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G.R. No. 83484 February 12, 1990


This case involves the estate of the late novelist, Esteban

Javellana, Jr.,
After a careful review of the records, we find merit in the
petitioner's contention that the Regional Trial Court, Branch 26,
lacked jurisdiction to entertain Concordia Villanueva's action for
partition and recovery of her share of the estate of Esteban
Javellana, Jr. while the probate proceedings (Spl, Proc. No. 2540)
for the settlement of said estate are still pending in Branch 23 of
the same court, there being as yet no orders for the submission
and approval of the administratix's inventory and accounting,
distributing the residue of the estate to the heir, and terminating
the proceedings.
It is the order of distribution directing the delivery of the residue of
the estate to the persons entitled thereto that brings to a close
the intestate proceedings, puts an end to the administration and
thus far relieves the administrator from his duties.
The assailed order of Judge Adil in Spl. Proc. No. 2540 declaring
Celedonia as the sole heir of the estate of Esteban Javellana, Jr.
did not toll the end of the proceedings. As a matter of fact, the
last paragraph of the order directed the administratrix to "hurry
up the settlement of the estate."
In view of the pendency of the probate proceedings in Branch 11
of the Court of First Instance (now RTC, Branch 23), Concordia's
motion to set aside the order declaring Celedonia as sole heir of
Esteban, and to have herself (Concordia) declared as co-heir and
recover her share of the properties of the deceased, was properly
filed by her in Spl. Proc. No. 2540. Her remedy when the court
denied her motion, was to elevate the denial to the Court of
Appeals for review on certiorari. However, instead of availing of
that remedy, she filed more than one year later, a separate action
for the same purpose in Branch 26 of the court. We hold that the
separate action was improperly filed for it is the probate court that
has exclusive jurisdiction to make a just and legal distribution of
the estate.
In the interest of orderly procedure and to avoid confusing and
conflicting dispositions of a decedent's estate, a court should not
interfere with probate proceedings pending in a co-equal court.
Considering that in the instant case, the estate proceedings are
still pending, but nonetheless, Concordia had lost her right to have
herself declared as co-heir in said proceedings, We have opted
likewise to proceed to discuss the merits of her claim in the
interest of justice.
The orders of the Regional Trial Court, Branch 26, in Civil Case No.
13207 setting aside the probate proceedings in Branch 23
(formerly Branch 11) on the ground of extrinsic fraud, and
declaring Concordia Villanueva to be a co-heir of Celedonia to the
estate of Esteban, Jr., ordering the partition of the estate, and
requiring the administratrix, Celedonia, to submit an inventory
and accounting of the estate, were improper and officious, to say

the least, for these matters he within the exclusive competence of

the probate court.
Evidently, Concordia was not prevented from intervening in the
proceedings. She stayed away by choice. Besides, she knew that
the estate came exclusively from Esteban's mother, Salustia
Solivio, and she had agreed with Celedonia to place it in a
foundation as the deceased had planned to do.
Celedonia's allegation in her petition that she was the sole heir of
Esteban within the third degree on his mother's side was not false.
Moreover, it was made in good faith and in the honest belief that
because the properties of Esteban had come from his mother, not
his father, she, as Esteban's nearest surviving relative on his
mother's side, is the rightful heir to them. It would have been selfdefeating and inconsistent with her claim of sole heirshipif she
stated in her petition that Concordia was her co-heir. Her omission
to so state did not constitute extrinsic fraud.
It should be remembered that a petition for administration of a
decedent's estate may be filed by any "interested person" (Sec. 2,
Rule 79, Rules of Court). The filing of Celedonia's petition did not
preclude Concordia from filing her own.
G.R. No. L-33172 October 18, 1979

Judicial rulings consistently hold the view that where partition is

possible, either judicial or extrajudicial, the estate should not be
burdened with an administration proceeding without good and
compelling reason. When the estate has no creditors or pending
obligations to be paid, the beneficiaries in interest are not bound
to submit the property to judicial administration which is always
long and costly, or to apply for the appointment of an
administrator by the court, especially when judicial administration
is unnecessary and superfluous.
In the records of this case, We find no indication of any
indebtedness of the estate. No creditor has come up to charge the
estate within the two-year period after the death of Forrest L.
Cease, hence, the presumption under Section 1, Rule 74 that the
estate is free from creditors must apply. Neither has the status of
the parties as legal heirs, much less that of respondents, been
raised as an issue. Besides, extant in the records is the stipulation
of the parties to submit the pleadings and contents of the
administration proceedings for the cognizance of the trial judge in
adjudicating the civil case for partition (Respondents' Brief, p, 20,
rollo). As respondents observe, the parties in both cases are the
same, so are the properties involved; that actual division is the
primary objective in both actions; the theory and defense of the
respective parties are likewise common; and that both cases have
been assigned to the same respondent judge. We feel that the
unifying effect of the foregoing circumstances invites the
wholesome exception to the structures of procedural rule, thus
allowing, instead, room for judicial flexibility. Respondent judge's
dismissal of the administration proceedings then, is a judicious
move, appreciable in today's need for effective and speedy
administration of justice. There being ample reason to support the
dismissal of the special proceedings in this appealed case, We
cannot see in the records any compelling reason why it may not
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be dismissed just the same even if considered in a separate

action. This is inevitably certain specially when the subject
property has already been found appropriate for partition, thus
reducing the petition for administration to a mere unnecessary
Petitioners' argument has only theoretical persuasion, to say the
least, rather apparent than real. It must be remembered that
when Tiaong Milling adduced its defense and raised the issue of
ownership, its corporate existence already terminated through the
expiration of its charter. It is clear in Section 77 of Act No. 1459
(Corporation Law) that upon the expiration of the charter period,
the corporation ceases to exist and is dissolvedipso facto except
for purposes connected with the winding up and liquidation. The
provision allows a three year, period from expiration of the charter
within which the entity gradually settles and closes its affairs,
disposes and convey its property and to divide its capital stock,
but not for the purpose of continuing the business for which it was
established. At this terminal stage of its existence, Tiaong Milling
may no longer persist to maintain adverse title and ownership of
the corporate assets as against the prospective distributees when
at this time it merely holds the property in trust, its assertion of
ownership is not only a legal contradiction, but more so, to allow it
to maintain adverse interest would certainly thwart the very
purpose of liquidation and the final distribute loll of the assets to
the proper, parties.
In reposing ownership to the estate of Forrest L. Cease, the trial
court indeed found strong support, one that is based on a wellentrenched principle of law. In sustaining respondents' theory of
"merger of Forrest L. Cease and The Tiaong Milling as one
personality", or that "the company is only the business conduit
and alter ego of the deceased Forrest L. Cease and the registered
properties of Tiaong Milling are actually properties of Forrest L.
Cease and should be divided equally, share and share alike among
his six children, ... ", the trial court did aptly apply the familiar
exception to the general rule by disregarding the legal fiction of
distinct and separate corporate personality and regarding the
corporation and the individual member one and the same.
If there were a valid genuine claim of Exclusive ownership of the
inherited properties on the part of petitioners to respondents'
action for partition, then under the Miranda ruling, petitioners
would be sustained, for as expressly held therein " the general
rule of partition that an appeal will not lie until the partition or
distribution proceedings are terminated will not apply where
appellant claims exclusive ownership of the whole property and
denies the adverse party's right to any partition."
But this question has now been rendered moot and academic for
the very issue of exclusive ownership claimed by petitioners to
deny and defeat respondents' right to partition - which is the very
core of their rejected appeal - has been squarely resolved herein
against them, as if the appeal had been given due course. The
Court has herein expressly sustained the trial court's findings, as
affirmed by the Court of Appeals, that the assets or properties of
the defunct company constitute the estate of the deceased
proprietor (supra at page 7) and the defunct company's assertion
of ownership of the properties is a legal contradiction and would
but thwart the liquidation and final distribution and partition of the
properties among the parties hereof as children of their deceased
father Forrest L. Cease. There is therefore no further hindrance to
effect the partition of the properties among the parties in
implementation of the appealed judgment.

