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1. SECOND DIVISION jurisdiction over the subject matter and that she was denied
due process.
G.R. No. 160530 November 20, 2007
The appellate court dismissed the appeal, thus:
CYNTHIA V. NITTSCHER, petitioner,
vs.
WHEREFORE, the foregoing considered, the appeal
DR. WERNER KARL JOHANN NITTSCHER (Deceased), is hereby DISMISSED and the assailed Order
ATTY. ROGELIO P. NOGALES and THE REGIONAL TRIAL is AFFIRMED in toto. The court a quo is ordered to
COURT OF MAKATI (Branch 59), respondents. proceed with dispatch in the proceedings below.
DECISION SO ORDERED.6
QUISUMBING, J.: Petitioner’s motion for reconsideration of the aforequoted
decision was denied for lack of merit. Hence, the present
For review on certiorari are the Decision1 dated July 31, 2003
petition anchored on the following grounds:
and Resolution2 dated October 21, 2003 of the Court of
Appeals in CA-G.R. CV No. 55330, which affirmed the I.
Order3 dated September 29, 1995 of the Regional Trial Court
BOTH THE CA AND THE LOWER COURT ERRED IN
(RTC), Branch 59, Makati City, in SP Proc. No. M-2330 for the
NOT DISMISSING OUTRIGHT THE PETITION FOR
probate of a will.
LETTERS … TESTAMENTARY FILED BY ATTY.
The facts are as follows. NOGALES WHEN, OBVIOUSLY, IT WAS FILED IN
VIOLATION OF REVISED CIRCULAR NO. 28-91 AND
On January 31, 1990, Dr. Werner Karl Johann Nittscher filed
ADMINISTRATIVE CIRCULAR NO. 04-94 OF THIS
with the RTC of Makati City a petition for the probate of his
HONORABLE COURT.
holographic will and for the issuance of letters testamentary
to herein respondent Atty. Rogelio P. Nogales. II.
On September 19, 1991, after hearing and with due notice to THE CA ERRED IN NOT DECLARING THAT THE
the compulsory heirs, the probate court issued an order LOWER COURT [HAS] NO JURISDICTION OVER THE
allowing the said holographic will, thus: SUBJECT MATTER OF THE PRESENT SUIT.
WHEREFORE, premises considered, the Holographic III.
Will of the petitioner-testator Dr. Werner J. Nittscher
THE CA ERRED IN CONCLUDING THAT SUMMONS
executed pursuant to the provision of the second
WERE PROPERLY ISSUED TO THE PARTIES AND ALL
paragraph of Article 838 of the Civil Code of the
PERSONS INTERESTED IN THE PROBATE OF THE
Philippines on January 25, 1990 in Manila,
HOLOGRAPHIC WILL OF DR. NITTSCHER.
Philippines, and proved in accordance with the
provision of Rule 76 of the Revised Rules of Court is IV.
hereby allowed.
THE CA ERRED IN CONCLUDING THAT THE
SO ORDERED.4 PETITIONER WAS NOT DEPRIVED OF DUE PROCESS
OF LAW BY THE LOWER COURT.7
On September 26, 1994, Dr. Nittscher died. Hence, Atty.
Nogales filed a petition for letters testamentary for the Petitioner contends that respondent’s petition for the issuance
administration of the estate of the deceased. Dr. Nittscher’s of letters testamentary lacked a certification against forum-
surviving spouse, herein petitioner Cynthia V. Nittscher, shopping. She adds that the RTC has no jurisdiction over the
moved for the dismissal of the said petition. However, the subject matter of this case because Dr. Nittscher was
court in its September 29, 1995 Order denied petitioner’s allegedly not a resident of the Philippines; neither did he
motion to dismiss, and granted respondent’s petition for the leave real properties in the country. Petitioner claims that the
issuance of letters testamentary, to wit: properties listed for disposition in her husband’s will actually
belong to her. She insists she was denied due process of law
In view of all the foregoing, the motion to dismiss is
because she did not receive by personal service the notices of
DENIED. The petition for the issuance of Letters
the proceedings.
