G.R. No.

L-33172 October 18, 1979

ERNESTO CEASE, CECILIA CEASE, MARION CEASE, TERESA CEASE-LACEBAL and the F.L.
CEASE PLANTATION CO., INC. as Trustee of properties of the defunct TIAONG MILLING &
PLANTATION
CO.,petitioners,
vs.
HONORABLE COURT OF APPEALS, (Special Seventh Division), HON. MANOLO L. MADDELA,
Presiding Judge, Court of First Instance of Quezon, BENJAMIN CEASE and FLORENCE
CEASE, respondents.
Appeal by certiorari from the decision of the Court of Appeals in CA-G.R. No. 45474, entitled "Ernesto
1
Cease, et al. vs. Hon. Manolo L. Maddela, Judge of the Court of First Instance of Quezon, et al." which
dismissed the petition for certiorari, mandamus, and prohibition instituted by the petitioners against the
respondent judge and the private respondents.
The antecedents of the case, as found by the appellate court, are as follows:
IT RESULTING: That the antecedents are not difficult to understand; sometime in June
1908, one Forrest L. Cease common predecessor in interest of the parties together with
five (5) other American citizens organized the Tiaong Milling and Plantation Company
and in the course of its corporate existence the company acquired various properties but
at the same time all the other original incorporators were bought out by Forrest L. Cease
together with his children namely Ernest, Cecilia, Teresita, Benjamin, Florence and one
Bonifacia Tirante also considered a member of the family; the charter of the company
lapsed in June 1958; but whether there were steps to liquidate it, the record is silent; on
13 August 1959, Forrest L. Cease died and by extrajudicial partition of his shares, among
the children, this was disposed of on 19 October 1959; it was here where the trouble
among them came to arise because it would appear that Benjamin and Florence wanted
an actual division while the other children wanted reincorporation; and proceeding on
that, these other children Ernesto, Teresita and Cecilia and aforementioned other
stockholder Bonifacia Tirante proceeded to incorporate themselves into the F.L. Cease
Plantation Company and registered it with the Securities and Exchange Commission on 9
December, 1959; apparently in view of that, Benjamin and Florence for their part initiated
a Special Proceeding No. 3893 of the Court of First Instance of Tayabas for the
settlement of the estate of Forest L. Cease on 21 April, 1960 and one month afterwards
on 19 May 1960 they filed Civil Case No. 6326 against Ernesto, Teresita and Cecilia
Cease together with Bonifacia Tirante asking that the Tiaong Milling and Plantation
Corporation be declared Identical to F.L. Cease and that its properties be divided among
his children as his intestate heirs; this Civil Case was resisted by aforestated defendants
and notwithstanding efforts of the plaintiffs to have the properties placed under
receivership, they were not able to succeed because defendants filed a bond to remain
as they have remained in possession; after that and already, during the pendency of Civil
Case No. 6326 specifically on 21 May, 1961 apparently on the eve of the expiry of the
three (3) year period provided by the law for the liquidation of corporations, the board of
liquidators of Tiaong Milling executed an assignment and conveyance of properties and
trust agreement in favor of F.L. Cease Plantation Co. Inc. as trustee of the Tiaong Milling
and Plantation Co. so Chat upon motion of the plaintiffs trial Judge ordered that this
alleged trustee be also included as party defendant; now this being the situation, it will be
remembered that there were thus two (2) proceedings pending in the Court of First
Instance of Quezon namely Civil Case No. 6326 and Special Proceeding No. 3893 but
both of these were assigned to the Honorable Respondent Judge Manolo L. Maddela p.
43 and the case was finally heard and submitted upon stipulation of facts pp, 34-110,
rollo; and trial Judge by decision dated 27 December 1969 held for the plaintiffs Benjamin
and Florence, the decision containing the following dispositive part:

VIEWED IN THE LIGHT OF ALL THE FOREGOING, judgment is hereby

rendered in favor of plaintiffs and against the defendants declaring that:
1) The assets or properties of the defunct Tiaong Milling and Plantation
Company now appearing under the name of F.L. Cease Plantation
Company as Trustee, is the estate also of the deceased Forrest L.
Cease and ordered divided, share and share alike, among his six
children the plaintiffs and the defendants in accordance with Rule 69,
Rules of Court;
2) The Resolution to Sell dated October 12, 1959 and the Transfer and
Conveyance with Trust Agreement is hereby set aside as improper and
illegal for the purposes and effect that it was intended and, therefore, null
and void;
3) That F.L. Cease Plantation Company is removed as 'Trustee for
interest against the estate and essential to the protection of plaintiffs'
rights and is hereby ordered to deliver and convey all the properties and
assets of the defunct Tiaong Milling now under its name, custody and
control to whomsoever be appointed as Receiver - disqualifying and of
the parties herein - the latter to act accordingly upon proper assumption
of office; and
4) Special Proceedings No. 3893 for administration is terminated and
dismissed; the instant case to proceed but on issues of damages only
and for such action inherently essential for partition.
SO ORDERED.
Lucena City, December 27, 1969., pp. 122-a-123, rollo.
upon receipt of that, defendants there filled a notice of appeal p. 129, rollo together with
an appeal bond and a record on appeal but the plaintiffs moved to dismiss the appeal on
the ground that the judgment was in fact interlocutory and not appealable p. 168 rollo and
this position of defendants was sustained by trial Judge, His Honor ruling that
IN VIEW OF THE FOREGOING, the appeal interposed by plaintiffs is
hereby dismissed as premature and the Record on Appeal is necessarily
disapproved as improper at this stage of the proceedings.
SO ORDERED.
Lucena City, April 27, 1970.
and so it was said defendants brought the matter first to the Supreme Court, on
mandamus on 20 May, 1970 to compel the appeal and certiorari and prohibition to annul
the order of 27 April, 1970 on the ground that the decision was "patently erroneous" p.
16, rollo; but the Supreme Court remanded the case to this Court of Appeals by
resolution of 27 May 1970, p. 173, and this Court of Appeals on 1 July 1970 p. 175
dismissed the petition so far as the mandamus was concerned taking the view that the
decision sought to be appealed dated 27 December, 1969 was interlocutory and not
appealable but on motion for reconsideration of petitioners and since there was possible
merit so far as its prayer for certiorari and prohibition was concerned, by resolution of the

Court on 19 August, 1970, p. 232, the petition was permitted to go ahead in that capacity;
and it is the position of petitioners that the decision of 27 December, 1969 as well as the
order of 27 April, 1970 suffered of certain fatal defects, which respondents deny and on
their part raise the preliminary point that this Court of Appeals has no authority to give
relief to petitioners because not
in aid of its appellate jurisdiction,
and that the questions presented cannot be raised for the first time before this Court of
Appeals;
Respondent Court of Appeals in its decision promulgated December 9, 1970 dismissed the petition with
costs against petitioners, hence the present petition to this Court on the following assignment of errors:
THE COURT OF APPEALS ERRED I. IN SANCTIONING THE WRONGFUL EXERCISE OF JURISDICTION BEYOND THE LIMITS OF
AUTHORITY CONFERRED BY LAW UPON THE LOWER COURT, WHEN IT PROCEEDED TO HEAR,
ADJUDGE AND ADJUDICATE (a) Special Proceedings No. 3893 for the settlement of the Estate of Forrest L. Cease,
simultaneously and concurrently with (b) Civil Case No. 6326, wherein the lower Court ordered Partition under Rule 69, Rules
of Court THE ISSUE OF LEGAL OWNERSHIP OF THE PROPERTIES COMMONLY INVOLVED IN BOTH
ACTIONS HAVING BEEN RAISED AT THE OUTSET BY THE TIAONG MILLING AND PLANTATION
COMPANY, AS THE REGISTERED OWNER OF SUCH PROPERTIES UNDER ACT 496.
II. IN AFFIRMING - UNSUPPORTED BY ANY EVIDENCE WHATSOEVER NOR CITATION OF ANY
LAW TO JUSTIFY - THE UNWARRANTED CONCLUSION THAT SUBJECT PROPERTIES, FOUND BY
THE LOWER COURT AND THE COURT OF APPEALS AS ACTUALLY REGISTERED IN THE NAME
OF PETITIONER CORPORATION AND/OR ITS PREDECESSOR IN INTEREST, THE TIAONG MILLING
AND PLANTATION COMPANY, DURING ALL THE 50 YEARS OF ITS CORPORATE EXISTENCE "ARE
ALSO PROPERTIES OF THE ESTATE OF FOREST L. CEASE."
III. IN AFFIRMING THE ARBITRARY CONCLUSION OF THE LOWER COURT THAT ITS DECISION OF
DECEMBER 27,1969 IS AN "INTERLUCUTORY DECISION." IN DISMISSED NG THE PETITION FOR
WRIT OF MANDAMUS, AND IN AFFIRMING THE MANIFESTLY UNJUST JUDGMENT RENDERED
WHICH CONTRADICTS THE FINDINGS OF ULTIMATE FACTS THEREIN CONTAINED.
During the period that ensued after the filing in this Court of the respective briefs and the subsequent
submission of the case for decision, some incidents had transpired, the summary of which may be stated
as follows:
1. Separate from this present appeal, petitioners filed a petition for certiorari and prohibition in this Court,
docketed as G.R. No. L-35629 (Ernesto Cease, et al. vs. Hon. Manolo L. Maddela, et al.) which
challenged the order of respondent judge dated September 27, 1972 appointing his Branch Clerk of
Court, Mr. Eleno M. Joyas, as receiver of the properties subject of the appealed civil case, which order,
petitioners saw as a virtual execution of the lower court's judgment (p. 92, rollo). In Our resolution of
November 13, 1972, issued in G.R. No. L-35629, the petition was denied since respondent judge merely
appointed an auxilliary receiver for the preservation of the properties as well as for the protection of the

