The prohibition against acquisition of private lands by aliens was carried on to the #$:% Constitution under Article XB&, Section #8, with the e+ception of private lands acquired by hereditary succession and when the transfer was made to a former natural3born citi>en, as provided in Section #1, Article XB&. As it now stands, Article XBB, Sections : and 4 of the #$4" Constitution e+plicitly prohibits non3 ilipinos from acquiring or holding title to private lands or to lands of the public domain, e+cept only by way of legal succession or if the acquisition was made by a former natural3born citi>en.

OCTAVIO S. MALOLES II, petitioner, vs. PACITA DE LOS RE/ES PHILLIPS, respondent. AG.R. N&. )+++-3. Jan9a'7 +), *444B OCTAVIO S. MALOLES II, petitioner, vs. COURT OF APPEALS, HON. FERNANDO V. GOROSPE, JR., %n 6%s O55%"%a: Ca#a"%$7 as P'!s%d%n8 J9d8! &5 RTC.MaCa$%, B'an"6 0), and PACITA PHILLIPS as $6! a::!8!d !?!"9$'%? &5 $6! a::!8!d >%:: &5 $6! :a$! D'. A'$9'& d! San$&s, respondents. S"=%sD These are petitions for review on $ertiorari of the decisions of the Thirteenth and the Special -ighth 0ivisions of the Court of Appeals which ruled that petitioner has no right to intervene in the settlement of the estate of 0r. Arturo de Santos. The cases were consolidated considering that they involve the same parties and some of the issues raised are the same. The facts which gave rise to these two petitions are as follows: <n =uly !6, #$$1, 0r. Arturo de Santos, ilipino and a resident of Aa2ati City, filed a petition for probate of his willO#P in the /egional Trial Court, )ranch "#, Aa2ati, doc2eted as Sp. *roc. ?o. A38!!%. Bn his petition, 0r. 0e Santos alleged that he had no compulsory heirs7 that he had named in his will as sole legatee and devisee the Arturo de Santos oundation, Bnc.7 that he disposed by his will his properties with an appro+imate value of not less than *!,666,666.667 and that copies of said will were in the custody of the named e+ecutri+, private respondent *acita de los /eyes *hillips. A copy of the willO!P was anne+ed to the petition for probate. <n ebruary #", #$$", =udge ernando &. (orospe, =r. of /TC3Aa2ati, )ranch "# issued an order granting the petition and allowing the will. The order reads: <n 6% August #$$1, the Court issued an <rder setting the hearing of the petition on #! September #$$1, at 4:%6 o5cloc2 in the morning, copies of which were served to Arturo de Santos oundation, Bnc. and As. *acita de los /eyes *hillips ,<fficer5s /eturn, dated 68 September #$$1 attached to the records.. @hen the case was called for hearing on the date set, no oppositor appeared nor any written opposition was ever filed and on motion of petitioner, he was allowed to adduce his evidence in support of the petition. *etitioner personally appeared before this Court and was placed on the witness stand and was directly e+amined by the Court through Kfree wheelingK questions and answers to give this Court a basis to determine the state of mind of the petitioner when he e+ecuted the sub9ect will. After the

