VIRGINIA GARCIA FULE vs. CA, PRECIOSA B. GARCIA and AGUSTINA B.

GARCIA,
74 SCRA 189

Virginia G. Fule filed with the CFI of Laguna a petition for letters of administration and
moved
ex parte for her appointment as special administratrix over the estate Amado G. Garcia,
who died intestate. CFI of Laguna granted the motion.

Preciosa Garcia, surviving spouse of the decedent, commenced a special action for
certiorari and/or prohibition and preliminary injunction before the Court of Appeals,
primarily to annul the proceedings before Judge Malvar of the Court of First Instance of
Laguna. She alleges that venue was improperly laid; that the residence of the Amado
Garcia 3 months before his death was at Quezon City, not Laguna.

The Court of Appeals rendered judgment annulling the said proceedings before the
Court of First Instance of Calamba, Laguna, for lack of jurisdiction. Preciosa B. Garcia a
petition for letters of administration before the Court of First Instance of Rizal, Quezon
City over the same intestate estate of Amado G. Garcia and was appointed as special
administratrix . Thus, Fule elevated the matter to the SC on appeal by certiorari.

ISSUEL What is meant by residence under Sec 1 Rule 73 of the ROC?

Whether or not venue was improperly laid

HELD: The SC laid down the doctrinal rule that the term "resides" connotes ex vi
termini "actual residence" as distinguished from "legal residence or domicile." “Resides”
should be viewed or understood in its popular sense, meaning, the personal, actual or
physical habitation of a person, actual residence or place of abode. It signifies physical
presence in a place and actual stay thereat. No particular length of time of residence is
required though; however, the residence must be more than temporary.

Section 1, Rule 73 of the Revised Rules of Court provides: “If the decedent is an
inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his
will shall be proved, or letters of administration granted, and his estate settled, in the
Court of First Instance in the province in which he resides at the time of his death, and if
he is an inhabitant of a foreign country, the Court of First Instance of any province in
which he had estate. In the present case, SC ruled that the last place of residence of
the deceased should be the venue of the court. Amado G. Garcia was in Quezon City,
and not at Calamba, Laguna base on his death certificate. A death certificate is
admissible to prove the residence of the decedent at the time of his death.

The conclusion becomes imperative that the venue for Virginia C. Fule's petition for
letters of administration was improperly laid in the Court of First Instance of Calamba,
Laguna. The SC decreed that venue in the instant case was properly assumed by and
transferred to Quezon City.
G.R. No. L-7635 July 25, 1955

TASIANA ONGSINGCO, Guardian of Francisco de Borja, petitioner,

vs.
HON. BIENVENIDO A. TAN, as Judge of the Court of First Instance of Rizal and
JOSE DE BORJA, administrator of the estate of the late Josefa
Tangco, respondents.

Jose W. Diokno, Sycip, Quisumbing and Salazar for petitioner.

David Guevara for respondents.

BAUTISTA ANGELO, J.:

This is a petition for certiorari with prohibition to annul and restrain the enforcement of
two orders of respondent judge dated January 20, 1954 and February 18, 1954 issued
in Special Proceedings No. 7866 of the Court of First Instance of Rizal entitled "Testate
Estate of the Deceased Josefa Tangco" which prohibit petitioner, inter alia, from
continuing in possession of certain parcels of land situated in Santa Rosa, Nueva Ecija,
on the ground that they were issued without or in excess of his jurisdiction.

Petitioner Tasiana Ongsingco is the wife and judicial guardian of one Francisco de Borja
who was declared incompetent by the Court of First Instance of Rizal in Special
Proceedings No. 1764. Francisco de Borja is the surviving spouse of Josefa Tangco
whose estate is being settled in Special Proceedings No. 7866 of the same court.
Respondent Jose de Borja is the son of Francisco de Borja, who, on June 29, 1953,
was appointed administrator of the estate of Josefa Tangco.

Francisco de Borja, according to petitioner, is the owner of two parcels of land situated
in Santa Rosa, Nueva Ecija, which he acquired by inheritance from his late father
Marcelo de Borja and as such form part of his separate properties.

On October 27, 1953, Francisco de Borja was declared incompetent by the court as
aforesaid, and petitioner, his second wife, was appointed his guardian. As such
guardian, petitioner took over from her husband the possession of said two parcels of
land and commenced the threshing of the palay crop standing thereon for the benefit of
her ward.

On January 16, 1954, respondent Jose de Borja, as administrator of the estate of

Josefa Tangco, filed a motion in the estate proceedings of the latter praying that
petitioner be restrained from threshing the palay on the lands until the ownership thereof
has been definitely determined either by the court or by agreement of the parties.
Petitioner opposed the motion challenging the jurisdiction of the court and contending
that if its purpose is to pass on the question of ownership, such can only be threshed
out elsewhere and not by the probate court.
Because it became obvious to petitioner that respondent administrator would insist in
his motion whose main aim is to prevent petitioner and her laborers from threshing the
crop standing on the lands and, on the other hand, the several attempts made to agree
on the identity of the lands had failed, petitioner filed an action on January 21, 1954 in
the Court of First Instance of Nueva Ecija to restrain respondent administrator from
interferring with the harvesting and threshing of the crop on the claim that the lands
were the exclusive property of her ward Francisco de Borja (Civil Case No. 1350). On
the same date, the court granted the preliminary injunction prayed for upon the filing by
petitioner of a bond of P5,000. On January 25, 1954, respondent Jose de Borja filed an
urgent petition in the same case asking the court to dismiss the action for lack of
jurisdiction and to dissolve the preliminary injunction that was issued. This petition was
denied.

On January 29, 1954, respondent court issued an order the dispositive part of which
reads:

IN VIEW OF THE FOREGOING CONSIDERATIONS, the guardian Tasiana

Ongsingco is hereby ordered not to meddle in the threshing of the palay
harvested in the lands declared under Tax Declaration No. 540 (Annexes A and
A-1). The administrator and the guardian are ordered to find from among the
properties of the incapacitated Francisco de Borja in Tabuanting, Sta. Rosa,
Nueva Ecija, the two parcels of land having an approximate area as those two
lots adjudicated in his favor by the Commissioners on Partition, and once found,
let the parties agree on the matter, so as to avoid any future controversy, and to
notify this Court of their agreement.

IT IS SO ORDERED.

On February 10, 1954, petitioner filed a motion for reconsideration calling attention to
the fact that both the guardian and the administrator had already attempted to arrive at
an agreement as to the identity of the lots which are claimed to be the exclusive
property of Francisco de Borja, but they failed to do so, and because of such inability
and the immediate need of harvesting and threshing the crop standing thereon,
petitioner filed an action in the Court of First Instance of Nueva Ecija precisely to
determine once and for all the title to, and ownership of, said lands and to issue a
preliminary injunction restraining respondent Jose de Borja from interferring with the
work of petitioner; but, in view of respondent Borja's opposition, respondent court
denied the motion for reconsideration.

The present petition poses the following issues: (1) considering that the dispute
between petitioner and respondent administrator involves the ownership of two parcels
of land now the subject of an action in the Court of First Instance of Nueva Ecija, has
respondent court jurisdiction to determine said dispute in the estate proceedings of the
late Josefa Tangco?; and (2) having the Court of First Instance of Nueva Ecija issued a
writ of preliminary injunction to restrain respondent administrator from interferring with
the threshing of the crop standing on said lands, can respondent court, after having
been apprised of said order, issue an order the effect of which is to nullify and render
ineffective said writ of preliminary injunction?.

There is no dispute that the two parcels of land in Santa Rosa, Nueva Ecija are claimed
by petitioner as part of the separate property of Francisco de Borja so much so that she
took possession thereof when she assumed her commission as guardian on October
27, 1953. That she succeeded in taking actual possession of said lands is shown by the
fact that when she commenced the threshing of the crop standing thereon, respondent
Jose de Borja filed a petition in the estate proceedings of Josefa Tangco to restrain her
from threshing said crop. Then a dispute arose as to the ownership of said parcels of
land. On one hand, petitioner claims that they belong exclusively to her ward having
inherited them from his late father Marcelo de Borja, while, on the other, respondent
administrator contends that they are not the land adjudicated to the incompetent by the
commissioners on partition. The parties had made several attempts to arrive at an
agreement as to the identity of the disputed lands, but they failed, and because there
was a pressing need of immediately threshing the crop standing thereon, petitioner filed
an action in the Court of First Instance of Nueva Ecija to determine once and for all the
title and ownership of said lands. In the same case, the court issued a preliminary
injunction restraining respondent administrator from interferring with the administration
of said properties. But such action notwithstanding, respondent court issued the orders
in question which not only go into the issue of ownership but render ineffective the writ
of injunction issued by the Court of First Instance of Nueva Ecija. Can respondent court
do so?

It is a well-settled rule in this jurisdiction, sanctioned and reiterated in a long line of

decisions that, "the question of ownership of property is one which should be
determined in an ordinary action and not in probate proceedings, and this whether or
not the property is alleged to belong to the estate" (Franco vs. O'Brien, 13 Phil., 359). In
another case, it was held that "The general rule is that questions as to title to property
cannot be passed upon in testate or intestate proceedings" (Pascual vs. Pascual, 73
Phil., 561, 562; See also Cordova Vda. de Mañalac vs. Ocampo, 73 Phil., 661, 662), or
stating the rule more elaborately, "When questions arise as to the ownership of property
alleged to be a part of the estate of a deceased person, but claimed by some other
person to be his property, not by virtue of any right of inheritance from the deceased,
but by title adverse to that of the deceased and his estate, such questions cannot be
determined in the courts of administrative proceedings. The Court of First Instance,
acting as a probate court, has no jurisdiction to adjudicate such contentions, which must
be submitted to the court in the exercise of its general jurisdiction as a court of first
instance . . .." (Guzman vs. Anog, 37 Phil., 61.)

The dispute between petitioner and respondent administrator involving, as it does, the
ownership of two parcels of land situated in Santa Rosa, Nueva Ecija, and this question
having been squarely raised in an action pending in the court of first instance of said
province, which was instituted by petitioner against respondent administrator precisely
because of the dispute that had arisen between them over said property, it is the sense
of this Tribunal that respondent court exceeded its jurisdiction in acting upon the said
question in its capacity as probate court. On the face of such issue which necessarily
involves the ownership of the properties, we consider of no consequence the claim that
what respondent court merely did was to look into the identity of said properties. This
question is necessarily imbibed in the greater issue of ownership and being interwoven
one can hardly draw the line of demarcation that would separate one from the other.

As regards the question whether the order of respondent court restraining petitioner
from threshing the palay crop standing on the lands has been properly issued on the
face of the writ of preliminary injunction issued by the Court of First Instance of Nueva
Ecija, the answer is not difficult to find: the court should not have issued the order, for "It
is settled by an overwhelming weight of authority that no court has power to interfere by
injunction with the judgments or decree of a court of concurrent or coordinate
jurisdiction having equal power to grant the relief sought by injunction. . . . The various
branches of the Court of First Instance of Manila are in a sense coordinate courts and to
allow them to interfere with each other's judgments or decrees by injunctions would
obviously lead to confusion and might seriously hinder the administration of justice."
(Cabigao vs. Del Rosario, 44 Phil., 182; See also Philippine National
Bank vs. Javellana, 92 Phil., 525; Montesa vs. Manila Cordage Company, 92 Phil., 25.)

Wherefore, petition is granted without costs. The orders of respondent court dated
January 29, 1954 and February 18, 1954 are hereby set aside.
G.R. Nos. L-21938-39 May 29, 1970

VICENTE URIARTE, petitioner,

vs.
THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL (12th Judicial
District) THE COURT OF FIRST INSTANCE OF MANILA, BRANCH IV, JUAN
URIARTE ZAMACONA and HIGINIO URIARTE, respondents.

DIZON, J.:

On October 3, 1963 petitioner Vicente Uriarte filed an original petition for certiorari —
docketed as G.R. L-21938 — against the respondents Juan Uriarte Zamacona, Higinio
Uriarte, and the Courts of First Instance of Negros Occidental and of Manila, Branch IV,
who will be referred to hereinafter as the Negros Court and the Manila Court,
respectively — praying:

... that after due proceedings judgment be rendered annulling the orders of
19 April 1963 (Annex 'H') and 11 July 1963 (Annex 'I') of respondent
Negros court dismissing the first instituted Special Proceeding No. 6344,
supra, and the order of 1 July 1963 (Annex 'K') of respondent Manila court
denying petitioner's omnibus motion to intervene and to dismiss the later-
instituted Special Proceeding No. 51396, supra, both special proceedings
pertaining to the settlement of the same estate of the same deceased, and
consequently annulling all proceedings had in Special Proceeding No.
51396; supra, of the respondent Manila court as all taken without
jurisdiction.

For the preservation of the rights of the parties pending these

proceedings, petitioner prays for the issuance of a writ of preliminary
injunction enjoining respondents Manila court, Juan Uriarte Zamacona and
Higinio Uriarte from proceeding with Special Proceeding No.
51396, supra, until further orders of this Court.

Reasons in support of said petition are stated therein as follows:

6. Respondent Negros court erred in dismissing its Special Proceeding

No. 6344, supra, and failing to declare itself 'the court first taking
cognizance of the settlement of the estate of' the deceased Don Juan
Uriarte y Goite as prescribed in Rule 75 section 1 of the Rules of Court.
Respondent Manila court erred in failing to dismiss its Special Proceeding
No. 51396, supra, notwithstanding proof of prior filing of Special
Proceeding No. 6344, supra, in the Negros court.

The writ of preliminary injunction prayed for was granted and issued by this Court on
October 24, 1963.
On April 22, 1964 petitioner filed against the same respondents a pleading entitled
SUPPLEMENTAL PETITION FOR MANDAMUS — docketed in this Court as G.R. No.
L-21939 — praying, for the reasons therein stated, that judgment be rendered annulling
the orders issued by the Negros Court on December 7, 1963 and February 26, 1964,
the first disapproving his record on appeal and the second denying his motion for
reconsideration, and further commanding said court to approve his record on appeal
and to give due course to his appeal. On July 15, 1964 We issued a resolution deferring
action on this Supplemental Petition until the original action for certiorari (G.R. L-21938)
is taken up on the merits.

On October 21, 1963 the respondents in G.R. L-21938 filed their answer traversing
petitioner's contention that the respondent courts had committed grave abuse of
discretion in relation to the matters alleged in the petition for certiorari.

It appears that on November 6, 1961 petitioner filed with the Negros Court a petition for
the settlement of the estate of the late Don Juan Uriarte y Goite (Special Proceeding
No. 6344) alleging therein, inter alia, that, as a natural son of the latter, he was his sole
heir, and that, during the lifetime of said decedent, petitioner had instituted Civil Case
No. 6142 in the same Court for his compulsory acknowledgment as such natural son.
Upon petitioner's motion the Negros Court appointed the Philippine National Bank as
special administrator on November 13, 1961 and two days later it set the date for the
hearing of the petition and ordered that the requisite notices be published in accordance
with law. The record discloses, however, that, for one reason or another, the Philippine,
National Bank never actually qualified as special administrator.

On December 19, 1961, Higinio Uriarte, one of the two private respondents herein, filed
an opposition to the above-mentioned petition alleging that he was a nephew of the
deceased Juan Uriarte y Goite who had "executed a Last Will and Testament in Spain,
a duly authenticated copy whereof has been requested and which shall be submitted to
this Honorable Court upon receipt thereof," and further questioning petitioner's capacity
and interest to commence the intestate proceeding.

On August 28, 1962, Juan Uriarte Zamacona, the other private respondent, commenced
Special Proceeding No. 51396 in the Manila Court for the probate of a document
alleged to be the last will of the deceased Juan Uriarte y Goite, and on the same date
he filed in Special Proceeding No. 6344 of the Negros Court a motion to dismiss the
same on the following grounds: (1) that, as the deceased Juan Uriarte y Goite had left a
last will, there was no legal basis to proceed with said intestate proceedings, and (2)
that petitioner Vicente Uriarte had no legal personality and interest to initiate said
intestate proceedings, he not being an acknowledged natural son of the decedent. A
copy of the Petition for Probate and of the alleged Will were attached to the Motion to
Dismiss.

Petitioner opposed the aforesaid motion to dismiss contending that, as the Negros
Court was first to take cognizance of the settlement of the estate of the deceased Juan
Uriarte y Goite, it had acquired exclusive jurisdiction over same pursuant to Rule 75,
Section 1 of the Rules of Court.

On April 19, 1963, the Negros Court sustained Juan Uriarte Zamacona's motion to
dismiss and dismissed the Special Proceeding No. 6344 pending before it. His motion
for reconsideration of said order having been denied on July 27, 1963, petitioner
proceeded to file his notice of appeal, appeal bond and record on appeal for the
purpose of appealing from said orders to this court on questions of law. The
administrator with the will annexed appointed by the Manila Court in Special Proceeding
No. 51396 objected to the approval of the record on appeal, and under date of
December 7, 1963 the Negros Court issued the following order:

Oppositor prays that the record on appeal filed by the petitioner on July
27, 1963, be dismissed for having been filed out of time and for being
incomplete. In the meantime, before the said record on appeal was
approved by this Court, the petitioner filed a petition for certiorari before
the Supreme Court entitled Vicente Uriarte, Petitioner, vs. Court of First
Instance of Negros Occidental, et al., G.R. No. L-21938, bringing this case
squarely before the Supreme Court on questions of law which is
tantamount to petitioner's abandoning his appeal from this Court.

WHEREFORE, in order to give way to the certiorari, the record on appeal

filed by the petitioner is hereby disapproved.

In view of the above-quoted order, petitioner filed the supplemental petition for
mandamus mentioned heretofore.

On April 15, 1963 Vicente Uriarte filed an Omnibus Motion in Special Proceeding No.
51396 pending in the Manila Court, asking for leave to intervene therein; for the
dismissal of the petition and the annulment of the proceedings had in said special
proceeding. This motion was denied by said court in its order of July 1 of the same year.

It is admitted that, as alleged in the basic petition filed in Special Proceeding No. 6344
of the Negros Court, Vicente Uriarte filed in the same court, during the lifetime of Juan
Uriarte y Goite, Civil Case No. 6142 to obtain judgment for his compulsory
acknowledgment as his natural child. Clearly inferrable from this is that at the time he
filed the action, as well as when he commenced the aforesaid special proceeding, he
had not yet been acknowledged as natural son of Juan Uriarte y Goite. Up to this time,
no final judgment to that effect appears to have been rendered.

The record further discloses that the special proceeding before the Negros Court has
not gone farther than the appointment of a special administrator in the person of the
Philippine National Bank who, as stated heretofore, failed to qualify.

On the other hand, it is not disputed that, after proper proceedings were had in Special
Proceeding No. 51396, the Manila Court admitted to probate the document submitted
to, it as the last will of Juan Uriarte y Goite, the petition for probate appearing not to
have been contested. It appears further that, as stated heretofore, the order issued by
the Manila Court on July 1, 1963 denied petitioner. Vicente Uriarte's Omnibus Motion for
Intervention, Dismissal of Petition and Annulment of said proceedings.

Likewise, it is not denied that to the motion to dismiss the special proceeding pending
before the Negros Court filed by Higinio Uriarte were attached a copy of the alleged last
will of Juan Uriarte y Goite and of the petition filed with the Manila Court for its probate.
It is clear, therefore, that almost from the start of Special Proceeding No. 6344, the
Negros Court and petitioner Vicente Uriarte knew of the existence of the aforesaid last
will and of the proceedings for its probate.

The principal legal questions raised in the petition for certiorari are (a) whether or not
the Negros Court erred in dismissing Special Proceeding No. 6644, on the one hand,
and on the other, (b) whether the Manila Court similarly erred in not dismissing Special
Proceeding No. 51396 notwithstanding proof of the prior filing of Special Proceeding No.
6344 in the Negros Court.

Under the Judiciary Act of 1948 [Section 44, paragraph (e)], Courts of First Instance
have original exclusive jurisdiction over "all matters of probate," that is, over special
proceedings for the settlement of the estate of deceased persons — whether they died
testate or intestate. While their jurisdiction over such subject matter is beyond question,
the matter of venue, or the particular Court of First Instance where the special
proceeding should be commenced, is regulated by former Rule 75, Section 1 of the
Rules of Court, now Section 1, Rule 73 of the Revised Rules of Court, which provides
that the estate of a decedent inhabitant of the Philippines at the time of his death,
whether a citizen or an alien, shall be in the court of first instance in the province in
which he resided at the time of his death, and if he is an inhabitant of a foreign country,
the court of first instance of any province in which he had estate. Accordingly, when the
estate to be settled is that of a non-resident alien — like the deceased Juan Uriarte y
Goite — the Courts of First Instance in provinces where the deceased left any property
have concurrent jurisdiction to take cognizance of the proper special proceeding for the
settlement of his estate. In the case before Us, these Courts of First Instance are the
Negros and the Manila Courts — province and city where the deceased Juan Uriarte y
Goite left considerable properties. From this premise petitioner argues that, as the
Negros Court had first taken cognizance of the special proceeding for the settlement of
the estate of said decedent (Special Proceeding No. 6344), the Manila Court no longer
had jurisdiction to take cognizance of Special Proceeding No. 51396 intended to settle
the estate of the same decedent in accordance with his alleged will, and that
consequently, the first court erred in dismissing Special Proceeding No. 6344, while the
second court similarly erred in not dismissing Special Proceeding No. 51396.

It can not be denied that a special proceeding intended to effect the distribution of the
estate of a deceased person, whether in accordance with the law on intestate
succession or in accordance with his will, is a "probate matter" or a proceeding for the
settlement of his estate. It is equally true, however, that in accordance with settled
jurisprudence in this jurisdiction, testate proceedings, for the settlement of the estate of
a deceased person take precedence over intestate proceedings for the same purpose.
Thus it has been held repeatedly that, if in the course of intestate proceedings pending
before a court of first instance it is found it hat the decedent had left a last will,
proceedings for the probate of the latter should replace the intestate proceedings even if
at that stage an administrator had already been appointed, the latter being required to
render final account and turn over the estate in his possession to the executor
subsequently appointed. This, however, is understood to be without prejudice that
should the alleged last will be rejected or is disapproved, the proceeding shall continue
as an intestacy. As already adverted to, this is a clear indication that proceedings for the
probate of a will enjoy priority over intestate proceedings.

Upon the facts before Us the question arises as to whether Juan Uriarte Zamacona
should have filed the petition for the probate of the last will of Juan Uriarte y Goite with
the Negros Court — particularly in Special Proceeding No. 6344 — or was entitled to
commence the corresponding separate proceedings, as he did, in the Manila Court.

The following considerations and the facts of record would seem to support the view
that he should have submitted said will for probate to the Negros Court, either in a
separate special proceeding or in an appropriate motion for said purpose filed in the
already pending Special Proceeding No. 6344. In the first place, it is not in accord with
public policy and the orderly and inexpensive administration of justice to unnecessarily
multiply litigation, especially if several courts would be involved. This, in effect, was the
result of the submission of the will aforesaid to the Manila Court. In the second place,
when respondent Higinio Uriarte filed an opposition to Vicente Uriarte's petition for the
issuance of letters of administration, he had already informed the Negros Court that the
deceased Juan Uriarte y Goite had left a will in Spain, of which a copy had been
requested for submission to said court; and when the other respondent, Juan Uriarte
Zamacona, filed his motion to dismiss Special Proceeding No. 6344, he had submitted
to the Negros Court a copy of the alleged will of the decedent, from which fact it may be
inferred that, like Higinio Uriarte, he knew before filing the petition for probate with the
Manila Court that there was already a special proceeding pending in the Negros Court
for the settlement of the estate of the same deceased person. As far as Higinio Uriarte
is concerned, it seems quite clear that in his opposition to petitioner's petition in Special
Proceeding No. 6344, he had expressly promised to submit said will for probate to the
Negros Court.