G.R. No. L-81147 June 20, 1989

Is a judicial administration proceeding necessary when the
decedent dies intestate without leaving any debts? May the
probate court appoint the surviving sister of the deceased as the
administratrix of the estate of the deceased instead of the
surviving spouse? These are the main questions which need to be
resolved in this case.
The resolution of this issue is better left to the probate court
before which the administration proceedings are pending. The trial
court is in the best position to receive evidence on the discordant
contentions of the parties as to the assets of the decedent's
estate, the valuations thereof and the rights of the transferees of
some of the assets, if any. 6 The function of resolving whether or
not a certain property should be included in the inventory or list of
properties to be administered by the administrator is one clearly
within the competence of the probate court. However, the court's
determination is only provisional in character, not conclusive, and
is subject to the final decision in a separate action which may be
instituted by the parties. 7
Assuming, however, that there exist assets of the deceased
Andres de Guzman Pereira for purposes of administration, We
nonetheless find the administration proceedings instituted by
private respondent to be unnecessary as contended by petitioner
for the reasons herein below discussed.
The general rule is that when a person dies leaving property, the
same should be judicially administered and the competent court
should appoint a qualified administrator, in the order established
in Section 6, Rule 78, in case the deceased left no will, or in case
he had left one, should he fail to name an executor therein. 8 An
exception to this rule is established in Section 1 of Rule
74. 9 Under this exception, when all the heirs are of lawful age and
there are no debts due from the estate, they may agree in writing
to partition the property without instituting the judicial
administration or applying for the appointment of an
Section 1, Rule 74 of the Revised Rules of Court, however, does
not preclude the heirs from instituting administration proceedings,
even if the estate has no debts or obligations, if they do not desire
to resort for good reasons to an ordinary action for partition. While
Section 1 allows the heirs to divide the estate among themselves
as they may see fit, or to resort to an ordinary action for partition,
the said provision does not compel them to do so if they have
good reasons to take a different course of action. 10 It should be
noted that recourse to an administration proceeding even if the
estate has no debts is sanctioned only if the heirs have good
reasons for not resorting to an action for partition. Where partition
is possible, either in or out of court, the estate should not be
burdened with an administration proceeding without good and
compelling reasons. 11
Thus, it has been repeatedly held that when a person dies without
leaving pending obligations to be paid, his heirs, whether of age
or not, are not bound to submit the property to a judicial
administration, which is always long and costly, or to apply for the
appointment of an administrator by the Court. It has been
uniformly held that in such case the judicial administration and
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the appointment of an
unnecessary proceedings.





We see no reason not to apply this doctrine to the case at bar.

There are only two surviving heirs, a wife of ten months and a
sister, both of age. The parties admit that there are no debts of
the deceased to be paid. What is at once apparent is that these
two heirs are not in good terms. The only conceivable reason why
private respondent seeks appointment as administratrix is for her
to obtain possession of the alleged properties of the deceased for
her own purposes, since these properties are presently in the
hands of petitioner who supposedly disposed of them fraudulently.
We are of the opinion that this is not a compelling reason which
will necessitate a judicial administration of the estate of the
deceased. To subject the estate of Andres de Guzman Pereira,
which does not appear to be substantial especially since the only
real property left has been extrajudicially settled, to an
administration proceeding for no useful purpose would only
unnecessarily expose it to the risk of being wasted or squandered.
In most instances of a similar nature, 16 the claims of both parties
as to the properties left by the deceased may be properly
ventilated in simple partition proceedings where the creditors,
should there be any, are protected in any event.
We, therefore, hold that the court below before which the
administration proceedings are pending was not justified in issuing
letters of administration, there being no good reason for
burdening the estate of the deceased Andres de Guzman Pereira
with the costs and expenses of an administration proceeding.
G.R. No. 155555. August 16, 2005
JR., Petitioners, vs. LEONILA PORTUGAL-BELTRAN, Respondent.
In the case at bar, respondent, believing rightly or wrongly that
she was the sole heir to Portugals estate, executed on February
15, 198835 the questioned Affidavit of Adjudication under the
second sentence of Rule 74, Section 1 of the Revised Rules of
Court.36 Said rule is an exception to the general rule that when a
person dies leaving a property, it should be judicially administered
and the competent court should appoint a qualified administrator,
in the order established in Sec. 6, Rule 78 in case the deceased
left no will, or in case he did, he failed to name an executor
A probate or intestate court, no doubt, has jurisdiction to declare
who are the heirs of a deceased.
It appearing, however, that in the present case the only property
of the intestate estate of Portugal is the Caloocan parcel of
land,38 to still subject it, under the circumstances of the case, to a
special proceeding which could be long, hence, not expeditious,
just to establish the status of petitioners as heirs is not only
impractical; it is burdensome to the estate with the costs and
expenses of an administration proceeding. And it is superfluous in
light of the fact that the parties to the civil case subject of the
present case, could and had already in fact presented evidence
before the trial court which assumed jurisdiction over the case
upon the issues it defined during pre-trial.
In fine, under the circumstances of the present case, there being
no compelling reason to still subject Portugals estate to
administration proceedings since a determination of petitioners

status as heirs could be achieved in the civil case filed by

petitioners,39 the trial court should proceed to evaluate the
evidence presented by the parties during the trial and render a
decision thereon upon the issues it defined during pre-trial.
G.R. No. 115181

March 31, 2000

AVELINO, petitioner, vs.



When a person dies intestate, or, if testate, failed to name an

executor in his will or the executor so named is incompetent, or
refuses the trust, or fails to furnish the bond required by the Rules
of Court, then the decedent's estate shall be judicially
administered and the competent court shall appoint a qualified
administrator in the order established in Section 6 of Rule 78. 5 The
exceptions to this rule are found in Sections 1 and 2 of Rule
746 which provide:
Sec. 1. Extrajudicial settlement by agreement between
heirs. If the decedent left no will and no debts and the
heirs are all of age or the minors are represented by
their judicial or legal representatives duly authorized for
the purpose, the parties may, without securing letters of
administration, divide the estate among themselves as
they see fit by means of a public instrument filed in the
office of the register of deeds, and should they disagree,
they may do so in an ordinary action of partition. . .
Sec. 2. Summary settlement of estates of small value.
Whenever the gross value of the estate of a deceased
person, whether he died testate or intestate, does not
exceed ten thousand pesos, and that fact if made to
appear to the Regional Trial Court having jurisdiction of
the estate by the petition of an interested person and
upon hearing, which shall be held not less than one (1)
month nor more than three (3) months from the date of
the last publication of a notice which shall be published
once a week for three (3) consecutive weeks in a
newspaper of general circulation in the province, and
after such other notice to interested persons as the court
may direct, the court may proceed summarily, without
the appointment of an executor or administrator, and
without delay, to grant, if proper, allowance of the will, if
any there be, to determine who are the persons legally
entitled to participate in the estate and to apportion and
divide it among them after the payment of such debts of
the estate as the court shall then find to be due; and
such persons, in their own right, if they are lawful age
and legal capacity, or by their guardians or trustees
legally appointed and qualified, if otherwise, shall
thereupon be entitled to receive and enter into the
possession of the portions of the estate so awarded to
them respectively. The court shall make such order as
may be just respecting the costs of the proceedings, and
all orders and judgments made or rendered in the course
thereof shall be recorded in the office of the clerk, and
the order of partition or award, if it involves real estate,
shall be recorded in the proper register's office.1awp+
The heirs succeed immediately to all of the rights and properties
of the deceased at the moment of the latter's death. 7 Section 1,
Rule 74 of the Rules of Court, allows heirs to divide the estate
among themselves without need of delay and risks of being
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dissipated. When a person dies without leaving pending

obligations, his heirs, are not required to submit the property for
judicial administration, nor apply for the appointment of an
administrator by the court.8
We note that the Court of Appeals found that in this case "the
decedent left no debts and the heirs and legatees are all of
age."9 With this finding, it is our view that Section 1, Rule 74 of the
Rules of Court should apply.
We find, however, that a complete inventory of the estate may be
done during the partition proceedings, especially since the estate
has no debts. Hence, the Court of Appeals committed no
reversible error when it ruled that the lower court did not err in
converting petitioner's action for letters of administration into an
action for judicial partition.
Nor can we sustain petitioner's argument that the order of the trial
court converting an action for letters of administration to one for
judicial partition has no basis in the Rules of Court, hence
procedurally infirm. The basis for the trial court's order is Section
1, Rule 74 of the Rules of Court. It provides that in cases where
the heirs disagree as to the partition of the estate and no
extrajudicial settlement is possible, then an ordinary action for
partition may be resorted to, as in this case. We have held that
where the more expeditious remedy of partition is available to the
heirs, then the heirs or the majority of them may not be
compelled to submit to administration proceedings. 10 The trial
court appropriately converted petitioner's action for letters of
administration into a suit for judicial partition, upon motion of the
private respondents. No reversible error may be attributed to the
Court of Appeals when it found the trial court's action procedurally
in order.
G.R. No. 154322 August 22, 2006
The issue for our consideration is whether or not there needs to be
a prior settlement of Leandros intestate estate (that is, an
accounting of the income of Lots 2299 and 705, the payment of
expenses, liabilities and taxes, plus compliance with other legal
requirements, etc.) before the properties can be partitioned or
There are two ways by which partition can take place under Rule
69: by agreement under Section 211 and through commissioners
when such agreement cannot be reached, under Sections 3 to 6. 12
Neither method specifies a procedure for determining expenses
chargeable to the decedents estate. While Section 8 of Rule 69
provides that there shall be an accounting of the real propertys
income (rentals and profits) in the course of an action for
partition,13 there is no provision for the accounting of expenses for
which property belonging to the decedents estate may be
answerable, such as funeral expenses, inheritance taxes and
similar expenses enumerated under Section 1, Rule 90 of the
Rules of Court.
In a situation where there remains an issue as to the expenses
chargeable to the estate, partition is inappropriate. While
petitioner points out that the estate is allegedly without any debt

and she and respondents are Leandro Figuracions only legal heirs,
she does not dispute the finding of the CA that "certain expenses"
including those related to her fathers final illness and burial have
not been properly settled.14 Thus, the heirs (petitioner and
respondents) have to submit their fathers estate to settlement
because the determination of these expenses cannot be done in
an action for partition.
In estate settlement proceedings, there is a proper procedure for
the accounting of all expenses for which the estate must answer.
If it is any consolation at all to petitioner, the heirs or distributees
of the properties may take possession thereof even before the
settlement of accounts, as long as they first file a bond
conditioned on the payment of the estates obligations. 15
G.R. No. 129163