e+amination, the Court is convinced that petitioner is of sound and disposing mind and not acting on duress, menace and undue influence or fraud, and that petitioner signed his 'ast @ill and Testament on his own free and voluntary will and that he was neither forced nor influenced by any other person in signing it. AisY sc urthermore, it appears from the petition and the evidence adduced that petitioner in his lifetime, e+ecuted his 'ast @ill and Testament ,-+hs. KAK, KA3#K, KA3!K, KA38K, KA31K. at his residence situated at $ )auhinia corner Bntsia Streets, orbes *ar2, Aa2ati City7 said 'ast @ill and Testament was signed in the presence of his three ,%. witnesses, namely, to wit: 0r. -lpidio &alencia ,-+hs. KA3"K, KA3:K, KA34K, KA3#"K, KA3#"3AK., Atty. -dward =. )erenguer ,-+hs. KA3%K, KA3%3AK, KA3$K, KA3#6K, U KA3##K., and Atty. &ictoria C. delos /eyes ,-+hs. KA3#!K, KA3 #%K, KA3#8K, KA3#:K, U KA3#4K., who in turn, in the presence of the testator and in the presence of each and all of the witnesses signed the said 'ast @ill and Testament and duly notari>ed before ?otary *ublic Anna Aelissa '. /osario ,-+h. KA3#1K.7 on the actual e+ecution of the 'ast @ill and Testament, pictures were ta2en ,-+hs. K)K to K)3%K.. *etitioner has no compulsory heirs and Arturo de Santos oundation, Bnc., with address at ?o. $ )auhinia corner Bntsia Streets, orbes *ar2, Aa2ati City has been named as sole legatee and devisee of petitioner5s properties, real and personal, appro+imately valued at not less than *! million, As. *acita de los /eyes *hillips was designated as e+ecutor and to serve as such without a bond. rom the foregoing facts, the Court finds that the petitioner has substantially established the material allegations contained in his petition. The 'ast @ill and Testament having been e+ecuted and attested as required by law7 that testator at the time of the e+ecution of the will was of sane mind andMor not mentally incapable to ma2e a @ill7 nor was it e+ecuted under duress or under the influence of fear or threats7 that it was in writing and e+ecuted in the language 2nown and understood by the testator duly subscribed thereof and attested and subscribed by three ,%. credible witnesses in the presence of the testator and of another7 that the testator and all the attesting witnesses signed the 'ast @ill and Testament freely and voluntarily and that the testator has intended that the instrument should be his @ill at the time of affi+ing his signature thereto.

@H-/- </-, as prayed for by the petitioner ,testator himself. the petition for the allowance of the 'ast @ill and Testament of Arturo de Santos is hereby A**/<&-0 and A''<@-0. Shortly after the probate of his will, 0r. 0e Santos died on ebruary !", #$$". <n April %, #$$", petitioner <ctavio S. Aaloles BB filed a motion for intervention claiming that, as the only child of Alicia de Santos ,testator5s sister. and <ctavio '. Aaloles, Sr., he was the sole full3blooded nephew and nearest of 2in of 0r. 0e Santos. He li2ewise alleged that he was a creditor of the testator. *etitioner thus prayed for the reconsideration of the order allowing the will and the issuance of letters of administration in his name. AisY spped <n the other hand, private respondent *acita de los /eyes *hillips, the designated e+ecutri+ of the will, filed a motion for the issuance of letters testamentary with )ranch "#. 'ater, however, private respondent moved to withdraw her motion. This was granted, while petitioner was required to file a memorandum of authorities in support of his claim that said court ,)ranch "#. still had 9urisdiction to allow his intervention.O%P *etitioner filed his memorandum of authorities on Aay #%, #$$". <n the other hand, private respondent, who earlier withdrew her motion for the issuance of letters testamentary in )ranch "#, refiled a petition for the same purpose with the /egional Trial Court, Aa2ati, which was doc2eted as Sp. *roc. ?o. A38%8% and assigned to )ranch "1. Lpon private respondent5s motion, =udge Salvador Abad Santos of )ranch "1 issued an order, dated =une !4, #$$", appointing her as special administrator of 0r. 0e Santos5s estate. <n =uly !$, #$$", petitioner sought to intervene in Sp. *roc. ?o. A38%8% and to set aside the appointment of private respondent as special administrator. He reiterated that he was the sole and full blooded nephew and nearest of 2in of the testator7 that he came to 2now of the e+istence of Sp. *roc. ?o. A38%8% only by accident7 that the probate proceedings in Sp. *roc. ?o. A38!!% before )ranch "# of the same court was still pending7 that private respondent misdeclared the true worth of the testator5s estate7 that private respondent was not fit to be the special administrator of the estate7 and that petitioner should be given letters of administration for the estate of 0r. 0e Santos. <n August !4, #$$", =udge Abad Santos ordered the transfer of Sp. *roc. ?o. A3 8%8% to )ranch "#, on the ground that KOitP is related to the case before =udge (orospe of /TC )ranch "# . . .K Bt appears, however, that in Sp. *roc. ?o. A38!!%, =udge (orospe had denied on August !", #$$" petitioner5s motion for intervention. *etitioner brought this matter