But the fact is that instead of the aforesaid will being presented for probate to the
Negros Court, Juan Uriarte Zamacona filed the petition for the purpose with the Manila
Court. We can not accept petitioner's contention in this regard that the latter court had
no jurisdiction to consider said petition, albeit we say that it was not the proper
venue therefor.

It is well settled in this jurisdiction that wrong venue is merely a waiveable procedural
defect, and, in the light of the circumstances obtaining in the instant case, we are of the
opinion, and so hold, that petitioner has waived the right to raise such objection or is
precluded from doing so by laches. It is enough to consider in this connection that
petitioner knew of the existence of a will executed by Juan Uriarte y Goite since
December 19, 1961 when Higinio Uriarte filed his opposition to the initial petition filed in
Special Proceeding No. 6344; that petitioner likewise was served with notice of the
existence (presence) of the alleged last will in the Philippines and of the filing of the
petition for its probate with the Manila Court since August 28, 1962 when Juan Uriarte
Zamacona filed a motion for the dismissal of Special Proceeding No. 6344. All these
notwithstanding, it was only on April 15, 1963 that he filed with the Manila Court in
Special Proceeding No. 51396 an Omnibus motion asking for leave to intervene and for
the dismissal and annulment of all the proceedings had therein up to that date; thus
enabling the Manila Court not only to appoint an administrator with the will annexed but
also to admit said will to probate more than five months earlier, or more specifically, on
October 31, 1962. To allow him now to assail the exercise of jurisdiction over the
probate of the will by the Manila Court and the validity of all the proceedings had in
Special Proceeding No. 51396 would put a premium on his negligence. Moreover, it
must be remembered that this Court is not inclined to annul proceedings regularly had
in a lower court even if the latter was not the proper venue therefor, if the net result
would be to have the same proceedings repeated in some other court of similar
jurisdiction; more so in a case like the present where the objection against said
proceedings is raised too late.

In his order of April 19, 1963 dismissing Special Proceeding No. 6344, Judge
Fernandez of the Negros Court said that he was "not inclined to sustain the contention
of the petitioner that inasmuch as the herein petitioner has instituted Civil Case No.
6142 for compulsory acknowledgment by the decedent such action justifies the
institution by him of this proceedings. If the petitioner is to be consistent with the
authorities cited by him in support of his contention, the proper thing for him to do would
be to intervene in the testate estate proceedings entitled Special Proceedings No.
51396 in the Court of First Instance of Manila instead of maintaining an independent
action, for indeed his supposed interest in the estate of the decedent is of his doubtful
character pending the final decision of the action for compulsory acknowledgment."

We believe in connection with the above matter that petitioner is entitled to prosecute
Civil Case No. 6142 until it is finally determined, or intervene in Special Proceeding No.
51396 of the Manila Court, if it is still open, or to ask for its reopening if it has already
been closed, so as to be able to submit for determination the question of his
acknowledgment as natural child of the deceased testator, said court having, in its
capacity as a probate court, jurisdiction to declare who are the heirs of the deceased
testator and whether or not a particular party is or should be declared his acknowledged
natural child (II Moran on Rules of Court, 1957 Ed., p. 476; Conde vs. Abaya, 13 Phil.
249; Severino vs. Severino, 44 Phil. 343; Lopez vs. Lopez, 68 Phil. 227, and Jimoga-on
vs. Belmonte, 47 O. G. 1119).

Coming now to the supplemental petition for mandamus (G.R. No. L-21939), We are of
the opinion, and so hold, that in view of the conclusions heretofore stated, the same has
become moot and academic. If the said supplemental petition is successful, it will only
result in compelling the Negros Court to give due course to the appeal that petitioner
was taking from the orders of said court dated December 7, 1963 and February 26,
1964, the first being the order of said court dismissing Special Proceeding No. 6344,
and the second being an order denying petitioner's motion for the reconsideration of
said order of dismissal. Said orders being, as a result of what has been said heretofore
beyond petitioner's power to contest, the conclusion can not be other than that the
intended appeal would serve no useful purpose, or, worse still, would enable petitioner
to circumvent our ruling that he can no longer question the validity of said orders.

IN VIEW OF THE FOREGOING CONSIDERATIONS, judgment is hereby rendered

denying the writs prayed for and, as a result, the petition for certiorari filed in G.R. No. L-
21938, as well as the supplemental petition for mandamus docketed as G.R. No. L-
21939, are hereby dismissed. The writ of preliminary injunction heretofore issued is set
aside. With costs against petitioner.
G.R. Nos. 140371-72
DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D. SEANGIO, Petitioners,

Vs.
HON. AMOR A. REYES, in her GARCIA, JJ. capacity as Presiding Judge, Regional
Trial Court, National Capital Judicial Region, Branch 21, Manila, ALFREDO D.
SEANGIO, ALBERTO D. SEANGIO, ELISA D. Promulgated: SEANGIO-SANTOS,
VICTOR D. SEANGIO, ALFONSO D. SEANGIO, SHIRLEY D. SEANGIO-
LIM, November 27, 2006 Respondents.

DECISION

AZCUNA, J.:
This is a petition for certiorari[1] with application for the issuance of a writ of preliminary
injunction and/or temporary restraining order seeking the nullification of the orders,
dated August 10, 1999 and October 14, 1999, of the Regional Trial Court of Manila,
Branch 21 (the RTC), dismissing the petition for probate on the ground of preterition, in
the consolidated cases, docketed as SP. Proc. No. 98-90870 and SP. Proc. No. 99-
93396, and entitled, In the Matter of the Intestate Estate of Segundo C. Seangio v.
Alfredo D. Seangio, et al. and In the Matter of the Probate of the Will of Segundo C.
Seangio v. Dy Yieng Seangio, Barbara D. Seangio and Virginia Seangio.
The facts of the cases are as follows:

On September 21, 1988, private respondents filed a petition for the settlement of the
intestate estate of the late Segundo Seangio, docketed as Sp. Proc. No. 9890870 of the
RTC, and praying for the appointment of private respondent Elisa D. SeangioSantos as
special administrator and guardian ad litem of petitioner Dy Yieng Seangio.

Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the
petition. They contended that: 1) Dy Yieng is still very healthy and in full command of
her faculties; 2) the deceased Segundo executed a general power of attorney in favor of
Virginia giving her the power to manage and exercise control and supervision over his
business in the Philippines; 3) Virginia is the most competent and qualified to serve as
the administrator of the estate of Segundo because she is a certified public accountant;
and, 4) Segundo left a holographic will, dated September 20, 1995, disinheriting one of
the private respondents, Alfredo Seangio, for cause. In view of the purported
holographic will, petitioners averred that in the event the decedent is found to have left a
will, the intestate proceedings are to be automatically suspended and replaced by the
proceedings for the probate of the will.

On April 7, 1999, a petition for the probate of the holographic will of Segundo, docketed
as SP. Proc. No. 9993396, was filed by petitioners before the RTC. They likewise
reiterated that the probate proceedings should take precedence over SP. Proc. No.
9890870 because testate proceedings take precedence and enjoy priority over intestate
proceedings.[2]

The document that petitioners refer to as Segundos holographic will is quoted, as

follows:

Kasulatan sa pag-aalis ng mana

Tantunin ng sinuman

Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores

St., Ermita, Manila at nagtatalay ng maiwanag na pag-iisip at disposisyon
ay tahasan at hayagang inaalisan ko ng lahat at anumang mana ang
paganay kong anak na si Alfredo Seangio dahil siya ay naging
lapastangan sa akin at isan beses siya ng sasalita ng masama harapan ko
at mga kapatid niya na si Virginia Seangio labis kong kinasama ng loob ko
at sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon gunit daratin
ang araw na ako nasa ilalim siya at siya nasa ibabaw.

Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan

para makapagutang na kuarta siya at kanya asawa na si Merna de los
Reyes sa China Bangking Corporation na millon pesos at hindi ng
babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking
kahihiya sa mga may-ari at stockholders ng China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na
mga custome[r] ng Travel Center of the Philippines na pinagasiwaan ko at
ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at
hayanan kong inaalisan ng lahat at anoman mana na si Alfredo at si
Alfredo Seangio ay hindi ko siya anak at hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa
harap ng tatlong saksi. [3]
(signed)
Segundo Seangio
Nilagdaan sa harap namin

(signed)
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi

(signed)
ikatlong saksi

On May 29, 1999, upon petitioners motion, SP. Proc. No. 9890870 and SP. Proc. No.
9993396 were consolidated.[4]
On July 1, 1999, private respondents moved for the dismissal of the probate
proceedings[5] primarily on the ground that the document purporting to be the
holographic will of Segundo does not contain any disposition of the estate of the
deceased and thus does not meet the definition of a will under Article 783 of the Civil
Code. According to private respondents, the will only shows an alleged act of
disinheritance by the decedent of his eldest son, Alfredo, and nothing else; that all other
compulsory heirs were not named nor instituted as heir, devisee or legatee, hence,
there is preterition which would result to intestacy. Such being the case, private
respondents maintained that while procedurally the court is called upon to rule only on
the extrinsic validity of the will, it is not barred from delving into the intrinsic validity of
the same, and ordering the dismissal of the petition for probate when on the face of the
will it is clear that it contains no testamentary disposition of the property of the decedent.
Petitioners filed their opposition to the motion to dismiss contending that: 1)
generally, the authority of the probate court is limited only to a determination of the
extrinsic validity of the will; 2) private respondents question the intrinsic and not the
extrinsic validity of the will; 3) disinheritance constitutes a disposition of the estate of a
decedent; and, 4) the rule on preterition does not apply because Segundos will does not
constitute a universal heir or heirs to the exclusion of one or more compulsory heirs.[6]
On August 10, 1999, the RTC issued its assailed order, dismissing the petition
for probate proceedings:
A perusal of the document termed as will by oppositors/petitioners Dy
Yieng Seangio, et al., clearly shows that there is preterition, as the only
heirs mentioned thereat are Alfredo and Virginia. [T]he other heirs being
 omitted, Article 854 of the New Civil Code thus applies. However, insofar
as the widow Dy Yieng Seangio is concerned, Article 854 does not apply,
she not being a compulsory heir in the direct line.
As such, this Court is bound to dismiss this petition, for to do otherwise
would amount to an abuse of discretion. The Supreme Court in the case
of Acain v. Intermediate Appellate Court [155 SCRA 100 (1987)] has
made its position clear: for respondents to have tolerated the probate of
the will and allowed the case to progress when, on its face, the will
appears to be intrinsically void would have been an exercise in futility. It
would have meant a waste of time, effort, expense, plus added futility. The
trial court could have denied its probate outright or could have passed
upon the intrinsic validity of the testamentary provisions before the
extrinsic validity of the will was resolved (underscoring supplied).

WHEREFORE, premises considered, the Motion to Suspend Proceedings

is hereby DENIED for lack of merit. Special Proceedings No. 9993396 is
hereby DISMISSED without pronouncement as to costs.
SO ORDERED.[7]

Petitioners motion for reconsideration was denied by the RTC in its order
dated October 14, 1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTIONAND DECIDED
A QUESTION OF LAW NOT IN ACCORD WITH LAW AND
JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS, DATED
10 AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS A AND B
HEREOF) CONSIDERING THAT:

I
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH
SECTIONS 3 AND 4 OF RULE 76 OF THE RULES OF COURT ON THE
PROPER PROCEDURE FOR SETTING THE CASE FOR INITIAL
HEARING FOR THE ESTABLISHMENT OF THE JURISDICTIONAL
FACTS, DISMISSED THE TESTATE CASE ON THE ALLEGED
GROUND THAT THE TESTATORS WILL IS VOID ALLEGEDLY
BECAUSE OF THE EXISTENCE OF PRETERITION, WHICH GOES
INTO THE INTRINSIC VALIDITY OF THE WILL, DESPITE THE FACT
THAT IT IS A SETTLED RULE THAT THE AUTHORITY OF PROBATE
COURTS IS LIMITED ONLY TO A DETERMINATION OF THE
EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE EXECUTION
THEREOF, THE TESTATORS TESTAMENTARY CAPACITY AND THE
 COMPLIANCE WITH THE REQUISITES OR SOLEMNITIES
PRESCRIBED BY LAW;

II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS
THE AUTHORITY TO RULE UPON THE INTRINSIC VALIDITY OF THE
WILL OF THE TESTATOR, IT IS INDUBITABLE FROM THE FACE OF
THE TESTATORS WILL THAT NO PRETERITON EXISTS AND THAT
THE WILL IS BOTH INTRINSICALLY AND EXTRINSICALLY VALID;
AND,

III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE
PROCEEDINGS IN THE INTESTATE CASE CONSIDERING THAT IT IS
A SETTLED RULE THAT TESTATE PROCEEDINGS TAKE
PRECEDENCE OVER INTESTATE PROCEEDINGS.

Petitioners argue, as follows:

First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules of
Court which respectively mandate the court to: a) fix the time and place for proving the
will when all concerned may appear to contest the allowance thereof, and cause notice
of such time and place to be published three weeks successively previous to the
appointed time in a newspaper of general circulation; and, b) cause the mailing of said
notice to the heirs, legatees and devisees of the testator Segundo;

Second, the holographic will does not contain any institution of an heir, but rather, as its
title clearly states, Kasulatan ng Pag-Aalis ng Mana, simply contains a disinheritance of
a compulsory heir. Thus, there is no preterition in the decedents will and the holographic
will on its face is not intrinsically void;

Third, the testator intended all his compulsory heirs, petitioners and private respondents
alike, with the sole exception of Alfredo, to inherit his estate. None of the compulsory
heirs in the direct line of Segundo were preterited in the holographic will since there was
no institution of an heir;
Fourth, inasmuch as it clearly appears from the face of the holographic will that it is both
intrinsically and extrinsically valid, respondent judge was mandated to proceed with the
hearing of the testate case; and,

Lastly, the continuation of the proceedings in the intestate case will work injustice to
petitioners, and will render nugatory the disinheritance of Alfredo.

The purported holographic will of Segundo that was presented by petitioners was dated,
signed and written by him in his own handwriting. Except on the ground of preterition,
private respondents did not raise any issue as regards the authenticity of the document.

The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed

Segundos intention of excluding his eldest son, Alfredo, as an heir to his estate for the
reasons that he cited therein. In effect, Alfredo was disinherited by Segundo.

For disinheritance to be valid, Article 916 of the Civil Code requires that the same must
be effected through a will wherein the legal cause therefor shall be specified. With
regard to the reasons for the disinheritance that were stated by Segundo in his
document, the Court believes that the incidents, taken as a whole, can be considered a
form of maltreatment of Segundo by his son, Alfredo, and that the matter presents a
sufficient cause for the disinheritance of a child or descendant under Article 919 of the
Civil Code:
Article 919. The following shall be sufficient causes for the disinheritance
of children and descendants, legitimate as well as illegitimate:

(1) When a child or descendant has been found guilty of an

attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
(2) When a child or descendant has accused the testator of a
crime for which the law prescribes imprisonment for six years or
more, if the accusation has been found groundless;
(3) When a child or descendant has been convicted of adultery or
concubinage with the spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation, or
undue influence causes the testator to make a will or to change one
already made;
 (5) A refusal without justifiable cause to support the parents or
ascendant who disinherit such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child or
descendant;[8]
(7) When a child or descendant leads a dishonorable or
disgraceful life;
(8) Conviction of a crime which carries with it the penalty of civil
interdiction.

Now, the critical issue to be determined is whether the document executed by Segundo
can be considered as a holographic will.

A holographic will, as provided under Article 810 of the Civil Code, must be entirely
written, dated, and signed by the hand of the testator himself. It is subject to no other
form, and may be made in or out of the Philippines, and need not be witnessed.

Segundos document, although it may initially come across as a mere disinheritance

instrument, conforms to the formalities of a holographic will prescribed by law. It is
written, dated and signed by the hand of Segundo himself. An intent to dispose mortis
causa[9] can be clearly deduced from the terms of the instrument, and while it does not
make an affirmative disposition of the latters property, the disinheritance of Alfredo,
nonetheless, is an act of disposition in itself. In other words, the disinheritance results in
the disposition of the property of the testator Segundo in favor of those who would
succeed in the absence of Alfredo.[10]

Moreover, it is a fundamental principle that the intent or the will of the testator,
expressed in the form and within the limits prescribed by law, must be recognized as the
supreme law in succession. All rules of construction are designed to ascertain and give
effect to that intention. It is only when the intention of the testator is contrary to law,
morals, or public policy that it cannot be given effect.[11]
Holographic wills, therefore, being usually prepared by one who is not learned in the
law, as illustrated in the present case, should be construed more liberally than the ones
drawn by an expert, taking into account the circumstances surrounding the execution of
the instrument and the intention of the testator.[12] In this regard, the Court is convinced
that the document, even if captioned as Kasulatan ng Pag-Aalis ng Mana, was intended
by Segundo to be his last testamentary act and was executed by him in accordance
with law in the form of a holographic will. Unless the will is probated,[13] the
disinheritance cannot be given effect.[14]

With regard to the issue on preterition,[15] the Court believes that the compulsory
heirs in the direct line were not preterited in the will. It was, in the Courts opinion,
Segundos last expression to bequeath his estate to all his compulsory heirs, with the
sole exception of Alfredo. Also, Segundo did not institute an heir[16] to the exclusion of
his other compulsory heirs. The mere mention of the name of one of the petitioners,
Virginia, in the document did not operate to institute her as the universal heir. Her name
was included plainly as a witness to the altercation between Segundo and his son,
Alfredo.
Considering that the questioned document is Segundos holographic will, and that the
law favors testacy over intestacy, the probate of the will cannot be dispensed with.
Article 838 of the Civil Code provides that no will shall pass either real or personal
property unless it is proved and allowed in accordance with the Rules of Court. Thus,
unless the will is probated, the right of a person to dispose of his property may be
rendered nugatory.[17]
In view of the foregoing, the trial court, therefore, should have allowed the holographic
will to be probated. It is settled that testate proceedings for the settlement of the estate
of the decedent take precedence over intestate proceedings for the same purpose. [18]

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of
Manila, Branch 21, dated August 10, 1999 and October 14, 1999, are set aside.
Respondent judge is directed to reinstate and hear SP Proc. No. 99-93396 for the
allowance of the holographic will of Segundo Seangio. The intestate case or SP. Proc.
No. 98-90870 is hereby suspended until the termination of the aforesaid testate
proceedings.
No costs.
SO ORDERED.
G.R. No. L-24742 October 26, 1973

ROSA CAYETANO CUENCO, petitioners,

vs.
THE HONORABLE COURT OF APPEALS, THIRD DIVISION, MANUEL CUENCO,
LOURDES CUENCO, CONCEPCION CUENCO MANGUERRA, CARMEN CUENCO,
CONSUELO CUENCO REYES, and TERESITA CUENCO GONZALEZ, respondents.

TEEHANKEE, J.:

Petition for certiorari to review the decision of respondent Court of Appeals in CA-G.R.
No. 34104-R, promulgated 21 November 1964, and its subsequent Resolution
promulgated 8 July 1964 denying petitioner's Motion for Reconsideration.

The pertinent facts which gave rise to the herein petition follow:

On 25 February 1964 Senator Mariano Jesus Cuenco died at the Manila Doctors'
Hospital, Manila. He was survived by his widow, the herein petitioner, and their two (2)
minor sons, Mariano Jesus, Jr. and Jesus Salvador, both surnamed Cuenco, all residing
at 69 Pi y Margal St., Sta. Mesa Heights, Quezon City, and by his children of the first
marriage, respondents herein, namely, Manuel Cuenco, Lourdes Cuenco, Concepcion
Cuenco Manguera, Carmen Cuenco, Consuelo Cuenco Reyes and Teresita Cuenco
Gonzales, all of legal age and residing in Cebu.

On 5 March 1964, (the 9th day after the death of the late Senator)1 respondent Lourdes
Cuenco filed a Petition for Letters of Administration with the court of first instance of
Cebu (Sp. Proc. No. 2433-R), alleging among other things, that the late senator
died intestate in Manila on 25 February 1964; that he was a resident of Cebu at the time
of his death; and that he left real and personal properties in Cebu and Quezon City. On
the same date, the Cebu court issued an order setting the petition for hearing on 10
April 1964, directing that due notice be given to all the heirs and interested persons, and
ordering the requisite publication thereof at LA PRENSA, a newspaper of general
circulation in the City and Province of Cebu.

The aforesaid order, however, was later suspended and cancelled and a new and
modified one released on 13 March 1964, in view of the fact that the petition was to be
heard at Branch II instead of Branch I of the said Cebu court. On the same date, a third
order was further issued stating that respondent Lourdes Cuenco's petition for the
appointment of a special administrator dated 4 March 1964 was not yet ready for the
consideration of the said court, giving as reasons the following:

It will be premature for this Court to act thereon, it not having yet regularly
acquired jurisdiction to try this proceeding, the requisite publication of the
notice of hearing not yet having been complied with. Moreover, copies of
the petition have not been served on all of the heirs specified in the basic
petition for the issuance of letters of administration.2
In the meantime, or specifically on 12 March 1964, (a week after the filing of the Cebu
petition) herein petitioner Rosa Cayetano Cuenco filed a petition with the court of first
instance of Rizal (Quezon City) for the probate of the deceased's last will and
testament and for the issuance of letters testamentary in her favor, as the surviving
widow and executrix in the said last will and testament. The said proceeding was
docketed as Special Proceeding No. Q-7898.

Having learned of the intestate proceeding in the Cebu court, petitioner Rosa Cayetano
Cuenco filed in said Cebu court an Opposition and Motion to Dismiss, dated 30 March
1964, as well as an Opposition to Petition for Appointment of Special Administrator,
dated 8 April 1964. On 10 April 1964, the Cebu court issued an order holding in
abeyance its resolution on petitioner's motion to dismiss "until after the Court of First
Instance of Quezon City shall have acted on the petition for probate of that document
purporting to be the last will and testament of the deceased Don Mariano Jesus
Cuenco."3 Such order of the Cebu court deferring to the probate proceedings in the
Quezon City court was neither excepted to nor sought by respondents to be
reconsidered or set aside by the Cebu court nor did they challenge the same
by certiorari or prohibition proceedings in the appellate courts.

Instead, respondents filed in the Quezon City court an Opposition and Motion to
Dismiss, dated 10 April 1964, opposing probate of the will and assailing the jurisdiction
of the said Quezon City court to entertain petitioner's petition for probate and for
appointment as executrix in Sp. Proc. No. Q-7898 in view of the alleged exclusive
jurisdiction vested by her petition in the Cebu court in Sp. Proc. No. 2433-R. Said
respondent prayed that Sp. Proc. No. Q-7898 be dismissed for lack of
jurisdiction and/or improper venue.