Testamentary, being in order, is GRANTED.
Respondent Atty. Nogales, however, counters that Dr.
Section 4, Rule 78 of the Revised Rules of Court,
Nittscher did reside and own real properties in Las Piñas,
provides "when a will has been proved and allowed,
Metro Manila. He stresses that petitioner was duly notified of
the court shall issue letters testamentary thereon to
the probate proceedings. Respondent points out that
the person named as executor therein, if he is
petitioner even appeared in court to oppose the petition for
competent, accepts the trust and gives a bond as
the issuance of letters testamentary and that she also filed a
required by these rules." In the case at bar,
motion to dismiss the said petition. Respondent maintains
petitioner Atty. Rogelio P. Nogales of the R.P. Nogales
that the petition for the issuance of letters testamentary need
Law Offices has been named executor under the
not contain a certification against forum-shopping as it is
Holographic Will of Dr. Werner J. Nittscher. As prayed
merely a continuation of the original proceeding for the
for, let Letters Testamentary be issued to Atty.
probate of the will.
Rogelio P. Nogales, the executor named in the Will,
without a bond. We resolve to deny the petition.
SO ORDERED.5 As to the first issue, Revised Circular No. 28-918 and
Administrative Circular No. 04-949 of the Court require a
Petitioner moved for reconsideration, but her motion was
certification against forum-shopping for all initiatory pleadings
denied for lack of merit. On May 9, 1996, Atty. Nogales was
filed in court. However, in this case, the petition for the
issued letters testamentary and was sworn in as executor.
issuance of letters testamentary is not an initiatory pleading,
Petitioner appealed to the Court of Appeals alleging that but a mere continuation of the original petition for the
respondent’s petition for the issuance of letters testamentary probate of Dr. Nittscher’s will. Hence, respondent’s failure to
should have been dismissed outright as the RTC had no include a certification against forum-shopping in his petition
SPECIAL PROCEEDINGS/Rule 75 2 of 16
for the issuance of letters testamentary is not a ground for G.R. No. L-57848 June 19, 1982
outright dismissal of the said petition.
RAFAEL E. MANINANG and SOLEDAD L.
Anent the second issue, Section 1, Rule 73 of the Rules of MANINANG, petitioners,
Court provides: vs.
COURT OF APPEALS, HON. RICARDO L. PRONOVE, JR.,
SECTION 1. Where estate of deceased persons
as Judge of the Court of First Instance of Rizal and
settled. – If the decedent is an inhabitant of the
BERNARDO S. ASENETA, respondents.
Philippines at the time of his death, whether a
citizen or an alien, his will shall be proved, or
letters of administration granted, and his
MELENCIO-HERRERA, J.:
estate settled, in the Court of First Instance
(now Regional Trial Court) in the province in A Petition to Review the Decision of April 28, 1981 of
which he resides at the time of his death, and if respondent Appellate Court in CA-G.R. No. 12032-R entitled
he is an inhabitant of a foreign country, the Court of "Rafael E. Maninang and Soledad L. Maninang vs. Hon.
First Instance (now Regional Trial Court) of any Ricardo Pronove, Judge of the Court of First Instance of Rizal,
province in which he had estate. … (Emphasis Pasig, Branch XI, and Bernardo S. Aseneta".
supplied.)