April 22, 2003


pronouncements on (1) the illegitimacy of their relationship with
Purificacion; (2) the validity of the Salhays purchase of a portion
of the disputed lot; and (3) the impropriety of the RTC Order
partitioning that lot.
We agree with the appellate court. The purpose of partition is to
put an end to co-ownership. It seeks a severance of the individual
interests of co-owners, vesting in each of them a sole estate in a
specific property and a right to enjoy the allotted estate without
supervision or interference.20
Petitioners in this case were unable to establish any right to
partition, because they had failed to establish that they were
legitimate half-brothers and half-sisters of the deceased
Purificacion. Questions as to the determination of the heirs of a
decedent, the proof of filiation, and the determination of the
estate of a decedent and claims thereto should be brought up
before the proper probate court or in special proceedings
instituted for the purpose. Such issues cannot be adjudicated in
an ordinary civil action for the recovery of ownership and
G.R. No. 122880

April 12, 2006


CASTILLO, Respondents.
The failure of the attestation clause to state the number of pages
on which the will was written remains a fatal flaw, despite Article
809. The purpose of the law in requiring the clause to state the
number of pages on which the will is written is to safeguard
against possible interpolation or omission of one or some of its
pages and to prevent any increase or decrease in the pages. 33 The
failure to state the number of pages equates with the absence of
an averment on the part of the instrumental witnesses as to how
many pages consisted the will, the execution of which they had
ostensibly just witnessed and subscribed to. Following Caneda,
there is substantial compliance with this requirement if the will
states elsewhere in it how many pages it is comprised of, as was
the situation inSingson and Taboada. However, in this case, there
could have been no substantial compliance with the requirements
under Article 805 since there is no statement in the attestation
Page 4 of 14


clause or anywhere in the will itself as to the number of pages

which comprise the will.
At the same time, Article 809 should not deviate from the need to
comply with the formal requirements as enumerated under Article
805. Whatever the inclinations of the members of the Code
Commission in incorporating Article 805, the fact remains that
they saw fit to prescribe substantially the same formal requisites
as enumerated in Section 618 of the Code of Civil Procedure,
convinced that these remained effective safeguards against the
forgery or intercalation of notarial wills. 34 Compliance with these
requirements, however picayune in impression, affords the public
a high degree of comfort that the testator himself or herself had
decided to convey property post mortem in the manner
established in the will. 35 The transcendent legislative intent,
even as expressed in the cited comments of the Code
Commission, is for the fruition of the testators
incontestable desires, and not for the indulgent admission
of wills to probate.
For one, the attestation clause was not signed by the
witnesses. While
instrumental witnesses appear on the left-hand margin of the will,
they do not appear at the bottom of the attestation clause which
after all consists of their averments before the notary public.
We are of the opinion that the position taken by the appellant is
correct. The attestation clause is "a memorandum of the facts
attending the execution of the will" required by law to be made by
the attesting witnesses, and it must necessarily bear their
signatures. An unsigned attestation clause cannot be considered
as an act of the witnesses, since the omission of their signatures
at the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three
witnesses on the left-hand margin conform substantially to the law
and may be deemed as their signatures to the attestation clause.
This is untenable, because said signatures are in compliance with
the legal mandate that the will be signed on the left-hand margin
of all its pages. If an attestation clause not signed by the three
witnesses at the bottom thereof, be admitted as sufficient, it
would be easy to add such clause to a will on a subsequent
occasion and in the absence of the testator and any or all of the
The respective intents behind these two classes of signature are
distinct from each other. The signatures on the left-hand corner of
every page signify, among others, that the witnesses are aware
that the page they are signing forms part of the will. On the other
hand, the signatures to the attestation clause establish that the
witnesses are referring to the statements contained in the
attestation clause itself. Indeed, the attestation clause is separate
and apart from the disposition of the will. An unsigned attestation
clause results in an unattested will. Even if the instrumental
witnesses signed the left-hand margin of the page containing the
unsigned attestation clause, such signatures cannot demonstrate
these witnesses undertakings in the clause, since the signatures
that do appear on the page were directed towards a wholly
different avowal.
The Court may be more charitably disposed had the witnesses in
this case signed the attestation clause itself, but not the left-hand
margin of the page containing such clause. Without diminishing
the value of the instrumental witnesses signatures on each and
every page, the fact must be noted that it is the attestation clause

which contains the utterances reduced into writing of the

testamentary witnesses themselves. It is the witnesses, and not
the testator, who are required under Article 805 to state the
number of pages used upon which the will is written; the fact that
the testator had signed the will and every page thereof; and that
they witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another. The only proof in the
will that the witnesses have stated these elemental facts would be
their signatures on the attestation clause.
Yet, there is another fatal defect to the will on which the denial of
this petition should also hinge. The requirement under Article 806
that "every will must be acknowledged before a notary public by
the testator and the witnesses" has also not been complied with.
The importance of this requirement is highlighted by the fact that
it had been segregated from the other requirements under Article
805 and entrusted into a separate provision, Article 806. The nonobservance of Article 806 in this case is equally as critical as the
other cited flaws in compliance with Article 805, and should be
treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y.
Bautista, wrote "Nilagdaan ko at ninotario ko ngayong10 ng
Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no manner
of contemplation can those words be construed as an
acknowledgment. An acknowledgment is the act of one who has
executed a deed in going before some competent officer or court
and declaring it to be his act or deed. 41 It involves an extra step
undertaken whereby the signor actually declares to the notary
that the executor of a document has attested to the notary that
the same is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even
though it does not hew to the usual language thereof. A jurat is
that part of an affidavit where the notary certifies that before
him/her, the document was subscribed and sworn to by the
executor.42 Ordinarily, the language of the jurat should avow that
the document was subscribed and sworn before the notary public,
while in this case, the notary public averred that he himself
"signed and notarized" the document. Possibly though, the word
"ninotario" or "notarized" encompasses the signing of and
swearing in of the executors of the document, which in this case
would involve the decedent and the instrumental witnesses.
Yet even if we consider what was affixed by the notary public as
a jurat, the will would nonetheless remain invalid, as the express
requirement of Article 806 is that the will be "acknowledged", and
not merely subscribed and sworn to. The will does not present any
textual proof, much less one under oath, that the decedent and
the instrumental witnesses executed or signed the will as their
own free act or deed. The acknowledgment made in a will
provides for another all-important legal safeguard against
spurious wills or those made beyond the free consent of the
testator. An acknowledgement is not an empty meaningless
act.43 The acknowledgment coerces the testator and the
instrumental witnesses to declare before an officer of the law that
they had executed and subscribed to the will as their own free act
or deed. Such declaration is under oath and under pain of perjury,
thus allowing for the criminal prosecution of persons who
participate in the execution of spurious wills, or those executed
without the free consent of the testator. It also provides a further
degree of assurance that the testator is of certain mindset in
making the testamentary dispositions to those persons he/she had
designated in the will.