In its order of 11 April 1964, the Quezon City court denied the motion to dismiss, giving
as a principal reason the "precedence of probate proceeding over an intestate
proceeding."4 The said court further found in said order that the residence of the late
senator at the time of his death was at No. 69 Pi y Margal, Sta. Mesa Heights, Quezon
City. The pertinent portion of said order follows:

On the question of residence of the decedent, paragraph 5 of the

opposition and motion to dismiss reads as follows: "that since the
decedent Don Mariano Jesus Cuenco was a resident of the City of Cebu
at the time of his death, the aforesaid petition filed by Rosa Cayetano
Cuenco on 12 March 1964 was not filed with the proper Court (wrong
venue) in view of the provisions of Section 1 of Rule 73 of the New Rules
of Court ...". From the aforequoted allegation, the Court is made to
understand that the oppositors do not mean to say that the decedent
being a resident of Cebu City when he died, the intestate proceedings in
Cebu City should prevail over the probate proceedings in Quezon City,
because as stated above the probate of the will should take precedence,
but that the probate proceedings should be filed in the Cebu City Court of
First Instance. If the last proposition is the desire of the oppositors as
 understood by this Court, that could not also be entertained as proper
because paragraph 1 of the petition for the probate of the will indicates
that Don Mariano Jesus Cuenco at the time of his death was a resident of
Quezon City at 69 Pi y Margal. Annex A (Last Will and Testament of
Mariano Jesus Cuenco) of the petition for probate of the will shows that
the decedent at the time when he executed his Last Will clearly stated that
he is a resident of 69 Pi y Margal, Sta. Mesa Heights, Quezon City, and
also of the City of Cebu. He made the former as his first choice and the
latter as his second choice of residence." If a party has two residences,
the one will be deemed or presumed to his domicile which he himself
selects or considers to be his home or which appears to be the center of
his affairs. The petitioner, in thus filing the instant petition before this
Court, follows the first choice of residence of the decedent and once this
court acquires jurisdiction of the probate proceeding it is to the exclusion
of all others.5

Respondent Lourdes Cuenco's motion for reconsideration of the Quezon City court's
said order of 11 April 1964 asserting its exclusive jurisdiction over the probate
proceeding as deferred to by the Cebu court was denied on 27 April 1964 and a second
motion for reconsideration dated 20 May 1964 was likewise denied.

On 11 May 1964, pursuant to its earlier order of 11 April 1964, the hearing for probate of
the last will of the decedent was called three times at half-hour intervals, but
notwithstanding due notification none of the oppositors appeared and the Quezon City
court proceeded at 9:00 a.m. with the hearing in their absence.

As per the order issued by it subsequently on 15 May 1964, the Quezon City court
noted that respondents-oppositors had opposed probate under their opposition and
motion to dismiss on the following grounds:

(a) That the will was not executed and attested as required by law;

(b) That the will was procured by undue and improper pressure and
influence on the part of the beneficiary or some other persons for his
benefit;

(c) That the testator's signature was procured by fraud and/or that the
testator acted by mistake and did not intend that the instrument he signed
should be his will at the time he affixed his signature thereto. 6

The Quezon City court further noted that the requisite publication of the notice of the
hearing had been duly complied with and that all the heirs had been duly notified of the
hearing, and after receiving the testimony of the three instrumental witnesses to the
decedent's last will, namely Atty. Florencio Albino, Dr. Guillermo A. Picache and Dr.
Jose P. Ojeda, and of the notary public, Atty. Braulio A. Arriola, Jr., who ratified the said
last will, and the documentary evidence (such as the decedent's residence certificates,
income tax return, diplomatic passport, deed of donation) all indicating that the
decedent was a resident of 69 Pi y Margal St., Quezon City, as also affirmed by him in
his last will, the Quezon City court in its said order of 15 May 1964 admitted to
probate the late senator's last will and testament as having been "freely and voluntarily
executed by the testator" and "with all formalities of the law" and appointed petitioner-
widow as executrix of his estate without bond "following the desire of the testator" in his
will as probated.

Instead of appealing from the Quezon City court's said order admitting the will to
probate and naming petitioner-widow as executrix thereof, respondents filed a special
civil action of certiorari and prohibition with preliminary injunction with respondent Court
of Appeals (docketed as case CA-G.R. No. 34104-R) to bar the Rizal court from
proceeding with case No. Q-7898.

On 21 November 1964, the Court of Appeals rendered a decision in favor of

respondents (petitioners therein) and against the herein petitioner, holding that:

Section 1, Rule 73, which fixes the venue in proceedings for the
settlement of the estate of a deceased person, covers both testate and
intestate proceedings. Sp. Proc. 2433-R of the Cebu CFI having been filed
ahead, it is that court whose jurisdiction was first invoked and which first
attached. It is that court which can properly and exclusively pass upon the
factual issues of (1) whether the decedent left or did not leave a valid will,
and (2) whether or not the decedent was a resident of Cebu at the time of
his death.

Considering therefore that the first proceeding was instituted in the Cebu
CFI (Special Proceeding 2433-R), it follows that the said court must
exercise jurisdiction to the exclusion of the Rizal CFI, in which the petition
for probate was filed by the respondent Rosa Cayetano Cuenco (Special
Proceeding Q-7898). The said respondent should assert her rights within
the framework of the proceeding in the Cebu CFI, instead of invoking the
jurisdiction of another court.

The respondents try to make capital of the fact that on March 13, 1964,
Judge Amador Gomez of the Cebu CFI, acting in Sp. Proc. 2433-R, stated
that the petition for appointment of special administrator was "not yet
ready for the consideration of the Court today. It would be premature for
this Court to act thereon, it not having yet regularly acquired jurisdiction to
try this proceeding ... . " It is sufficient to state in this connection that the
said judge was certainly not referring to the court's jurisdiction over
the res, not to jurisdiction itself which is acquired from the moment a
petition is filed, but only to the exercise of jurisdiction in relation to the
stage of the proceedings. At all events, jurisdiction is conferred and
determined by law and does not depend on the pronouncements of a trial
judge.
The dispositive part of respondent appellate court's judgment provided as follows:

ACCORDINGLY, the writ of prohibition will issue, commanding and

directing the respondent Court of First Instance of Rizal, Branch IX,
Quezon City, and the respondent Judge Damaso B. Tengco to refrain
perpetually from proceeding and taking any action in Special Proceeding
Q-7898 pending before the said respondent court. All orders heretofore
issued and actions heretofore taken by said respondent court and
respondent Judge, therein and connected therewith, are hereby annulled.
The writ of injunction heretofore issued is hereby made permanent. No
pronouncement as to costs.

Petitioner's motion for reconsideration was denied in a resolution of respondent Court of

Appeals, dated 8 July 1965; hence the herein petition for review on certiorari.

The principal and decisive issue at bar is, theretofore, whether the appellate court erred
in law in issuing the writ of prohibition against the Quezon City court ordering it to refrain
perpetually from proceeding with the testateproceedings and annulling and setting aside
all its orders and actions, particularly its admission to probate of the decedent's last will
and testament and appointing petitioner-widow as executrix thereof without bond in
compliance with the testator's express wish in his testament. This issue is tied up with
the issue submitted to the appellate court, to wit, whether the Quezon City court acted
without jurisdiction or with grave abuse of discretion in taking cognizance and assuming
exclusive jurisdiction over the probate proceedings filed with it, in pursuance of the
Cebu court's order of 10 April 1964 expressly consenting in deference to the
precedence of probate over intestate proceedings that it (the Quezon City court)
should first act "on the petition for probate of the document purporting to be the last will
and testament of the deceased Don Mariano Jesus Cuenco" - which order of the Cebu
court respondents never questioned nor challenged by prohibition
or certiorari proceedings and thus enabled the Quezon City court to proceed without
any impediment or obstruction, once it denied respondent Lourdes Cuenco's motion to
dismiss the probate proceeding for alleged lack of jurisdiction or improper venue,
to proceed with the hearing of the petition and to admit the will to probate upon having
been satisfied as to its due execution and authenticity.

The Court finds under the above-cited facts that the appellate court erred in law in
issuing the writ of prohibition against the Quezon City court from proceeding with the
testate proceedings and annulling and setting aside all its orders and actions,
particularly its admission to probate of the deceased's last will and testament and
appointing petitioner-widow as executrix thereof without bond pursuant to the deceased
testator's express wish, for the following considerations: —

1. The Judiciary Act7 concededly confers original jurisdiction upon all Courts of First
Instance over "all matter of probate, both of testate and intestate estates." On the other
hand, Rule 73, section of the Rules of Court lays down the rule of venue, as the very
caption of the Rule indicates, and in order to prevent conflict among the different courts
which otherwise may properly assume jurisdiction from doing so, the Rule specifies that
"the court first taking cognizance of the settlement of the estate of a decedent,
shall exercise jurisdiction to the exclusion of all other courts." The cited Rule provides:

Section 1. Where estate of deceased persons settled. If the decedent is

an inhabitant of the Philippines at the time of his death, whether a citizen
or an alien, his will shall be proved, or letters of administration granted,
and his estate settled, in the Court of First Instance in the Province in
which he resides at the time of his death, and if he is an inhabitant of a
foreign country, the Court of First Instance of the province in which he had
estate. The court first taking cognizance of the settlement of the estate of
a decedent, shall exercise jurisdiction to the exclusion of all other courts.
The jurisdiction assumed by a court, so far as it depends on the place of
residence, of the decedent, or of the location of his estate, shall not be
contested in a suit or proceeding, except in an appeal from that court, in
the original case, or when the want of jurisdiction appears on the record.
(Rule 73)8

It is equally conceded that the residence of the deceased or the location of his estate
is not an element of jurisdiction over the subject matter but merely of venue. This was
lucidly stated by the late Chief Justice Moran in Sy Oa vs. Co Ho9 as follows:

We are not unaware of existing decisions to the effect that in probate

cases the place of residence of the deceased is regarded as a question of
jurisdiction over the subject-matter. But we decline to follow this view
because of its mischievous consequences. For instance, a probate case
has been submitted in good faith to the Court of First Instance of a
province where the deceased had not resided. All the parties, however,
including all the creditors, have submitted themselves to the jurisdiction of
the court and the case is therein completely finished except for a claim of
a creditor who also voluntarily filed it with said court but on appeal from an
adverse decision raises for the first time in this Court the question of
jurisdiction of the trial court for lack of residence of the deceased in the
province. If we consider such question of residence as one affecting the
jurisdiction of the trial court over the subject-matter, the effect shall be that
the whole proceedings including all decisions on the different incidents
which have arisen in court will have to be annulled and the same case will
have to be commenced anew before another court of the same rank in
another province. That this is of mischievous effect in the prompt
administration of justice is too obvious to require comment. (Cf.
Tanunchuan vs. Dy Buncio & Co., G.R. No. 48206, December 31, 1942)
Furthermore, section 600 of Act No. 190, 10 providing that the estate of a
deceased person shall be settled in the province where he had last
resided, could not have been intended as defining the jurisdiction of the
probate court over the subject-matter, because such legal provision is
contained in a law of procedure dealing merely with procedural matters,
 and, as we have said time and again, procedure is one thing and
jurisdiction over the subject matter is another. (Attorney-General vs.
Manila Railroad Company, 20 Phil. 523.) The law of jurisdiction — Act No.
136, 11Section 56, No. 5 — confers upon Courts of First Instance
jurisdiction over all probate cases independently of the place of residence
of the deceased. Since, however, there are many courts of First Instance
in the Philippines, the Law of Procedure, Act No. 190, section 600, fixes
the venue or the place where each case shall be brought. Thus, the place
of residence of the deceased is not an element of jurisdiction over the
subject-matter but merely of venue. And it is upon this ground that in the
new Rules of Court the province where the estate of a deceased person
shall be settled is properly called "venue".

It should be noted that the Rule on venue does not state that the court with whom the
estate or intestate petition is first filed acquires exclusive jurisdiction.

The Rule precisely and deliberately provides that "the court first taking cognizance of
the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of
all other courts."

A fair reading of the Rule — since it deals with venue and comity between courts of
equal and co-ordinate jurisdiction — indicates that the court with whom the petition is
first filed, must also first take cognizance of the settlement of the estate in order
to exercise jurisdiction over it to the exclusion of all other courts.

Conversely, such court, may upon learning that a petition for probate of the decedent's
last will has been presented in another court where the decedent obviously had his
conjugal domicile and resided with his surviving widow and their minor children, and that
the allegation of the intestate petition before it stating that the decedent
died intestatemay be actually false, may decline to take cognizance of the petition and
hold the petition before it in abeyance, and instead defer to the second court which has
before it the petition for probate of the decedent's alleged last will.

2. This exactly what the Cebu court did. Upon petitioner-widow's filing with it a motion to
dismiss Lourdes' intestate petition, it issued its order holding in abeyance its action on
the dismissal motion and deferred to the Quezon City court, awaiting its action on the
petition for probate before that court. Implicit in the Cebu court's order was that if the will
was duly admitted to probate, by the Quezon City court, then it would definitely decline
to take cognizance of Lourdes' intestate petition which would thereby be shown to
be false and improper, and leave the exercise of jurisdiction to the Quezon City court, to
the exclusion of all other courts. Likewise by its act of deference, the Cebu court left it to
the Quezon City court to resolve the question between the parties whether the
decedent's residence at the time of his death was in Quezon City where he had
his conjugal domicile rather than in Cebu City as claimed by respondents. The Cebu
court thus indicated that it would decline to take cognizance of the intestate petition
before it and instead defer to the Quezon City court, unless the latter would make a
negative finding as to the probate petition and the residence of the decedent within its
territory and venue.

3. Under these facts, the Cebu court could not be held to have acted without jurisdiction
or with grave abuse of jurisdiction in declining to take cognizance of
the intestate petition and deferring to the Quezon City court.

Necessarily, neither could the Quezon City court be deemed to have acted without
jurisdiction in taking cognizance of and acting on the probate petition since under Rule
73, section 1, the Cebu court must first take cognizance over the estate of the decedent
and must exercise jurisdiction to exclude all other courts, which the Cebu court declined
to do. Furthermore, as is undisputed, said rule only lays down a rule of venue and the
Quezon City court indisputably had at least equal and coordinate jurisdiction over the
estate.

Since the Quezon City court took cognizance over the probate petition before it
and assumed jurisdiction over the estate, with the consent and deference of the Cebu
court, the Quezon City court should be left now, by the same rule of venue of said Rule
73, to exercise jurisdiction to the exclusion of all other courts.

Under the facts of the case and where respondents submitted to the Quezon City court
their opposition to probate of the will, but failed to appear at the scheduled hearing
despite due notice, the Quezon City court cannot be declared, as the appellate court
did, to have acted without jurisdiction in admitting to probate the decedent's will and
appointing petitioner-widow as executrix thereof in accordance with the
testator's testamentary disposition.

4. The relatively recent case of Uriarte vs. Court of First Instance of Negros
Occidental 12 with facts analogous to the present case 13 is authority against respondent
appellate court's questioned decision.

In said case, the Court upheld the doctrine of precedence of probate proceedings over
intestate proceedings in this wise:

It can not be denied that a special proceeding intended to effect the

distribution of the estate of a deceased person, whether in accordance
with the law on intestate succession or in accordance with his will, is a
"probate matter" or a proceeding for the settlement of his estate. It is
equally true, however, that in accordance with settled jurisprudence in this
jurisdiction, testate proceedings for the settlement of the estate of a
deceased person take precedence over intestate proceedings for the
same purpose. Thus it has been held repeatedly that, if in the course of
intestate proceedings pending before a court of first instance it is found
that the decedent had left a last will, proceedings for the probate of the
latter should replace the intestate proceedings even if at that state an
administrator had already been appointed, the latter being required to
 render final account and turn over the estate in his possession to the
executor subsequently appointed. This however, is understood to be
without prejudice that should the alleged last will be rejected or is
disapproved, the proceeding shall continue as an intestacy. As already
adverted to, this is a clear indication that proceedings for the probate of a
will enjoy priority over intestate proceedings. 14

The Court likewise therein upheld the jurisdiction of the second court, (in this case, the
Quezon City court) although opining that certain considerations therein "would seem to
support the view that [therein respondent] should have submitted said will for probate to
the Negros Court, [in this case, the Cebu court] either in a separate special proceeding
or in an appropriate motion for said purpose filed in the already pending Special
Proceeding No. 6344," 15 thus:

But the fact is that instead of the aforesaid will being presented for probate to the
Negros Court, Juan Uriarte Zamacona filed the petition for the purpose with the Manila
Court. We can not accept petitioner's contention in this regard that the latter court had
no jurisdiction to consider said petition, albeit we say that it was not the proper
venuetherefor.

It is well settled in this jurisdiction that wrong venue is merely

a waivable procedural defect, and, in the light of the circumstances
obtaining in the instant case, we are of the opinion, and so hold, that
petitioner has waived the right to raise such objection or is precluded from
doing so by laches. It is enough to consider in this connection that
petitioner knew of the existence of a will executed by Juan Uriarte y Goite
since December 19, 1961 when Higinio Uriarte filed his opposition to the
initial petition filed in Special Proceeding No. 6344; that petitioner likewise
was served with notice of the existence (presence) of the alleged last will
in the Philippines and of the filing of the petition for its probate with the
Manila Court since August 28, 1962 when Juan Uriarte Zamacona filed a
motion for the dismissal of Special Proceeding No. 6344. All these
notwithstanding, it was only on April 15, 1963 that he filed with the Manila
Court in Special Proceeding No. 51396 an Omnibus motion asking for
leave to intervene and for the dismissal and annulment of all the
proceedings had therein up to that date; thus enabling the Manila Court
not only to appoint an administrator with the will annexed but also to admit
said will to probate more than five months earlier, or more specifically, on
October 31, 1962. To allow him now to assail the exercise of jurisdiction
over the probate of the will by the Manila Court and the validity of all the
proceedings had in Special Proceeding No. 51396 would put a premium
on his negligence. Moreover, it must be remembered that this Court is not
inclined to annul proceedings regularly had in a lower court even if the
latter was not the proper venue therefor, if the net result would be to have
the same proceedings repeated in some other court of similar jurisdiction;
 more so in a case like the present where the objection against said
proceedings is raised too late. 16

5. Under Rule 73, section 1 itself, the Quezon City

court's assumption of jurisdiction over the decedent's estate on the basis of the will duly
presented for probate by petitioner-widow and finding that Quezon City was the
first choiceof residence of the decedent, who had his conjugal home and domicile
therein — with the deference in comity duly given by the Cebu court — could not be
contested except by appeal from said court in the original case. The last paragraph of
said Rule expressly provides:

... The jurisdiction assumed by a court, so far as it depends on the place of

residence of the decedent, or of the location of his estate, shall not be
contested in a suit or proceeding, except in an appeal from that court, in
the original case, or when the want of jurisdiction appears on the record.
(Rule 73)

The exception therein given, viz, "when the want of jurisdiction appears on the record"
could probably be properly invoked, had such deference in comity of the Cebu court to
the Quezon City court not appeared in the record, or had the record otherwise shown
that the Cebu court had taken cognizance of the petition before it and assumed
jurisdiction.

6. On the question that Quezon City established to be the residence of the late senator,
the appellate court while recognizing that "the issue is a legitimate one" held in reliance
on Borja vs. Tan 17 that.

... The issue of residence comes within the competence of whichever

court is considered to prevail in the exercise jurisdiction - in this case, the
Court of First Instance of Cebu as held by this Court. Parenthetically, we
note that the question of the residence of the deceased is a serious one,
requiring both factual and legal resolution on the basis of ample evidence
to be submitted in the ordinary course of procedure in the first instance,
particularly in view of the fact that the deceased was better known as the
Senator from Cebu and the will purporting to be his also gives Cebu,
besides Quezon City, as his residence. We reiterate that this matter
requires airing in the proper court, as so indicated in the leading and
controlling case of Borja vs. Hon. Bienvenido Tan, et al., G.R. L-7792, July
27, 1955.

In the case at bar, however, the Cebu court declined to take cognizance of
the intestate petition first filed with it and deferred to the testate proceedings filed with
the Quezon City court and in effect asked the Quezon City court to determine the
residence of the decedent and whether he did leave a last will and testament upon
which would depend the proper venue of the estate proceedings, Cebu or Quezon City.
The Quezon City court having thus determined in effect for both courts — at the
behest and with the deference and consent of the Cebu court — that Quezon City was
the actual residence of the decedent who died testate and therefore the proper venue,
the Borja ruling would seem to have no applicability. It would not serve the practical
ends of justice to still require the Cebu court, if the Borja ruling is to be held applicable
and as indicated in the decision under review, to determine for itself the actual
residence of the decedent (when the Quezon City court had already so determined
Quezon City as the actual residence at the Cebu court's behest and respondents have
not seriously questioned this factual finding based on documentary evidence) and if the
Cebu court should likewise determine Quezon City as the actual residence, or its
contrary finding reversed on appeal, only then to allow petitioner-widow after years of
waiting and inaction to institute the corresponding proceedings in Quezon City.

7. With more reason should the Quezon City proceedings be upheld when it is taken
into consideration that Rule 76, section 2 requires that the petition for allowance of a will
must show: "(a) the jurisdictional facts." Such "jurisdictional facts" in probate
proceedings, as held by the Court in Fernando vs. Crisostomo 18 " are the death of the
decedent, his residence at the time of his death in the province where the probate court
is sitting, or if he is an inhabitant of a foreign country, his having left his estate in such
province."

This tallies with the established legal concept as restated by Moran that
"(T)he probate of a will is a proceeding in rem. The notice by publication as a pre-
requisite to the allowance of a will, is a constructive notice to the whole world, and when
probate is granted, the judgment of the court is binding upon everybody, even against
the State. The probate of a will by a court having jurisdiction thereof is conclusive as to
its due execution and validity." 19 The Quezon City court acted regularly within its
jurisdiction (even if it were to be conceded that Quezon City was not the proper venue
notwithstanding the Cebu court's giving way and deferring to it,) in admitting the
decedent's last will to probate and naming petitioner-widow as executrix thereof. Hence,
the Quezon city court's action should not be set aside by a writ of prohibition for
supposed lack of jurisdiction as per the appellate court's appealed decision, and should
instead be sustained in line with Uriarte, supra, where the Court, in dismissing
the certiorari petition challenging the Manila court's action admitting the decedent's will
to probate and distributing the estate in accordance therewith in the second proceeding,
held that "it must be remembered that this Court is not inclined to annul proceedings
regularly had in a lower court even if the latter was not the proper venue therefor, if the
net result would be to have the same proceedings repeated in some other court of
similar jurisdiction." As stressed by Chief Justice Moran in Sy Oa, supra, "the
mischievous effect in the administration of justice" of considering the question
of residence as affecting the jurisdiction of the trial court and annulling the whole
proceedings only to start all over again the same proceedings before another court of
the same rank in another province "is too obvious to require comment."

8. If the question of jurisdiction were to be made to depend only on who of the

decedent's relatives gets first to file a petition for settlement of the decedent's estate,
then the established jurisprudence of the Court that Rule 73, section 1 provides only a
rule of venue in order to preclude different courts which may properly
assume jurisdiction from doing so and creating conflicts between them to the detriment
of the administration of justice, and that venue is waivable, would be set at naught. As
between relatives who unfortunately do not see eye to eye, it would be converted into a
race as to who can file the petition faster in the court of his/her choice regardless of
whether the decedent is still in cuerpo presente and in disregard of the decedent's
actual last domicile, the fact that he left a last will and testament and the right of his
surviving widow named as executrix thereof. Such dire consequences were certainly not
intended by the Rule nor would they be in consonance with public policy and the orderly
administration of justice.

9. It would finally be unjust and inequitable that petitioner-widow, who under all the
applicable rules of venue, and despite the fact that the Cebu court (where respondent
Lourdes Cuenco had filed an intestate petition in the Cebu court earlier by a week's time
on 5 March 1964) deferred to the Quezon City court where petitioner had within fifteen
days (on March 12, 1964) after the decedent's death (on February 25, 1964) timely filed
the decedent's last will and petitioned for letters testamentary and is admittedly entitled
to preference in the administration of her husband's estate, 20 would be compelled
under the appealed decision to have to go all the way to Cebu and submit anew the
decedent's will there for probate either in a new proceeding or by asking that the
intestate proceedings be convertedinto a testate proceeding — when under the Rules,
the proper venue for the testate proceedings, as per the facts of record and as already
affirmed by the Quezon City court is Quezon City, where the decedent and petitioner-
widow had their conjugal domicile.