interests of all parties in Civil Case No. 6326; but at the same time, We expressed Our displeasure in the
appointment of the branch clerk of court or any other court personnel for that matter as receiver. (p. 102,
rollo).
2. Meanwhile, sensing that the appointed receiver was making some attempts to take possession of the
properties, petitioners filed in this present appeal an urgent petition to restrain proceedings in the lower
court. We resolved the petition on January 29, 1975 by issuing a corresponding temporary restraining
order enjoining the court a quo from implementing its decision of December 27, 1969, more particularly,
the taking over by a receiver of the properties subject of the litigation, and private respondents Benjamin
and Florence Cease from proceeding or taking any action on the matter until further orders from this
Court (pp. 99-100, rollo). Private respondents filed a motion for reconsideration of Our resolution of
January 29, 1975. After weighing the arguments of the parties and taking note of Our resolution in G.R.
No. L-35629 which upheld the appointment of a receiver, We issued another resolution dated April 11,
1975 lifting effective immediately Our previous temporary restraining order which enforced the earlier
resolution of January 29, 1975 (pp. 140-141, rollo).
3. On February 6, 1976, private respondents filed an urgent petition to restrain proceedings below in view
of the precipitate replacement of the court appointed receiver Mayor Francisco Escueta (vice Mr. Eleno
M. Joyas) and the appointment of Mr. Guillermo Lagrosa on the eve of respondent Judge Maddela's
retirement (p. 166, rollo). The urgent petition was denied in Our resolution of February 18, 1976 (p. 176,
rollo).
4. Several attempts at a compromise agreement failed to materialize. A Tentative Compromise
Agreement dated July 30, 1975 was presented to the Court on August 6, 1976 for the signature of the
parties, but respondents "unceremoniously" repudiated the same by leaving the courtroom without the
permission of the court (Court of First Instance of Quezon, Branch 11) as a result of which respondents
and their counsel were cited for contempt (p. 195, 197, rollo) that respondents' reason for the repudiation
appears to be petitioners' failure to render an audited account of their administration covering the period
from May 31, 1961 up to January 29, 1974, plus the inclusion of a provision on waiver and relinquishment
by respondents of whatever rights that may have accrued to their favor by virtue of the lower court's
decision and the affirmative decision of the appellate court.
We go now to the alleged errors committed by the respondent Court of Appeals.
As can be gleaned from petitioners' brief and the petition itself, two contentions underlie the first assigned
error. First, petitioners argue that there was an irregular and arbitrarte termination and dismissal of the
special proceedings for judicial administration simultaneously ordered in the lower court . s decision in
Civil Case No. 6326 adjudicating the partition of the estate, without categorically, reasoning the opposition
to the petition for administration Second, that the issue of ownership had been raised in the lower court
when Tiaong Milling asserted title over the properties registered in its corporate name adverse to Forrest
L. Cease or his estate, and that the said issue was erroneously disposed of by the trial court in the
partition proceedings when it concluded that the assets or properties of the defunct company is also the
estate of the deceased proprietor.
The propriety of the dismissal and termination of the special proceedings for judicial administration must
be affirmed in spite of its rendition in another related case in view of the established jurisprudence which
favors partition when judicial administration become, unnecessary. As observed by the Court of Appeals,
the dismissal at first glance is wrong, for the reason that what was actually heard was Civil Case No.
6326. The technical consistency, however, it is far less importance than the reason behind the doctrinal
rule against placing an estate under administration. 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. Thus -

When a person dies without leaving pending obligations to be paid, his heirs, whether of
age or not, are 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 the appointment of
an administrator are superfluous and unnecessary proceedings (Ilustre vs. Alaras
Frondosa, 17 Phil., 321; Malahacan vs. Ignacio, 19 Phil, 434; Bondad vs. Bondad, 34
Phil., 232; Baldemor vs. Malangyaon, 34 Phil., 367; Fule vs. Fule, 46 Phil., 317).
Syllabus, Intestate estate of the deceased Luz Garcia. Pablo G. Utulo vs. Leona Pasion
Viuda de Garcia, 66 Phil. 302.
Where the estate has no debts, recourse may be had to an administration proceeding
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. (Intestate Estate of
Mercado vs. Magtibay, 96 Phil. 383)
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 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 solicitation.
The second point raised by petitioners in their first assigned error is equally untenable. In effect,
petitioners argue that the action for partition should not have prospered in view of the repudiation of the
co-ownership by Tiaong Milling and Plantation Company when, as early in the trial court, it already
asserted ownership and corporate title over the properties adverse to the right of ownership of Forrest L.
Cease or his estate. We are not unmindful of the doctrine relied upon by petitioners in Rodriguez vs.
Ravilan, 17 Phil. 63 wherein this Court held that in an action for partition, it is assumed that the parties by
whom it is prosecuted are all co-owners or co-proprietors of the property to be divided, and that the
question of common ownership is not to be argued, not the fact as to whether the intended parties are or
are not the owners of the property in question, but only as to how and in what manner and proportion the
said property of common ownership shall be distributed among the interested parties by order of the
Court. Consistent with this dictum, it has been field that if any party to a suit for partition denies theproindiviso character of the estate whose partition is sought, and claims instead, exclusive title thereto the
2
action becomes one for recovery of property cognizable in the courts of ordinary jurisdiction.
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.
We agree with the Court of Appeals in its reasoning that substance is more important than form when it
sustained the dismissal of Special Proceedings No. 3893, thus a) As to the dismissal of Special Proceedings No. 3893, of course, at first glance, this
was wrong, for the reason that the case trial had been heard was Civil Case No. 6326;
but what should not be overlooked either is Chat respondent Judge was the same Judge
that had before him in his own sala, said Special Proceedings No. 3893, p. 43 rollo, and
the parties to the present Civil Case No. 6326 had themselves asked respondent Judge
to take judicial notice of the same and its contents page 34, rollo; it is not difficult to see
that when respondent Judge in par. 4 of the dispositive part of his decision complained
of, ordered that,
4) Special Proceedings No. 3893 for administration is terminated and
dismissed; the instant case to proceed but on issues of damages only
and for such action inherently essential or partition. p. 123, rollo,
in truth and in fact, His Honor was issuing that order also within Civil Case No. 632 but in
connection with Special Proceedings No. 389:3: for substance is more important Chan
form, the contending par ties in both proceedings being exactly the same, but not only
this, let it not be forgotten that when His Honor dismissed Special Proceedings No. 3893,
that dismissal precisely was a dismissal that petitioners herein had themselves sought
and solicited from respondent Judge as petitioners themselves are in their present
petition pp. 5-6, rollo; this Court must find difficulty in reconciling petitioners' attack with
the fact that it was they themselves that had insisted on that dismissal; on the principle
that not he who is favored but he who is hurt by a judicial order is he only who should be
heard to complain and especially since extraordinary legal remedies are remedies in
extermies granted to parties ' who have been the victims not merely of errors but of grave
wrongs, and it cannot be seen how one who got what he had asked could be heard to
claim that he had been the victim of a wrong, petitioners should not now complain of an
order they had themselves asked in order to attack such an order afterwards; if at all,
perhaps, third parties, creditors, the Bureau of Internal Revenue, might have been
prejudiced, and could have had the personality to attack that dismissal of Special
Proceedings No. 3893, but not petitioners herein, and it is not now for this Court of
Appeals to protect said third persons who have not come to the Court below or sought to
intervene herein;
On the second assigned error, petitioners argue that no evidence has been found to support the
conclusion that the registered properties of Tiaong Milling are also properties of the estate of Forrest L.
Cease; that on the contrary, said properties are registered under Act No. 496 in the name of Tiaong
Milling as lawful owner and possessor for the last 50 years of its corporate existence.
We do not agree. In reposing ownership to the estate of Forrest L. Cease, the trial court indeed found
strong support, one that is based on a well-entrenched 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. In shredding the fictitious corporate veil, the trial judge
narrated the undisputed factual premise, thus:
While the records showed that originally its incorporators were aliens, friends or thirdparties in relation of one to another, in the course of its existence, it developed into a
close family corporation. The Board of Directors and stockholders belong to one family
the head of which Forrest L. Cease always retained the majority stocks and hence the
control and management of its affairs. In fact, during the reconstruction of its records in
1947 before the Security and Exchange Commission only 9 nominal shares out of 300
appears in the name of his 3 eldest children then and another person close to them. It is
likewise noteworthy to observe that as his children increase or perhaps become of age,
he continued distributing his shares among them adding Florence, Teresa and Marion
until at the time of his death only 190 were left to his name. Definitely, only the members
of his family benefited from the Corporation.
The accounts of the corporation and therefore its operation, as well as that of the family
appears to be indistinguishable and apparently joined together. As admitted by the
defendants (Manifestation of Compliance with Order of March 7, 1963 [Exhibit "21"] the
corporation 'never' had any account with any banking institution or if any account was
carried in a bank on its behalf, it was in the name of Mr. Forrest L. Cease. In brief, the
operation of the Corporation is merged with those of the majority stockholders, the latter
using the former as his instrumentality and for the exclusive benefits of all his family.
From the foregoing indication, therefore, there is truth in plaintiff's allegation that the
corporation is only a business conduit of his father and an extension of his personality,
they are one and the same thing. Thus, the assets of the corporation are also the estate
of Forrest L. Cease, the father of the parties herein who are all legitimate children of full
blood.
A rich store of jurisprudence has established the rule known as the doctrine of disregarding or piercing
the veil of corporate fiction. Generally, a corporation is invested by law with a personality separate and
distinct from that of the persons composing it as well as from that of any other legal entity to which it may
be related. By virtue of this attribute, a corporation may not, generally, be made to answer for acts or
liabilities of its stockholders or those of the legal entities to which it may be connected, and vice
versa. This separate and distinct personality is, however, merely a fiction created by law for convenience
and to promote the ends of justice (Laguna Transportation Company vs. Social Security System, L14606, April 28, 1960; La Campana Coffee Factory, Inc. vs. Kaisahan ng mga Manggagawa sa La
Campana, L-5677, May 25, 1953). For this reason, it may not be used or invoked for ends subversive of
the policy and purpose behind its creation (Emiliano Cano Enterprises, Inc. vs. CIR, L-20502, Feb. 26,
1965) or which could not have been intended by law to which it owes its being McConnel vs. Court of
Appeals, L- 10510, March 17, 1961, 1 SCRA 722). This is particularly true where the fiction is used to
defeat public convenience, justify wrong, protect fraud, defend crime (Yutivo Sons Hardware Company
vs. Court of Tax Appeals, L-13203, Jan. 28, 1961, 1 SCRA 160), confuse legitimate legal or judicial
issues (R. F. Sugay & Co. vs. Reyes, L-20451, Dec. 28, 1964), perpetrate deception or otherwise
circumvent the law (Gregorio Araneta, Inc. vs. reason de Paterno, L-2886, Aug. 22, 1952, 49 O.G. 721).
This is likewise true where the corporate entity is being used as an alter ego, adjunct, or business conduit
for the sole benefit of the stockholders or of another corporate entity (McConnel vs. Court of
Appeals, supra; Commissioner of Internal Revenue vs. Norton Harrison Co., L-7618, Aug. 31, 1964).
In any of these cases, the notion of corporate entity will be pierced or disregarded, and the corporation
will be treated merely as an association of persons or, where there are two corporations, they will be
merged as one, the one being merely regarded as part or the instrumentality of the otter (Koppel [Phil.]
Inc. vs. Yatco, 77 Phil. 496, Yutivo Sons Hardware Company vs. Court of Tax Appeals, supra).
So must the case at bar add to this jurisprudence. An indubitable deduction from the findings of the trial
court cannot but lead to the conclusion that the business of the corporation is largely, if not wholly, the