Page 5 of 14


It may not have been said before, but we can assert the rule, selfevident as it is under Article 806. A notarial will that is not
acknowledged before a notary public by the testator and
the witnesses is fatally defective, even if it is subscribed
and sworn to before a notary public.
G.R. No. L-40502 November 29, 1976
Section 1, Rule 73 of the Revised Rules of Court provides: "If the
decedent is an inhabitant of the Philippines at the time of his
death, whether a citizen or an alien, his will shall be proved, or
letters of administration granted, and his estate settled, in the
Court of First Instance in the province in which he resides at the
time of his death, and if he is an inhabitant of a foreign country,
the Court of First Instance of any province in which he had estate.
The court first taking cognizance of the settlement of the estate of
a decedent, shall exercise jurisdiction to the exclusion of all other
courts. The jurisdiction assumed by a court, so far as it depends
on the place of residence of the decedent, or of the location of his
estate, shall not be contested in a suit or proceeding, except in an
appeal from that court, in the original case, or when the want of
jurisdiction appears on the record." With particular regard to
letters of administration, Section 2, Rule 79 of the Revised Rules of
Court demands that the petition therefor should affirmatively
show the existence of jurisdiction to make the appointment
sought, and should allege all the necessary facts, such as death,
the name and last residence of the decedent, the existence, and
situs if need be, of assets, intestacy, where this is relied upon, and
the right of the person who seeks administration, as next of kin,
creditor, or otherwise, to be appointed. The fact of death of the
intestate and his last residence within the country are foundation
facts upon which all subsequent proceedings in the administration
of the estate rest, and that if the intestate was not an inhabitant
of the state at the time of his death, and left no assets in the
state, no jurisdiction is conferred on the court to grant letters of
administration. 3
The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1),
specifically the clause "so far as it depends on the place of
residence of the decedent, or of the location of the estate," is in
reality a matter of venue, as the caption of the Rule indicates:
"Settlement of Estate of Deceased Persons. Venue and Processes.

In the application of venue statutes and rules Section 1, Rule

73 of the Revised Rules of Court is of such nature
residence rather than domicile is the significant factor.

certificate is admissible to prove the residence of the decedent at

the time of his death. 12 As it is, the death certificate of Amado G.
Garcia, which was presented in evidence by Virginia G. Fule
herself and also by Preciosa B. Garcia, shows that his last place of
residence was at 11 Carmel Avenue, Carmel Subdivision, Quezon
City. Aside from this, the deceased's residence certificate for 1973
obtained three months before his death; the Marketing Agreement
and Power of Attorney dated November 12, 1971 turning over the
administration of his two parcels of sugar land to the Calamba
Sugar Planters Cooperative Marketing Association, Inc.; the Deed
of Donation dated January 8, 1973, transferring part of his interest
in certain parcels of land in Calamba, Laguna to Agustina B.
Garcia; and certificates of titles covering parcels of land in
Calamba, Laguna, show in bold documents that Amado G. Garcia's
last place of residence was at Quezon City. Withal, the conclusion
becomes imperative that the venue for Virginia C. Fule's petition
for letters of administration was improperly laid in the Court of
First Instance of Calamba, Laguna. Nevertheless, the long-settled
rule is that objection to improper venue is subject to waiver.
Section 4, Rule 4 of the Revised Rules of Court states: "When
improper venue is not objected to in a motion to dismiss, it is
deemed waived." In the case before Us the Court of Appeals had
reason to hold that in asking to substitute Virginia G. Fule as
special administratrix, Preciosa B. Garcia did not necessarily waive
her objection to the jurisdiction or venue assumed by the Court of
First Instance of Calamba, Laguna, but availed of a mere practical
resort to alternative remedy to assert her rights as surviving
spouse, while insisting on the enforcement of the Rule fixing the
proper venue of the proceedings at the last residence of the
Nevertheless, the discretion to appoint a special administrator or
not lies in the probate court. 15That, however, is no authority for
the judge to become partial, or to make his personal likes and
dislikes prevail over, or his passions to rule, his judgment. Exercise
of that discretion must be based on reason, equity, justice and
legal principle. There is no reason why the same fundamental and
legal principles governing the choice of a regular administrator
should not be taken into account in the appointment of a special
administrator. 16 Nothing is wrong for the judge to consider the
order of preference in the appointment of a regular administrator
in appointing a special administrator. After all, the consideration
that overrides all others in this respect is the beneficial interestof
the appointee in the estate of the decedent. 17 Under the law, the
widow would have the right of succession over a portion of the
exclusive property of the decedent, besides her share in the
conjugal partnership. For such reason, she would have as such, if
not more, interest in administering the entire estate correctly than
any other next of kin. The good or bad administration of a
property may affect rather the fruits than the naked ownership of
a property. 18

In other words, "resides" should be viewed or understood in its

popular sense, meaning, the personal, actual or physical
habitation of a person, actual residence or place of abode. It
signifies physical presence in a place and actual stay thereat. In
this popular sense, the term means merely residence, that is,
personal residence, not legal residence or domicile. 9 Residence
simply requires bodily presence as an inhabitant in a given place,
while domicile requires bodily presence in that place and also an
intention to make it one's domicile. 10 No particular length of time
of residence is required though; however, the residence must be
more than temporary. 11
On this issue, We rule that the last place of residence of the
deceased Amado G. Garcia was at 11 Carmel Avenue, Carmel
Subdivision, Quezon City, and not at Calamba, Laguna. A death

We rule that Preciosa B. Garcia is prima facie entitled to the

appointment of special administratrix. It needs be emphasized
that in the issuance of such appointment, which is but temporary
and subsists only until a regular administrator is appointed, 20 the
appointing court does not determine who are entitled to share in
the estate of the decedent but who is entitled to the
administration. The issue of heirship is one to be determined in
the decree of distribution, and the findings of the court on the
relationship of the parties in the administration as to be the basis
of distribution. 21 The preference of Preciosa B. Garcia is with
sufficient reason.
G.R. No. 156021 September 23, 2005
Page 6 of 14







petition for annulment of judgment; otherwise, they would benefit

from their own inaction or negligence.41

Section 37 of the Rules of Court allows an aggrieved party to file a

motion for new trial on the ground of fraud, accident, mistake, or
excusable negligence. The same

According to the Rules, notice is required to be personally given to

known heirs, legatees, and devisees of the testator. 48 A perusal of
the will shows that respondent was instituted as the sole heir of
the decedent. Petitioners, as nephews and nieces of the decedent,
are neither compulsory nor testate heirs 49 who are entitled to be
notified of the probate proceedings under the Rules. Respondent
had no legal obligation to mention petitioners in the petition for
probate, or to personally notify them of the same.

Rule permits the filing of a motion for reconsideration on the

grounds of excessive award of damages, insufficiency of evidence
to justify the decision or final order, or that the decision or final
order is contrary to law.32 Both motions should be filed within the
period for taking an appeal, or fifteen (15) days from notice of the
judgment or final order.
Meanwhile, a petition for relief from judgment under Section 3 of
Rule 38 is resorted to when a judgment or final order is entered, or
any other proceeding is thereafter taken, against a party in any
court through fraud, accident, mistake, or excusable negligence.
Said party may file a petition in the same court and in the same
case to set aside the judgment, order or proceeding. It must be
filed within sixty (60) days after the petitioner learns of the
judgment and within six (6) months after entry thereof. 33
A motion for new trial or reconsideration and a petition for relief
from judgment are remedies available only to parties in the
proceedings where the assailed
judgment is rendered.34 In fact, it has been held that a person who
was never a party to the case, or even summoned to appear
therein, cannot avail of a petition for relief from judgment. 35
However, petitioners in this case are mistaken in asserting that
they are not or have not become parties to the probate
Publication is notice to the whole world that the proceeding has
for its object to bar indefinitely all who might be minded to make
an objection of any sort against the right sought to be established.
It is the publication of such notice that brings in the whole world
as a party in the case and vests the court with jurisdiction to hear
and decide it.40 Thus, even though petitioners were not mentioned
in the petition for probate, they eventually became parties thereto
as a consequence of the publication of the notice of hearing.
As parties to the probate proceedings, petitioners could have
validly availed of the remedies of motion for new trial or
reconsideration and petition for relief from judgment. In fact,
petitioners filed a motion to reopen, which is essentially a motion
for new trial, with petitioners praying for the reopening of the case
and the setting of further proceedings. However, the motion was
denied for having been filed out of time, long after
the Decision became final and executory.
Conceding that petitioners became aware of the Decision after it
had become final, they could have still filed a petition for relief
from judgment after the denial of their motion to reopen.
Petitioners claim that they learned of the Decision only on 4
October 2001, or almost four (4) months from the time
the Decision had attained finality. But they failed to avail of the
For failure to make use without sufficient justification of the said
remedies available to them, petitioners could no longer resort to a

Besides, assuming arguendo that petitioners are entitled to be so

notified, the purported infirmity is cured by the publication of the
notice. After all, personal notice upon the heirs is a matter of
procedural convenience and not a jurisdictional requisite. 50
The non-inclusion of petitioners names in the petition and the
alleged failure to personally notify them of the proceedings do not
constitute extrinsic fraud. Petitioners were not denied their day in
court, as they were not prevented from participating in the
proceedings and presenting their case before the probate court.
G.R. No. L-32636

March 17, 1930

In the matter Estate of Edward Randolph Hix, deceased.