It would be an unfair imposition upon petitioner as the one named and entitled to be
executrix of the decedent's last will and settle his estate in accordance therewith, and a
disregard of her rights under the rule on venue and the law on jurisdiction to require her
to spend much more time, money and effort to have to go from Quezon City to the Cebu
court everytime she has an important matter of the estate to take up with the probate
court.

It would doubly be an unfair imposition when it is considered that under Rule 73, section
2, 21 since petitioner's marriage has been dissolved with the death of her husband, their
community property and conjugal estate have to be administered and liquidated in the
estate proceedings of the deceased spouse. Under the appealed decision,
notwithstanding that petitioner resides in Quezon City, and the proper venue of
the testate proceeding was in Quezon City and the Quezon City court properly took
cognizance and exercised exclusive jurisdiction with the deference in comity and
consent of the Cebu court, such proper exercise of jurisdiction would be nullified and
petitioner would have to continually leave her residence in Quezon City and go to Cebu
to settle and liquidate even her own community property and conjugal estate with the
decedent.

10. The Court therefore holds under the facts of record that the Cebu court did not act
without jurisdiction nor with grave abuse of discretion in declining to take cognizance of
the intestate petition and instead deferring to the testateproceedings filed just a week
later by petitioner as surviving widow and designated executrix of the decedent's last
will, since the record before it (the petitioner's opposition and motion to dismiss) showed
the falsity of the allegation in the intestate petition that the decedent had died without a
will. It is noteworthy that respondents never challenged by certiorari or prohibition
proceedings the Cebu court's order of 10 April 1964 deferring to the probate
proceedings before the Quezon City court, thus leaving the latter free (pursuant to the
Cebu court's order of deference) to exercise jurisdiction and admit the decedent's will to
probate.

For the same reasons, neither could the Quezon City court be held to have acted
without jurisdiction nor with grave abuse of discretion in admitting the decedent's will to
probate and appointing petitioner as executrix in accordance with its testamentary
disposition, in the light of the settled doctrine that the provisions of Rule 73, section 1
lay down only a rule of venue, not of jurisdiction.

Since respondents undisputedly failed to appeal from the Quezon City court's order of
May 15, 1964 admitting the will to probate and appointing petitioner as executrix
thereof, and said court concededly has jurisdiction to issue said order, the said order of
probate has long since become final and can not be overturned in a special civic action
of prohibition.

11. Finally, it should be noted that in the Supreme Court's exercise of its supervisory
authority over all inferior courts, 22 it may properly determine, as it has done in the case
at bar, that venue was properly assumed by and transferredto the Quezon City
court and that it is the interest of justice and in avoidance of needless delay that the
Quezon City court's exercise of jurisdiction over the testate estate of the decedent (with
the due deference and consent of the Cebu court) and its admission to probate of his
last will and testament and appointment of petitioner-widow as administratrix without
bond in pursuance of the decedent's express will and all its orders and actions taken in
the testate proceedings before it be approved and authorized rather than to annul all
such proceedings regularly had and to repeat and duplicate the same proceedings
before the Cebu court only to revert once more to the Quezon City court should the
Cebu court find that indeed and in fact, as already determined by the Quezon City court
on the strength of incontrovertible documentary evidence of record, Quezon City was
the conjugal residence of the decedent.

ACCORDINGLY, judgment is hereby rendered reversing the appealed decision and

resolution of the Court of Appeals and the petition for certiorari and prohibition with
preliminary injunction originally filed by respondents with the Court of Appeals (CA-G.R.
No. 34104-R) is ordered dismissed. No costs.

DIGEST!

FACTS:

Senator Mariano Jesus Cuenco died in Manila. He was survived by his widow and two
 minor sons, residing in Quezon City, and children of the first marriage, residing in Cebu.
Lourdes, one of the children from the first marriage, filed a Petition for Letters of
Administration with the Court of First Instance (CFI) Cebu, alleging that the senator died
intestate in Manila but a resident of Cebu with properties in Cebu and Quezon City.

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

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

ISSUEs:

o Whether or not CA erred in issuing the writ of prohibition

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

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

On Venue and Jurisdiction

Under Rule 73, the court first taking cognizance of the settlement of the estate of a
decent, shall exercise jurisdiction to the exclusion of all other courts. The residence of
the decent or the location of his estate is not an element of jurisdiction over the subject
matter but merely of venue. If this were otherwise, it would affect the prompt
administration of justice.

The court with whom the petition is first filed must also first take cognizance of the
settlement of the estate in order to exercise jurisdiction over it to the exclusion of all
other courts.
G.R. No. L-44888 February 7, 1992

PILIPINAS SHELL PETROLEUM CORPORATION, petitioner,

vs.
FIDEL P. DUMLAO, Judge of the Court of First Instance of Agusan Del Norte and
Butuan City, BONIFACIO CANONOY, Judicial Administrator of the Estate of
Regino Canonoy, CARMEN VDA. DE CANONOY, TEODULO CANONOY, REGINO
CANONOY, JR., MARIANITA CANONOY GUINTO and GLORIA CANONOY
BASA, respondents.

DAVIDE, JR., J.:

Brought to focus in this petition are the following issues: (a) whether the jurisdictional
facts that need to be stated in a petition for letters of administration under Section 2(a),
Rule 79 of the Rules of Court include the specific assertion that the petitioner therein is
an "interested person," and (b) whether the administration court may properly and
validly dismiss a petition for letters of administration filed by one who is not an
"interested person" after having appointed an heir of the decedent as administrator of
the latter's intestate estate and set for pre-trial a claim against the said estate

Ricardo M. Gonzalez, District Manager of Shell Philippines, Inc. for Mindanao

(hereinafter referred to as Shell), filed on 8 January 1973 a petition entitled "In the
Matter of the Intestate Estate of the Deceased Regino Canonoy, Petition for Letters of
Administration, Ricardo M. Gonzalez, Petitioner" with the then Court of First Instance
(now Regional Trial Court) of Agusan del Norte and Butuan City, praying therein that he
be appointed judicial administrator of the estate of the deceased Regino Canonoy. The
case was docketed as SP PROC. No. 343 and was raffled to Branch II of the trial court.

On 27 January 1973, Judge Vicente B. Echavez, Jr. of Branch II issued an Order (1)
setting the hearing on the petition for 23 March 1973 at 8:30 a.m.; (2) directing that the
order be published, at petitioner's expense, once a week for three (3) consecutive
weeks in a newspaper with a nationwide circulation published regularly by a
government agency or entity, or in any newspaper published and edited in any part of
the country which is in operation during the existence of the present national emergency
and of general circulation in the province of Agusan del Norte and in Butuan City, if any
there be; and (3) ordering that copies of the order be sent by registered mail or personal
delivery, at the petitioner's expense, to each of all the known heirs of the deceased
Regino Canonoy, within the periods prescribed by Section 4, Rule 76 of the Rules of
Court. 1

In their Opposition to the issuance of letters of administration to Gonzalez filed on 21

March 1973, 2 private respondents, who are heirs of Regino Canonoy, allege that:
Gonzalez "is a complete stranger to the intestate estate" of Regino Canonoy; he is "not
even a creditor" of the estate; he is a resident of Davao City and thus if appointed as
administrator of the estate, the bulk of which is located in Butuan City, "he would not be
able to perform his duties efficiently;" and he is an employee of Shell Philippines, Inc.,
an alleged creditor of the estate, and so "he would not be able to properly and
effectively protect the interest of the estate in case of conflicts." They, however,
"propose" and pray that since Bonifacio Canonoy, one of Regino's sons, enjoys
preference in appointment pursuant to Section 6, Rule 78 of the Rules of Court, he
should "be appointed administrator of the said intestate estate and the corresponding
letters of administration be issued in his favor."

On 25 July 1973, after due hearing, the trial court appointed Bonifacio Canonoy as
administrator of the intestate estate of Regino Canonoy, 3 having found him competent
to act as such. None of the parties moved to reconsider this order or appealed
therefrom. On 23 November 1973, herein petitioner Shell, then known as Shell
Philippines, Inc., filed its claim against the estate of the deceased Regino Canonoy. The
duly appointed administrator, Bonifacio Canonoy, filed on 9 October 1974 a Motion to
Dismiss the claim of Shell 4 which the latter contested by filing an Opposition. Shell
likewise filed an amended claim against the estate. 5 On 12 May 1975, the administrator
filed his Reply to the Opposition to Motion to Dismiss. 6 On 25 May 1975, he filed an
Answer to the amended claim filed by Shell. 7 In the said Answer, he interposes
compulsory counterclaims for the estate in the amount of P659,423.49 representing
rentals for land occupied by the Shell Service Station, lighting allowances, allowances
for salaries and wages of service attendants, sales commission due the deceased
Regino Canonoy and reasonable attorney's fees. Petitioner filed an answer to the
Counterclaim.

Upon joinder of the issues on Shell's claim, the trial court, this time presided over by
respondent Judge Fidel P. Dumlao, set the pre-trial for 15 August 1975. 8 This was later
re-set to 23 September 1975. 9

On 18 August 1975, petitioner filed a motion to require the judicial administrator to file
an inventory of the properties of the deceased. 10

At the pre-trial held on 23 September 1975, counsel for the administrator requested for
time to file a Motion to Dismiss the case. In an Order issued on that date, the court
granted him ten (10) days to file the motion; opposing counsel was likewise given ten
(10) days from receipt of the same to file whatever pleading he may deem proper to file,
after which the motion shall be deemed submitted for resolution. 11 The motion was filed
on 30 September 1975. It alleges that the court did not acquire jurisdiction over the
subject matter and nature thereof because the petitioner therein, Mr. Gonzalez, is not
the "interested person" contemplated by Section 2, Rule 79 of the Rules of
Court. 12Shell filed its Opposition to the Motion on 16 October 1975 13 on the ground
that the trial court had acquired jurisdiction over the case to issue letters of
administration as the interest of Gonzalez in the estate is not a jurisdictional fact that
needs to be alleged in the petition. If at all, Gonzalez' lack of interest in the estate of the
deceased only affected his competence to be appointed administrator. In an Order
dated 8 November 1975, respondent Judge, finding the motion to be well-taken and
meritorious, dismissed the case. 14 The motion for its reconsideration having been
denied by the trial court on 23 January
1976, 15 Shell filed the instant petition which it denominated as a petition for review
on certiorari under Rule 45 of the Rules of Court.

In the Resolution dated 6 December 1976, this Court required the respondents to
comment on the petition; 16 the latter complied with the same on 31 January
1977. 17 Thereafter, on 7 February 1977, this Court resolved, inter alia, to treat the
petition for review as a special civil action under Rule 65 of the Rules of Court and
require the parties to submit their respective Memoranda; 18 petitioner filed its
Memorandum on 4 April 1977 19 while the respondents filed theirs on 3 June 1977. 20

The petition is impressed with merit; it must perforce be granted.

Under the peculiar circumstances of the case, the trial court clearly acted with grave
abuse of discretion when it dismissed SP PROC. No. 343 after having set for pre-trial
petitioner's amended claim against the estate. That said dismissal was predicated solely
on the ground that petitioner therein, Ricardo Gonzalez, is not an "interested person,"
and that, since such interest is a jurisdictional requirement, the trial court acquired no
jurisdiction over the case, serves only to compound the error.

1. Section 2, Rule 79 of the Rules of Court provides:

xxx xxx xxx

Sec. 2. Contents of petition of letters of administration. — A petition for

letters of administration must be filed by an interested person and must
show, so far as known to the petitioner:

(a) The jurisdictional facts;

(b) The names, ages, and residences of the heirs, and the
names and residences of the creditors, of the decedent;

(c) The probable value and character of the property of the

estate;

(d) The name of the person for whom letters of

administration are prayed.

But no defect in the petition shall render void the issuance of letters of
administration.

xxx xxx xxx

The jurisdictional facts alluded to are: the death of the testator, his residence at the time
of his death in the province where the probate court is sitting or, if he is an inhabitant of
a foreign country, his having left his estate in such province. 21 These facts are amply
enumerated in the petition filed by Gonzalez. 22 The fact of death of the intestate and of
his residence within the country are foundation facts upon which all the subsequent
proceedings in the administration of the estate rest, and that if the intestate was not an
inhabitant of the state at the time of his death, and left no assets in the state, and none
came into it afterwards, no jurisdiction is conferred on the court to grant letters of
administration in any county. 23 Clearly, the allegation that a petitioner seeking letters of
administration is an interested person, does not fall within the enumeration of
jurisdictional facts. Of course, since the opening sentence of the section requires that
the petition must be filed by an interested person, it goes without saying that a motion to
dismiss may lie not on the basis of lack of jurisdiction on the part of the court, but rather
on the ground of lack of legal capacity to institute the proceedings.

This is precisely what happened in Saguinsin vs. Lindayag, 24 where the dismissal of a
petition for letters of administration was affirmed because the petitioner "is not an heir of
her deceased sister and, therefore, has no material and direct interest in her
estate." 25 In the said case, this Court defined an interested party as 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; this interest must be material and direct, not merely indirect or
contingent. 26

The Saguinsin doctrine is not, however, without exception. An objection to a petition for
letters of administration on that ground may be barred by waiver or estoppel.

Private respondents herein did not file a motion to dismiss the petition filed by Gonzalez
on the ground of lack of capacity to sue; 27 they instead filed an Opposition which,
unfortunately, did not ask for the dismissal of the petition but merely opposed the
issuance of letters of administration in favor of Gonzalez because, among other
reasons, he is a stranger to the estate. The Opposition also proposed that Bonifacio
Canonoy, one of the children of the deceased Regino Canonoy, be appointed
administrator of the latter's intestate estate. The failure to move for a dismissal
amounted to a waiver of the above-mentioned ground. Section 8, Rule 15 of the Rules
of Court provides that:

A motion attacking a pleading or a proceeding shall include all objections

then available, and all objections not so included shall be deemed waived.

However, if a motion to dismiss is not filed, as what obtains in this case, any of the
grounds available for such a motion, except for improper venue, may be pleaded as an
affirmative defense, and a preliminary hearing thereon may be had as if a motion to
dismiss had been filed. 28 Excepted from the above rules are the following grounds: (a)
failure to state a cause of action which may be alleged in a later pleading if one is
permitted, or by a motion for judgment on the pleadings, or at the trial on the merits; and
(b) lack of jurisdiction over the subject matter of the action, 29 subject to the exception as
hereinafter discussed.

In Insurance Company of North America vs. C.F. Sharp & Co., Inc., 30 this Court ruled:

Finally, appellant would contend that plaintiff has no capacity to sue and is
not the real party in interest. It is now too late to raise these objections
here. These should have been asserted in the motion to dismiss filed by
defendant below. Not having been included therein, they are now barred
by the rule on omnibus motion.

By proposing that Bonifacio Canonoy be appointed as administrator instead of Mr.

Gonzalez, private respondents have in fact approved or ratified the filing of the petition
by the latter.

In Eusebio vs. Valmores, 31 We held that:

xxx xxx xxx

The evidence submitted in the hearing does not satisfactorily prove that
the petitioner was legally adopted; hence, he did not have any interest in
the properties of the deceased Rosalia Saquitan. Under ordinary
circumstances, such defect would authorize the dismissal of the
proceedings especially in view of the fact that the surviving spouse of
Rosalia Saquitan had filed an affidavit of adjudication under the provisions
of Section 1 of Rule 74 of the Rules. Counsel for Domingo Valmores,
however, had not objected to the application for the appointment of an
administrator; he only objected to the appointment of the said stranger
Eulogio Eusebio as administrator, claiming to have the right as surviving
spouse to be appointed as such administrator. By this act of Domingo
Valmores, surviving spouse of the deceased, therefore, the fatal defect in
the petition may be considered, as cured. In other words, the filing of the
petition for the appointment of an administrator may be considered as
having been ratified by the surviving husband, Domingo Valmores, and for
this reason the proceedings may not be dismissed.

2. There can be no dispute that the trial court had acquired jurisdiction over SP PROC.
No. 343. Immediately after the filing of the case, the trial court complied with Section 3,
Rule 79 of the Rules of Court by issuing the Order dated 27 January 1973. At the initial
hearing on 25 July 1973, petitioner Gonzalez established the jurisdictional requirements
by submitting in evidence proof of publication and service of notices of the petition.
Thereafter, it heard the evidence on the qualifications and competence of Bonifacio
Canonoy, then appointed him as the administrator and finally directed that letters of
administration be issued to him, and that he takes his oath of office after putting up a
surety or property bond in the amount of P5,000.00. 32
It is be presumed that Bonifacio Canonoy immediately qualified as administrator
because in that capacity, he filed a motion to dismiss petitioner's claim against the
estate, 33 a Reply to the Opposition to the motion to dismiss 34 and an Answer to the
petitioner's amended claim against the estate wherein he interposed a
counterclaim, 35 praying thus:

WHEREFORE, it is most respectfully prayed of this Honorable Court to

dismiss the above-mentioned "Amended Claim Against the Estate" and to
order the claimant to pay into the intestate estate of Regino Canonoy the
said sum of P659,423.49, together with the interest thereon at the legal
rate beginning from the date hereof, the reasonable attorney's fees for the
prosecution of this counterclaim, and costs;

OR IN THE ALTERNATIVE, in the event that any sum is found due from
and payable by the said intestate estate of Regino Canonoy in favor of the
said claimant, the said amount be deducted from the above-mentioned
sum and, thereafter, to order the claimant to pay the balance remaining
unto the said intestate estate of Regino Canonoy, together with interest
thereon at the legal rate beginning from date hereof, the reasonable
attorney's fees for the prosecution of this counterclaim, and costs.

Clearly, therefore, not only had the administrator and the rest of the private respondents
voluntarily submitted to the jurisdiction of the trial court, they even expressly affirmed
and invoked such jurisdiction in praying for reliefs and remedies in their favor, namely:
(a) denial of Gonzalez' prayer to be appointed as administrator, (b) appointment of
Bonifacio Canonoy as administrator, (c) denial of petitioner Shell's amended claim
against the estate, and (d) the granting of the counterclaim. Hence, they cannot now be
heard to question the jurisdiction of the trial court. While it may be true that jurisdiction
may be raised at any stage of the proceedings, a party who has affirmed and invoked it
in a particular matter to secure an affirmative relief cannot be allowed to afterwards
deny that same jurisdiction to escape penalty.

In Tijam, et al. al. vs. Sibonghanoy, et al., 36 this Court held:

It has been held that a party can not invoke the jurisdiction of a court to
secure affirmative relief against his opponent and, after obtaining or failing
to obtain such relief, repudiate or question that same jurisdiction (Dean vs.
Dean, 136 Or. 694, 86 A.L.R. 79). In the case just cited, by way of
explaining the rule, it was further said that the question whether (sic) the
court had jurisdiction either of the subject-matter of the action or of the
parties was not important in such cases because the party is barred from
such conduct not because the judgment or order of the court is valid and
conclusive as an adjudication, but for the reason that such a practice can
not be tolerated — obviously for reasons of public policy.
 Furthermore, it has also been held that after voluntarily submitting a cause
and encountering an adverse decision on the merits, it is too late for the
loser to question the jurisdiction or power of the court (Pease vs. Rathbun-
Jones etc., 243 U.S. 273, 61 L. Ed. 715, 37 S. Ct. 283; St. Louis etc. vs.
McBride, 141 U.S. 127, 35 L. Ed. 659). And in Littleton vs. Burgess, 16
Wyo. 58, the Court said that it is not right for a party who has affirmed and
invoked the jurisdiction of a court in a particular matter to secure an
affirmative relief, to afterwards deny that same jurisdiction to escape a
penalty.

The respondent Judge should have lent his ears to Tijam vs. Sibonghanoy instead of
peremptorily granting the motion to dismiss in an Order which does not even care to
expound on why the court found the said motion to be meritorious. He exhibited undue
haste in removing the case from his docket and in abdicating judicial authority and
responsibility. Howsoever viewed, he committed grave abuse of discretion.

WHEREFORE, the instant petition is hereby GRANTED and the Order of respondent
Judge of 8 November 1975 in SP PROC. No. 343 is hereby SET ASIDE. The court
below is further ordered to hear and decide petitioner's claim against the estate in said
case, unless supervening events had occurred making it unnecessary, and to conduct
therein further proceedings pursuant to the Rules of Court until the case is closed and
terminated.

Costs against private respondents.

IT IS SO ORDERED.
[G.R. No. L-3039. December 29, 1949.]

VICTORIO REYNOSO and JUAN REYNOSO, Petitioners, v. VICENTE SANTIAGO,

Judge of the Court of First Instance of Quezon, PIA REYNOSO, AGUSTINA
REYNOSO, MELITON PALABRICA, LEONCIO CADIZ ET AL., Respondents.

SYLLABUS

1. EXECUTORS AND ADMINISTRATORS; INTESTATE PROCEEDING MAY BE

CONVERTED INTO TESTATE PROCEEDING ONLY AS A MATTER OF FORM. —
Whether the intestate proceeding already commenced should be discontinued a new
proceeding under a separate number and title should be constituted is entirely a matter
of form and lies within the sound discretion of the court. In no manner does it prejudice
the substantial rights of any of the heirs or creditors. Amor propio is perhaps the only
thing that is at stake on this phase of the controversy.

2. ID.; APPOINTMENT OF REGULAR ADMINISTRATOR IN LIEU OF SPECIAL ONE

IS IN ORDER AFTER COURT HAS DECREED PROBATE OF WILL. — The
appointment of a special administrator is justified only when there is delay in granting
letters testamentary or of administration occasioned by an appeal from the allowance or
disallowance of a will or some other cause. The Court of Appeals having decreed the
probate of the will and the appointment of an albacea, there is no valid reason for the
further retention of the special administrator. The appointment of a regular administrator
is necessary for the prompt settlement and distribution of the estate. There are
important duties devolving on a regular administrator which a special administrator can
not performs, and there are many actions to be taken by the court which could not be
accomplished before a regular administrator is appointed.

3. ID.; APPOINTMENT OF REGULAR ADMINISTRATOR; SURVIVING SPOUSE;

MANDAMUS DOES NOT LIE. — While the surviving spouse is entitled to preference in
the appointment (section 6, rule 79), circumstances might warrant his rejection and the
appointment of someone else. Mandamus lies where the duty is specific and ministerial.
It does not lie where judgment or discretion is exercised in the performance of the act.
Applying the rule to this case, it is proper to command the court below to appoint a
regular administrator, but it is not proper to tell it whom to appoint.

DECISION

TUASON, J.:

Victorio Reynoso and Juan Reynoso apply for a writ of mandamus to compel Judge
Vicente Santiago of the Court of First Instance of Quezon to order the opening of a
testate estate of the deceased Salvadora Obispo in the place of special intestate
proceeding No. 2914, and to appoint Victorio Reynoso as executor of the decedent’s
last will and testament.