Pertinent to the controversy are the following antecedental
In this case, the RTC and the Court of Appeals are one in their facts:
finding that Dr. Nittscher was a resident of Las Piñas, Metro
On May 21, 1977, Clemencia Aseneta, single, died at the
Manila at the time of his death. Such factual finding, which we
Manila Sanitarium Hospital at age 81. She left a holographic
find supported by evidence on record, should no longer be
will, the pertinent portions of which are quoted hereunder:
disturbed. Time and again we have said that reviews on
certiorari are limited to errors of law. Unless there is a xxx xxx xxx
showing that the findings of the lower court are totally devoid
It is my will that all my real properties
of support or are glaringly erroneous, this Court will not
located in Manila, Makati, Quezon City,
analyze or weigh evidence all over again.10
Albay and Legaspi City and all my personal
Hence, applying the aforequoted rule, Dr. Nittscher correctly properties shagllbe inherited upon my death
filed in the RTC of Makati City, which then covered Las Piñas, by Dra. Soledad L. Maninang with whose
Metro Manila, the petition for the probate of his will and for family I have lived continuously for around
the issuance of letters testamentary to respondent. the last 30 years now. Dra. Maninang and
her husband Pamping have been kind to
Regarding the third and fourth issues, we note that Dr.
me. ... I have found peace and happiness
Nittscher asked for the allowance of his own will. In this
with them even during the time when my
connection, Section 4, Rule 76 of the Rules of Court states:
sisters were still alive and especially now
SEC. 4. Heirs, devisees, legatees, and executors to when I am now being troubled by my
be notified by mail or personally. – … nephew Bernardo and niece Salvacion. I am
not incompetent as Nonoy would like me to
If the testator asks for the allowance of his own will,
appear. I know what is right and wrong. I
notice shall be sent only to his compulsory heirs.
can decide for myself. I do not consider
In this case, records show that petitioner, with whom Dr. Nonoy as my adopted son. He has made me
Nittscher had no child, and Dr. Nittscher’s children from his do things against my will.
previous marriage were all duly notified, by registered mail,
xxx xxx xxx
of the probate proceedings. Petitioner even appeared in court
to oppose respondent’s petition for the issuance of letters On June 9, 1977, petitioner Soledad Maninang filed a Petition
testamentary and she also filed a motion to dismiss the said for probate of the Will of the decedent with the Court of First
petition. She likewise filed a motion for reconsideration of the Instance-Branch IV, Quezon City (Sp. Proc. No. Q-23304,
issuance of the letters testamentary and of the denial of her hereinafter referred to as the Testate Case).
motion to dismiss. We are convinced petitioner was accorded
On July 25, 1977, herein respondent Bernardo Aseneta, who,
every opportunity to defend her cause. Therefore, petitioner’s
as the adopted son, claims to be the sole heir of decedent
allegation that she was denied due process in the probate
Clemencia Aseneta, instituted intestate proceedings with the
proceedings is without basis.
Court of First Instance-Branch XI, Pasig, Rizal (Sp. Proc. No.
As a final word, petitioner should realize that the allowance of 8569, called hereinafter the Intestate Case" for brevity).
her husband’s will is conclusive only as to its due execution.
11 The authority of the probate court is limited to ascertaining
On December 23, 1977, the Testate and Intestate Cases were
ordered consolidated before Branch XI, presided by
whether the testator, being of sound mind, freely executed
respondent Judge.
the will in accordance with the formalities prescribed by law.
12 Thus, petitioner’s claim of title to the properties forming Respondent Bernardo then filed a Motion to Dismiss the
part of her husband’s estate should be settled in an ordinary Testate Case on the ground that the holographic will was null
action before the regular courts. and void because he, as the only compulsory heir, was
preterited and, therefore, intestacy should ensue. In support
WHEREFORE, the petition is DENIED for lack of merit. The
of said Motion to Dismiss, respondent Bernardo cited the
assailed Decision dated July 31, 2003 and Resolution dated
cases of Neri vs. Akutin (72 Phil. 322); Nuguid vs. Nuguid (17
October 21, 2003 of the Court of Appeals in CA-G.R. CV No.