A.W. FLUEMER, petitioner-appellant, vs. ANNIE COUSHING
HIX, oppositor-appellee.
The laws of a foreign jurisdiction do not prove themselves in our
courts. the courts of the Philippine Islands are not authorized to
take American Union. Such laws must be proved as facts. (In re
Estate of Johnson [1918], 39 Phil., 156.) Here the requirements of
the law were not met. There was no was printed or published
under the authority of the State of West Virginia, as provided in
section 300 of the Code of Civil Procedure. Nor was the extract
from the law attested by the certificate of the officer having
charge of the original, under the sale of the State of West Virginia,
as provided in section 301 of the Code of Civil Procedure. No
evidence was introduced to show that the extract from the laws of
West Virginia was in force at the time the alleged will was
In addition, the due execution of the will was not established. The
only evidence on this point is to be found in the testimony of the
petitioner. Aside from this, there was nothing to indicate that the
will was acknowledged by the testator in the presence of two
competent witnesses, of that these witnesses subscribed the will
in the presence of the testator and of each other as the law of
West Virginia seems to require. On the supposition that the
witnesses to the will reside without the Philippine Islands, it would
then the duty of the petitioner to prove execution by some other
means (Code of Civil Procedure, sec. 633.)
G.R. No. 139868

June 8, 2006


A decree of distribution of the estate of a deceased person vests

the title to the land of the estate in the distributees, which, if
Page 7 of 14


erroneous may be corrected by a timely appeal. Once it becomes

final, its binding effect is like any other judgment in
rem.23 However, in exceptional cases, a final decree of distribution
of the estate may be set aside for lack of jurisdiction or fraud. 24
It should be pointed out that the prescriptive period for annulment
of judgment based on extrinsic fraud commences to run from
the discovery of the fraud or fraudulent act/s. Respondents
knowledge of the terms of Audreys will is immaterial in this case
since it is not the fraud complained of. Rather, it is petitioners
failure to introduce in evidence the pertinent law of the State of
Maryland that is the fraudulent act, or in this case, omission,
alleged to have been committed against respondent, and
therefore, the four-year period should be counted from the time of
respondents discovery thereof.
There is extrinsic fraud within the meaning of Sec. 9 par. (2), of
B.P. Blg. 129, where it is one the effect of which prevents a party
from hearing a trial, or real contest, or from presenting all of his
case to the court, or where it operates upon matters, not
pertaining to the judgment itself, but to the manner in which it
was procured so that there is not a fair submission of the
controversy. In other words, extrinsic fraud refers to any
fraudulent act of the prevailing party in the litigation which is
committed outside of the trial of the case, whereby the defeated
party has been prevented from exhibiting fully his side of the case
by fraud or deception practiced on him by his opponent. Fraud is
extrinsic where the unsuccessful party has been prevented from
exhibiting fully his case, by fraud or deception practiced on him by
his opponent, as by keeping him away from court, a false promise
of a compromise; or where the defendant never had any
knowledge of the suit, being kept in ignorance by the acts of the
plaintiff; or where an attorney fraudulently or without authority
connives at his defeat; these and similar cases which show that
there has never been a real contest in the trial or hearing of the
case are reasons for which a new suit may be sustained to set
aside and annul the former judgment and open the case for a new
and fair hearing.34
The overriding consideration when extrinsic fraud is alleged is that
the fraudulent scheme of the prevailing litigant prevented a party
from having his day in court.35
Petitioners failure to proficiently manage the distribution of
Audreys estate according to the terms of her will and as dictated
by the applicable law amounted to extrinsic fraud. Hence the CA
Decision annulling the RTC Orders dated February 12, 1988 and
April 7, 1988, must be upheld.
It is undisputed that Audrey Guersey was an American citizen
domiciled in Maryland, U.S.A. During the reprobate of her will in
Special Proceeding No. 9625, it was shown, among others, that at
the time of Audreys death, she was residing in the Philippines but
is domiciled in Maryland, U.S.A.; her Last Will and Testament dated
August 18, 1972 was executed and probated before the Orphans
Court in Baltimore, Maryland, U.S.A., which was duly
authenticated and certified by the Register of Wills of Baltimore
City and attested by the Chief Judge of said court; the will was
admitted by the Orphans Court of Baltimore City on September 7,
1979; and the will was authenticated by the Secretary of State of
Maryland and the Vice Consul of the Philippine Embassy.
Being a foreign national, the intrinsic validity of Audreys will,
especially with regard as to who are her heirs, is governed by her

national law, i.e., the law of the State of Maryland, as provided in

Article 16 of the Civil Code.
While foreign laws do not prove themselves in our jurisdiction and
our courts are not authorized to take judicial notice of
them;37 however, petitioner, as ancillary administrator of Audreys
estate, was duty-bound to introduce in evidence the pertinent law
of the State of Maryland.38
How can petitioner honestly presume that Philippine laws apply
when as early as the reprobate of Audreys will before the trial
court in 1982, it was already brought to fore that Audrey was a
U.S. citizen, domiciled in the State of Maryland. As asserted by
respondent, petitioner is a senior partner in a prestigious law firm,
with a "big legal staff and a large library." 39 He had all the legal
resources to determine the applicable law. It was incumbent upon
him to exercise his functions as ancillary administrator with
reasonable diligence, and to discharge the trust reposed on him
faithfully. Unfortunately, petitioner failed to perform his fiduciary
Moreover, whether his omission was intentional or not, the fact
remains that the trial court failed to consider said law when it
issued the assailed RTC Orders dated February 12, 1988 and April
7, 1988, declaring Richard and Kyle as Audreys heirs, and
distributing Audreys estate according to the project of partition
submitted by petitioner. This eventually prejudiced respondent
and deprived her of her full successional right to the Makati
The record reveals, however, that no clear effort was made to
prove the national law of Audrey ONeill Guersey during the
proceedings before the court a quo. While there is claim of good
faith in distributing the subject estate in accordance with the
Philippine laws, the defendant appears to put his actuations in a
different light as indicated in a portion of his direct examination.
This is not a simple case of error of judgment or grave abuse of
discretion, but a total disregard of the law as a result of
petitioners abject failure to discharge his fiduciary duties. It does
not rest upon petitioners pleasure as to which law should be
made applicable under the circumstances. His onus is clear.
Respondent was thus excluded from enjoying full rights to the
Makati property through no fault or negligence of her own, as
petitioners omission was beyond her control. She was in no
position to analyze the legal implications of petitioners omission
and it was belatedly that she realized the adverse consequence of
the same. The end result was a miscarriage of justice. In cases like
this, the courts have the legal and moral duty to provide judicial
aid to parties who are deprived of their rights. 42
In this case, given that the pertinent law of the State of Maryland
has been brought to record before the CA, and the trial court in
Special Proceeding No. M-888 appropriately took note of the same
in disapproving the proposed project of partition of Richards
estate, not to mention that petitioner or any other interested
person for that matter, does not dispute the existence or validity
of said law, then Audreys and Richards estate should be
distributed according to their respective wills, and not according
to the project of partition submitted by petitioner. Consequently,
the entire Makati property belongs to respondent.
G.R. No. L-26306 April 27, 1988

Page 8 of 14



The crucial issue in this case is whether or not the removal of
Maria Ventura as executrix is legally justified. This issue has,
however, become moot and academic in view of the decision of
this Court in related cases.
Under Article 854 of the Civil Code, "the pretention or omission of
one, some, or all of the compulsory heirs in the direct line,
whether living at the time of the execution of the will or born after
the death of the testator, shall annul the institution of heir; but the
devises and legacies shall be valid insofar as they are not
inofficious," and as a result, intestacy follows, thereby rendering
the previous appointment of Maria Ventura as executrix moot and
In the case at bar, the surviving spouse of the deceased Gregorio
Ventura is Juana Cardona while the next of kin are: Mercedes and
Gregoria Ventura and Maria and Miguel Ventura. The "next of kin"
has been defined as those persons who are entitled under the
statute of distribution to the decedent's property (Cooper vs.
Cooper, 43 Ind. A. 620, 88 NE 341). It is generally said that "the
nearest of kin, whose interest in the estate is more preponderant,
is preferred in the choice of administrator. 'Among members of a
class the strongest ground for preference is the amount or
preponderance of interest. As between next of kin, the nearest of
kin is to be preferred." (Cabanas, et al. vs. Enage et al., 40 Off.
Gaz. 12 Suppl. 227; citing 12 Am. Jur. Sec. 77, p. 416, cited in
Francisco Vicente J., The Revised Rules of Court in the Philippines,
Vol. V-B 1970 Ed., p. 23).
As decided by the lower court and sustained by the Supreme
Court, Mercedes and Gregoria Ventura are the legitimate children
of Gregorio Ventura and his wife, the late Paulina Simpliciano.
Therefore, as the nearest of kin of Gregorio Ventura they are
entitled to preference over the illegitimate children of Gregorio
Ventura, namely: Maria and Miguel Ventura. Hence, under the
aforestated preference provided in Section 6 of Rule 78, the
person or persons to be appointed administrator are Juana
Cardona, as the surviving spouse, or Mercedes and Gregoria
Ventura as nearest of kin, or Juana Cardona and Mercedes and
Gregoria Ventura in the discretion of the Court, in order to
represent both interests.
G.R. No. L-41508 June 27, 1988
We cannot sustain the findings of the courts that Fr. Nicanor
Cortes had no personal knowledge of Special Proceedings Nos.
262 and 343 for the evidence on record is abundant to contradict
such findings.
In his testimony, Fr. Diosdado Camomot declared categorically
that he informed Fr. Nicanor Cortes about Special Proceedings No.
343 6 and that he sent him a copy of the project of partition.
By reason of this circumstance, Fr. Nicanor Cortes is charged with
knowledge of Special Proceedings Nos. 262 and 343 as well as the
Project of Petition.
The loss and/or destruction of the pre-war records in Special
Proceedings No. 262-C renders the determination of whether or
not Fr. Nicanor Cortes was duly notified thereof an impossibility.
However, the probability of his having been notified cannot be
totally discounted. On the other hand, no personal notice was due