Briefly, the facts are as follows: On April 29, 1947, Leoncio Cadiz and other heirs of
Salvadora Obispo presented an application in the Court of First Instance of Quezon for
the administration of the property of the deceased, application which was docketed as
intestate proceeding No. 2914. Victorio Reynoso and Juan Reynoso, Salvadora
Obispo’s surviving spouse and eldest son, respectively, opposed the application and
filed a document, which purported to be the last will and testament of Salvadora Obispo,
with a counterpetition for its probate. Upon trial the court rejected that instrument as a
forgery, but on appeal the Court of Appeals reversed the finding of the court below,
found the will authentic and drawn with all the formalities of law. The dispository part of
the decision of the Appellate Court, promulgated November 27, 1948, reads as
follows:jgc:chanrobles.com.ph

"Se revoca la sentencia de que se apela, y reuniendo el exhibito A los requisitos

exigidos por la ley, se ordena, (a) la legalizacion de dicho documento como testamento
y ultima voluntad de la finada Salvadora Obispo, para que surta todos sus efectos
legales; (b) la apertura de la testamentaria de dicha finada; y (c) el nombramiento de un
albacea de la misma testamentaria de conformidad con el precepto del articulo 6, de la
Regla 70 de los Reglamentos de los Tribunales."cralaw virtua1aw library

Thereafter Victorio Reynoso and Juan Reynoso filed two petitions, one in special
proceeding No. 2914 and another under a separate and new docket number (3107) and
with a different title (Testate Estate of the deceased Salvadora Obispo). The first prayed
that the special administrator, Meliton Palabrica, who had theretofore been appointed in
special proceeding No. 2914, be ordered to turn over the properties of the deceased
and the proceeds of coprax, nuts and other agricultural products to Victorio Reynoso,
and to render an accounting within a reasonable time. It also asked for the closing of the
intestate proceeding. The other petition prayed that the estate be administered and
settled in special proceeding No. 3107 and that Victorio Reynoso be appointed executor
of Salvadora Obispo’s last will and testament. It also contained a prayer for an
accounting by Palabrica and delivery by him to the new executor of the properties that
came to his possession including the proceeds from the sales of coprax, nuts, etc.

The two petitions were decided separately by Judge Santiago on April 20, 1949. With
respect to the opening of another expediente, His Honor believed that the proposed
change or substitution was "not only unnecessary but inconvenient and expensive." An
intestate proceeding like special proceeding No. 2914, he said, could and should be
converted into a testate proceeding in the same original expediente without the
necessity of changing its number, name or title.

This petition has no merit. Whether the intestate proceeding already commenced should
be discontinued and a new proceeding under a separate number and title should be
constituted is entirely a matter of form and lies within the sound discretion of the court.
In no manner does it prejudice the substantial rights of any of the heirs or creditors.
Amor propio is perhaps the only thing that is at stake on this phase of the controversy.
As to the appointment of the deceased’s husband as executor or administrator, the
court said that action on the petition should be withheld for the time being, because of
the pendency on appeal of a case in which the special administrator in special
proceeding No. 2914 is plaintiff and appellee and Victorio Reynoso defendant and
appellant. It involves the question whether an extensive parcel of coconut land is
conjugal property or the exclusive property of the husband.

On this feature of the second petition we disagree with the respondent judge. If one
other than the surviving spouse is appointed, which is possible, the feared conflict will
not materialize. If Reynoso is chosen, a special administrator may be named to
represent the estate in the suit against him. Section 8 of Rule 87 provides that "If the
executor or administrator has a claim against the estate he represents, he shall give
notice thereof, in writing, to the court, and the court shall appoint a special administrator
who shall, in the adjustment of such claim, have the same power and be subject to the
same liability as the general administrator or executor in the settlement of other claims."
The situation in which Reynoso is found with reference to the land in litigation between
him and the estate, comes within the spirit if not exactly within the letter of this
provision.

Subject to this observation, an administrator should be appointed without delay in

accordance with the final decision of the Court of Appeals. The appointment of a special
administrator is justified only when there is delay in granting letters testamentary or of
administration occasioned by an appeal from the allowance or disallowance of a will or
some other cause. The Court of Appeals having decreed the probate of the will and the
appointment of an albacea, there is no valid reason for the further retention of the
special administrator. The appointment of a regular administrator is necessary for the
prompt settlement and distribution of the estate. There are important duties devolving
on a regular administrator which a special administrator can not perform, and there are
many actions to be taken by the court which could not be accomplished before a regular
administrator is appointed.

But whether or not Victorio Reynoso should be appointed as administrator we do not

and can not of course decide in a petition for mandamus. While the surviving spouse is
entitled to preference in the appointment (section 6, Rule 79), circumstances might
warrant his rejection and the appointment of someone else. Mandamus lies where the
duty is specific and ministerial. It does not lie where judgment or discretion is exercised
in the performance of the act. Applying the rule to this case, it is proper to command the
court below to appoint a regular administrator, but it is not proper to tell it whom to
appoint.

The petition for the constitution of a separate proceeding for the administration of the
estate under the will is denied. The petition for the appointment of a regular
administrator is granted subject to the provision of section 6 of Rule 79 in the selection
of the person to be appointed. Without costs.
G.R. No. L-55509 April 27, 1984

ETHEL GRIMM ROBERTS, petitioner,

vs.
JUDGE TOMAS R. LEONIDAS, Branch 38, Court of First Instance of Manila;
MAXINE TATE-GRIMM, EDWARD MILLER GRIMM II and LINDA
GRIMM, respondents.

AQUINO, J.:

The question in this case is whether a petition for allowance of wills and to annul a
partition, approved in an intestateproceeding by Branch 20 of the Manila Court of First
Instance, can be entertained by its Branch 38 (after a probate in the Utah district court).

Antecedents. — Edward M. Grimm an American resident of Manila, died at 78 in the

Makati Medical Center on November 27, 1977. He was survived by his second wife,
Maxine Tate Grimm and their two children, named Edward Miller Grimm II (Pete) and
Linda Grimm and by Juanita Grimm Morris and Ethel Grimm Roberts (McFadden), his
two children by a first marriage which ended in divorce (Sub-Annexes A and B. pp. 36-
47, Rollo).

He executed on January 23, 1959 two wills in San Francisco, California. One will
disposed of his Philippine estate which he described as conjugal property of himself and
his second wife. The second win disposed of his estate outside the Philippines.

In both wills, the second wife and two children were favored. The two children of the first
marriage were given their legitimes in the will disposing of the estate situated in this
country. In the will dealing with his property outside this country, the testator
said: têñ.£îhqwâ£

I purposely have made no provision in this will for my daughter, Juanita

Grimm Morris, or my daughter, Elsa Grimm McFadden (Ethel Grimm
Roberts), because I have provided for each of them in a separate will
disposing of my Philippine property. (First clause, pp. 43-47, Rollo).

The two wills and a codicil were presented for probate by Maxine Tate Grimm and E.
LaVar Tate on March 7, 1978 in Probate No. 3720 of the Third Judicial District Court of
Tooele County, Utah. Juanita Grimm Morris of Cupertino, California and Mrs. Roberts of
15 C. Benitez Street, Horseshoe Village, Quezon City were notified of the probate
proceeding (Sub-Annex C, pp. 48-55, Rollo).

Maxine admitted that she received notice of the intestate petition filed in Manila by Ethel
in January, 1978 (p. 53, Rollo). In its order dated April 10, 1978, the Third Judicial
District Court admitted to probate the two wills and the codicil It was issued upon
consideration of the stipulation dated April 4, 1978 "by and between the attorneys for
Maxine Tate Grimm, Linda Grimm, Edward Miller Grimm II, E. LaVar Tate, Juanita
Kegley Grimm (first wife), Juanita Grimm Morris and Ethel Grimm Roberts" (Annex C,
pp. 48-51, Rollo).

Two weeks later, or on April 25, 1978, Maxine and her two children Linda and Pete, as
the first parties, and Ethel, Juanita Grimm Morris and their mother Juanita Kegley
Grimm as the second parties, with knowledge of the intestate proceeding in Manila,
entered into a compromise agreement in Utah regarding the estate. It was signed by
David E. Salisbury and Donald B. Holbrook, as lawyers of the parties, by Pete and
Linda and the attorney-in-fact of Maxine and by the attorney-in-fact of Ethel, Juanita
Grimm Morris and Juanita Kegley Grimm.

In that agreement, it was stipulated that Maxine, Pete and Ethel would be designated as
personal representatives (administrators) of Grimm's Philippine estate (par. 2). It was
also stipulated that Maxine's one-half conjugal share in the estate should be reserved
for her and that would not be less than $1,500,000 plus the homes in Utah and Santa
Mesa, Manila (par. 4). The agreement indicated the computation of the "net distributable
estate". It recognized that the estate was liable to pay the fees of the Angara law firm
(par. 5).

It was stipulated in paragraph 6 that the decedent's four children "shall share equally in
the Net Distributable Estate" and that Ethel and Juanita Morris should each receive at
least 12-1/2% of the total of the net distributable estate and marital share. A
supplemental memorandum also dated April 25, 1978 was executed by the parties
(Sub-Annex F, pp. 49-61, Annex, F-1, pp. 75-76, Testate case).

Intestate proceeding No. 113024.-At this juncture, it should be stated that forty- three
days after Grimm's death, or January 9, 1978, his daughter of the first marriage, Ethel,
49, through lawyers Deogracias T. Reyes and. Gerardo B. Macaraeg, filed with Branch
20 of the Manila Court of First Instance intestate proceeding No. 113024 for the
settlement of his estate. She was named special administratrix.

On March 11, the second wife, Maxine, through the Angara law office, filed
an opposition and motion to dismiss the intestate proceeding on the ground of the
pendency of Utah of a proceeding for the probate of Grimm's will. She also moved that
she be appointed special administratrix, She submitted to the court a copy of Grimm's
will disposing of his Philippine estate. It is found in pages 58 to 64 of the record.

The intestate court in its orders of May 23 and June 2 noted that Maxine, through a new
lawyer, William C. Limqueco (partner of Gerardo B. Macaraeg, p. 78, testate case
withdrew that opposition and motion to dismiss and, at the behest of Maxine, Ethel and
Pete, appointed them joint administrators. Apparently, this was done pursuant to the
aforementioned Utah compromise agreement. The court ignored the will already found
in the record.
The three administrators submitted an inventory. With the authority and approval of the
court, they sold for P75,000 on March 21, 1979 the so-called Palawan Pearl Project, a
business owned by the deceased. Linda and Juanita allegedly conformed with the sale
(pp. 120-129, Record). It turned out that the buyer, Makiling Management Co., Inc., was
incorporated by Ethel and her husband, Rex Roberts, and by lawyer Limqueco (Annex
L, p. 90, testate case).

Also with the court's approval and the consent of Linda and Juanita, they sold for
P1,546,136 to Joseph Server and others 193,267 shares of RFM Corporation (p. 135,
Record).

Acting on the declaration of heirs and project of partition signed and filed by lawyers
Limqueco and Macaraeg (not signed by Maxine and her two children), Judge Conrado
M. Molina in his order of July 27, 1979 adjudicated to Maxine onehalf (4/8) of the
decedent's Philippine estate and one-eighth (1/8) each to his four children or 12-1/2%
(pp. 140-142, Record). No mention at all was made of the will in that order.

Six days later, or on August 2, Maxine and her two children replaced Limqueco with
Octavio del Callar as their lawyer who on August 9, moved to defer approval of the
project of partition. The court considered the motion moot considering that it had already
approved the declaration of heirs and project of partition (p. 149, Record).

Lawyer Limqueco in a letter to Maxine dated August 2, 1979 alleged that he was no
longer connected with Makiling Management Co., Inc. when the Palawan Pearl Project
was sold: that it was Maxine's son Pete who negotiated the sale with Rex Roberts and
that he (Limqueco) was going to sue Maxine for the lies she imputed to him (Annex H,
p. 78, testate case).

Ethel submitted to the court a certification of the Assistant Commissioner of Internal

Revenue dated October 2, 1979. It was stated therein that Maxine paid P1,992,233.69
as estate tax and penalties and that he interposed no objection to the transfer of the
estate to Grimm's heirs (p. 153, Record). The court noted the certification as in
conformity with its order of July 27, 1979.

After November, 1979 or for a period of more than five months, there was no movement
or activity in the intestate case. On April 18, 1980 Juanita Grimm Morris, through Ethel's
lawyers, filed a motion for accounting "so that the Estate properties can be partitioned
among the heirs and the present intestate estate be closed." Del Callar, Maxine's lawyer
was notified of that motion.

Before that motion could be heard, or on June 10, 1980, the Angara law firm filed again
its appearance in collaboration with Del Callar as counsel for Maxine and her two
children, Linda and Pete. It should be recalled that the firm had previously appeared in
the case as Maxine's counsel on March 11, 1978, when it filed a motion to dismiss the
intestate proceeding and furnished the court with a copy of Grimm's will. As already
noted, the firm was then superseded by lawyer Limqueco.
Petition to annul partition and testate proceeding No. 134559. — On September 8,
1980, Rogelio A. Vinluan of the Angara law firm in behalf of Maxine, Pete and Linda,
filed in Branch 38 of the lower court a petition praying for the probate of Grimm's two
wills (already probated in Utah), that the 1979 partition approved by the intestate court
be set aside and the letters of administration revoked, that Maxine be appointed
executrix and that Ethel and Juanita Morris be ordered to account for the properties
received by them and to return the same to Maxine (pp. 25-35, Rollo).

Grimm's second wife and two children alleged that they were defraud due to the
machinations of the Roberts spouses, that the 1978 Utah compromise agreement was
illegal, that the intestate proceeding is void because Grimm died testate and that the
partition was contrary to the decedent's wills.

Ethel filed a motion to dismiss the petition. Judge Leonidas denied it for lack of merit in
his order of October 27, 1980. Ethel then filed a petition for certiorari and prohibition in
this Court, praying that the testate proceeding be dismissed, or. alternatively that the
two proceedings be consolidated and heard in Branch 20 and that the matter of the
annulment of the Utah compromise agreement be heard prior to the petition for probate
(pp. 22-23, Rollo).

Ruling. — We hold that respondent judge did not commit any grave abuse of discretion,
amounting to lack of jurisdiction, in denying Ethel's motion to dismiss.

A testate proceeding is proper in this case because Grimm died with two wills and "no
will shall pass either real or personal property unless it is proved and allowed" (Art. 838,
Civil Code; sec. 1, Rule 75, Rules of Court).

The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil. 479 and 98 Phil.
249; Baluyot vs. Panio, L-42088, May 7, 1976, 71 SCRA 86). It is anomalous that the
estate of a person who died testate should be settled in an intestate proceeding.
Therefore, the intestate case should be consolidated with the testate proceeding and
the judge assigned to the testate proceeding should continue hearing the two cases.

Ethel may file within twenty days from notice of the finality of this judgment an
opposition and answer to the petition unless she considers her motion to dismiss and
other pleadings sufficient for the purpose. Juanita G. Morris, who appeared in the
intestate case, should be served with copies of orders, notices and other papers in the
testate case.

WHEREFORE the petition is dismissed. The temporary restraining order is dissolved.

No costs.

SO ORDERED.
[G.R. No. L-9282. May 31, 1956.]
EMILIO ADVINCULA, Petitioner, vs. HONORABLE JUDGE JOSE TEODORO, SR.,
Judge of the Court of First Instance of Negros Occidental, and ENRIQUE A.
LACSON, Respondents.

DECISION
CONCEPCION, J.:
Petitioner Emilio Advincula seeks a writ of certiorari, to annul certain orders of the Court
of First Instance of Negros Occidental.
Said Petitioner was, on November 22, 1954, appointed, special administrator of the
estate of his deceased wife, Josefa Lacson Advincula, in special proceeding No. 3245
of said court. In due course, he was, on February 12, 1955, appointed regular
administrator of said estate. After Advincula had qualified as such, the brothers of the
deceased, who left no issue, submitted to the court, for allowance, a document
purporting to be her last will and testament. Petitioner opposed the probate thereof upon
the ground that it did not bear the signature of the deceased; that the signature
thereon, if hers, was secured through fraud and duress; and that, the instrument had
not been executed with the requisite formalities. On May 4, 1955, Respondent Enrique
Lacson, one of the brothers of the deceased, filed a motion praying that he be
appointed administrator of said estate, in lieu of Petitioner herein, for the reason that
said Respondent is the executor named in the aforementioned alleged will. On or about
May 16, 1955, Attys. Jose Y. Torres and Antonio Lozada, as counsel for Advincula, filed
an opposition to said motion. When the latter was called for hearing on May 18, 1955,
Atty. Lozada was served, in open court, copy of an amended motion,
of Respondent Lacson, for change of administrator, dated May 14, 1955. It was alleged
therein, in addition to the ground set forth in the first motion:
“5. That the present administrator is incompetent, incapable and unsuitable to the
discharge of the trust, he being foreign to the estate, and without changing or removing
him as such would be disastrous to the estate and to the heirs named in the will of the
decedent.”
Atty. Lozada asked a postponement of the hearing upon the ground that Advincula’s
main counsel, Atty. Torres, was in Manila, but his request was denied. Then, after
hearing the argument of opposing counsel, the court, presided over by Respondent,
Honorable Jose Teodoro, Sr., Judge, issued, on the same date (May 18, 1955), an
order the pertinent parts of which read:
“The Court, after hearing the oral arguments of both parties, finds the motion for
postponement not well-taken and hereby denies the same; and finding the motion
dated May 4, 1955 as amended by the amended motion dated May 14, 1955, well-
founded and the opposition thereto dated May 16, 1955 not well-founded, said motion is
hereby granted.
“WHEREFORE, in the interest of justice and for the preservation of the property for the
heirs, the appointment of Emilio Advincula as administrator is hereby revoked and in his
stead, the Oppositor, Enrique A. Lacson, is hereby appointed administrator of this
intestate estate, and same may qualify by filing a bond in the sum of P5,000 and taking
and subscribing the corresponding oath of Office. Once said Enrique A. Lacson has
qualified, let letters of administration issue in his favor.
“The former administrator, Emilio Advincula, is hereby ordered to submit within ten (10)
days from receipt hereof, his final account covering the entire period of his
administration and should it appear that any deficiency has been incurred by him during
his incumbency, his bond shall answer for said deficiency.”
Thereupon, Lacson gave the requisite bond, letters of administration was issued to him,
and he tried to take possession of the estate of the deceased. A reconsideration of said
order of May 18, 1955, having been denied by another order, dated May 30,
1955, Petitioner instituted the present action for certiorari, against Lacson and Judge
Teodoro, to annul his aforesaid orders of May 18 and 30, 1955, upon the ground that
the same were issued with grave abuse of discretion. Upon the filing of a bond by
Advincula, we issued, as prayed for in his petition, a writ of preliminary injunction
restraining Respondent Lacson and his agents from interfering, molesting and
harassing the Petitioner in the administration of the estate of the deceased, during the
pendency of this case.
The writ of certiorari prayed for is in order. Lacson’s appointment, in lieu of Advincula,
as administrator of the estate of Josefa Lacson Advincula, is predicated upon the fact
that the former is named executor in the alleged will of said deceased. The provision
therein to this effect cannot be enforced, however, until after said document has been
allowed to probate, for section 4 of Rule 79 of the Rules of Court provides:
“When a will has been proved and allowed, the court shall issue letters testamentary
thereon to the person named as executor therein, if he is competent, accepts the trusts,
and gives bond as required by these rules.” (Italics supplied.)
Besides, the discovery of a document purporting to be the last will and testament of a
deceased, after the appointment of an administrator of the estate of the latter, upon the
assumption that he or she had died intestate, does not ipso facto nullify the letters of
administration already issued or even authorize the revocation thereof, until the alleged
will has been “proved and allowed by the court.” Rule 83, section 1, of the Rules of
Court, is plain and explicit on this point.
“If after letters of administration have been granted on the estate of a decedent as if he
had died intestate, his will is proved and allowed by the court, the letters of
administration shall be revoked and all powers thereunder cease, and the administrator
shall forthwith surrender the letters to the court, end render his account within such time
as the court directs. Proceedings for the issuance of letters testamentary or of
administration under the will shall be as hereinbefore provided.” (Italics supplied.)
The amended motion for change of administrator endeavored to justify the removal of
Advincula by alleging that he is “incompetent, incapable and unsuitable to the discharge
of the trust, he being foreign to the estate” of the deceased. By holding, in its order of
May 18, 1955, that said motion is “well-founded” — with nothing, absolutely nothing
else, to indicate the basis of this conclusion — Respondent Judge has impliedly
adopted the line of argument followed in the above quoted allegation of the amended
motion to change administrator. Said argument is, however, devoid of merit.
It is untenable from the viewpoint of logic and experience, because a stranger to
deceased may be competent, capable and fit to administer her estate, in much the
same as a member of her immediate family could be incompetent, incapable and unfit
to do so. At any rate, Advincula is not a stranger, either to her or to her estate, he bring
her surviving spouse and, as such, one of her forced heirs (Arts. 887, 888, 892, 893,
894, 897 to 900, and 995 to 1001, Civil Code of the Philippines), whether she died
testate or intestate. What is more, he is prima facie entitled to one-half of all property
subject to the authority of the administrator of said estate, apart from his share of the
other half thereof, as heir of the deceased, for “all property of the marriage is presumed
to belong to the conjugal partnership” — of which he is its administrator (Article 165,
Civil Code of the Philippines) — “unless it be proved that it pertains exclusively to the
husband or to the wife” (See Articles 160 and 185, Civil Code of the Philippines). Lastly,
Advincula has not been found guilty of any specific act or omission constituting one of
the legal grounds, enumerated in Rule 83, section 2, of the Rules of Court, for the
removal of an executor or administrator. Hence, it is clear that Respondent Judge
exceeded his jurisdiction in removing Advincula and appointing Lacson as administrator
of the estate of the deceased Josefa Lacson Advincula.
Wherefore, the aforementioned orders of Respondent Judge, dated May 8 and 30,
1955, are reversed, and the writ of preliminary injunction issued in this case hereby
made permanent, with costs against Respondent Enrique A. Lacson. It is SO
ORDERED.
G.R. No. L-18148 February 28, 1963

DEOGRACIAS BERNARDO, executor of the testate estate of the deceased

EUSEBIO CAPILI; and the instituted heirs, namely: ARMANDO CAPILI and
ARTURO BERNARDO, ET AL., petitioners,
vs.
HON. COURT OF APPEALS and THE HEIRS OF THE LATE HERMOGENA REYES,
namely: FRANCISCO REYES, ET AL., and JOSE ISIDORO, ET AL., respondents.

BARRERA, J.:

This is a petition by certiorari for the review of the decision of the Court of Appeals
affirming that of the Court of First Instance of Bulacan holding that the probate court in
Special Proceeding 1101 had jurisdiction to determine the validity of the deed of
donation in question and to pass upon the question of title or ownership of the
properties mentioned therein.

The facts are briefly stated in the appealed decision of the Court of Appeals as follows:

Eusebio Capili and Hermogena Reyes were husband and wife. The first died on
July 27, 1958 and a testate proceeding for the settlement of his estate was
instituted in the Court of the Fist Instance of Bulacan. His will was admitted to
probate on October 9, 1958, disposing of his properties in favor of his widow; his
cousins Armando, Ursula, and Buenaventura, all surnamed Capili; and Arturo,
Deogracias and Eduardo, all surnamed Bernardo. Hermogena Reyes herself
died on April 24, 1959. Upon petition of Deogracias Bernardo, executor of the
estate of the deceased Eusebio Capili, she was substituted by her collateral
relatives and intestate heirs, namely, Marcos, Vicente, Francisco and Dominga,
all surnamed Reyes; and Jose, Constancia, Raymunda and Elena, all surnamed
Isidoro.