to the Court of Appeals which, in a decisionO8P promulgated on ebruary #%, #$$4, upheld the denial of petitioner5s motion for intervention. Aeanwhile, =udge (orospe issued an order, dated September 8, #$$", returning the records of Sp. *roc. ?o. A38%8% to )ranch "1 on the ground that there was a pending case involving the -state of 0ecedent Arturo de Santos pending before said court. The order reads: SppedZ Acting on the </0-/ dated !4 August #$$" of )ranch "1, this Court, transferring this case to this )ranch "# on the ground that this case is related with a case before this Court, let this case be returned to )ranch "1 with the information that there is no related case involving the -STAT- < 0-C-0-?T A/TL/< 0- SA?T<S pending before this )ranch. There is, however, a case filed by A/TL/< 0- SA?T<S, as petitioner under /ule :" of the /ules of Court for the Allowance of his will during his lifetime doc2eted as S*. */<C. ?<. A3 8!!% which was already decided on #" ebruary #$$" and has become final. Bt is noted on records of Case ?o. A38!!% that after it became final, herein *etitioner *acita de los /eyes *hillips filed a A<TB<? </ TH- BSSLA?C- < '-TT-/S T-STAA-?TA/I, which was subsequently withdrawn after this Court, during the hearing, already ruled that the motion could not be admitted as the sub9ect matter involves a separate case under /ule :4 of the /ules of Court, and movant withdrew her motion and filed this case ,?o. 8%8%.. <ctavio de Santos Aaloles OBBP filed a A<TB<? </ B?T-/&-?TB<? before Case ?o. A38!!% and this motion was already 0-?B-0 in the order ,)ranch "#. of !" August #$$" li2ewise for the same grounds that the matter is for a separate case to be filed under /ule :4 of the /ules of Court and cannot be included in this case filed under /ule :" of the /ules of Court. Bt is further noted that it is a matter of policy that consolidation of cases must be approved by the *residing =udges of the affected )ranches. Bnitially, in his decision dated September !%, #$$",O1P =udge Abad Santos appeared firm in his position that K . . . it would be improper for ,)ranch "1. to hear and resolve the petition ,Sp. *roc. ?o. A38%8%.,K considering that the probate proceedings were commenced with )ranch "#. He thus ordered the transfer of the

records bac2 to the latter branch. However, he later recalled his decision and too2 cogni>ance of the case Kto e+pedite the proceedings.K Thus, in his <rder, dated <ctober !#, #$$", he stated: Considering the refusal of the Hon. ernando &. (orospe, =r. of )ranch "# to continue hearing this case notwithstanding the fact that said branch began the probate proceedings of the estate of the deceased and must therefore continue to e+ercise its 9urisdiction to the e+clusion of all others, until the entire estate of the testator had been partitioned and distributed as per <rder dated !% September #$$", this branch ,/egional Trial Court )ranch "1. shall ta2e cogni>ance of the petition if only to e+pedite the proceedings, and under the concept that the /egional Trial Court of Aa2ati City is but one court. =o[ spped urnish a copy of this order to the <ffice of the Chief 9ustice and the <ffice of the Court Administrator, of the Supreme Court7 the Hon. ernando &. (orospe, =r.7 *acita 0e 'os /eyes *hillips, *etitioner7 and <ctavio de Santos Aaloles, Bntervenor. <n ?ovember 8, #$$", =udge Abad Santos granted petitioner5s motion for intervention. *rivate respondent moved for a reconsideration but her motion was denied by the trial court. She then filed a petition for $ertiorari in the Court of Appeals which, on ebruary !", #$$:, rendered a decisionO"P setting aside the trial court5s order on the ground that petitioner had not shown any right or interest to intervene in Sp. *roc. ?o. A38%8%. Hence, these petitions which raise the following issues: #. @hether or not the Honorable /egional Trial Court 3 Aa2ati, )ranch "# has lost 9urisdiction to proceed with the probate proceedings upon its issuance of an order allowing the will of 0r. Arturo de Santos !. @hether or not the Honorable ,/egional Trial Court 3 Aa2ati, )ranch "1. acquired 9urisdiction over the petition for issuance of letters testamentary filed by ,private. respondent. %. @hether or not the petitioner, being a creditor of the late 0r. Arturo de Santos, has a right to intervene and oppose the petition for issuance of letters testamentary filed by the respondent. 8. @hether or not ,private. respondent is guilty of forum shopping in filing her petition for issuance of letters testamentary with the /egional Trial Court 3 Aa2ati, )ranch "1