Fr. Nicanor Cortes in Special Proceedings No. 343-C, not being the
presumptive heir of Rufino Cortes. Thus, if it were true that Fr.
Nicanor Cortes had no notice of Special Proceedings Nos. 262 and
343, the failure to give such notice must be attributed to whoever
instituted Special Proceedings No. 262 wherein Fr. Cortes was a
presumptive heir, and not to Ireneo and Paula Villamor, the
petitioners in Special Proceedings No. 343, wherein Fr. Cortes was
not a presumptive heir and where the publication of the petition
as required by law was sufficient to give notice to the whole world
including Fr. Cortes.
We find this contention tenable. Just because a person is blind or
of poor memory, it does not follow that she is of unsound said.
This Court has ruled that where the mind of the testator is in
perfectly sound condition, neither old age, nor is health nor the
fact that somebody had to guide his hand in order that he might
sign, is sufficient to invalidate his will. 22
Partition is defined as a division between two or more persons of
real or personal property which they own as co-partners, joint
tenants or tenants in common, effected by the setting apart of
such interests so that they may enjoy and possess it in
severalty. 24 The purpose of partition is to put an end to the
common tenancy of the land or co-ownership. It seeks a
severance of the individual interest of each joint owner vesting in
each a sole estate in specific property and giving to each one the
right to enjoy his estate without supervision or interference from
the other. 25 And a partition by deed is a recognized method of
effectuating a separation of interest in property held in common.
We do not consider as "intriguing" the observation of the lower
court and concurred in by the Court of Appeals that in both Special
Proceedings in question, the administrators appointed were
complete strangers to the decedents. There is nothing repulsive in
this nor is this an indicium of fraud and collusion as found by the
courts. Section 642 of the Code of Civil Procedure enumerates the
persons who can act as executors and administrators. It provides
that in case the persons who have the preferential right to be
appointed are not competent or are unwilling to serve,
administration may be granted to such other person as the court
may appoint.
The courts also held that the fraud committed by Ireneo and Paula
Cortes Villamor in collusion with Administrator Moises Mendoza,
their lawyer Gaudencio Juezan and Fr. Diosdado Camomot was
extrinsic for it has been shown that when the probate court
approved the project of partition, there was no hearing or trial in
the Court of First Instance for the purpose of determining the
parties lawfully entitled to the estate in the hands of the
administrators; neither was there an opportunity given to Fr.
Nicanor Cortes by giving him prior notice to intervene or oppose,
much less present his evidence, nor was there a declaration of
We disagree. Prescription has set in. An action for reconveyance of
real property resulting from fraud may be barred by the statute of
limitations, which requires that the action shall be filed within four
[4] years from the discovery of fraud. 29 From what time should
fraud be deemed to have been discovered in the case at bar.
In the instant case, the discovery must be deemed to have taken
place, at the latest, on August 18, 1955, when Judge Clementino
Diez, in Special Proceedings No. 364-R declared Fr. Nicanor Cortes
as the only and universal heir of Sixta Ceniza and granted letters
of administration to Fr. Diosdado Camomot, the person constituted
by Fr. Nicanor Cortes as his attorney-in-fact in said proceedings.
From that time, the law imputes to Fr. Cortes knowledge of Special
Proceedings Nos. 262 and 343, the project of partition, and such
facts and circumstances as would have him, by the exercise of
due diligence, to a knowledge of the fraud. During the time that
Special Proceedings No. 364-R had been pending circumstances
existed which should have aroused Fr. Nicanor Cortes' suspicion or
Page 9 of 14


put him on inquiry considering that the inventory submitted

therein specifically made mention of Special Proceedings Nos. 262
and 343 and the project of partition.
The period of prescription commenced to run from August 18,
1955. However, from said date up to his death on August 28,
1969, Fr. Nicanor Cortes remained silent and failed to assert his
right. He even conveyed at least three lands which were among
those apportioned to Sixta Ceniza in the Project of Partition to
several persons. Her predecessor-in-interest, Fr. Nicanor Cortes,
not having filed any action for reconveyance within the
prescriptive period provided by law, neither could private
respondent do so now, for her right cannot rise higher than its
G.R. No. L-21917

November 29, 1966


PIJUAN, special
administratorappellee, vs. MANUELA RUIZ VDA. DE GURREA, movantappellant.
The foregoing view of Manresa is predicated upon the premise
that it has been proven that none of the properties under
administration belongs to the surviving spouse either as
paraphernal property or as part of the conjugal partnership. Upon
the other hand, the lower court denied support to Mrs. Gurrea
because of absence of proof as regards the status, nature or
character of the property now under the custody of the Special
Administrator. Precisely, however, on account of such lack of proof
thereon, we are bound by law1 to assume that the estate of the
deceased consists of property belonging to the conjugal
partnership,2 one-half of which belongs presumptively to Mrs.
Gurrea,3 aside from such part of the share of the deceased in said
partnership as may belong to her as one of the compulsory
heirs,4 if his alleged will were not allowed to probate, or, even if
probated, if the provision therein disinheriting her were nullified.
Inasmuch as the aforementioned estate is worth P205,397.64,
according to the inventory submitted by the special administrator,
it is clear to us that the continuation of the monthly
alimony, pendente lite, of P1,000, authorized in said Civil Case No.
5820, is fairly justified.
It is next urged by Mrs. Gurrea that the lower court erred in
denying her petition for appointment as administratrix, for, as
widow of the deceased, she claims a right of preference under
Section 6 of Rule 78 of the Revised Rules of Court. In the language
of this provision, said preference exists "if no executor is named in
the will or the executor or executors are incompetent, refuse the
trust, or fail to give bond, or a person dies intestate." None of
these conditions obtains, however, in the case at bar. The
deceased Carlos Gurrea has left a document purporting to be his
will, seemingly, is still pending probate. So, it cannot be said, as
yet, that he has died intestate. Again, said document names
Marcelo Pijuan as executor thereof, and it is not claimed that he is
incompetent therefor. What is more, he has not only not refused
the trust, but, has, also, expressly accepted it, by applying for his
appointment as executor, and, upon his appointment as special
administrator, has assumed the duties thereof. It may not be
amiss to note that the preference accorded by the aforementioned
provision of the Rules of Court to the surviving spouse refers to
the appoint of a regular administrator or administratrix, not to that
of a special administrator, and that the order appointing the latter
lies within the discretion of the probate court, 5 and is not

G.R. No. L-40517 January 31, 1984

LUZON SURETY COMPANY, INC., plaintiff-appellee, vs. PASTOR
T. QUEBRAR and FRANCISCO KILAYKO, defendants-appellants.