On June 12, 1959, the executor filed a project of partition in the testate
proceeding in accordance with the terms of the will, adjudicating the estate of
Eusebio Capili among the testamentary heirs with the exception of Hermogena
Reyes, whose share was alloted to her collateral relatives aforementioned. On
June 16, 1959 these relatives filed an opposition to the executor's project of
partition and submitted a counter-project of partition of their own, claiming 1/2 of
the properties mentioned in the will of the deceased Eusebio Capili on the theory
that they belonged not to the latter alone but to the conjugal partnership of the
spouses.

The probate court, in two orders dated June 24, 1959 and February 10, 1960,
respectively, set the two projects of partition for hearing, at which evidence was
presented by the parties, followed by the submission of memoranda discussing
certain legal issues. In the memorandum for the executor and the instituted heirs
it was contended: (1) that the properties disposed of in the will of the deceased
 Eusebio Capili belonged to him exclusively and not to the conjugal partnership,
because Hermogena Reyes had donated to him her half share of such
partnership; (2) that the collateral heirs of Hermogena Reyes had no lawful
standing or grounds to question the validity of the donation; and (3) that even
assuming that they could question the validity of the donation, the same must be
litigated not in the testate proceeding but in a separate civil action.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be
admitted and approved by this Honorable Court, without prejudice to the parties
adducing other evidence to prove their case not covered by this stipulation of
facts. 1äwphï1.ñët

The oppositors and heirs of Hermogena Reyes, on their part, argued that the
deed of donation itself was determinative of the original conjugal character to the
properties, aside from the legal presumption laid down in Article 160 of the Civil
Code, and that since the donation was null and void the deceased Eusebio Capili
did not become owner of the share of his wife and therefore could not validly
dispose of it in his will.

On September 14, 1960, the probate court, the Honorable M. Mejia presiding,
issued an order declaring the donation void without making any specific finding
as to its juridical nature, that is, whether it was inter vivos or mortis causa, for the
reason that, considered under the first category, it falls under Article 133 of the
Civil Code, which prohibits donations between spouses during the marriage; and
considered under the second category, it does not comply with the formalities of
a will as required by Article 728 in relation to Article 805 of the same Code, there
being no attestation clause. In the same order the court disapproved both
projects of partition and directed the executor to file another," dividing the
property mentioned in the last will and testament of the deceased Eusebio Capili
and the properties mentioned in the deed of donation, Exhibit B, between the
instituted heirs of the deceased Eusebio Capili and the legal heirs of the
deceased Hermogena Reyes, upon the basis that the said properties were
conjugal properties of the deceased spouses." On September 27, 1960, the
executor filed a motion for new trial, reiterating and emphasizing the contention
previously raised in their memorandum that the probate court had no jurisdiction
to take cognizance of the claim of the legal heirs of Hermogena Reyes involving
title to the properties mentioned in the will of Eusebio Capili and taking exception
to the court's declaration of the nullity of the donation "without stating facts or
provision of law on which it was based." The motion for new trial was denied in
an order dated October 3, 1960.

On appeal to the Court of Appeals the order appealed from being affirmed, petitioners
filed this present petition for review by certiorari.
The petitioners-appellants contend that the appellate court erred in not declaring that
the probate court, having limited and special jurisdiction, had generally no power to
adjudicate title and erred in applying the exception to the rule.

In a line of decisions, this Court consistently held that as a general rule, question as to
title to property cannot be passed upon on testate or intestate proceedings,"1 except
where one of the parties prays merely for the inclusion or exclusion from the inventory
of the property, in which case the probate court may pass provisionally upon the
question without prejudice to its final determination in a separate action.2 However, we
have also held that when the parties interested are all heirs of the deceased, it is
optional to them to submit to the probate court a question as to title to property, and
when so submitted, said probate court may definitely pass judgment thereon (Pascual v.
Pascual, 73 Phil. 561; Manalac v. Ocampo, et al., 73 Phil. 661); and that with the
consent of the parties, matters affecting property under judicial administration may be
taken cognizance of by the court in the course of intestate proceeding, provided
interests of third persons are not prejudiced (Cunanan v. Amparo, 80 Phil. 229, 232).

In the light of this doctrine, may it be said correctly that the trial court as well as the
Court of Appeals erred in upholding the power of the probate court in this case to
adjudicate in the testate proceedings, the question as to whether the properties herein
involved belong to the conjugal partnership of Eusebio Capili and Hermogena Reyes, or
to the deceased husband exclusively?

At the outset, let it be clarified that the matter at issue is not a question of jurisdiction, in
the sense advanced by appellants that the trial court had completely no authority to
pass upon the title to the lands in dispute, and that its decision on the subject is null and
void and does not bind even those who had invoked its authority and submitted to its
decision because, it is contended, jurisdiction is a creature of law and parties to an
action can not vest, extend or broaden it. If appellants' contention is correct, then there
can be no exception to the no-jurisdiction theory. But as has been stated in the case
of Cunanan v. Amparo (supra) the Supreme Court speaking through Mr. Justice Pedro
Tuason: "Determination of title to property is within the jurisdiction of Courts of First
Instance. The responding Soriano's objection (that the probate court lacked jurisdiction
to order the delivery of the possession of the lots to the estate) relates exclusively to the
procedure, which is distinct from jurisdiction. It affects only personal rights to a mode of
practice (the filing of an independent ordinary action) which may be waived". Strictly
speaking, it is more a question of jurisdiction over the person, not over the subject
matter, for the jurisdiction to try controversies between heirs of a deceased person
regarding the ownership of properties alleged to belong to his estate, has been
recognized to be vested in probate courts. This is so because the purpose of an
administration proceeding is the liquidation of the estate and distribution of the residue
among the heirs and legatees. Liquidation means determination of all the assets of the
estate and payment of all the debts and expenses. 3 Thereafter, distribution is made of
the decedent's liquidated estate among the persons entitled to succeed him. The
proceeding is in the nature of an action of partition, in which each party is required to
bring into the mass whatever community property he has in his possession. To this end,
and as a necessary corollary, the interested parties may introduce proofs relative to the
ownership of the properties in dispute. All the heirs who take part in the distribution of
the decedent's estate are before the court, and subject to the jurisdiction thereof, in all
matters and incidents necessary to the complete settlement of such estate, so long as
no interests of third parties are affected.4

In the case now before us, the matter in controversy is the question of ownership of
certain of the properties involved — whether they belong to the conjugal partnership or
to the husband exclusively. This is a matter properly within the jurisdiction of the probate
court which necessarily has to liquidate the conjugal partnership in order to determine
the estate of the decedent which is to be distributed among his heirs who are all parties
to the proceedings, including, of course, the widow, now represented because of her
death, by her heirs who have been substituted upon petition of the executor himself and
who have appeared voluntarily. There are no third parties whose rights may be affected.
It is true that the heirs of the deceased widow are not heirs of the testator-husband, but
the widow is, in addition to her own right to the conjugal property. And it is this right that
is being sought to be enforced by her substitutes. Therefore, the claim that is being
asserted is one belonging to an heir to the testator and, consequently, it complies with
the requirement of the exception that the parties interested (the petitioners and the
widow, represented by dents) are all heirs claiming title under the testator.

Petitioners contend additionally that they have never submitted themselves to the
jurisdiction of the probate court, for the purpose of the determination of the question of
ownership of the disputed properties. This is not borne by the admitted facts. On the
contrary, it is undisputed that they were the ones who presented the project of partition
claiming the questioned properties as part of the testator's asset. The respondents, as
representatives or substitutes of the deceased widow opposed the project of partition
and submitted another. As the Court of Appeals said, "In doing so all of them must be
deemed to have submitted the issue for resolution in the same proceeding. Certainly,
the petitioners can not be heard to insist, as they do, on the approval of their project of
partition and, thus, have the court take it for granted that their theory as to the character
of the properties is correct, entirely without regard to the opposition of the respondents".
In other words, by presenting their project of partition including therein the disputed
lands (upon the claim that they were donated by the wife to her husband), petitioners
themselves put in issue the question of ownership of the properties — which is well
within the competence of the probate court — and just because of an opposition
thereto, they can not thereafter withdraw either their appearance or the issue from the
jurisdiction of the court. Certainly, there is here a waiver where the parties who raise the
objection are the ones who set the court in motion. 5 They can not be permitted to
complain if the court, after due hearing, adjudges question against them. 6

Finally, petitioners-appellants claim that appellees are estopped to raise the question of
ownership of the properties involved because the widow herself, during her lifetime, not
only did not object to the inclusion of these properties in the inventory of the assets of
her deceased husband, but also signed an extra-judicial partition of those inventoried
properties. But the very authorities cited by appellants require that to constitute
estoppel, the actor must have knowledge of the facts and be appraised of his rights at
the time he performs the act constituting estoppel, because silence without knowledge
works no estoppel.7 In the present case, the deceased widow acted as she did because
of the deed of donation she executed in favor of her husband not knowing that such
deed was illegal, if inter-vivos, and ineffectual if mortis-causa, as it has not been
executed with the required formalities similar to a will.

WHEREFORE, the decision of the Court of Appeals being in accordance with law, the
same is hereby affirmed with costs against appellants. So ordered.
G.R. No. L-48140 May 4, 1942

SINFOROSO PASCUAL, plaintiff-appellant,

vs.
PONCIANO S. PASCUAL, ET AL., defendants-appellees.

MORAN, J.:

On September 14, 1940, while the proceedings for the probate of the will of the
deceased Eduarda de los Santos were pending in the Court of First Instance of Rizal
plaintiff, Sinforoso Pascual, instituted in the Court of First Instance of Pampanga against
Ponciano S. Pascual and others, an action for the annulment of a contract of sale of a
fishpond situated in Lubao, Pampanga, supposedly executed without consideration by
said deceased in her lifetime in favor of the defendants. The complaint alleges that
plaintiff and defendants are all residents of Malabon, Rizal, and are legitimate children
of the testratix, Eduarda de los Santos. Defendants filed of a motion to dismiss, alleging
want of cause of action, limitation of action, wrong venue and pendency of another
action. The trial court granted the motion on the ground that the action should have
been brought by the executor or administrator of the estate left by the deceased, and
directed the plaintiff to amend his complaint within five days. Plaintiff filed an amended
complaint, the amendment consisting in that "el demandado Miguel S. Pascual ha sido
nombrado por el Juzgado de Primera Instancia de Rizal albacea testamentario de los
bienes de la finada Eduarda de los Santos. en el asunto de la testamentaria de dicha
finada." The trial court declaring that such amendment did not cure the insufficiency of
the complaint, dismissed the action. It is from this order of dismissal that plaintiff
interposed his appeal.

Under Rule 86, section 1, of the new Rules of Court, actions for the recovery or
protection of the property or rights of the deceased for causes which survive may be
prosecuted or defended by his executor or administrator. Upon the commencement of
the testate or intestate proceedings the heirs have no standing in court in actions of the
above character, except when the executor or administrator is unwilling or fails or
refuses to act, in which event to heirs may act in his place. (Pomeroy on Code
Remedies, p. 158, 11 R C. L. p. 262; 21 Am. Jur., 940) Here, the fictitious sale is
alleged to have been made to the defendants, one of them, Miguel S. Pascual, being
the executor appointed by the probate court. Such executor naturally would not bring an
action against himself for recovery of the fishpond. His refusal to act may, therefore, be
implied. And this brings the case under the exception. It should be noted that in the
complaint the prayer is that the fishpond be delivered not to the plaintiff but to the
executor, thus indicating that the action is brought in behalf of the estate of the
deceased.

Appellees contend that there is here a wrong venue. They argue that an action for the
annulment of a contract of sale is a personal action which must be commenced at the
place of residence of either the plaintiff or the defendant, at the election of the plaintiff
(Rule 5, sec. 1, Rules of Court), and, in the instant case, both plaintiff and defendants
are residents of Malabon, Rizal, but the action was commenced in the Court of First
Instance of Pampanga. It appearing, however, that the sale is alleged to be fictitious,
with absolutely no consideration, it should be regarded as a non-existent, not merely
null, contract. (8 Manresa, Comentarios al Codigo Civil Español, 2nd ed., pp. 766-770.)
And there being no contract between the deceased and the defendants, there is in truth
nothing to annul by action. The action brought cannot thus be for annulment of contract,
but is one for recovery of a fishpond, a real action that should be, as it has been,
brought in Pampanga, where the property is located (Rule 5, sec. 3, Rules of Court.)

Appellees argue further that the action brought by the plaintiff is unnecessary, the
question involved therein being one that may properly be raised and decided in the
probate proceedings. The general rule is that questions as to title to property cannot be
passed upon in testate proceedings. (Bauermann vs. Casas, 10 Phil., 386;
Devesa vs.Arbes, 13 Phil., 273; Guzman vs. Anog, 37 Phil., 61; Lunsod vs. Ortega, 46
Phil., 664; Adapon vs. Maralit, 40 Off. Gaz., 6th Sup., p. 84.) The court is, however, of
the opinion and so holds that, when as in the instant case, the parties interested are all
heirs of the deceased claiming title under him, the question as to whether the transfer
made by the latter to the former is or is not fictitious, may properly be brought by motion
in the testate or intestate proceedings on or before the distribution of the estate among
the heirs. This procedure is optional to the parties concerned who may choose to bring
a separate action as a matter of convenience in the preparation or presentation of
evidence, and accordingly, the action brought by the appellant is not improper.

Order is reversed, and the case is remanded the trial court for further proceedings, with
costs against appellees.
G.R. No. L-3342 April 18, 1951

Intestate Estate of the deceased Lee Liong. RAFAEL A. DINGLASAN, ET

ALS., petitioners-appellees,
vs.
ANG CHIA, as Administratrix of the above intestate, LEE BING HOO alias CLARO
LEE, and LEE BUN TING,respondents-appellants.

BAUTISTA ANGELO, J.:

This is an appeal by Ang Chia, her son Claro Lee, and Lee Bun Ting from an order of
the Court of First Instance of Capiz, issued in the intestate estate proceedings of the
deceased Lee Liong, holding in abeyance the approval of their petition for an
extrajudicial partition and the closing of said proceedings until after the final termination
of Civil Case No. V-331 of the same court, entitled Rafael Dinglasan, et al., vs. Lee Bun
Ting, Claro Lee and Ang Chia, in her personal capacity and as administratrix of the
estate of Lee Liong.

Rafael Dinglasan et al. filed a case in the Court of First Instance of Capiz on February
16, 1948, against Ang Chia, her son Claro Lee and one Lee Bun Ting to recover the
ownership and possession of a parcel of land located at Capiz, Capiz, and damages in
the amount of P1,000 a month. Subsequently, the plaintiffs filed a motion for the
appointment of a receiver to which counsel for the defendants objected, and it was only
at the hearing of said motion when plaintiffs discovered that there was pending in the
same court a case concerning the intestate estate of Lee Liong. In view thereof, the
motion for the appointment of a receiver was withdrawn and the plaintiffs filed an
amended complaint seeking the inclusion as party-defendant of the administratrix of the
estate, who is the same widow Ang Chia, who was already a party-defendant in her
personal capacity. In order to protect their interests, the plaintiffs also filed in the
intestate proceedings a verified claim in intervention and a motion praying that a co-
administrator of the estate be appointed and the bond of the administratrix in the
amount of P500 be increased to P20,000. By their claim in intervention, the plaintiffs
made of record the pendency of the aforesaid civil case No. V-331 and prayed that the
intestate proceedings be not closed until said civil case shall have been terminated.

On June 21, 1948, the administratrix filed a motion to dismiss the claim in intervention
and objected to the motion for the increase of her bond and for the appointment of a co-
administrator. On August 4, 1948, the court issued an order denying the petition for a
co-administrator but increasing the bond to P5,000, and as regards the petition not to
close the intestate proceedings until after civil case No. V-331 shall have been decided,
the court stated that it would act thereon if a motion to close the proceedings is
presented in due time and is objected to by petitioners. The court however took
cognizance of the pendency of said civil case No. V-331. The administratrix did not
appeal from said order nor file a new bond and instead moved for the closing of the
proceedings and her discharge as administratrix on the ground that the heirs had
already entered into an extrajudicial partition of the estate. To this motion the petitioners
objected, whereupon the court issued on July 15, 1949, an order holding in abeyance
the approval of the partition and the closing of the proceedings until after the decision in
said civil case has been rendered. From this order the administratrix and the heirs
appealed and now assign the following errors:

The lower court erred in taking cognizance of and being guided by the supposed
"claim" of petitioners-appellees.

II

The lower court erred in holding in abeyance the closing of the intestate
proceedings pending the termination of the separate civil action filed by the
petitioners-appellees.

III

The lower court erred in ordering the administratrix to file an increased bond of
P5,000.

Under the first assignment of error, the appellants question the validity of the order of
the lower court of August 4, 1948, whereby the court took cognizance of the civil case
filed by the appellees against the administratrix to recover possession of lot No. 398 and
damages, and required the administratrix to file a new bond of P5,000, contending that
by taking such action the court assumed jurisdiction over the case which it cannot do
because its jurisdiction as probate court is limited and especial (Guzman vs. Anog and
Anog, 37 Phil. 61). They claim further that probate proceedings are purely statutory and
their functions are limited to the control of the property upon the death of its owner and
cannot extend to the adjudication of collateral questions. (I Woermer, The American
Law of Administration, 514, 662-663.) Appellees on the other hand claim that said order
of August 4, 1948, is not the subject of this appeal, as no appeal has been taken by the
appellants from said order and the same has long become final; so that the present
appeal is only from the order of the lower court dated July 15, 1949, which denies the
motion of the appellees to terminate the intestate proceedings on the ground that they
have already agreed on the extrajudicial settlement of the estate and to relieve the
administratrix of the obligation of filing an increased bond.

There is merit in the claim of the appellees. It really appears from the record that the
order increasing the bond of the administratrix to P5,000 was issued on August 4, 1948,
and from said order no appeal has been taken by the appellants which has become final
long ago and that the present appeal is only from the order of the lower court dated July
15, 1949. It is true that the lower court in its later order of July 15, 1949, reiterated its
order to the administratrix to file a new bond in the amount of P5,000 within 30 days
after receipt thereof, but this cannot have the effect of receiving the former order of
August 4, 1948, nor does it give the appellants the right to question in this instance the
validity of said order, which has long become final. Moreover, an order requiring the
filing of a new bond by the administratrix is interlocutory in nature and is solely
addressed to the sound discretion of the court.

The act of the lower court in taking cognizance of civil case No. V-331 is not tantamount
to assuming jurisdiction over said case nor does it violate the ruling of this court which
says that "when questions arise as to the ownership of property, alleged to be part of
the estate of a deceased person, but claimed by some other person to be his property,
not by virtue of any right of inheritance from the deceased, but by title adverse to that of
the deceased and his estate, such questions cannot be determined in the course of
administration proceedings. The Court of First Instance, acting as probate court, has no
jurisdiction to adjudicate such contentions, which must be submitted to the court in the
exercise of its general jurisdiction as a Court of First Instance to try and determine
ordinary actions. . . ." (Guzman vs. Anog and Anog, 37 Phil., 61, 62-63.)

If the appellants filed a claim in intervention in the intestate proceedings it was only
pursuant to their desire to protect their interests it appearing that the property in
litigation is involved in said proceedings and in fact is the only property of the estate left
subject of administration and distribution; and the court is justified in taking cognizance
of said civil case because of the unavoidable fact that whatever is determined in said
civil case will necessarily reflect and have a far reaching consequence in the
determination and distribution of the estate. In so taking cognizance of civil case No. V-
331 the court does not assume general jurisdiction over the case but merely makes of
record its existence because of the close interrelation of the two cases and cannot
therefore be branded as having acted in excess of its jurisdiction.

Appellants' claim that the lower court erred in holding in abeyance the closing of the
intestate proceedings pending determination of the separate civil action for the reason
that there is no rule or authority justifying the extension of administration proceedings
until after the separate action pertaining to its general jurisdiction has been terminated,
cannot entertained. Section 1, Rule 88, of the Rules of Court, expressly provides that
"action to recover real or personal property from the estate or to enforce a lien thereon,
and actions to recover damages for an injury to person or property, real or personal,
may be commenced against the executor or administrator". What practical value would
this provision have if the action against the administrator cannot be prosecuted to its
termination simply because the heirs desire to close the intestate proceedings without
first taking any step to settle the ordinary civil case? This rule is but a corollary to the
ruling which declares that questions concerning ownership of property alleged to be part
of the estate but claimed by another person should be determined in a separate action
and should be submitted to the court in the exercise of its general jurisdiction.
(Guzman vs. Anog and Anog, supra). These rules would be rendered nugatory if we are
to hold that an intestate proceedings can be closed by any time at the whim and caprice
of the heirs. Another rule of court provides that "after a party dies and the claim is not
thereby extinguished, the court shall order, upon proper notice, the legal representative
of the deceased to appear and to be substituted for the deceased, within a period of
thirty (30) days, or within such time as may be granted. If the legal representative fails to
appear within said time, the court may order the opposing party to procure the
appointment of a legal representative of the deceased within a time to be specified by
the court, and the representative shall immediately appear for and on behalf of the
interest of the deceased." (Section 17, Rule 3.) This rule also implies that a probate
case may be held in abeyance pending determination of an ordinary case wherein an
administrator is made a party. To hold otherwise would be also to render said rule
nugatory.

Wherefore, the Court affirms the order appealed from, with costs against appellants.
REYES VS. CFI MAKATI

This Petition for Review on Certiorari under Rule 45 of the Rules of Court seeks
to set aside the Decision of the Court of Appeals (CA)[1] promulgated on May 26, 2004in
CA-G.R. SP No. 74970. The CA Decision affirmed the Order of the Regional Trial Court
(RTC), Branch 142, Makati City dated November 29, 2002[2] in Civil Case No. 00-1553
(entitled "Accounting of All Corporate Funds and Assets, and Damages") which denied
petitioner Oscar C. Reyes (Oscar) Motion to Declare Complaint as Nuisance or
Harassment Suit.

BACKGROUND FACTS

Oscar and private respondent Rodrigo C. Reyes (Rodrigo) are two of the four children of
the spouses Pedro and Anastacia Reyes. Pedro, Anastacia, Oscar, and Rodrigo each
owned shares of stock of Zenith Insurance Corporation (Zenith), a domestic corporation
established by their family. Pedro died in 1964, while Anastacia died in 1993. Although
Pedros estate was judicially partitioned among his heirs sometime in the 1970s, no
similar settlement and partition appear to have been made with Anastacias estate, which
included her shareholdings in Zenith. As of June 30, 1990, Anastacia owned 136,598
shares of Zenith; Oscar and Rodrigo owned 8,715,637 and 4,250 shares, respectively. [3]

On May 9, 2000, Zenith and Rodrigo filed a complaint[4] with the Securities and
Exchange Commission (SEC) against Oscar, docketed as SEC Case No. 05-00-
6615. The complaint stated that it is a derivative suit initiated and filed by the
complainant Rodrigo C. Reyes to obtain an accounting of the funds and assets of
ZENITH INSURANCE CORPORATION which are now or formerly in the control,
custody, and/or possession of respondent [herein petitioner Oscar] and to determine
the shares of stock of deceased spouses Pedro and Anastacia Reyes that were
arbitrarily and fraudulently appropriated [by Oscar] for himself [and] which were not
collated and taken into account in the partition, distribution, and/or settlement of the
estate of the deceased spouses, for which he should be ordered to account for all the
income from the time he took these shares of stock, and should now deliver to his
brothers and sisters their just and respective shares.[5] [Emphasis supplied.]
In his Answer with Counterclaim,[6] Oscar denied the charge that he illegally acquired the
shares of Anastacia Reyes. He asserted, as a defense, that he purchased the subject
shares with his own funds from the unissued stocks of Zenith, and that the suit is not
a bona fide derivative suit because the requisites therefor have not been complied
with. He thus questioned the SECs jurisdiction to entertain the complaint because it
pertains to the settlement of the estate of Anastacia Reyes.