2nowing fully well that the probate proceedings involving the same testate estate of the decedent is still pending with the /egional Trial Court 3 Aa2ati, )ranch "#. Spped[ 9o First. *etitioner contends that the probate proceedings in )ranch "# of /TC3 Aa2ati did not terminate upon the issuance of the order allowing the will of 0r. 0e Santos. Citing the cases of Santiesteban !. SantiestebanO:P and 4a(le !. -analo, O4P he argues that the proceedings must continue until the estate is fully distributed to the lawful heirs, devisees, and legatees of the testator, pursuant to /ule :%, \# of the /ules of Court. Consequently, petitioner contends that )ranch "1 could not lawfully act upon private respondent5s petition for issuance of letters testamentary. The contention has no merit. Bn cases for the probate of wills, it is well3settled that the authority of the court is limited to ascertaining the e+trinsic validity of the will, i.e., whether the testator, being of sound mind, freely e+ecuted the will in accordance with the formalities prescribed by law.O$P <rdinarily, probate proceedings are instituted only after the death of the testator, so much so that, after approving and allowing the will, the court proceeds to issue letters testamentary and settle the estate of the testator. The cases cited by petitioner are of such nature. Bn fact, in most 9urisdictions, courts cannot entertain a petition for probate of the will of a living testator under the principle of ambulatory nature of wills.O#6P However, Art. 4%4 of the Civil Code authori>es the filing of a petition for probate of the will filed by the testator himself. Bt provides: Civil Code, Art. 4%4. ?o will shall pass either real or personal property unless it is proved and allowed in accordance with the /ules of Court. The testator himself may, during his lifetime, petition the court having 9urisdiction for the allowance of his will. Bn such case, the pertinent provisions of the /ules of Court for the allowance of wills after the testator5s death shall govern. Aiso The Supreme Court shall formulate such additional /ules of Court as may be necessary for the allowance of wills on petition of the testator. Sub9ect to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due e+ecution.

/ule :", \# li2ewise provides: Sec. # *ho #a2 petition for the allowan$e of will. 3 Any e+ecutor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having 9urisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed. The testator himself may, during his lifetime, petition in the court for the allowance of his will. The rationale for allowing the probate of wills during the lifetime of testator has been e+plained by the Code Commission thus: Aost of the cases that reach the courts involve either the testamentary capacity of the testator or the formalities adopted in the e+ecution of wills. There are relatively few cases concerning the intrinsic validity of testamentary dispositions. Bt is far easier for the courts to determine the mental condition of a testator during his lifetime than after his death. raud, intimidation and undue influence are minimi>ed. urthermore, if a will does not comply with the requirements prescribed by law, the same may be corrected at once. The probate during the testator5s life, therefore, will lessen the number of contest upon wills. <nce a will is probated during the lifetime of the testator, the only questions that may remain for the courts to decide after the testator5s death will refer to the intrinsic validity of the testamentary dispositions. Bt is possible, of course, that even when the testator himself as2s for the allowance of the will, he may be acting under duress or undue influence, but these are rare cases. After a will has been probated during the lifetime of the testator, it does not necessarily mean that he cannot alter or revo2e the same before his death. Should he ma2e a new will, it would also be allowable on his petition, and if he should die before he has had a chance to present such petition, the ordinary probate proceeding after the testator5s death would be in order.O##P Thus, after the allowance of the will of 0r. 0e Santos on ebruary #", #$$", there was nothing else for )ranch "# to do e+cept to issue a certificate of allowance of the will pursuant to /ule :%, \#! of the /ules of Court. There is, therefore, no basis for the ruling of =udge Abad Santos of )ranch "1 of /TC3Aa2ati that 3?e+Z old