The proper determination of the liability of the surety and of the

principal on the bond must depend primarily upon the language of
the bond itself. The bonds herein were required by Section 1 of
Rule 81 of the Rules of Court. While a bond is nonetheless a
contract because it is required by statute (Midland Co. vs. Broat
52 NW 972), said statutory bonds are construed in the light of the
statute creating the obligation secured and the purposes for which
the bond is required, as expressed in the statute.
Section 1 of Rule 81 of the Rules of Court requires the
administrator/ executor to put up a bond for the purpose of
indemnifying the creditors, heirs, legatees and the estate. It is
conditioned upon the faithful performance of the administrator's
trust (Mendoza vs. Pacheco, 64 Phil. 134).
Having in mind the purpose and intent of the law, the surety is
then liable under the administrator's bond, for as long as the
administrator has duties to do as such administrator/executor.
Since the liability of the sureties is co-extensive with that of the
administrator and embraces the performance of every duty he is
called upon to perform in the course of administration (Deobold
vs. Oppermann, 111 NY 531, 19 NE 94), it follows that the
administrator is still duty bound to respect the indemnity
agreements entered into by him in consideration of the suretyship
It is shown that the defendant-appellant Pastor T. Quebrar, still
had something to do as an administrator/executor even after the
approval of the amended project of partition and accounts on June
6, 1957.
The sureties of an administration bond are liable only as a rule, for
matters occurring during the term covered by the bond. And the
term of a bond does not usually expire until the administration has
been closed and terminated in the manner directed by law
(Hartford Accident and Indemnity Co. vs. White, 115 SW 2d 249).
Thus, as long as the probate court retains jurisdiction of the
estate, the bond contemplates a continuing liability (Deobold vs.
Oppermann, supra) notwithstanding the non-renewal of the bond
by the defendants-appellants.
It must be remembered that the probate court possesses an allembracing power over the administrator's bond and over the
administration proceedings and it cannot be devoid of legal
authority to execute and make that bond answerable for the
every purpose for which it was filed (Mendoza vs. Pacheco, 64
Phil. 1-05). It is the duty of the courts of probate jurisdiction to
guard jealously the estate of the deceased persons by intervening
in the administration thereof in order to remedy or repair any
injury that may be done thereto (Dariano vs. Fernandez Fidalgo,
14 Phil. 62, 67; Sison vs. Azarraga, 30 Phil. 129, 134).
The contention then of the defendants-appellants that both the
Administrator's Bonds and the Indemnity Agreements ceased to
have any force and effect, the former since June 6, 1957 with the
approval of the project of partition and the latter since August 9,
1955 with the non-payment of the stated premiums, is without
Page 10 of 14


merit. Such construction of the said contracts entered into would

render futile the purpose for which they were made.
To allow the defendants-appellants to evade their liability under
the Indemnity Agreements by non-payment of the premiums
would ultimately lead to giving the administrator the power to
diminish or reduce and altogether nullify his liability under the
Administrator's Bonds. As already stated, this is contrary to the
intent and purpose of the law in providing for the administrator's
bonds for the protection of the creditors, heirs, legatees, and the
With the payment of the premium for the first year, the surety
already assumed the risk involved, that is, in case defendantappellant Pastor T. Quebrar defaults in his administrative duties.
The surety became liable under the bond for the faithful
administration of the estate by the administrator/executor. Hence,
for as long as defendant-appellant Pastor T. Quebrar was
administrator of the estates, the bond was held liable and
inevitably, the plaintiff-appellee's liability subsists since the
liability of the sureties is co-extensive with that of the
G.R. No. 149926

February 23, 2005


ARIOLA, respondents.
The Court is posed to resolve the following issues: a) whether or
not the partition in the Agreement executed by the heirs is valid;
b) whether or not the heirs assumption of the indebtedness of the
deceased is valid; and c) whether the petitioner can hold the heirs
liable on the obligation of the deceased.
At the outset, well-settled is the rule that a probate court has the
jurisdiction to determine all the properties of the deceased, to
determine whether they should or should not be included in the
inventory or list of properties to be administered. 20 The said court
is primarily concerned with the administration, liquidation and
distribution of the estate. 21
In our jurisdiction, the rule is that there can be no valid partition
among the heirs until after the will has been probated:
In testate succession, there can be no valid partition among the
heirs until after the will has been probated. The law enjoins the
probate of a will and the public requires it, because unless a will is
probated and notice thereof given to the whole world, the right of
a person to dispose of his property by will may be rendered
nugatory. The authentication of a will decides no other question
than such as touch upon the capacity of the testator and the
compliance with those requirements or solemnities which the law
prescribes for the validity of a will.22
This, of course, presupposes that the properties to be partitioned
are the same properties embraced in the will. 23In the present case,
the deceased, Efraim Santibaez, left a holographic will.
We agree with the appellate court that the above-quoted is an allencompassing provision embracing all the properties left by the
decedent which might have escaped his mind at that time he was
making his will, and other properties he may acquire thereafter.

Included therein are the three (3) subject tractors. This being so,
any partition involving the said tractors among the heirs is not
valid. The joint agreement25 executed by Edmund and Florence,
partitioning the tractors among themselves, is invalid, specially so
since at the time of its execution, there was already a pending
proceeding for the probate of their late fathers holographic will
covering the said tractors.
It must be stressed that the probate proceeding had already
acquired jurisdiction over all the properties of the deceased,
including the three (3) tractors. To dispose of them in any way
without the probate courts approval is tantamount to divesting it
with jurisdiction which the Court cannot allow. 26 Every act
intended to put an end to indivision among co-heirs and legatees
or devisees is deemed to be a partition, although it should purport
to be a sale, an exchange, a compromise, or any other
transaction.27 Thus, in executing any joint agreement which
appears to be in the nature of an extra-judicial partition, as in the
case at bar, court approval is imperative, and the heirs cannot just
divest the court of its jurisdiction over that part of the estate.
Moreover, it is within the jurisdiction of the probate court to
determine the identity of the heirs of the decedent. 28 In the instant
case, there is no showing that the signatories in the joint
agreement were the only heirs of the decedent. When it was
executed, the probate of the will was still pending before the court
and the latter had yet to determine who the heirs of the decedent
were. Thus, for Edmund and respondent Florence S. Ariola to
adjudicate unto themselves the three (3) tractors was a premature
act, and prejudicial to the other possible heirs and creditors who
may have a valid claim against the estate of the deceased.
The assumption of liability was conditioned upon the happening of
an event, that is, that each heir shall take possession and use of
their respective share under the agreement. It was made
dependent on the validity of the partition, and that they were to
assume the indebtedness corresponding to the chattel that they
were each to receive. The partition being invalid as earlier
discussed, the heirs in effect did not receive any such tractor. It
follows then that the assumption of liability cannot be given any
force and effect.
The filing of a money claim against the decedents estate in the
probate court is mandatory.
Perusing the records of the case, nothing therein could hold
private respondent Florence S. Ariola accountable for any liability
incurred by her late father. The documentary evidence presented,
particularly the promissory notes and the continuing guaranty
agreement, were executed and signed only by the late Efraim
Santibaez and his son Edmund. As the petitioner failed to file its
money claim with the probate court, at most, it may only go after
Edmund as co-maker of the decedent under the said promissory
notes and continuing guaranty, of course, subject to any defenses
Edmund may have as against the petitioner. As the court had not
acquired jurisdiction over the person of Edmund, we find it
unnecessary to delve into the matter further.
G.R. No. 121597

June 29, 2001


The primary issue posed before us is whether or not it was error
for the Court of Appeals to rule that petitioner may no longer
pursue by civil action the recovery of the balance of indebtedness
Page 11 of 14


after having foreclosed the property securing the same. A

resolution of this issue will also resolve the secondary issue
concerning any further liability of respondents and of the
decedents estate.

by the testate or intestate court without previous notice to the

heirs, devisees and legatees as required by the Rules, it is not only
the contract itself which is null and void but also the order of the
court authorizing the same.11

The case at bar, we must stress, involves a foreclosure of

mortgage arising out of a settlement of estate, wherein the
administrator mortgaged a property belonging to the estate of the
decedent, pursuant to an authority given by the probate court. As
the Court of Appeals correctly stated, the Rules of Court on Special
Proceedings comes into play decisively.

Clearly, the requirements of Rule 89 of the Rules of Court are

mandatory and failure to give notice to the heirs would invalidate
the authority granted by the intestate/probate court to mortgage
or sell estate assets.

To begin with, it is clear from the text of Section 7, Rule 89, that
once the deed of real estate mortgage is recorded in the proper
Registry of Deeds, together with the corresponding court order
authorizing the administrator to mortgage the property, said deed
shall be valid as if it has been executed by the deceased himself.
In the present case, it is undisputed that the conditions under the
aforecited rule have been complied with. It follows that we must
consider Sec. 7 of Rule 86, appropriately applicable to the
controversy at hand.
Case law now holds that this rule grants to the mortgagee three
distinct, independent and mutually exclusive remedies that can be
alternatively pursued by the mortgage creditor for the satisfaction
of his credit in case the mortgagor dies, among them:
(1) to waive the mortgage and claim the entire debt from
the estate of the mortgagor as an ordinary claim;
(2) to foreclose the mortgage judicially and prove any
deficiency as an ordinary claim; and
(3) to rely on the mortgage exclusively, foreclosing the
same at any time before it is barred by
prescriptionwithout right to file a claim for any
The plain result of adopting the last mode of foreclosure is that
the creditor waives his right to recover any deficiency from the
estate.12 Following the Perez ruling that the third mode includes
extrajudicial foreclosure sales, the result of extrajudicial
foreclosure is that the creditor waives any further deficiency
Clearly, in our view, petitioner herein has chosen the mortgagecreditors option of extrajudicially foreclosing the mortgaged
property of the Chuas. This choice now bars any subsequent
deficiency claim against the estate of the deceased, Antonio M.
Chua. Petitioner may no longer avail of the complaint for the
recovery of the balance of indebtedness against said estate, after
petitioner foreclosed the property securing the mortgage in its
favor. It follows that in this case no further liability remains on the
part of respondents and the late Antonio M. Chuas estate.
G.R. No. 156403. March 31, 2005