SCRA 449), and Ramos vs. Baldovino (2 CA Rep. 2nd, 878). 1
55330, which affirmed the Order dated September 29, 1995
of the Regional Trial Court, Branch 59, Makati City, in SP Proc. In her Opposition to said Motion to Dismiss, petitioner
No. M-2330 are AFFIRMED. Soledad averred that it is still the rule that in a case for
probate of a Will, the Court's area of inquiry is limited to an
No pronouncement as to costs.
examination of and resolution on the extrinsic validity of the
SO ORDERED. will; and that respondent Bernardo was effectively
disinherited by the decedent. 2
2. FIRST DIVISION
SPECIAL PROCEEDINGS/Rule 75 3 of 16
On September 8, 1980, the lower Court ordered the dismissal examination of, and resolution on, the
of the Testate Case in this wise: extrinsic validity of the will, the due
e x e c u t i o n t h e r e o f, t h e t e s t a t r i x ' s
For reasons stated in the motion to dismiss
testamentary capacity and the compliance
filed by petitioner Bernardo S. Aseneta
with the requisites or solemnities prescribed
which the Court finds meritorious, the
by law. The intrinsic validity of the will
petition for probate of will filed by Soledad
normally comes only after the court has
L. Maninang and which was docketed as Sp.
declared that the will has been duly
Proc. No. Q-23304 is DISMISSED, without
authenticated. However, where practical
pronouncement as to costs.
considerations demand that the intrinsic
On December 19, 1980, the lower Court denied validity of the will be passed upon, even
reconsideration for lack of merit and in the same Order before it is probated, the Court should meet
appointed Bernardo as the administrator of the intestate that issue. (Emphasis supplied)
estate of the deceased Clemencia Aseneta "considering that
Our ruling in Balanay vs. Hon. Martinez 9 had a similar thrust:
he is a forced heir of said deceased while oppositor Soledad
Maninang is not, and considering further that Bernardo The trial court acted correctly in passing
Aseneta has not been shown to be unfit to perform the duties upon the will's intrinsic validity even before
of the trust. " its formal validity had been established. The
probate of a will might become an Idle
Petitioners Maninang resorted to a certiorari Petition before
ceremony if on its face it appears to be
respondent Court of Appeals alleging that the lower Court
intrinsically void. Where practical
exceeded its jurisdiction in issuing the Orders of dismissal of
considerations demand that the intrinsic
the Testate Case (September 8, 1980) and denial of
validity of the will be passed upon, even
reconsideration (December 19, 1980).
before it is probated, the court should meet
On April 28, 1981, respondent Court 3 denied certiorari and the issue.
ruled that the trial Judge's Order of dismissal was final in
The Nuguid and the Balanay cases provide the exception
nature as it finally disposed of the Testate Case and,
rather than the rule. The intrinsic validity of the Wills in those
therefore, appeal was the proper remedy, which petitioners
cases was passed upon even before probate because
failed to avail of. Continuing, it said that even granting that
"practical considerations" so demanded. Moreover, for the
the lower Court committed errors in issuing the questioned
parties in the Nuguid case, the "meat of the controversy" was
Orders, those are errors of judgment reviewable only by
the intrinsic validity of the Will; in fact, the parties in that
appeal and not by Certiorari. 'Thus, this Petition before us.
case "shunted aside the question of whether or not the Will
We find that the Court a quo a quo acted in excess of its should be allowed probate." Not so in the case before us now
jurisdiction when it dismissed the Testate Case. Generally, the where the probate of the Will is insisted on by petitioners and
probate of a Will is mandatory. a resolution on the extrinsic validity of the Will demanded.
No will shall pass either real or personal Moreover, in the Nuguid case, this Court ruled that the Will
property unless it is proved and allowed in was intrinsically invalid as it completely preterited the parents
accordance with the Rules of Court. 4 of the testator. In the instant case, a crucial issue that calls
for resolution is whether under the terms of the decedent's
The law enjoins the probate of the Will and public policy
Will, private respondent had been preterited or disinherited,
requires it, because unless the Will is probated and notice
and if the latter, whether it was a valid disinheritance.
thereof given to the whole world, the right of a person to
Preterition and disinheritance are two diverse concepts.