)ranch "# of the /egional Trial Court of Aa2ati having begun the probate proceedings of the estate of the deceased, it continues and shall continue to e+ercise said 9urisdiction to the e+clusion of all others. Bt should be noted that probate proceedings do not cease upon the allowance or disallowance of a will but continues up to such time that the entire estate of the testator had been partitioned and distributed. The fact that the will was allowed during the lifetime of the testator meant merely that the partition and distribution of the estate was to be suspended until the latter5s death. Bn other words, the petitioner, instead of filing a new petition for the issuance of letters testamentary, should have simply filed a manifestation for the same purpose in the probate court.O#!P *etitioner, who defends the order of )ranch "1 allowing him to intervene, cites /ule :%, \# which states: *here estate of de$eased persons settled. 3 Bf the decedent is an inhabitant of the *hilippines at the time of his death, whether a citi>en or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of irst Bnstance in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of irst Bnstance of any province in which he had estate. The court first ta2ing cogni>ance of the settlement of the estate of a decedent, shall e+ercise 9urisdiction to the e+clusion of all other courts. The 9urisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, e+cept in an appeal from that court, in the original case, or when the want of 9urisdiction appears on the record. The above rule, however, actually provides for the venue of actions for the settlement of the estate of deceased persons. Bn =ar$ia %ule !. 'ourt of Appeals, it was held:O#%P The aforequoted Section #, /ule :% ,formerly /ule :1, Section #., specifically the clause Kso far as it depends on the place of residence of the decedent, or of the location of the state,K is in reality a matter of venue, as the caption of the /ule indicates: KSettlement of -state of 0eceased *ersons. &enue and *rocesses.K Bt could not have been intended to define the 9urisdiction over the sub9ect matter, because such legal provision is contained in a law of procedure dealing merely with procedural matters. *rocedure is one thing, 9urisdiction over the sub9ect matter is another. The power or authority of the court

over the sub9ect matter Ke+isted was fi+ed before procedure in a given cause began.K 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 9ustly e+ercised. There are cases though that if the power is not e+ercised conformably with the provisions of the procedural law, purely, the court attempting to e+ercise it loses the power to e+ercise it legally. However, this does not amount to a loss of 9urisdiction over the sub9ect matter. /ather, it means that the court may thereby lose 9urisdiction over the person or that the 9udgment may thereby be rendered defective for lac2 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 9urisdiction of the court over the sub9ect matter. Bn plain words, it is 9ust a matter of method, of convenience to the parties. AaniZ 2+ Bndeed, the 9urisdiction over probate proceedings and settlement of estates with appro+imate value of over *#66,666.66 ,outside Aetro Aanila. or *!66,666.66 ,in Aetro Aanila. belongs to the regional trial courts under ).*. )lg. #!$, as amended. The different branches comprising each court in one 9udicial region do not possess 9urisdictions independent of and incompatible with each other.O#8P Bt is noteworthy that, although /ule :%, \# applies insofar as the venue of the petition for probate of the will of 0r. 0e Santos is concerned, it does not bar other branches of the same court from ta2ing cogni>ance of the settlement of the estate of the testator after his death. As held in the leading case of 6a$also !. Ra#olote:
O#1P

?ecessarily, therefore, )ranch "1 of the /TC of Aa2ati City has 9urisdiction over Sp. *roc. ?o. A38%8%. Second. *etitioner claims the right to intervene in and oppose the petition for issuance of letters testamentary filed by private respondent. He argues that, as the nearest ne+t of 2in and creditor of the testator, his interest in the matter is material and direct. Bn ruling that petitioner has no right to intervene in the proceedings before )ranch "1 of /TC3Aa2ati City, the Court of Appeals held: The private respondent herein is not an heir or legatee under the will of the decedent Arturo de Santos. ?either is he a compulsory heir of the latter. As the only and nearest collateral relative of the decedent, he can inherit from the latter only in case of intestacy. Since the decedent has left a will which has already been probated and disposes of all his properties the private respondent can inherit only if the said will is annulled. His interest in the decedent5s estate is, therefore, not direct or immediate. Aani2sZ His claim to being a creditor of the estate is a belated one, having been raised for the first time only in his reply to the opposition to his motion to intervene, and, as far as the records show, not supported by evidence. . . . . OTPhe opposition must come from one with a direct interest in the estate or the will, and the private respondent has none. Aoreover, the ground cited in the private respondent5s opposition, that the petitioner has deliberately misdeclared the truth worth and value of the estate, is not relevant to the question of her competency to act as e+ecutor. Section !, /ule :" of the /ules of Court requires only an allegation of the probable value and character of the property of the estate. The true value can be determined later on in the course of the settlement of the estate.O#"P /ule :$, \# provides: Opposition to issuan$e of letters testa#entar2. Si#ultaneous petition for ad#inistration. 3 Any person interested in a will may state in writing the grounds why letters testamentary should not issue to the persons named therein as e+ecutors, or any of them, and the court, after hearing upon notice, shall pass upon the sufficiency of such grounds. A petition may, at the same time, be filed for letters of administration with the will anne+ed.