When Republic Act (R.A.) No. 8799[7] took effect, the SECs exclusive and original
jurisdiction over cases enumerated in Section 5 of Presidential Decree (P.D.) No. 902-A
was transferred to the RTC designated as a special commercial court. [8] The records of
Rodrigos SEC case were thus turned over to the RTC, Branch 142, Makati, and
docketed as Civil Case No. 00-1553.

On October 22, 2002, Oscar filed a Motion to Declare Complaint as Nuisance or

Harassment Suit.[9] He claimed that the complaint is a mere nuisance or harassment suit
and should, according to the Interim Rules of Procedure for Intra-Corporate
Controversies, be dismissed; and that it is not a bona fide derivative suit as it partakes of
the nature of a petition for the settlement of estate of the deceased Anastacia that is
outside the jurisdiction of a special commercial court. The RTC, in its Order
dated November 29, 2002 (RTC Order), denied the motion in part and declared:

A close reading of the Complaint disclosed the presence of two (2) causes
of action, namely: a) a derivative suit for accounting of the funds and
assets of the corporation which are in the control, custody, and/or
possession of the respondent [herein petitioner Oscar] with prayer to
appoint a management committee; and b) an action for determination of
the shares of stock of deceased spouses Pedro and Anastacia Reyes
allegedly taken by respondent, its accounting and the corresponding
delivery of these shares to the parties brothers and sisters. The latter is
not a derivative suit and should properly be threshed out in a petition for
settlement of estate.

Accordingly, the motion is denied. However, only the derivative suit

consisting of the first cause of action will be taken cognizance of by this
Court.[10]
Oscar thereupon went to the CA on a petition for certiorari, prohibition,
and mandamus[11] and prayed that the RTC Order be annulled and set aside and that
the trial court be prohibited from continuing with the proceedings. The appellate court
affirmed the RTC Order and denied the petition in its Decision dated May 26, 2004. It
likewise denied Oscars motion for reconsideration in a Resolution dated October 21,
2004.

Petitioner now comes before us on appeal through a petition for review

on certiorari under Rule 45 of the Rules of Court.

ASSIGNMENT OF ERRORS

Petitioner Oscar presents the following points as conclusions the CA should have made:

1. that the complaint is a mere nuisance or harassment suit that should

be dismissed under the Interim Rules of Procedure of Intra-Corporate
Controversies; and
2. that the complaint is not a bona fide derivative suit but is in fact in the
nature of a petition for settlement of estate; hence, it is outside the
jurisdiction of the RTC acting as a special commercial court.

Accordingly, he prays for the setting aside and annulment of the CA decision and
resolution, and the dismissal of Rodrigos complaint before the RTC.

THE COURTS RULING

We find the petition meritorious.

The core question for our determination is whether the trial court, sitting as a special
commercial court, has jurisdiction over the subject matter of Rodrigos complaint. To
resolve it, we rely on the judicial principle that jurisdiction over the subject matter of a
case is conferred by law and is determined by the allegations of the complaint,
irrespective of whether the plaintiff is entitled to all or some of the claims asserted
therein.[12]
JURISDICTION OF SPECIAL COMMERCIAL COURTS

P.D. No. 902-A enumerates the cases over which the SEC (now the RTC acting as a
special commercial court) exercises exclusive jurisdiction:
SECTION 5. In addition to the regulatory and adjudicative
functions of the Securities and Exchange Commission over
corporations, partnership, and other forms of associations
registered with it as expressly granted under existing laws and
decrees, it shall have original and exclusive jurisdiction to hear
and decide cases involving:
a) Devices or schemes employed by or
any acts of the board of directors, business
associates, its officers or partners, amounting to
fraud and misrepresentation which may be
detrimental to the interest of the public and/or of the
stockholders, partners, members of associations or
organizations registered with the Commission.
b) Controversies arising out of intra-
corporate or partnership relations, between and
among stockholders, members, or associates;
between any or all of them and the corporation,
partnership or association of which they are
stockholders, members, or associates, respectively;
and between such corporation, partnership or
association and the State insofar as it concerns their
individual franchise or right to exist as such entity;
and
c) Controversies in the election or
appointment of directors, trustees, officers, or
managers of such corporations, partnerships, or
associations.

The allegations set forth in Rodrigos complaint principally invoke Section 5, paragraphs
(a) and (b) above as basis for the exercise of the RTCs special court jurisdiction. Our
focus in examining the allegations of the complaint shall therefore be on these two
provisions.

Fraudulent Devices and Schemes

The rule is that a complaint must contain a plain, concise, and direct statement of the
ultimate facts constituting the plaintiffs cause of action and must specify the relief
sought.[13] Section 5, Rule 8 of the Revised Rules of Court provides that in all
averments of fraud or mistake, the circumstances constituting fraud or mistake
must be stated with particularity.[14] These rules find specific application to Section
5(a) of P.D. No. 902-A which speaks of corporate devices or schemes that amount to
fraud or misrepresentation detrimental to the public and/or to the stockholders.

In an attempt to hold Oscar responsible for corporate fraud, Rodrigo alleged in the
complaint the following:

3. This is a complaintto determine the shares of stock of the

deceased spouses Pedro and Anastacia Reyes that were
arbitrarily and fraudulently appropriated for himself [herein
petitioner Oscar] which were not collated and taken into
account in the partition, distribution, and/or settlement of the
estate of the deceased Spouses Pedro and Anastacia Reyes,
for which he should be ordered to account for all the income
from the time he took these shares of stock, and should now
deliver to his brothers and sisters their just and respective
shares with the corresponding equivalent amount of
P7,099,934.82 plus interest thereon from 1978 representing his
obligations to the Associated Citizens Bank that was paid for his
account by his late mother, Anastacia C. Reyes. This amount
was not collated or taken into account in the partition or
distribution of the estate of their late mother, Anastacia C.
Reyes.

3.1. Respondent Oscar C. Reyes, through other

schemes of fraud including misrepresentation, unilaterally,
and for his own benefit, capriciously transferred and took
possession and control of the management of
Zenith Insurance Corporation which is considered as a family
corporation, and other properties and businesses belonging to
Spouses Pedro and Anastacia Reyes.

xxxx

4.1. During the increase of capitalization of Zenith

Insurance Corporation, sometime in 1968, the property covered
by TCT No. 225324 was illegally and fraudulently used by
respondent as a collateral.
 xxxx

5. The complainant Rodrigo C. Reyes discovered that by

some manipulative scheme, the shareholdings of their
deceased mother, Doa Anastacia C. Reyes, shares of stocks
and [sic] valued in the corporate books at P7,699,934.28,
more or less, excluding interest and/or dividends, had been
transferred solely in the name of respondent. By such
fraudulent manipulations and misrepresentation, the
shareholdings of said respondent Oscar C. Reyes abruptly
increased to P8,715,637.00 [sic] and becomes [sic] the majority
stockholder of Zenith Insurance Corporation, which portion of
said shares must be distributed equally amongst the brothers
and sisters of the respondent Oscar C. Reyes including the
complainant herein.

xxxx

9.1 The shareholdings of deceased Spouses Pedro Reyes

and Anastacia C. Reyes valued at P7,099,934.28
were illegally and fraudulently transferred solely to the
respondents [herein petitioner Oscar] name and installed
himself as a majority stockholder of Zenith Insurance
Corporation [and] thereby deprived his brothers and sisters of
their respective equal shares thereof including complainant
hereto.
xxxx

10.1 By refusal of the respondent to account of his [sic]

shareholdings in the company, he illegally and fraudulently
transferred solely in his name wherein [sic] the shares of
stock of the deceased Anastacia C. Reyes [which] must be
properly collated and/or distributed equally amongst the
children, including the complainant Rodrigo C. Reyes
herein, to their damage and prejudice.

xxxx

11.1 By continuous refusal of the respondent to account of his

[sic] shareholding with Zenith Insurance Corporation[,]
particularly the number of shares of stocks illegally and
fraudulently transferred to him from their deceased parents Sps.
Pedro and Anastacia Reyes[,] which are all subject for collation
and/or partition in equal shares among their children. [Emphasis
supplied.]
Allegations of deceit, machination, false pretenses, misrepresentation, and threats are
largely conclusions of law that, without supporting statements of the facts to which the
allegations of fraud refer, do not sufficiently state an effective cause of action.[15] The
late Justice Jose Feria, a noted authority in Remedial Law, declared that fraud and
mistake are required to be averred with particularity in order to enable the opposing
party to controvert the particular facts allegedly constituting such fraud or mistake. [16]

Tested against these standards, we find that the charges of fraud against Oscar were
not properly supported by the required factual allegations. While the complaint
contained allegations of fraud purportedly committed by him, these allegations are not
particular enough to bring the controversy within the special commercial courts
jurisdiction; they are not statements of ultimate facts, but are mere conclusions of law:
how and why the alleged appropriation of shares can be characterized as illegal and
fraudulent were not explained nor elaborated on.

Not every allegation of fraud done in a corporate setting or perpetrated by corporate

officers will bring the case within the special commercial courts jurisdiction. To fall within
this jurisdiction, there must be sufficient nexus showing that the corporations nature,
structure, or powers were used to facilitate the fraudulent device or scheme. Contrary to
this concept, the complaint presented a reverse situation. No corporate power or office
was alleged to have facilitated the transfer of the shares; rather, Oscar, as an individual
and without reference to his corporate personality, was alleged to have transferred the
shares of Anastacia to his name, allowing him to become the majority and controlling
stockholder of Zenith, and eventually, the corporations President. This is the essence of
the complaint read as a whole and is particularly demonstrated under the following
allegations:

5. The complainant Rodrigo C. Reyes discovered that by

some manipulative scheme, the shareholdings of their deceased
mother, Doa Anastacia C. Reyes, shares of stocks and [sic]
valued in the corporate books at P7,699,934.28, more or less,
excluding interest and/or dividends, had been transferred solely
in the name of respondent. By such fraudulent manipulations
and misrepresentation, the shareholdings of said
respondent Oscar C. Reyes abruptly increased to
 P8,715,637.00 [sic] and becomes [sic] the majority
stockholder of Zenith Insurance Corporation, which portion
of said shares must be distributed equally amongst the brothers
and sisters of the respondent Oscar C. Reyes including the
complainant herein.

xxxx

9.1 The shareholdings of deceased Spouses Pedro Reyes

and Anastacia C. Reyes valued at
P7,099,934.28 were illegally and fraudulently transferred
solely to the respondents [herein petitioner Oscar] name
and installed himself as a majority stockholder of
Zenith Insurance Corporation [and] thereby deprived his
brothers and sisters of their respective equal shares thereof
including complainant hereto. [Emphasis supplied.]

In ordinary cases, the failure to specifically allege the fraudulent acts does not constitute
a ground for dismissal since such defect can be cured by a bill of particulars. In cases
governed by the Interim Rules of Procedure on Intra-Corporate Controversies, however,
a bill of particulars is a prohibited pleading.[17] It is essential, therefore, for the complaint
to show on its face what are claimed to be the fraudulent corporate acts if the
complainant wishes to invoke the courts special commercial jurisdiction.

We note that twice in the course of this case, Rodrigo had been given the opportunity to
study the propriety of amending or withdrawing the complaint, but he consistently
refused. The courts function in resolving issues of jurisdiction is limited to the review of
the allegations of the complaint and, on the basis of these allegations, to the
determination of whether they are of such nature and subject that they fall within the
terms of the law defining the courts jurisdiction. Regretfully, we cannot read into the
complaint any specifically alleged corporate fraud that will call for the exercise of the
courts special commercial jurisdiction. Thus, we cannot affirm the RTCs assumption of
jurisdiction over Rodrigos complaint on the basis of Section 5(a) of P.D. No. 902-A.[18]

Intra-Corporate Controversy
A review of relevant jurisprudence shows a development in the Courts approach in
classifying what constitutes an intra-corporate controversy. Initially, the main
consideration in determining whether a dispute constitutes an intra-corporate
controversy was limited to a consideration of the intra-corporate relationship existing
between or among the parties.[19] The types of relationships embraced under Section
5(b), as declared in the case of Union Glass & Container Corp. v. SEC,[20] were as
follows:

a) between the corporation, partnership, or association and the

public;
b) between the corporation, partnership, or association and its
stockholders, partners, members, or officers;
c) between the corporation, partnership, or association and the
State as far as its franchise, permit or license to operate is
concerned; and
d) among the stockholders, partners, or associates
themselves. [Emphasis supplied.]

The existence of any of the above intra-corporate relations was sufficient to

confer jurisdiction to the SEC, regardless of the subject matter of the dispute. This came
to be known as the relationship test.

However, in the 1984 case of DMRC Enterprises v. Esta del Sol Mountain Reserve,
Inc.,[21] the Court introduced the nature of the controversy test. We declared in this
case that it is not the mere existence of an intra-corporate relationship that gives rise to
an intra-corporate controversy; to rely on the relationship test alone will divest the
regular courts of their jurisdiction for the sole reason that the dispute involves a
corporation, its directors, officers, or stockholders. We saw that there is no legal sense
in disregarding or minimizing the value of the nature of the transactions which gives rise
to the dispute.

Under the nature of the controversy test, the incidents of that relationship must also be
considered for the purpose of ascertaining whether the controversy itself is intra-
corporate.[22] The controversy must not only be rooted in the existence of an intra-
corporate relationship, but must as well pertain to the enforcement of the parties
correlative rights and obligations under the Corporation Code and the internal and intra-
corporate regulatory rules of the corporation. If the relationship and its incidents are
merely incidental to the controversy or if there will still be conflict even if the relationship
does not exist, then no intra-corporate controversy exists.

The Court then combined the two tests and declared that jurisdiction should be
determined by considering not only the status or relationship of the parties, but also the
nature of the question under controversy.[23] This two-tier test was adopted in the recent
case of Speed Distribution, Inc. v. Court of Appeals:[24]
To determine whether a case involves an intra-corporate
controversy, and is to be heard and decided by the branches of
the RTC specifically designated by the Court to try and decide
such cases, two elements must concur: (a) the status or
relationship of the parties; and (2) the nature of the question that
is the subject of their controversy.
The first element requires that the controversy must arise
out of intra-corporate or partnership relations between any or all
of the parties and the corporation, partnership, or association of
which they are stockholders, members or associates; between
any or all of them and the corporation, partnership, or
association of which they are stockholders, members, or
associates, respectively; and between such corporation,
partnership, or association and the State insofar as it concerns
their individual franchises. The second element requires that the
dispute among the parties be intrinsically connected with the
regulation of the corporation. If the nature of the controversy
involves matters that are purely civil in character, necessarily,
the case does not involve an intra-corporate controversy.

Given these standards, we now tackle the question posed for our determination under
the specific circumstances of this case:

Application of the Relationship Test

Is there an intra-corporate relationship between the parties that would characterize the
case as an intra-corporate dispute?

We point out at the outset that while Rodrigo holds shares of stock in Zenith, he holds
them in two capacities: in his own right with respect to the 4,250 shares registered in his
name, and as one of the heirs of Anastacia Reyes with respect to the 136,598 shares
registered in her name. What is material in resolving the issues of this case under the
allegations of the complaint is Rodrigos interest as an heir since the subject matter of
the present controversy centers on the shares of stocks belonging to Anastacia, not on
Rodrigos personally-owned shares nor on his personality as shareholder owning these
shares. In this light, all reference to shares of stocks in this case shall pertain to the
shareholdings of the deceased Anastacia and the parties interest therein as her heirs.

Article 777 of the Civil Code declares that the successional rights are transmitted from
the moment of death of the decedent. Accordingly, upon Anastacias death, her children
acquired legal title to her estate (which title includes her shareholdings in Zenith), and
they are, prior to the estates partition, deemed co-owners thereof.[25] This status as co-
owners, however, does not immediately and necessarily make them stockholders of the
corporation. Unless and until there is compliance with Section 63 of the Corporation
Code on the manner of transferring shares, the heirs do not become registered
stockholders of the corporation. Section 63 provides:

Section 63. Certificate of stock and transfer of shares. The

capital stock of stock corporations shall be divided into shares
for which certificates signed by the president or vice-president,
countersigned by the secretary or assistant secretary, and
sealed with the seal of the corporation shall be issued in
accordance with the by-laws. Shares of stock so issued are
personal property and may be transferred by delivery of the
certificate or certificates indorsed by the owner or his attorney-in-
fact or other person legally authorized to make the transfer. No
transfer, however, shall be valid, except as between the
parties, until the transfer is recorded in the books of the
corporation so as to show the names of the parties to the
transaction, the date of the transfer, the number of the
certificate or certificates, and the number of shares
transferred. [Emphasis supplied.]

No shares of stock against which the corporation holds any

unpaid claim shall be transferable in the books of the
corporation.

Simply stated, the transfer of title by means of succession, though effective and valid
between the parties involved (i.e., between the decedents estate and her heirs), does
not bind the corporation and third parties. The transfer must be registered in the books
of the corporation to make the transferee-heir a stockholder entitled to recognition as
such both by the corporation and by third parties.[26]
We note, in relation with the above statement, that in Abejo v. Dela Cruz[27] and TCL
Sales Corporation v. Court of Appeals[28] we did not require the registration of the
transfer before considering the transferee a stockholder of the corporation (in effect
upholding the existence of an intra-corporate relation between the parties and bringing
the case within the jurisdiction of the SEC as an intra-corporate controversy). A marked
difference, however, exists between these cases and the present one.

In Abejo and TCL Sales, the transferees held definite and uncontested titles to
a specific number of shares of the corporation; after the transferee had
established prima facie ownership over the shares of stocks in question, registration
became a mere formality in confirming their status as stockholders. In the present case,
each of Anastacias heirs holds only an undivided interest in the shares. This interest, at
this point, is still inchoate and subject to the outcome of a settlement proceeding; the
right of the heirs to specific, distributive shares of inheritance will not be determined until
all the debts of the estate of the decedent are paid. In short, the heirs are only entitled to
what remains after payment of the decedents debts; [29] whether there will be residue
remains to be seen. Justice Jurado aptly puts it as follows:

No succession shall be declared unless and until a liquidation of

the assets and debts left by the decedent shall have been made
and all his creditors are fully paid. Until a final liquidation is made
and all the debts are paid, the right of the heirs to inherit remains
inchoate. This is so because under our rules of
procedure, liquidation is necessary in order to determine
whether or not the decedent has left any liquid assets which
may be transmitted to his heirs.[30] [Emphasis supplied.]

Rodrigo must, therefore, hurdle two obstacles before he can be considered a

stockholder of Zenith with respect to the shareholdings originally belonging to
Anastacia. First, he must prove that there are shareholdings that will be left to him and
his co-heirs, and this can be determined only in a settlement of the decedents
estate. No such proceeding has been commenced to date. Second, he must register the
transfer of the shares allotted to him to make it binding against the corporation. He
cannot demand that this be done unless and until he has established his specific
allotment (and prima facie ownership) of the shares. Without the settlement of
Anastacias estate, there can be no definite partition and distribution of the estate to the
heirs. Without the partition and distribution, there can be no registration of the
transfer. And without the registration, we cannot consider the transferee-heir a
stockholder who may invoke the existence of an intra-corporate relationship as premise
for an intra-corporate controversy within the jurisdiction of a special commercial court.

In sum, we find that insofar as the subject shares of stock (i.e., Anastacias shares) are
concerned Rodrigo cannot be considered a stockholder of Zenith. Consequently, we
cannot declare that an intra-corporate relationship exists that would serve as basis to
bring this case within the special commercial courts jurisdiction under Section 5(b) of
PD 902-A, as amended. Rodrigos complaint, therefore, fails the relationship test.

Application of the Nature of Controversy Test

The body rather than the title of the complaint determines the nature of an action. [31] Our
examination of the complaint yields the conclusion that, more than anything else, the
complaint is about the protection and enforcement of successional rights. The
controversy it presents is purely civil rather than corporate, although it is denominated
as a complaint for accounting of all corporate funds and assets.

Contrary to the findings of both the trial and appellate courts, we read only one cause of
action alleged in the complaint. The derivative suit for accounting of the funds and
assets of the corporation which are in the control, custody, and/or possession of the
respondent [herein petitioner Oscar] does not constitute a separate cause of action but
is, as correctly claimed by Oscar, only an incident to the action for determination of the
shares of stock of deceased spouses Pedro and Anastacia Reyes allegedly taken by
respondent, its accounting and the corresponding delivery of these shares to the parties
brothers and sisters. There can be no mistake of the relationship between the
accounting mentioned in the complaint and the objective of partition and distribution
when Rodrigo claimed in paragraph 10.1 of the complaint that:
10.1 By refusal of the respondent to account of [sic] his
shareholdings in the company, he illegally and fraudulently
transferred solely in his name wherein [sic] the shares of stock
of the deceased Anastacia C. Reyes [which] must be properly
collated and/or distributed equally amongst the children
 including the complainant Rodrigo C. Reyes herein to their
damage and prejudice.

We particularly note that the complaint contained no sufficient allegation that justified
the need for an accounting other than to determine the extent of Anastacias
shareholdings for purposes of distribution.

Another significant indicator that points us to the real nature of the complaint are
Rodrigos repeated claims of illegal and fraudulent transfers of Anastacias shares by
Oscar to the prejudice of the other heirs of the decedent; he cited these allegedly
fraudulent acts as basis for his demand for the collation and distribution of Anastacias
shares to the heirs.These claims tell us unequivocally that the present controversy
arose from the parties relationship as heirs of Anastacia and not as shareholders of
Zenith. Rodrigo, in filing the complaint, is enforcing his rights as a co-heir and not as a
stockholder of Zenith. The injury he seeks to remedy is one suffered by an heir (for the
impairment of his successional rights) and not by the corporation nor by Rodrigo as a
shareholder on record.

More than the matters of injury and redress, what Rodrigo clearly aims to accomplish
through his allegations of illegal acquisition by Oscar is the distribution of Anastacias
shareholdings without a prior settlement of her estate an objective that, by law and
established jurisprudence, cannot be done. The RTC of Makati, acting as a special
commercial court, has no jurisdiction to settle, partition, and distribute the estate of a
deceased. A relevant provision Section 2 of Rule 90 of the Revised Rules of Court that
contemplates properties of the decedent held by one of the heirs declares:

Questions as to advancement made or alleged to have been

made by the deceased to any heir may be heard and
determined by the court having jurisdiction of the estate
proceedings; and the final order of the court thereon shall be
binding on the person raising the questions and on the heir.
[Emphasis supplied.]

Worth noting are this Courts statements in the case of Natcher v. Court of Appeals:[32]
 Matters which involve settlement and distribution of the
estate of the decedent fall within the exclusive province of
the probate court in the exercise of its limited jurisdiction.

xxxx

It is clear that trial courts trying an ordinary action cannot

resolve to perform acts pertaining to a special
proceeding because it is subject to specific prescribed rules.
[Emphasis supplied.]

That an accounting of the funds and assets of Zenith to determine the extent and value
of Anastacias shareholdings will be undertaken by a probate court and not by a special
commercial court is completely consistent with the probate courts limited jurisdiction. It
has the power to enforce an accounting as a necessary means to its authority to
determine the properties included in the inventory of the estate to be administered,
divided up, and distributed. Beyond this, the determination of title or ownership over the
subject shares (whether belonging to Anastacia or Oscar) may be conclusively
settled by the probate court as a question of collation or advancement. We had
occasion to recognize the courts authority to act on questions of title or ownership in a
collation or advancement situation in Coca v. Pangilinan[33] where we ruled:

It should be clarified that whether a particular matter should be resolved

by the Court of First Instance in the exercise of its general jurisdiction or of
its limited probate jurisdiction is in reality not a jurisdictional question. In
essence, it is a procedural question involving a mode of practice "which
may be waived."