personal venture of Forrest L. Cease. There is not even a shadow of a showing that his children were
subscribers or purchasers of the stocks they own. Their participation as nominal shareholders emanated
solely from Forrest L. Cease's gratuitous dole out of his own shares to the benefit of his children and
ultimately his family.
Were we sustain the theory of petitioners that the trial court acted in excess of jurisdiction or abuse of
discretion amounting to lack of jurisdiction in deciding Civil Case No. 6326 as a case for partition when
the defendant therein, Tiaong Milling and Plantation Company, Inc. as registered owner asserted
ownership of the assets and properties involved in the litigation, which theory must necessarily be based
on the assumption that said assets and properties of Tiaong Milling and Plantation Company, Inc. now
appearing under the name of F. L. Cease Plantation Company as Trustee are distinct and separate from
the estate of Forrest L. Cease to which petitioners and respondents as legal heirs of said Forrest L.
Cease are equally entitled share and share alike, then that legal fiction of separate corporate personality
shall have been used to delay and ultimately deprive and defraud the respondents of their successional
rights to the estate of their deceased father. For Tiaong Milling and Plantation Company shall have been
able to extend its corporate existence beyond the period of its charter which lapsed in June, 1958 under
the guise and cover of F. L, Cease Plantation Company, Inc. as Trustee which would be against the law,
and as Trustee shall have been able to use the assets and properties for the benefit of the petitioners, to
the great prejudice and defraudation. of private respondents. Hence, it becomes necessary and
imperative to pierce that corporate veil.
Under the third assigned error, petitioners claim that the decision of the lower court in the partition case is
not interlocutory but rather final for it consists of final and determinative dispositions of the contentions of
the parties. We find no merit in petitioners' stand.
Under the 1961 pronouncement and ruling of the Supreme Court in Vda. de Zaldarriaga vs. Enriquez, 1
SCRA 1188 (and the sequel case of Vda. de Zaldarriaga vs. Zaldarriaga, 2 SCRA 356), the lower court's
dismissal of petitioners' proposed appeal from its December 27, 1969 judgment as affirmed by the Court
of Appeals on the ground of prematurity in that the judgment was not final but interlocutory was in order.
As was said in said case:
It is true that in Africa vs. Africa, 42 Phil. 934 and other cases it was held - contrary to the
rule laid down in Ron vs. Mojica, 8 Phil. 328; Rodriguez vs. Ravilan, 17 Phil. 63 - that in a
partition case where defendant relies on the defense of exclusive ownership, the action
becomes one for title and the decision or order directing partition is final, but the ruling to
this effect has been expressly reversed in the Fuentebella case which, in our opinion,
expresses the correct view, considering that a decision or order directing partition is not
final because it leaves something more to be done in the trial court for the complete
disposition of the case, namely, the appointment of commissioners, the proceedings to
be had before them, the submission of their report which, according to law, must be set
for hearing. In fact, it is only after said hearing that the court may render a final judgment
finally disposing of the action (Rule 71, section 7, Rules of Court). (1 SCRA at page
1193).
It should be noted, however, that the said ruling in Zaldarriaga as based on Fuentebella vs. Carrascoso,
XIV Lawyers Journal 305 (May 27, 1942), has been expressly abandoned by the Court in Miranda vs.
Court of Appeals, 71 SCRA 295; 331-333 (June 18, 1976) wherein Mr. Justice Teehankee, speaking for
the Court, laid down the following doctrine:
The Court, however, deems it proper for the guidance of the bench and bar to now
declare as is clearly indicated from the compelling reasons and considerations
hereinabove stated:

- that the Court considers the better rule to be that stated in H. E. Heacock Co. vs.
American Trading Co., to wit, that where the primary purpose of a case is to ascertain
and determine who between plaintiff and defendant is the true owner and entitled to the
exclusive use of the disputed property, "the judgment . . . rendered by the lower court [is]
a judgment on the merits as to those questions, and [that] the order of the court for
an accounting was based upon, and is incidental to the judgment on the merits. That is to
say, that the judgment . . . [is] a final judgment ... that in this kind of a case an accounting
is a mere incident to the judgment; that an appeal lies from the rendition of the judgment
as rendered ... "(as is widely held by a great number of judges and members of the bar,
as shown by the cases so decided and filed and still pending with the Court) for the
fundamental reasons therein stated that "this is more in harmony with the administration
of justice and the spirit and intent of the [Rules]. If on appeal the judgment of the lower
court is affirmed, it would not in the least work an injustice to any of the legal rights of
[appellee]. On the other hand, if for any reason this court should reverse the judgment of
the lower court, the accounting would be a waste of time and money, and might work a
material injury to the [appellant]; and
- that accordingly, the contrary ruling in Fuentebella vs. Carrascoso which expressly
reversed the Heacock case and a line of similar decisions and ruled that such a decision
for recovery of property with accounting "is not final but merely interlocutory and therefore
not appealable" and subsequent cases adhering to the same must be now in
turn abandoned and set aside.
Fuentebella adopted instead the opposite line of conflicting decisions mostly in partition
proceedings and exemplified by Ron vs. Mojica 8 Phil. 928 (under the old Code of Civil
Procedure) that an order for partition of real property is not final and appealable until after
the actual partition of the property as reported by the court appointed commissioners and
approved by the court in its judgmentaccepting the report. lt must be especially noted that
such rule governing partitions is now so expressly provided and spelled out in Rule 69 of
the Rules of Court, with special reference to Sections 1, 2, 3, 6, 7 and 11, to wit, that
there must first be a preliminar, order for partition of the real estate (section 2) and where
the parties-co-owners cannot agree, the court appointed commissioners make a plan of
actual partition which must first be passed upon and accepted by the trial court and
embodied in a judgment to be rendered by it (sections 6 and 11). In partition cases, it
must be further borne in mind that Rule 69, section 1 refers to "a person having
the right to compel the partition of real estate," so that 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, as was the ruling in Villanueva vs.
Capistrano and Africa vs .Africa, supra, Fuentebellas express rehearsal of these cases
must likewise be deemed now also abandoned in view of the Court's expressed
preference for the rationale of the Heacock case.
The Court's considered opinion is that imperative considerations of public policy and
of sound practice in the courts and adherence to the constitutional mandate of simplified,
just, speedy and inexpensive determination of every action call for considering such
judgments for recovery of property with accounting as final judgments which are
duly appealable (and would therefore become final and executory if not appealed within
the reglementary period) with the accounting as a mere incident of the judgment to be
rendered during the course of the appeal as provided in Rule 39, section 4 or to be
implemented at the execution stage upon final affirmance on appeal of the judgment (as
in Court of Industrial Relations unfair labor practice cases ordering the reinstatement of
the worker with accounting, computation and payment of his backwages less earnings
elsewhere during his layoff) and that the only reason given in Fuentebelia for the contrary

ruling, viz, "the general harm that would follow from throwing the door open to multiplicity
of appeals in a single case" of lesser import and consequence. (Emphasis copied).
The miranda ruling has since then been applied as the new rule by a unanimous Court in Valdez vs.
Bagasao, 82 SCRA 22 (March 8, 1978).
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.
One last consideration. Parties are brothers and sisters, legal heirs of their deceased father, Forrest L.
Cease. By all rights in law and jurisprudence, each is entitled to share and share alike in the estate, which
the trial court correctly ordained and sustained by the appellate court. Almost 20 years have lapsed since
the filing of Special Proceedings No. 3893 for the administration of the Estate of Forrest L. Cease and
Civil Case No. 6326 for liquidation and partition of the assets of the defunct Tiaong Milling and Plantation
Co., Inc. A succession of receivers were appointed by the court to take, keep in possession, preserve and
manage properties of the corporation which at one time showed an income of P386,152.90 and expenses
of P308,405.01 for the period covering January 1, 1960 to August 31, 1967 as per Summary of
Operations of Commissioner for Finance appointed by the Court (Brief for Respondents, p. 38). In the
meantime, ejectment cases were filed by and against the heirs in connection with the properties involved,
aggravating the already strained relations of the parties. A prudent and practical realization of these
circumstances ought and must constrain the parties to give each one his due in law and with fairness and
dispatch that their basic rights be enjoyed. And by remanding this case to the court a quo for the actual
partition of the properties, the substantial rights of everyone of the heirs have not been impaired, for in
fact, they have been preserved and maintained.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED with
costs against the petitioners.
SO ORDERED.
Teehankee, Actg. C.J., (Chairman), Makasiar, Fernandez, De Castro and Melencio-Herrera, JJ., concur.

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

VICTORIA
BRINGAS
PEREIRA, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and RITA PEREIRA NAGAC, respondents.
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.
Andres de Guzman Pereira, an employee of the Philippine Air Lines, passed away on January 3, 1983 at
Bacoor, Cavite without a will. He was survived by his legitimate spouse of ten months, the herein
petitioner Victoria Bringas Pereira, and his sister Rita Pereira Nagac, the herein private respondent.
On March 1, 1983, private respondent instituted before Branch 19 of the Regional Trial Court of Bacoor,
Cavite, Special Proceeding No. RTC-BSP-83-4 for the issuance of letters of administration in her favor
1
pertaining to the estate of the deceased Andres de Guzman Pereira. In her verified petition, private
respondent alleged the following: that she and Victoria Bringas Pereira are the only surviving heirs of the
deceased; that the deceased left no will; that there are no creditors of the deceased; that the deceased
left several properties, namely: death benefits from the Philippine Air Lines (PAL), the PAL Employees
Association (PALEA), the PAL Employees Savings and Loan Association, Inc. (PESALA) and the Social
Security System (SSS), as well as savings deposits with the Philippine National Bank (PNB) and the
Philippine Commercial and Industrial Bank (PCIB), and a 300 square meter lot located at Barangay
Pamplona, Las Pinas, Rizal and finally, that the spouse of the deceased (herein petitioner) had been
working in London as an auxiliary nurse and as such one-half of her salary forms part of the estate of the
deceased.
On March 23,1983, petitioner filed her opposition and motion to dismiss the petition of private
2
respondent alleging that there exists no estate of the deceased for purposes of administration and
praying in the alternative, that if an estate does exist, the letters of administration relating to the said
estate be issued in her favor as the surviving spouse.
In its resolution dated March 28, 1985, the Regional Trial Court, appointed private respondent Rita
Pereira Nagac administratrix of the intestate estate of Andres de Guzman Pereira upon a bond posted by
her in the amount of Pl,000.00. The trial court ordered her to take custody of all the real and personal
3
properties of the deceased and to file an inventory thereof within three months after receipt of the order.
Not satisfied with the resolution of the lower court, petitioner brought the case to the Court of Appeals.
The appellate court affirmed the appointment of private respondent as administratrix in its decision dated
4
December 15, 1987.
Hence, this petition for review on certiorari where petitioner raises the following issues: (1) Whether or not
there exists an estate of the deceased Andres de Guzman Pereira for purposes of administration; (2)
Whether or not a judicial administration proceeding is necessary where there are no debts left by the
decedent; and, (3) Who has the better right to be appointed as administratrix of the estate of the
deceased, the surviving spouse Victoria Bringas Pereira or the surviving sister Rita Pereira Nagac?
Anent the first issue, petitioner contends that there exists no estate of the deceased for purposes of
administration for the following reasons: firstly, the death benefits from PAL, PALEA, PESALA and the
SSS belong exclusively to her, being the sole beneficiary and in support of this claim she submitted letterreplies from these institutions showing that she is the exclusive beneficiary of said death benefits;
secondly, the savings deposits in the name of her deceased husband with the PNB and the PCIB had
been used to defray the funeral expenses as supported by several receipts; and, finally, the only real
property of the deceased has been extrajudicially settled between the petitioner and the private
respondent as the only surviving heirs of the deceased.

Private respondent, on the other hand, argues that it is not for petitioner to decide what properties form
part of the estate of the deceased and to appropriate them for herself. She points out that this function is
vested in the court in charge of the intestate proceedings.
Petitioner asks this Court to declare that the properties specified do not belong to the estate of the
deceased on the basis of her bare allegations as aforestated and a handful of documents. Inasmuch as
this Court is not a trier of facts, We cannot order an unqualified and final exclusion or non-exclusion of the
5
property involved from the estate of the deceased.
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
6
some of the assets, if any. 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
7
parties.
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
8
9
therein. An exception to this rule is established in Section 1 of Rule 74. 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
administrator.
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
10
does not compel them to do so if they have good reasons to take a different course of action. 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
11
compelling reasons.
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 the appointment of an administrator are
12
superfluous and unnecessary proceedings .
Now, what constitutes "good reason" to warrant a judicial administration of the estate of a deceased when
the heirs are all of legal age and there are no creditors will depend on the circumstances of each case.
In one case,

13

We said:
Again the petitioner argues that only when the heirs do not have any dispute as to the
bulk of the hereditary estate but only in the manner of partition does section 1, Rule 74 of
the Rules of Court apply and that in this case the parties are at loggerheads as to the

corpus of the hereditary estate because respondents succeeded in sequestering some

assets of the intestate. The argument is unconvincing, because, as the respondent judge
has indicated, questions as to what property belonged to the deceased (and therefore to
the heirs) may properly be ventilated in the partition proceedings, especially where such
property is in the hands of one heir.
In another case, We held that if the reason for seeking an appointment as administrator is merely to avoid
a multiplicity of suits since the heir seeking such appointment wants to ask for the annulment of certain
transfers of property, that same objective could be achieved in an action for partition and the trial court is
14
not justified in issuing letters of administration. In still another case, We did not find so powerful a
reason the argument that the appointment of the husband, a usufructuary forced heir of his deceased
wife, as judicial administrator is necessary in order for him to have legal capacity to appear in the
intestate proceedings of his wife's deceased mother, since he may just adduce proof of his being a forced
15
heir in the intestate proceedings of the latter.
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
16
instances of a similar nature, 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.
With the foregoing ruling, it is unnecessary for us to delve into the issue of who, as between the surviving
spouse Victoria Bringas Pereira and the sister Rita Pereira Nagac, should be preferred to be appointed as
administratrix.
WHEREFORE, the letters of administration issued by the Regional Trial Court of Bacoor to Rita Pereira
Nagac are hereby revoked and the administration proceeding dismissed without prejudice to the right of
private respondent to commence a new action for partition of the property left by Andres de Guzman
Pereira. No costs.
SO ORDERED.
Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.