dispose of his property by Will may be rendered nugatory. 5
... Preterition "consists in the omission in
Normally, the probate of a Will does not look into its intrinsic
the testator's will of the forced heirs or
validity.
anyone of them, either because they are
... The authentication of a will decides no n o t m e n t i o n e d t h e r e i n , o r, t h o u g h
other question than such as touch upon the mentioned, they are neither instituted as
capacity of the testator and the compliance heirs nor are expressly disinherited." (Neri
with those requisites or solemnities which vs. Akutin, 72 Phil. 325). Disinheritance, in
the law prescribes for the validity of wills. It turn, "is a testamentary disposition
does not determine nor even by implication depriving any compulsory heirs of his share
prejudge the validity or efficiency (sic) of in the legitimate for a cause authorized by
the provisions, these may be impugned as law." (Justice J.B.L. Reyes and R.C. Puno,
being vicious or null, notwithstanding its "An Outline of Philippine Civil Law", 1956
authentication. The que0stions relating to e d ., Vo l . I I I , p . 8 , c i t i n g c a s e s )
these points remain entirely unaffected, and Disinheritance is always "voluntary",
may be raised even after the will has been preterition upon the other hand, is
authenticated .... 6 presumed to be "involuntary" (Sanchez
Roman, Estudios de Derecho Civil 2nd
Opposition to the intrinsic validity or legality
edition, Volume 2.o p. 1131). 10
of the provisions of the will cannot be
entertained in Probate proceeding because The effects of preterition and disinheritance are also totally
its only purpose is merely to determine if different.
the will has been executed in accordance
... The effects flowing from preterition are
with the requirements of the law. 7
totally different from those of
Respondent Bernardo, however, relies on the pronouncement disinheritance. Pretention under Article 854
in Nuguid vs. Nuguid 8, reading: of the New Civil Code shall annul the
institution of heir. This annulment is in toto,
In a proceeding for the probate of a will, the
unless in the wail there are, in addition,
Court's area of inquiry is limited to an
testamentary dispositions in the form of
SPECIAL PROCEEDINGS/Rule 75 4 of 16
devises or legacies. In ineffective the six lots which Matilde inherited from her husband Crispin.
disinheritance under Article 918 of the same The Deed of Donation provided:
Code, such disinheritance shall also "annul
That, for and in consideration of the love and affection of the
the institution of heirs", but only "insofar as
DONOR [Matilde] for the DONEE [Maria], the latter being
it may prejudice the person disinherited",
adopted and hav[ing] been brought up by the former the
which last phrase was omitted in the case of
DONOR, by these presents, transfer and convey, BY WAY OF
preterition (III Tolentino, Civil Code of the
DONATION, unto the DONEE the property above-described, to
Philippines, 1961 Edition, p. 172). Better
become effective upon the death of the DONOR, but in
stated yet, in disinheritance the nullity is
the event that the DONEE should die before the
limited to that portion of the estate of which
DONOR, the present donation shall be deemed
the disinherited heirs have been illegally
rescinded and [of] no further force and effect; Provided,
deprived. 11
however, that anytime during the lifetime of the DONOR or
By virtue of the dismissal of the Testate Case, the anyone of them who should survive, they could use[,]
determination of that controversial issue has not been encumber or even dispose of any or even all of the parcels of
thoroughly considered. We gather from the assailed Order of landherein donated.4 (Emphasis and underscoring supplied)
the trial Court that its conclusion was that respondent
On September 30, 1986, Original Certificates of Title over Lot
Bernardo has been preterited We are of opinion, however,
Nos. 674 and 676 were issued in Matilde’s name.
that from the face of the Will, that conclusion is not
indubitable. On August 26, 1991, Matilde sold Lot No. 676 to respondent
by a Deed of Absolute Sale of Real Property.5
As held in the case of Vda. de Precilla vs. Narciso 12
thereof at the legal rate until fully paid; 25contending that the Court of Appeals erred