As a general rule, the question as to title to property should not be passed

upon in the testate or intestate proceeding. That question should be
ventilated in a separate action. That general rule has qualifications or
exceptions justified by expediency and convenience.

Thus, the probate court may provisionally pass upon in an intestate or

testate proceeding the question of inclusion in, or exclusion from, the
inventory of a piece of property without prejudice to its final determination
in a separate action.

Although generally, a probate court may not decide a question of

title or ownership, yet if the interested parties are all heirs, or the
question is one of collation or advancement, or the parties consent to
the assumption of jurisdiction by the probate court and the rights of third
 parties are not impaired, the probate court is competent to decide the
question of ownership. [Citations omitted. Emphasis supplied.]

In sum, we hold that the nature of the present controversy is not one which may be
classified as an intra-corporate dispute and is beyond the jurisdiction of the special
commercial court to resolve. In short, Rodrigos complaint also fails the nature of the
controversy test.

DERIVATIVE SUIT

Rodrigos bare claim that the complaint is a derivative suit will not suffice to confer
jurisdiction on the RTC (as a special commercial court) if he cannot comply with the
requisites for the existence of a derivative suit. These requisites are:

a. the party bringing suit should be a shareholder during the

time of the act or transaction complained of, the number of
shares not being material;
b. the party has tried to exhaust intra-corporate remedies, i.e.,
has made a demand on the board of directors for the
appropriate relief, but the latter has failed or refused to heed his
plea; and
c. the cause of action actually devolves on the corporation; the
wrongdoing or harm having been or being caused to the
corporation and not to the particular stockholder bringing the
suit.[34]

Based on these standards, we hold that the allegations of the present complaint do not
amount to a derivative suit.

First, as already discussed above, Rodrigo is not a shareholder with respect to the
shareholdings originally belonging to Anastacia; he only stands as a transferee-heir
whose rights to the share are inchoate and unrecorded. With respect to his own
individually-held shareholdings, Rodrigo has not alleged any individual cause or basis
as a shareholder on record to proceed against Oscar.

Second, in order that a stockholder may show a right to sue on behalf of the
corporation, he must allege with some particularity in his complaint that he has
exhausted his remedies within the corporation by making a sufficient demand upon the
directors or other officers for appropriate relief with the expressed intent to sue if relief is
denied.[35]Paragraph 8 of the complaint hardly satisfies this requirement since what the
rule contemplates is the exhaustion of remedies within the corporate setting:
8. As members of the same family, complainant Rodrigo
C. Reyes has resorted [to] and exhausted all legal means of
resolving the dispute with the end view of amicably settling the
case, but the dispute between them ensued.

Lastly, we find no injury, actual or threatened, alleged to have been done to the
corporation due to Oscars acts. If indeed he illegally and fraudulently transferred
Anastacias shares in his own name, then the damage is not to the corporation but to his
co-heirs; the wrongful transfer did not affect the capital stock or the assets of Zenith. As
already mentioned, neither has Rodrigo alleged any particular cause or wrongdoing
against the corporation that he can champion in his capacity as a shareholder on
record.[36]

In summary, whether as an individual or as a derivative suit, the RTC sitting as special

commercial court has no jurisdiction to hear Rodrigos complaint since what is involved
is the determination and distribution of successional rights to the shareholdings of
Anastacia Reyes. Rodrigos proper remedy, under the circumstances, is to institute a
special proceeding for the settlement of the estate of the deceased Anastacia Reyes, a
move that is not foreclosed by the dismissal of his present complaint.

WHEREFORE, we hereby GRANT the petition and REVERSE the decision of the Court
of Appeals dated May 26, 2004 in CA-G.R. SP No. 74970. The complaint before the
Regional Trial Court, Branch 142, Makati, docketed as Civil Case No. 00-1553, is
ordered DISMISSED for lack of jurisdiction.

DIGEST
FACTS:
Petitioner and private respondent were siblings together with two others, namely Pedro
and Anastacia, in a family business established as Zenith Insurance Corporation
(Zenith), from which they owned shares of stocks. The Pedro and Anastacia
subsequently died. The former had his estate judicially partitioned among his heirs, but
the latter had not made the same in her shareholding in Zenith. Zenith and Rodrigo filed
a complaint with the Securities and Exchange Commission (SEC) against petitioner (1)
a derivative suit to obtain accounting of funds and assets of Zenith, and (2) to determine
the shares of stock of deceased Pedro and Anastacia that were arbitrarily and
fraudulently appropriated [by Oscar, and were unaccounted for]. In his answer with
counterclaim, petitioner denied the illegality of the acquisition of shares of Anastacia
and questioned the jurisdiction of SEC to entertain the complaint because it pertains to
settlement of [Anastacia’s] estate. The case was transferred to. Petitioner filed Motion to
Declare Complaint as Nuisance or Harassment Suit and must be dismissed. RTC
denied the motion. The motion was elevated to the Court of Appeals by way of petition
for certiorari, prohibition and mandamus, but was again denied.
G.R. No. L-47125 December 29, 1986

LEOPOLDO MORALES and PRINCESITA SANTERO MORALES, petitioners.

vs.
COURT OF FIRST INSTANCE OF CAVITE, BR. V, ATTY. ROLANDO DIAZ, in his
capacity as Administrator of the Intestate Estate of SIMONA PAMUTI, ROBERTO
MELGAR and FELISA JARDIN, respondents.

PARAS, J.:

This special civil action of certiorari and prohibition deals with the jurisdiction of a
probate court to rule on the validity of the redemption by the estate under administration
of a parcel of land which, while it was originally owned by the decedent and has as such
been included in the inventory of properties, had been mortgaged during the decedent's
lifetime and thereafter sold to the mortgagee at extra-judicial foreclosure proceedings,
such mortgagee having taken possession of the property in question.

As gleaned from the pleadings together with the annexes filed by the parties to this
petition, the property is a saltbedfishpond located at Dulongbayan, Bacoor, Cavite and
described in Tax Declaration No. 5469 of the Office of the Provincial Assessor of Cavite
as owned by one Simona Pamuti. On February 12, 1968, Simona Pamuti mortgaged
the property in favor of petitioner Princesita Santero Morales in consideration of the sum
of P15,000.00. On July 26, 1974, the property, following extrajudicial foreclosure
proceedings, was sold at public auction to Princesita for the sum of P15,452.00. The
certificate of sale was registered with the Office of the Register of Deeds of Cavite on
August 4, 1974 with the redemption period set to expire on August 4, 1975 (Comment of
Private Respondents, Rollo, p. 109).

Simona Pamuti was the spouse of Pascual Santero with whom she begot a son named
Pablo Santero. During the lifetime of Pablo Santero, he cohabited and had children with
three women, namely, Adela Crisostomo, Anselma Diaz and Feliberta Pacursa. Pablo
had a child with Adela, seven children with Anselma and five with Feliberta. The
petitioner Princesita Santero Morales is Pablo's eldest natural child with Feliberta
(Annex E of Explanation of Respondent Judge, Rollo, p. 85).<äre||anº•1àw>

Simona survived both her husband Pascual and son Pablo. The records do not show
when Pascual and Pablo died, but the petitions for letters of administration of the
intestate estate of Pascual Santero and Pablo Santero, Special Proceedings Nos. N-
2061 and N-2062 docketed with the respondent court, were filed on January 3, 1974 by
Juanito Santero, Pablo's eldest natural child with Anselma Diaz, as petitioner (Comment
Of respondent Clerk of Court, Rollo, p. 53). Princesita was an oppositor in these
proceedings whereas the respondent Clerk of Court, Atty. Rolando Diaz, was
appointed, first, as special administrator and later as regular administrator (Ibid, p. 57
and 60).
During the pendency of the proceedings for the settlement of the intestate estates of
Pascual and Pablo, Juanito Santero filed a petition for guardianship over the properties
of Simona Pamuti docketed with the respondent court as SP. Proc. No. N-2068 (see
Annex A of Respondent's Memorandum, Rollo, p. 168). ln this guardianship proceeding,
the respondent Clerk of Court was appointed legal guardian of Simona Pamuti. As such
guardian, he filed a motion to use the funds of the estates of Pascual and Pablo Santero
to redeem Simona's property that had been sold at auction to petitioner Princesita. The
motion was based on the theory that the ward, Simona, is an heir of Pablo Santero and
is entitled to a share of the money in the possession of the guardian in his capacity as
administrator of Pascual's and Pablo's estates (Rollo, p. 168). Princesita opposed the
motion on the ground that the funds that are in the possession of the respondent Clerk
of Court in his capacity as administrator are held by him in trust for the benefit of
Pascual's and Pablo's heirs who "have not yet been judicially determined" (Rollo, p.
172). Over the opposition of Princesita, the respondent court, in the guardianship
proceeding, granted the respondent Clerk of Court's motion in an order dated July 11,
1975 (Rollo, p. 170). Apparently, the respondent clerk of court as Simona's legal
guardian, failed to act in accordance with the order dated July 11, 1975, for, as stated in
a subsequent Order issued by the respondent Court on August 4, 1975 (Rollo, p. 174):

1) the respondent Clerk of Court, in his capacity as Administrator of the Intestate

Estates of Pascual and Pablo Santero and Legal Guardian of Simona Pamuti,
filed an alternative motion that he be allowed to accept the money being offered
by Juanito Santero for the redemption of the property in question "in lieu of using
funds of the Estate presently in his possession and for which he was authorized
by [this] Court in its order of July 11, 1975",

2) the alternative motion is "predicated on the opposition of Princesita Santero-

Morales in using funds of the Intestate Estate for the aforesaid purpose"

so that, on August 4, 1975, the respondent court, on the finding that Simona is a forced
heir of both Pablo Santero and Pascual Santero, reiterated its Order of July 11, 1975
and ordered the respondent Clerk of Court "to redeem the property covered by Tax
Declaration No. 5469 immediately." The date of the Order, August 4, 1975, is the same
date on which the redemption period was set to expire.

On August 6, 1975, the Deputy Sheriff of Cavite, Mario Abueg, tendered to petitioner/s
Prudential Bank Check No. 140867 dated July 17, 1975 in the sum of P16, 342.00 by
way of redemption of the property in question (Petition, Rollo, p. 3; Comment, Rollo, p.
110).<äre||anº•1àw> The tender was not accepted by the petitioner/s on the ground that
the check was not a certified check, that the amount tendered was insufficient and that
the tender was made after the lapse of the redemption period. On August 8, 1975, the
petitioner/s executed an affidavit of Consolidation and requested the Provincial Sheriff
of Cavite to execute the final deed of conveyance. The provincial sheriff did not issue
the final deed requested by the petitioner/s. Neither did he issue any certificate of
redemption in favor of the legal guardian of Simona.
On January 1, 1976, Simona Pamuti died intestate (Rollo, p. 74). In the special
proceeding for the settlement of the estate of Simona, where one Felisa Pamuti-Jardin
who claimed to be Simona's sole surviving heir was the petitioner, the herein petitioner
Princesita Santero was allowed to intervene not as heir but as "creditors of the intestate
estate of the late Simona Pamuti, or as co-owners, together with said intestate estates,
of certain properties as the interests of said oppositors may appear" (Rollo, p. 95). The
same respondent Clerk of Court was appointed Administrator and eventually, the three
special proceeding/s for the settlement of the intestate estates of Pascual Santero,
Pablo Santero and Simona Pamuti were consolidated.

On June 15, 1976, the respondent Clerk of Court in his capacity as administrator of the
intestate estate of Simona Pamuti, filed a "Motion to Order the Provincial Sheriff of
Cavite To Issue Certificate of Redemption" alleging that on July 17, 1975, before the
expiration of the redemption period on August 4, 1975, payment of the redemption
amount had been tendered and accepted by the Provincial Sheriff of Cavite; that upon
request of the sheriff, another amount of P964.25 was tendered and accepted by the
sheriff's deputy and that the sheriff, having received the full redemption price, is duty
bound to issue a certificate of redemption in favor of the estate of Simona (Annex A,
Petition, Rollo, p. 24). The provincial sheriff was the only party furnished with a copy of
the motion.

On January 13, 1977, the respondent court granted the aforementioned motion. In its
Order, the respondent court stated that on July 17, 1975, the amount of P16,342 "per
check number AN-140867-S of the Prudential Bank of Cavite City", was deposited with
the provincial sheriff, that the provincial sheriff requested Princesita Santero Morales to
get the check but the latter refused to do so because the check was neither a cashier's-
check or a manager's check and because the amount was insufficient; that the
insufficiency was due to the "misinformation erroneously furnished by the sheriff', that
the deficiency which represented interests in the amount of P964.24 was deposited on
August 25, 1975; and that in view of the refusal of Princesita to accept payment, "the
check in the amount of P16,324.00 covering the principal together with interest in the
amount of P964.24 in cash or a total of P17,306.24 were deposited with the Rural Bank
of Kawit under Savings Account No. 13147 in the name of the Provincial Sheriff of
Cavite and for which the Provincial Sheriff had issued a receipt dated July 17, 1975"
(Rollo, pp. 21-22).<äre||anº•1àw> The respondent court ruled that on the basis of the
recited facts, "the administrator herein has complied with the requirements of law for the
redemption of mortgaged properties."

On February 18, 1977, the petitioners filed a Motion for Reconsideration on the grounds
that the respondent probate court does not have jurisdiction to resolve the validity of the
redemption of the property in question; that there was no valid redemption and that the
motion was resolved without giving the herein petitioners a chance to be heard (Rollo,
p. 26). And, on May 3, 1977, the herein petitioners filed a motion for the removal of the
administrator on the grounds that such administrator does not have enough time to
attend to his duties because of his official duties as Clerk of Court of the Court of First
Instance of Cavite; that appointment of Clerks of Court as administrators is disfavored
by the Supreme Court and that the administrator has shown his bias for Felisa Jardin
whose interests as alleged heir of Simona conflicts with that of the herein petitioners. It
was mentioned in petitioners' motion that the administrator was being represented by
the same counsel engaged by Felisa Jardin.

The petitioners' motion for reconsideration was denied on August 18, 1977 (Rollo, p.
33). The respondent Court reiterated the facts mentioned in its January 13, 1977 Order,
and justified its order for the issuance of the certificate of redemption as within its power
"to inquire regarding the proper implementation" of the previous order of August 4, 1975
requiring the immediate redemption of the property. The respondent court further stated
that:

This Court, sitting as a probate court was acting upon a mere incident of
redemption that arose in the settlement of the estates under reference and that,
as such, this Court did not rule categorically as to which party is the rightful
owner of the property in question as the right of ownership could and should be
ruled upon in case of any dispute in a separate action before the proper court. It
added that:

At any rate, movant Princesita Santero, not having been called to participate in
the proceedings which led to the issuance of the Order of January 13, 1977, is
not bound by said Order of this Court. If she is in any way adversely affected by
said Order, then movant should take proper legal steps.

The records indicate that the property in dispute was in the possession of the petitioners
at the time that the controversy regarding its redemption arose. Thus, the respondent
court, on May 17, 1977, ordered that the petitioners turn over the possession to the
herein respondent Clerk of Court-Administrator (Annex K, Petition, Rollo, p.
40).<äre||anº•1àw> It was mentioned in the May 17, 1977 Order that on February 13,
1977, the administrator was temporarily enjoined from taking over possession of the
property and Princesita was likewise enjoined from disposing of its produce; that Felisa
Pamuti-Jardin prayed in a motion dated March 26, 1977 that the administrator be
ordered to take immediate possession to preserve the fruits of the property and that
Felisa's motion was opposed by Princesita on the ground that the validity of the
redemption is pending adjudication. As already stated, the respondent court, under its
May 17, 1977 Order, required the petitioners to surrender possession of the property.

To implement the just cited order, the respondent court, on June 16, 1977, ordered the
administrator to break open the bodega standing on the property. The petitioner/s
allege/s that on June 18, 1977, the respondent sheriff Melgar together with two
policemen entered the premises, forced his way in, opened the bodega by force, hauled
the salt from the bodega (Rollo, p. 6) and, on that occasion, boxed the petitioner
Princesita as a result of which respondent Melgar was charged with Slight Physical
Injuries (Rollo, pp. 127-128).
Thus, the instant petition was filed questioning the validity of the Orders of January 13,
1977, May 17, 1977 and June 16, 1977 on the principal ground that the issue regarding
the validity of the redemption involves a question of ownership which is outside the
jurisdiction of the respondent court as a probate court and that the petitioners may be
deprived of possession of the property only through a separate civil action.

On October 27, 1977, this Court temporarily restrained the respondents from enforcing
the questioned orders and required the respondent Judge Jose Raval and the
respondent Clerk of Court, Atty. Rolando Diaz, to explain why Atty. Diaz as Clerk of
Court has been appointed administrator in violation of the Court's Memorandum Circular
dated August 15, 1975 prohibiting the appointment of Clerks of Court and other
personnel as administrator in any pending case (Rollo, p. 44). Following the
explanations of the Judge and the Clerk of Court which mentioned that Atty. Diaz had
resigned as administrator but no successor has as yet been appointed, this Court, on
December 6, 1977, ordered the respondent judge to immediately discharge the Clerk of
Court as administrator and to appoint a special administrator within five (5) days from
notice.

The petition is meritorious.

As stated in Cuizon vs. Ramolete, 129 SCRA 495, 499 —

It is a well-settled rule that a probate court or one in charge of proceedings

whether testate or intestate cannot adjudicate or determine title to properties
claimed to be a part of the estate and which are equally claimed to belong to
outside parties. All that the said court could do as regards said properties is to
determine whether they should or should not be included in the inventory or list of
properties to be administered by the administrator. If there is no dispute, well and
good; but if there is, then the parties, the administrator, and the opposing parties
have to resort to an ordinary action for a final determination of the conflicting
claims of title because the probate court cannot do so (Mallari v. Mallari, 92 Phil.
694; Baquial v. Amihan, 92 Phil. 501).<äre||anº•1àw>

Similarly, in Valero Vda. de Rodriguez v. Court of Appeals, (91 SCRA 540) we

held that for the purpose of determining whether a certain property should or
should not be included in the inventory, the probate court may pass upon the title
thereto but such determination is not conclusive and is subject to the final
decision in a separate action regarding ownership which may be instituted by the
parties (3 Moran's Comments on the Rules of Court, 1970 Edition, pages 448449
and 473; Lachenal v. Salas,
L-42257, June 14, 1976, 71 SCRA 262, 266).

The provisional character of the inclusion in the inventory of a contested property was
stressed in Pio Barreto Realty Development, Inc. vs. Court of Appeals, 131 SCRA 606
where the cases of Junguera vs. Borromeo, 19 SCRA 565; Borromeo vs. Canonoy, 19
SCRA 667; Recto vs. de la Rosa, 75 SCRA 226 and Bolisay v. Alcid, 85 SCRA 213, on
the same elemental principle were cited. In the case at bar, the question regarding the
validity of the redemption which was supposed to have been made by the respondent
clerk of court as guardian and then later as administrator of the estate of Simona
Pamuti, is determinative of the ownership of the property in question. The Order of
January 13, 1977 wherein the validity of the redemption was upheld is effectively a
judgment that the property is owned by the estate of Simona Pamuti Contrary to the
ruling of the respondent court, such order is not merely an implementation of the July
11, 1975 Order as reiterated in the August 4, 1975 Order. At that time, the petitioners
had already asserted ownership having executed the affidavit of consolidation on
August 8, 1975, and the administrator of Simona's estate, on the other hand had
likewise asserted his redemption of the property, having deposited with the sheriff the
check in the amount which was believed to be the proper redemption price. Since the
sheriff did not issue a final deed in favor of the petitioners, and neither did he issue a
certificate of redemption in favor of the estate of Simona, there was, then, a clearly
existing ownership contest between the parties.

The controversy was not whether or not the redemption ordered by the respondent
court was done, but whether or not such redemption, as done, was valid. According to
settled jurisprudence, such controversy is outside the jurisdiction of the probate court.
Parenthetically, it must be mentioned that the respondent court itself had, at that time,
already determined that the petitioners are intervenors in the settlement proceedings of
Simona's estate not as heirs but as "co-owners" with the intestate estates, and the
respondent court in fact would later state in the January 13, 1977 order that the
petitioners have "not been called to participate in the proceedings." The petitioners, are,
therefore, outside parties claiming title to property included in the inventory of properties
under administration.

To use the language of Bolisay vs. Alcid, 85 SCRA 213, it does appear strange that the
respondent court, after saying that it "did not rule categorically as to which party is the
rightful owner of the property in question", proceeded to Order thereafter that the
possession should be surrendered by the petitioners. Such latter Order clearly indicated
that the respondent court stated the opposite of what it meant.

Indeed the contrariness of even the factual basis of the Order of January 13, 1977 is
patent. Thus, if stated that on July 17, 1975 the check in the amount of P16,342.00 was
deposited with the Sheriff, that on July 21, 1975 the petitioner refused to get the check
partly because of the insufficiency of the amount, that the amount corresponding to the
deficiency was deposited on August 25, 1975, and that because of the refusal of the
petitioners to accept the original amount and the additional amount, the total amount of
P17,306.24 was deposited in the Rural Bank of Cavite, in the name of the Sheriff for
which such sheriff issued a receipt dated July 17, 1975. How the sheriff was able to
issue on July 17, 1975 a receipt for an amount that was determined only on August 25,
1975 defies explanation. There definitely is some doubt as to when the redemption price
was tendered, considering, additionally, the submission of the petitioners in their reply
that the supposed completion of the redemption price was made only on March 10,
1976 and not August 25, 1975 and that the check for the sum of P16,342.00 issued by
the Rural Bank of Kawit is dated March 3, 1976 (Rollo, p. 128). The respondents
correctly asserted in their Memorandum that upon payment to the sheriff of the
redemption money, it is but ministerial for the sheriff to issue the certificate of
redemption (Rollo, p. 160). It was stated in Atega vs. Ortiz, 27 SCRA 427,429 that:

We are of the opinion and so hold that Section 27 of Rule 39 of the Rules of
Court, in relation to the provisions of Act 3135 as amended by Act 4118 is
decisive of the above issue. It provides that the payment of the redemption
money should be made "to the purchaser or redemptioner, or for him to the
officer who made the sale." And it has been held in this connection that it is the
duty of the officer who made the sale to accept the tender of payment and
execute the corresponding certificate of redemption provided such tender is
made within the period for the purpose (Enage vs. Vda. A. Escano, 38 Phil. 657).

It must be noted however that the above-cited principle is based on the premise that the
tender is made within the period and in the correct amount. Such basis is precisely the
bone of contention in the instant case. Apart from the uncertainty of the factual basis of
the order of January 13, 1977, as already shown above, it may be mentioned
additionally that the asserted fact of payment on July 17, 1975 cannot be, insofar as the
records submitted to this Court are concerned, beyond doubt because as late as August
4, 1977, the respondent Court still had to order the respondent Clerk of Court to redeem
the property "immediately"

IN VIEW OF THE FOREGOING, the questioned Orders of January 13, 1977, May 17,
1977 and June 16, 1977 are declared VOID for having been issued beyond the
jurisdiction of the probate court; and the restraining order issued by this Court on
October 26, 1977 is made permanent, without prejudice to the filing of a separate action
by the present administrator (of the intestate estate of Simona Pamuti) (where the
question of the redemption of the disputed property can be conclusively determined)
within 30 days from finality of this decision.

SO ORDERED.