[G.R. No. 155555. August 16, 2005]

ISABEL P. PORTUGAL and JOSE

PORTUGAL-BELTRAN,respondent.

DOUGLAS PORTUGAL

JR., petitioners, vs. LEONILA

Petitioners Isabel P. Portugal and her son, Jose Douglas Portugal Jr., assail the September 24,
[1]
2002 Decision of the Court of Appeals affirming that of the Regional Trial Court (RTC) of Caloocan City,
[2]
Branch 124 which dismissed, after trial, their complaint for annulment of title for failure to state a cause
of action and lack of jurisdiction.

From the records of the case are gathered the following material allegations claims of the parties
which they sought to prove bytestimonial and documentary evidence during the trial of the case:
On November 25, 1942, Jose Q. Portugal (Portugal) married Paz Lazo.
On May 22, 1948, Portugal married petitioner Isabel de la Puerta.

[3]

[4]

On September 13, 1949, petitioner Isabel gave birth to a boy whom she named Jose Douglas
[5]
Portugal Jr., her herein co-petitioner.
On April 11, 1950, Paz gave birth to a girl, Aleli,
[7]
herein respondent.

[6]

later baptized as Leonila Perpetua Aleli Portugal,

On May 16, 1968, Portugal and his four (4) siblings executed a Deed of Extra-Judicial Partition and
[8]
Waiver of Rights over the estate of their father, Mariano Portugal, who died intestate on November 2,
[9]
1964. In the deed, Portugals siblings waived their rights, interests, and participation over a 155 sq. m.
[10]
parcel of land located in Caloocan in his favor.
On January 2, 1970, the Registry of Deeds for Caloocan City issued Transfer Certificate of Title
(TCT) No. 34292 covering the Caloocan parcel of land in the name of Jose Q. Portugal, married to Paz
[11]
C. Lazo.
On February 18, 1984, Paz died.
On April 21, 1985, Portugal died intestate.
On February 15, 1988, respondent executed an Affidavit of Adjudication by Sole Heir of Estate of
[12]
[13]
Deceased Person adjudicating to herself the Caloocan parcel of land. TCT No. 34292/T-172 in
[14]
Portugals name was subsequently cancelled and in its stead TCT No. 159813 was issued by the
Registry of Deeds for Caloocan City on March 9, 1988 in the name of respondent, Leonila PortugalBeltran, married to Merardo M. Beltran, Jr.
Later getting wind of the death in 1985 of Portugal and still later of the 1988 transfer by respondent
of the title to the Caloocan property in her name, petitioners filed before the RTC of Caloocan City on July
[15]
23, 1996 a complaint against respondent for annulment of the Affidavit of Adjudication executed by her
and the transfer certificate of title issued in her name.
In their complaint, petitioners alleged that respondent is not related whatsoever to the deceased
Portugal, hence, not entitled to inherit the Caloocan parcel of land and that she perjured herself when she
made false representations in her Affidavit of Adjudication.
Petitioners accordingly prayed that respondents Affidavit of Adjudication and the TCT in her name be
declared void and that the Registry of Deeds for Caloocan be ordered to cancel the TCT in respondents

name and to issue in its stead a new one in their (petitioners) name, and that actual, moral and exemplary
damages and attorneys fees and litigation expenses be awarded to them.
Following respondents filing of her answer, the trial court issued a Pre-Trial Order chronicling, among
other things, the issues as follows:
a. Which of the two (2) marriages contracted by the deceased Jose Q. Portugal Sr., is valid?
b. Which of the plaintiff . . . Jose Portugal Jr. and defendant Leonila P. Beltran is the legal heir of the deceased Jose
Q. Portugal Sr.?
c. Whether or not TCT No. 159813 was issued in due course and can still be contested by plaintiffs.
d. Whether or not plaintiffs are entitled to their claims under the complaint.

[16]

(Underscoring supplied)

[17]

After trial, the trial court, by Decision of January 18, 2001, after giving an account of the
testimonies of the parties and their witnesses and of their documentary evidence, without resolving the
issues defined during pre-trial, dismissed the case for lack of cause of action on the ground that
petitioners status and right as putative heirs had not been established before a probate (sic) court,
[18]
and lack of jurisdictionover the case, citing Heirs of Guido and Isabel Yaptinchay v. Del Rosario.
In relying on Heirs of Guido and Isabel Yaptinchay, the trial court held:
The Heirs of Yaptinchay case arose from facts not dissimilar to the case at bar.
xxx
In the instant case, plaintiffs presented a Marriage Contract, a Certificate of Live Birth, pictures (sic) and testimonial
evidence to establish their right as heirs of the decedent. Thus, the preliminary act of having a status and right to the
estate of the decedent, was sought to be determined herein. However,the establishment of a status, a right, or a
particular fact is remedied through a special proceeding (Sec. 3(c), Rule 1, 1997 Rules of Court), not an ordinary
civil action whereby a party sues another for the enforcement or protection of a right, or the protection or redress of
a wrong (ibid, a). The operative term in the former is to establish, while in the latter, it is to enforce, a right. Their
status and right as putative heirs of the decedent not having been established, as yet, the Complaint failed to state a
cause of action.
The court, not being a probate (sic) court, is without jurisdiction to rule on plaintiffs cause to establish their status
and right herein. Plaintiffs do not have the personality to sue (Secs. 1 and 2, Rule 3, in relation to Secs. 1 and 2, Rule
[19]
2, supra). (Italics in the original; emphasis and underscoring supplied).
Petitioners thereupon appealed to the Court of Appeals, questioning the trial courts ratio
decedendi in dismissing the case as diametrically opposed to this Courts following ruling in Cario v.
[20]
Cario, viz:
Under Article 40 of the Family Code, the absolute nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring such previous marriage void. Meaning, where the
absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the
sole basis acceptable in law, for said projected marriage to be free from legal infirmity, is a final judgment declaring
the previous void. (Domingo v. Court of Appeals, 226 SCRA 572, 579 [1993]) However, for purposes other than
remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For other purposes, such as but
not limited to the determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of
property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even after the
death of the parties thereto, and even in a suit not directly instituted to question the validity of said marriage, so long
as it is essential to the determination of the case. (Nial, et al. v. Bayadog, GR No. 13378, March 14, 2000). In

such cases, evidence must be adduced, testimonial or documentary, to prove the existence of grounds rendering such
a previous marriage an absolute nullity. These need not be limited solely to an earlier final judgment of a court
declaring such previous marriage void. (Domingo v. Court of Appeals, supra) (Emphasis and underscoring
supplied).
Conceding that the ruling in Cario was promulgated (in 2001) subsequent to that of Heirs of Guido
and Isabel Yaptinchay (in 1999), the appellate court found Cario to be inapplicable, however, to the case
in this wise:
To be borne in mind is the fact that the main issue in the Cario case was the validity of the two marriages contracted
by the deceased SPO4 Santiago Cario, whose death benefits was the bone of contention between the two women
both named Susan (viz., Susan Nicdao Cario and Susan Yee Cario) both of whom he married. It is not disputed in
said case that SPO4 S. Cario contracted two marriages with said two women during his lifetime, and the only
question was: which of these two marriages was validly celebrated? The award of the death benefits of the deceased
Cario was thus, merely an incident to the question of which of the two marriages was valid. Upon the other hand,
the case at bench is of a different milieu. The main issue here is theannulment of title to property. The only
undisputed fact in this case is that the deceased Jose Portugal, during his lifetime, owned a parcel of land covered by
Transfer Certificate of Title (TCT) No. T-34292. However, here come two contending parties, herein plaintiffsappellants and defendant-appellee, both now insisting to be the legal heir(s) of the decedent. x x x. The status and
rights of the parties herein have not, therefore, been definitively established, as yet. x x x. Necessarily and
naturally, such questions as to such status or right must be properly ventilated in an appropriate special proceeding,
not in an ordinary civil action, whereunder a party sues another for the enforcement or protection of a right, or the
protection or redress of a wrong. The institution of an ordinary civil suit for that purpose in the present case is thus
impermissible. For it is axiomatic that what the law prohibits or forbids directly, it cannot permit or allow indirectly.
To permit, or allow, a declaration of heirship, or the establishment of the legitimacy or illegitimacy of a child to be
determined in an ordinary civil action, not in an appropriate special proceeding brought for that purpose, is thus to
[21]
impinge upon this axiom. x x x (Emphasis in the original, underscoring supplied).
The appellate court, by Decision of September 24, 2002,
the case.
Hence, the present Petition for Review on Certiorari,
when