The various branches of the Court of irst Bnstance of Cebu under the ourteenth =udicial 0istrict, are a coordinate and co3 equal courts, and the totality of which is only one Court of irst Bnstance. The 9urisdiction is vested in the court, not in the 9udges. And when a case is filed in one branch, 9urisdiction over the case does not attach to the branch or 9udge alone, to the e+clusion of the other branches. Trial may be held or proceedings continue by and before another branch or 9udge. Bt is for this reason that Section 1: of the =udiciary Act e+pressly grants to the Secretary of =ustice, the administrative right or power to apportion the cases among the different branches, both for the convenience of the parties and for the coordination of the wor2 by the different branches of the same court. The apportionment and distribution of cases does not involve a grant or limitation of 9urisdiction, the 9urisdiction attaches and continues to be vested in the Court of irst Bnstance of the province, and the trials may be held by any branch or 9udge of the court.

Lnder this provision, it has been held that an Kinterested personK is one who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor, and whose interest is material and direct, not merely incidental or contingent.O#:P -ven if petitioner is the nearest ne+t of 2in of 0r. 0e Santos, he cannot be considered an KheirK of the testator. Bt is a fundamental rule of testamentary succession that one who has no compulsory or forced heirs may dispose of his entire estate by will. Thus, Art. 48! of the Civil Code provides: <ne who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed. Aani2an[ <ne who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitimate of said heirs. Compulsory heirs are limited to the testator5s 3 ,#. 'egitimate children and descendants, with respect to their legitimate parents and ascendants7 ,!. Bn default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants7 ,%. The widow or widower7

property in the manner he wishes. Bt is natural that the testator should desire to appoint one of his confidence, one who can be trusted to carry out his wishes in the disposal of his estate. The curtailment of this right may be considered a curtailment of the right to dispose. <nly if the appointed e+ecutor is incompetent, refuses the trust, or fails to give bond may the court appoint other persons to administer the estate.O!6P ?one of these circumstances is present in this case. Third. *etitioner contends that private respondent is guilty of forum shopping when she filed the petition for issuance of letters testamentary ,Sp. *roc. ?o. A3 8%8%. while the probate proceedings ,Sp. *roc. ?o. A38!!%. were still pending. According to petitioner, there is identity of parties, rights asserted, and reliefs prayed for in the two actions which are founded on the same facts, and a 9udgment in either will result in res @udi$ata in the other. This contention has no merit. As stated earlier, the petition for probate was filed by 0r. 0e Santos, the testator, solely for the purpose of authenticating his will. Lpon the allowance of his will, the proceedings were terminated. <ldmisZ o <n the other hand, the petition for issuance of letters testamentary was filed by private respondent, as e+ecutor of the estate of 0r. 0e Santos, for the purpose of securing authority from the Court to administer the estate and put into effect the will of the testator. The estate settlement proceedings commenced by the filing of the petition terminates upon the distribution and delivery of the legacies and devises to the persons named in the will. Clearly, there is no identity between the two petitions, nor was the latter filed during the pendency of the former. There was, consequently, no forum shopping. HEREFORE, the petition is 0-?B-0 and the decisions of the Court of Appeals are hereby A B/A-0. SO ORDERED.

,8. Ac2nowledged natural children, and natural children by legal fiction7 ,1. <ther illegitimate children referred to in Article !4: of the Civil Code.O#4P *etitioner, as nephew of the testator, is not a compulsory heir who may have been preterited in the testator5s will. ?or does he have any right to intervene in the settlement proceedings based on his allegation that he is a creditor of the deceased. Since the testator instituted or named an e+ecutor in his will, it is incumbent upon the Court to respect the desires of the testator. As we stated in O0aeta !. Pe$son:O#$P The choice of his e+ecutor is a precious prerogative of a testator, a necessary concomitant of his right to dispose of his