Settled is the rule in this jurisdiction that when an order

authorizing the sale or encumbrance of real property was issued

Here, it appears that petitioners were never notified of the several

petitions filed by Agustin with the intestate court to mortgage and
sell the estate properties of his wife.
In the present case, the appellate court erred in appreciating
laches against petitioners. The element of delay in questioning the
subject orders of the intestate court is sorely lacking. Petitioners
were totally unaware of the plan of Agustin to mortgage and sell
the estate properties. There is no indication that mortgagor PNB
and vendee Arguna had notified petitioners of the contracts they
had executed with Agustin. Although petitioners finally obtained
knowledge of the subject petitions filed by their father, and
eventually challenged the July 18, 1973, October 19, 1974,
February 25, 1980 and January 7, 1981 orders of the intestate
court, it is not clear from the challenged decision of the appellate
court when they (petitioners) actually learned of the existence of
said orders of the intestate court. Absent any indication of the
point in time when petitioners acquired knowledge of those
orders, their alleged delay in impugning the validity thereof
certainly cannot be established. And the Court of Appeals cannot
simply impute laches against them.
G.R. No. 118671

January 29, 1996


Executor, petitioner, vs. THE COURT OF APPEALS


The issue for resolution is whether the probate court, after

admitting the will to probate but before payment of the estate's
debts and obligations, has the authority: (1) to grant an allowance
from the funds of the estate for the support of the testator's
grandchildren; (2) to order the release of the titles to certain heirs;
and (3) to grant possession of all properties of the estate to the
executor of the will.
It is settled that allowances for support under Section 3 of Rule 83
should not be limited to the "minor or incapacitated" children of
the deceased. Article 188 13 of the Civil Code of the Philippines, the
substantive law in force at the time of the testator's death,
provides that during the liquidation of the conjugal partnership,
the deceased's legitimate spouse and children, regardless of their
age, civil status or gainful employment, are entitled to provisional
support from the funds of the estate. 14 The law is rooted on the
fact that the right and duty to support, especially the right to
education, subsist even beyond the age of majority. 15
Be that as it may, grandchildren are not entitled to provisional
support from the funds of the decedent's estate. The law clearly
limits the allowance to "widow and children" and does not extend
it to the deceased's grandchildren, regardless of their minority or
incapacity.16 It was error, therefore, for the appellate court to
sustain the probate court's order granting an allowance to the
grandchildren of the testator pending settlement of his estate.
Page 12 of 14


Respondent courts also erred when they ordered the release of

the titles of the bequeathed properties to private respondents six
months after the date of first publication of notice to creditors. An
order releasing titles to properties of the estate amounts to an
advance distribution of the estate which is allowed only under the
following conditions:
Sec. 2. Advance distribution in special proceedings.
Nothwithstanding a pending controversy or appeal in
proceedings to settle the estate of a decedent, the court
may, in its discretion and upon such terms as it may
deem proper and just, permit that such part of the
estate as may not be affected by the controversy or
appeal be distributed among the heirs or legatees, upon
compliance with the conditions set forth in Rule 90 of
these Rules.17
And Rule 90 provides that:
Sec. 1. When order for distribution of residue made.
When the debts, funeral charges, and expenses of
administration the allowance to the widow, and
inheritance tax if any, chargeable to the estate in
accordance with law, have been paid, the court, on the
application of the executor or administrator, or of a
person interested in the estate, and after hearing upon
notice shall assign the residue of the estate to the
persons entitled to the same, naming them and the
proportions or parts, to which each is entitled, and such
persons may demand and recover their respective
shares from the executor or administrator, or any other
person having the same in his possession. If there is a
controversy before the court as to who are the lawful
heirs of the deceased person or as to the distributive
shares to which each person is entitled under the law,
the controversy shall be heard and decided as in
ordinary cases.
No distribution shall be allowed until the payment of the
obligations above-mentioned has been made or provided
for, unless the distributees, or any of them, give a bond,
in a sum to be fixed by the court, conditioned for the
payment of said obligations within such time as the
court directs.18
In settlement of estate proceedings, the distribution of the estate
properties can only be made: (1) after all the debts, funeral
charges, expenses of administration, allowance to the widow, and
estate tax have been paid; or (2) before payment of said
obligations only if the distributees or any of them gives a bond in
a sum fixed by the court conditioned upon the payment of said
obligations within such time as the court directs, or when
provision is made to meet those obligations.19
In the case at bar, the probate court ordered the release of the
titles to the Valle Verde property and the Blue Ridge apartments to
the private respondents after the lapse of six months from the
date of first publication of the notice to creditors. The questioned
order speaks of "notice" to creditors, not payment of debts and
obligations. Hilario Ruiz allegedly left no debts when he died but
the taxes on his estate had not hitherto been paid, much less
ascertained. The estate tax is one of those obligations that must
be paid before distribution of the estate. If not yet paid, the rule
requires that the distributees post a bond or make such provisions
as to meet the said tax obligation in proportion to their respective

shares in the inheritance. 20 Notably, at the time the order was

issued the properties of the estate had not yet been inventoried
and appraised.
It was also too early in the day for the probate court to order the
release of the titles six months after admitting the will to probate.
The probate of a will is conclusive as to its due execution and
extrinsic validity21 and settles only the question of whether the
testator, being of sound mind, freely executed it in accordance
with the formalities prescribed by law. 22 Questions as to the
intrinsic validity and efficacy of the provisions of the will, the
legality of any devise or legacy may be raised even after the will
has been authenticated.23
The intrinsic validity of Hilario's holographic will was controverted
by petitioner before the probate court in his Reply to Montes'
Opposition to his motion for release of funds 24 and his motion for
reconsideration of the August 26, 1993 order of the said
court.25 Therein, petitioner assailed the distributive shares of the
devisees and legatees inasmuch as his father's will included the
estate of his mother and allegedly impaired his legitime as an
intestate heir of his mother. The Rules provide that if there is a
controversy as to who are the lawful heirs of the decedent and
their distributive shares in his estate, the probate court shall
proceed to hear and decide the same as in ordinary cases.
The right of an executor or administrator to the possession and
management of the real and personal properties of the deceased
is not absolute and can only be exercised "so long as it is
necessary for the payment of the debts and expenses of
administration,"27 Section 3 of Rule 84 of the Revised Rules of
Court explicitly provides:
Sec. 3. Executor or administrator to retain whole estate to pay
debts, and to administer estate not willed. An executor or
administrator shall have the right to the possession and
management of the real as well as the personal estate of the
deceased so long as it is necessary for the payment of the debts
and expenses for administration.
Petitioner must be reminded that his right of ownership over the
properties of his father is merely inchoate as long as the estate
has not been fully settled and partitioned. 30 As executor, he is a
mere trustee of his father's estate. The funds of the estate in his
hands are trust funds and he is held to the duties and
responsibilities of a trustee of the highest order. 31 He cannot
unilaterally assign to himself and possess all his parents'
properties and the fruits thereof without first submitting an
inventory and appraisal of all real and personal properties of the
deceased, rendering a true account of his administration, the
expenses of administration, the amount of the obligations and
estate tax, all of which are subject to a determination by the court
as to their veracity, propriety and justness.32
G.R. No. 129008

January 13, 2004


Pending the filing of administration proceedings, the heirs without
doubt have legal personality to bring suit in behalf of the estate of
the decedent in accordance with the provision of Article 777 of the
New Civil Code "that (t)he rights to succession are transmitted
from the moment of the death of the decedent." The provision in
turn is the foundation of the principle that the property, rights and
obligations to the extent and value of the inheritance of a person
Page 13 of 14


are transmitted through his death to another or others by his will

or by operation of law.25
Even if administration proceedings have already been
commenced, the heirs may still bring the suit if an administrator
has not yet been appointed. This is the proper modality despite
the total lack of advertence to the heirs in the rules on party
representation, namely Section 3, Rule 3 26 and Section 2, Rule
8727 of the Rules of Court.
Even if there is an appointed administrator, jurisprudence
recognizes two exceptions, viz: (1) if the executor or administrator
is unwilling or refuses to bring suit; 30 and (2) when the

administrator is alleged to have participated in the act complained

of31 and he is made a party defendant. 32 Evidently, the necessity
for the heirs to seek judicial relief to recover property of the estate
is as compelling when there is no appointed administrator, if not
more, as where there is an appointed administrator but he is
either disinclined to bring suit or is one of the guilty parties
All told, therefore, the rule that the heirs have no legal standing to
sue for the recovery of property of the estate during the pendency
of administration proceedings has three exceptions, the third
being when there is no appointed administrator such as in this

Page 14 of 14