[22]

[23]

thus affirmed the trial courts dismissal of

faulting the appellate court to have erred

I.
. . . it affirmed the RTC decision dismissing the initiatory complaint as it failed to state a cause of action.
II.
. . . (i) it applied the ruling in Heirs of Guido [and Isabel] Yaptingchay despite the existence of a later and contrary
ruling in Cario, and (ii) when the Honorable CA and the lower court failed to render judgment based on the
[24]
evidence presented relative to the issues raised during pre-trial, . . . (Emphasis and underscoring supplied).
Petitioners thus prayed as follows:
WHEREFORE, it is respectfully prayed of this Honorable Supreme Court that the questioned CA decision
be reversed, and a new one entered in accordance with the prayers set forth in the instant complaint based on the
above disquisition and evidence adduced by petitioners in the court a quo.
IN THE ALTERNATIVE, should the Honorable Supreme Court find that the pronouncements in Cario apply, a
decision be entered remanding to the court a quo the determination of the issues of which of the two marriages is
valid, and the determination of heirship and legitimacy of Jose Jr. and Leonila preparatory to the determination of
the annulment of title issued in the name of Leonila.

Other relief and remedy just and equitable in the premises are likewise prayed for.

[25]

(Underscoring supplied).

Petitioners, in the main, argue that the appellate court misapplied Heirs of Guido and Isabel
Yaptinchay and in effect encouraged multiplicity of suits which is discouraged by this Court as a reading
of Cario shows; that Cario allows courts to pass on the determination of heirship and the legitimacy or
illegitimacy of a child so long as it is necessary to the determination of the case; and that contrary to the
appellate courts ruling, they had established their status as compulsory heirs.
In the main, the issue in the present petition is whether petitioners have to institute a special
proceeding to determine their status as heirs before they can pursue the case for annulment of
respondents Affidavit of Adjudication and of the TCT issued in her name.
[26]

In the above-cited case of Heirs of Guido and Isabel Yaptinchay, the therein petitioners executed
on March 17, 1994 an extrajudicial settlement of the estate of the deceased Guido and Isabel Yaptinchay,
owners-claimants of the two lots mentioned therein. They later discovered on August 26, 1994 that a
portion, if not all, of the two lots had been titled in the name of the therein respondent Golden Bay Realty
and Development Corporation which in turn sold portions thereof to the therein individual respondents.
The therein petitioners Heirsthus filed a complaint for annulment of titles. The therein respondents moved
to dismiss the case for failure of the therein petitioners to, inter alia, state a cause of action and prove
their status as heirs. The trial court granted the motion to dismiss in this wise:
But the plaintiffs who claimed to be the legal heirs of the said Guido and Isabel Yaptinchay have not shown any
proof or even a semblance of itexcept the allegations that they are the legal heirs of the aforementioned
Yaptinchaysthat they have been declared the legal heirs of the deceased couple. Now, the determination of who are
the legal heirs of the deceased couple must be made in the proper special proceedings in court, and not in an
ordinary suit for reconveyance of property. This must take precedence over the action for reconveyance . .
[27]
. (Italics in the original; underscoring supplied).
On petition for certiorari by the Heirs, this Court, albeit holding that the petition was an improper recourse,
found that the trial court did not commit grave abuse of discretion in dismissing the case. Citing Litam et
[28]
[29]
al. v. Rivera and Solivio v. Court of Appeals, this Court held that the declaration of heirship can be
made only in a special proceeding inasmuch as the petitioners here are seeking the establishment of a
status or right.
[30]

In the above-cited case of Litam, Gregorio Dy Tam instituted a special proceeding for issuance of
letters of administration before the then Court of First Instance (CFI) of Rizal, alleging in his petition that
he is the son of Rafael Litam who died in Manila on January 10, 1951 and is survived by him and his
therein named seven (7) siblings who are children of the decedent by his marriage to Sia Khin celebrated
in China in 1911; that the decedent contracted in 1922 in the Philippines another marriage with Marcosa
Rivera; and that the decedent left neither a will nor debt. Dy Tam thus prayed for the issuance of letters of
administration to Marcosa Rivera, the surviving spouse of the decedent. The CFI granted the petition and
issued letters of administration to, on Marcosas request, her nephew Arminio Rivera.
While the special proceeding was pending, Dy Tam and his purported siblings filed a civil
case before the same court, against the estate of Rafael Litam administrator Arminio Rivera and
Remedios R. Espiritu, duly appointed guardian of Marcosa. In their complaint, Dy Tam and his purported
siblings substantially reproduced the allegations made in his petition in the special proceeding, with the
addition of a list of properties allegedly acquired during the marriage of the decedent and Marcosa.
Finding the issue raised in the civil case to be identical to some unresolved incidents in the special
proceeding, both were jointly heard by the trial court, following which it rendered a decision in the civil
case dismissing it, declaring, inter alia, that the plaintiffs Dy Tam et al. are not the children of the
decedent whose only surviving heir is Marcosa.
On appeal to this Court by Dy Tam et al., one of the two issues raised for determination was whether
they are the legitimate children of Rafael Litam.

This Court, holding that the issue hinged on whether Rafael Litam and Sia Khin were married in
1911, and whether Rafael Litam is the father of appellants Dy Tam et al., found substantially correct the
trial courts findings of fact and its conclusion that, among other things, the birth certificates of Dy Tam et
al. do not establish the identity of the deceased Rafael Litam and the persons named therein as father
[and] it does not appear in the said certificates of birth that Rafael Litam had in any manner intervened in
the preparation and filing thereof; and that [t]he other documentary evidence presented by [them] [is]
entirely immaterial and highly insufficient to prove the alleged marriage between the deceased Rafael
Litam and Sia Khin and [their] alleged status . . . as children of said decedent.
This Court went on to opine in Litam, however, that the lower court should not have declared, in the
decision appealed from, that Marcosa is the only heir of the decedent, for such declaration is improper in
the [civil case], it being within the exclusive competence of the court in [the] [s]pecial [p]roceeding.
[31]

In Solivio, also cited in Heirs of Guido and Isabel Yaptinchay, there was a special proceeding for
the settlement of the estate of the deceased, who was a soltero, filed before the RTC of Iloilo. In the
special proceeding, Branch 23 of said court declared as sole heir Celedonia Solivio, the decedents
maternal aunt-half sister of his mother. Concordia Javellana-Villanueva, the decedents paternal auntsister of his father, moved to reconsider the courts order declaring Celedonia Solivio as sole heir of the
decedent, she claiming that she too was an heir. The court denied the motion on the ground of tardiness.
Instead of appealing the denial of her motion, Concordia filed a civil caseagainst Celedonia before the
same RTC, for partition, recovery of possession, ownership and damages. The civil case was raffled to
Branch 26 of the RTC, which rendered judgment in favor of Concordia. On appeal by Celedonia, the
appellate court affirmed the said judgment.
On petition for review filed before this Court by Celedonia who posed, among other issues, whether
Branch 26 of the RTC of Iloilo had jurisdiction to entertain [the civil action] for partition and recovery of
Concordia Villanuevas share of the estate of [the deceased] while the [estate] proceedings . . . were still
pending . . . in Branch 23 of the same court, this Court held that [i]n the interest of orderly
procedureand to avoid confusing and conflicting dispositions of a decedents estate, a court
should not interfere with [estate] proceedingspending in a co-equal court, citing Guilas v. CFI Judge
[32]
of Pampanga.
This Court, however, in Solivio, upon [c]onsidering that the estate proceedings are still pending, but
nonetheless [therein private respondent-Concordia Villanueva] had lost her right to have herself declared
as co-heir in said proceedings, opted to proceed to discuss the merits of her claim in the interest of
justice, and declared her an heir of the decedent.
[33]

In Guilas cited in Solivio, a project of partition between an adopted daughter, the therein petitioner
Juanita Lopez Guilas (Juanita), and her adoptive father was approved in the proceedings for the
settlement of the testate estate of the decedent-adoptive mother, following which the probate court
directed that the records of the case be archived.
Juanita subsequently filed a civil action against her adoptive father to annul the project of partition on
the ground of lesion, preterition and fraud, and prayed that her adoptive father immediately deliver to her
the two lots allocated to her in the project of partition. She subsequently filed a motion in the testate
estate proceedings for her adoptive father to deliver to her, among other things, the same two lots allotted
to her.
After conducting pre-trial in the civil case, the trial court, noting the parties agreement to suspend
action or resolution on Juanitas motion in the testate estate proceedings for the delivery to her of the two
lots alloted to her until after her complaint in the civil case had been decided, set said case for trial.
Juanita later filed in the civil case a motion to set aside the order setting it for trial on the ground that
in the amended complaint she, in the meantime, filed, she acknowledged the partial legality and validity of
the project of partition insofar as she was allotted the two lots, the delivery of which she was seeking. She
thus posited in her motion to set aside the April 27, 1966 order setting the civil case for hearing that there
was no longer a prejudicial question to her motion in the testate estate proceedings for the delivery to her
of the actual possession of the two lots. The trial court, by order of April 27, 1966, denied the motion.

Juanita thereupon assailed the April 27, 1966 order before this Court.
The probate courts approval of the project of partition and directive that the records of the case be
sent to the archives notwithstanding, this Court held that the testate estate proceedings had not been
legally terminated as Juanitas share under the project of partition had not been delivered to her.
Explained this Court:
As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be
deemed closed and terminated (Siguiong vs. Tecson, supra.); because a judicial partition is not final and conclusive
and does not prevent the heir from bringing an action to obtain his share, provided the prescriptive period therefor
has not elapse (Mari vs. Bonilla, 83 Phil., 137). The better practice, however, for the heir who has not received his
share, is to demand his share through a proper motion in the same probate or administration proceedings, or
for re-opening of the probate or administrative proceedings if it had already been closed, and not through an
independent action, which would be tried by another court or Judge which may thus reverse a decision or
order of the probate o[r] intestate court already final and executed and re-shuffle properties long ago distributed
and disposed of (Ramos vs. Ortuzar, 89 Phil. 730, 741-742; Timbol vs. Cano, supra,; Jingco vs. Daluz, L-5107,
April 24, 1953, 92 Phil. 1082; Roman Catholic vs. Agustines, L-14710, March 29, 1960, 107 Phil., 455, 460[34]
461). (Emphasis and underscoring supplied).
This Court thus set aside the assailed April 27, 1966 order of the trial court setting the civil case for
hearing, but allowed the civil case to continue because it involves no longer the two lots adjudicated to
Juanita.
The common doctrine in Litam, Solivio and Guilas in which the adverse parties are putative heirs to
the estate of a decedent or parties to the special proceedings for its settlement is that if the special
proceedings are pending, or if there are no special proceedings filed but there is, under the
circumstances of the case, a need to file one, then the determination of, among other issues, heirship
should be raised and settled in said special proceedings. Where special proceedings had been instituted
but had been finally closed and terminated, however, or if a putative heir has lost the right to have himself
declared in the special proceedings as co-heir and he can no longer ask for its re-opening, then an
ordinary civil action can be filed for his declaration as heir in order to bring about the annulment of the
partition or distribution or adjudication of a property or properties belonging to the estate of the deceased.
In the case at bar, respondent, believing rightly or wrongly that she was the sole heir to Portugals
[35]
estate, executed on February 15, 1988 the questioned Affidavit of Adjudication under the second
[36]
sentence of Rule 74, Section 1 of the Revised Rules of Court. 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
[37]
deceased left no will, or in case he did, he failed to name an executor therein.
Petitioners claim, however, to be the exclusive heirs of Portugal. 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
[38]
the Caloocan parcel of land, 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
[39]
be achieved in the civil case filed by petitioners, 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, which bear repeating, to wit:

1. Which of the two (2) marriages contracted by the deceased Jose Q. Portugal, is valid;
2. Which of the plaintiff, Jose Portugal Jr. and defendant Leonila P. Beltran is the legal heir of the deceased
Jose Q. Portugal (Sr.);
3. Whether or not TCT No. 159813 was issued in due course and can still be contested by plaintiffs;
4. Whether or not plaintiffs are entitled to their claim under the complaint.

[40]

WHEREFORE, the petition is hereby GRANTED. The assailed September 24, 2002 Decision of the
Court of Appeals is hereby SET ASIDE.
Let the records of the case be REMANDED to the trial court, Branch 124 of the Regional Trial Court
of Caloocan City, for it to evaluate the evidence presented by the parties and render a decision on the
above-enumerated issues defined during the pre-trial.
No costs.
SO ORDERED.
Panganiban, (Chairman), Sandoval-Gutierrez, Corona, and Garcia, JJ., concur.

[G.R. No. 115181. March 31, 2000]

MARIA SOCORRO AVELINO, petitioner, vs. COURT OF APPEALS, ANGELINA AVELINO, SHARON
AVELINO, ANTONIO AVELINO, JR., TRACY AVELINO, PATRICK MICHAEL AVELINO and MARK
ANTHONY AVELINO,respondents. Sdaa miso
Before us is a petition for review on certiorari of the Decision of the Court of Appeals dated February 16,
1994 in CA-G.R. SP No. 31574 as well as its Resolution dated April 28, 1994 denying petitioner's Motion
for Reconsideration. The assailed Decision affirmed the Order of the Regional Trial Court of Quezon City,
Branch 78, in Sp. Proc. No. Q-91-10441 converting petitioner's petition for the issuance of letters of
administration to an action for judicial partition.
Petitioner Maria Socorro Avelino is a daughter and compulsory heir of the late Antonio Avelino, Sr., and
his first wife private respondent Angelina Avelino.
The other private respondents, Sharon, Antonio Jr., Tracy, Patrick and Mark Anthony all surnamed
Avelino are likewise compulsory heirs of Avelino, Sr. Sharon, an American, is the second wife of Avelino,
Sr. The other private respondents are siblings of petitioner Ma. Socorro.
The records reveal that on October 24, 1991, Ma. Socorro filed before the Regional Trial Court of Quezon
City, Branch 78, docketed as SP Proc. No. Q-91-10441, a petition for the issuance of letters of
administration of the estate of Antonio Avelino, Sr., who died intestate on April 10, 1989. She asked that
she be appointed the administrator of the estate.
On December 3, 1992, Angelina, and the siblings filed their opposition by filing a motion to convert the
said judicial proceedings to an action for judicial partition which petitioner duly opposed.
On February 16, 1993, public respondent judge issued the assailed Order which reads:
"Acting on the Motion to Convert Proceedings to Action for Judicial Partition, considering
that the petitioner is the only heir not amenable to a simple partition, and all the other
compulsory heirs manifested their desire for an expeditious settlement of the estate of the
deceased Antonio Avelino, Sr., the same is granted.
"WHEREFORE, the petition is converted into judicial partition of the estate of deceased
Antonio Avelino, Sr. The parties are directed to submit a complete inventory of all the real
and personal properties left by the deceased. Set the hearing of the judicial partition on
APRIL 13, 1993, at 8:30 o'clock in the morning. Notify all the parties and their counsel of
this assignment.
"SO ORDERED."

[1]

On March 17, 1993, petitioner filed a motion for reconsideration which was denied in an Order dated June
16, 1993.
On July 23, 1993, Ma. Socorro filed before the Court of Appeals, a petition for certiorari, prohibition,
and mandamus alleging grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of the trial court, in granting private respondents' motion to convert the judicial proceeding for the
issuance of letters of administration to an action for judicial partition. Her petition was docketed as CAG.R. SP No. 31574. Sdaad
On February 18, 1994, the respondent appellate court rendered the assailed decision, stating that the
[2]
"petition is DENIED DUE COURSE" and accordingly dismissed."

On March 1, 1994, petitioner duly moved for reconsideration, but it was denied on April 28, 1994.
Hence, this petition. Petitioner assigns the following errors:
THE COURT OF APPEALS ERRED IN UPHOLDING THE LOWER COURT'S FINDING
THAT PARTITION IS PROPER UNDER THE PREMISES.
ADMINISTRATION SHOULD BE THE PROPER REMEDY PENDING THE
DETERMINATION OF THE CHARACTER AND EXTENT OF THE DECEDENT'S
[3]
ESTATE.
For resolution, we find that given the circumstances in this case, the sole issue here is whether
respondent appellate court committed an error of law and gravely abused its discretion in upholding the
trial court's finding that a partition is proper.
Petitioner submits that: First, no partition of the estate is possible in the instant case as no determination
has yet been made of the character and extent of the decedent's estate. She points to the Court's ruling
in Arcilles v. Montejo, 26 SCRA 197 (1969), where we held that when the existence of other properties of
the decedent is a matter still to be reckoned with, administration proceedings are the proper mode of
[4]
resolving the same. In addition, petitioner contends that the estate is in danger of being depleted for
want of an administrator to manage and attend to it.
Second, petitioner insists that the Rules of Court does not provide for conversion of a motion for the
issuance of letters of administration to an action for judicial partition. The conversion of the motion was,
thus, procedurally inappropriate and should be struck down for lack of legal basis.
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
[5]
qualified administrator in the order established in Section 6 of Rule 78. The exceptions to this rule are
[6]
found in Sections 1 and 2 of Rule 74 which provide:
"SECTION 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.. Scs daad
"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."
The heirs succeed immediately to all of the rights and properties of the deceased at the moment of the
[7]
latter's death. 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 dissipated. When a person dies without leaving
pending obligations, his heirs, are not required to submit the property for judicial administration, nor apply
[8]
for the appointment of an administrator by the court.
We note that the Court of Appeals found that in this case "the decedent left no debts and the heirs and
[9]
legatees are all of age." With this finding, it is our view that Section 1, Rule 74 of the Rules of Court
should apply.
In a last-ditch effort to justify the need for an administrator, petitioner insists that there is nothing to
partition yet, as the nature and character of the estate have yet to be determined. 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. Sup rema
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
[10]
compelled to submit to administration proceedings. 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.
WHEREFORE, the petition is DENIED for lack of merit, and the assailed decision and resolution of the
Court of Appeals is CA-G.R. SP No. 31574 are AFFIRMED. Costs against petitioner.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur. Juris

G.R. No. L-40502 November 29, 1976

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

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

In the meantime, the notice of hearing of the petition for letters of administration filed by Virginia
G. Fule with the Court of First Instance of Calamba, Laguna, was published on May 17, 24, and 31,
1973, in theBayanihan, a weekly publication of general circulation in Southern Luzon.
On June 6, 1973, Preciosa B. Garcia received a "Supplemental Petition for the Appointment of
Regular Administrator ' filed by Virginia G. Fule. This supplemental petition modified the original
petition in four aspects: (1) the allegation that during the lifetime of the deceased Amado G.
Garcia, he was elected as Constitutional Delegate for the First District of Laguna and his last place
of residence was at Calamba, Laguna; (2) the deletion of the names of Preciosa B. Garcia and
Agustina Garcia as legal heirs of Amado G. Garcia; (3) the allegation that Carolina Carpio, who
was simply listed as heir in the original petition, is the surviving spouse of Amado G. Garcia and
that she has expressly renounced her preferential right to the administration of the estate in favor
of Virginia G. Fule; and (4) that Virginia G. Fule be appointed as the regular administratrix. The
admission of this supplemental petition was opposed by Preciosa B. Garcia for the reason, among
others, that it attempts to confer jurisdiction on the Court of First Instance of Laguna, of which the
court was not possessed at the beginning because the original petition was deficient.
On July 19, 1973, Preciosa B. Garcia filed an opposition to the original and supplemental petitions
for letters of administration, raising the issues of jurisdiction, venue, lack of interest of Virginia G.
Fule in the estate of Amado G. Garcia, and disqualification of Virginia G Fule as special
administratrix.
An omnibus motion was filed by Virginia G. Fule on August 20, 1973, praying for authority to take
possession of properties of the decedent allegedly in the hands of third persons as well as to
secure cash advances from the Calamba Sugar Planters Cooperative Marketing Association, Inc.
Preciosa B. Garcia opposed the motion, calling attention to the limitation made by Judge Malvar
on the power of the special administratrix, viz., "to making an inventory of the personal and real
properties making up the state of the deceased."
However, by July 2, 1973, Judge Malvar and already issued an order, received by Preciosa B.
Garcia only on July 31, 1973, denying the motion of Preciosa B. Garcia to reconsider the order of
May 2, 1973, appointing Virginia G. Fule as special administratrix, and admitting the
supplementation petition of May 18,1973.
On August 31, 1973, Preciosa B. Garcia moved to dismiss the petition, because (1) jurisdiction
over the petition or over the parties in interest has not been acquired by the court; (2) venue was
improperly laid; and (3) Virginia G. Fule is not a party in interest as she is not entitled to inherit
from the deceased Amado G. Garcia.
On September 28, 1973, Preciosa B. Garcia filed a supplemental motion to substitute Virginia G.
Fule as special administratrix, reasoning that the said Virginia G. Fule admitted before before the
court that she is a full-blooded sister of Pablo G. Alcalde, an illegitimate son of Andrea Alcalde,
with whom the deceased Amado G. Garcia has no relation.
Three motions were filed by Preciosa B. Garcia on November 14, 1973, one, to enjoin the special
administratrix from taking possession of properties in the hands of third persons which have not
been determined as belonging to Amado G. Garcia; another, to remove the special administratrix
for acting outside her authority and against the interest of the estate; and still another, filed in
behalf of the minor Agustina B. Garcia, to dismiss the petition for want of cause of action,
jurisdiction, and improper venue.
On November 28, 1973, Judge Malvar resolved the pending omnibus motion of Virgina G. Fule and
the motion to dismiss filed by Preciosa B. Garcia. Resolving the motion to dismiss, Judge Malvar
ruled that the powers of the special administratrix are those provided for in Section 2, Rule 80 of

the Rules of Court, subject only to the previous qualification made by the court that the
administration of the properties subject of the marketing agreement with the Canlubang Sugar
Planters Cooperative Marketing Association should remain with the latter; and that the special
administratrix had already been authorized in a previous order of August 20, 1973 to take custody
and possession of all papers and certificates of title and personal effects of the decedent with the
Canlubang Sugar Planters Cooperative Marketing Association, Inc. Ramon Mercado, of the
Canlubang Sugar Planters Cooperative Marketing Association, Inc., was ordered to deliver to
Preciosa B. Garcia all certificates of title in her name without any qualifying words like "married to
Amado Garcia" does not appear. Regarding the motion to dismiss, Judge Malvar ruled that the
issue of jurisdiction had already been resolved in the order of July 2, 1973, denying Preciosa B.
Garcia's motion to reconsider the appointment of Virginia G. Fule and admitting the supplemental
petition, the failure of Virginia G. Fule to allege in her original petition for letters of administration
in the place of residence of the decedent at the time of his death was cured. Judge Malvar further
held that Preciosa B. Garcia had submitted to the jurisdiction of the court and had waived her
objections thereto by praying to be appointed as special and regular administratrix of the estate.
An omnibus motion was filed by Preciosa B. Garcia on December 27, 1973 to clarify or reconsider
the foregoing order of Judge Malvar, in view of previous court order limiting the authority of the
special administratrix to the making of an inventory. Preciosa B. Garcia also asked for the
resolution of her motion to dismiss the petitions for lack of cause of action, and also that filed in
behalf of Agustina B. Garcia. Resolution of her motions to substitute and remove the special
administratrix was likewise prayed for.
On December 19, 1973, Judge Malvar issued two separate orders, the first, denying Preciosa B.
Garcia's motions to substitute and remove the special administratrix, and the second, holding that
the power allowed the special administratrix enables her to conduct and submit an inventory of
the assets of the estate.
On January 7, 1974, Preciosa B. Garcia moved for reconsideration of the foregoing orders of
November 28, 1973 and December 19, 1973, insofar as they sustained or failed to rule on the
issues raised by her: (a) legal standing (cause of action) of Virginia G. Fule; (b) venue; (c)
jurisdiction; (d) appointment, qualification and removal of special administratrix; and (e) delivery
to the special administratrix of checks and papers and effects in the office of the Calamba Sugar
Planters Cooperative Marketing Association, Inc.
On March 27, 1973, Judge Malvar issued the first questioned order denying Preciosa B. Garcia's
motion for reconsideration of January 7, 1974. On July 19, 1974, Judge Malvar issued the other
three questioned orders: one, directing Ramon Mercado, of the Calamba Sugar Planters
Cooperative Marketing Association, Inc., to furnish Virginia G. Fule, as special administratrix,
copy of the statement of accounts and final liquidation of sugar pool, as well as to deliver to her
the corresponding amount due the estate; another, directing Preciosa B. Garcia to deliver to
Virginia G. Fule two motor vehicles presumably belonging to the estate; and another, directing
Ramon Mercado to deliver to the court all certificates of title in his possession in the name of
Preciosa B. Garcia, whether qualified with the word "single" or "married to Amado Garcia."
During the hearing of the various incidents of this case (Sp. Proc. 27-C) before Judge
2
Malvar, Virginia G. Fule presented the death certificate of Amado G. Garcia showing that his
residence at the time of his death was Quezon City. On her part, Preciosa B. Garcia presented the
residence certificate of the decedent for 1973 showing that three months before his death his
residence was in Quezon City. Virginia G. Fule also testified that Amado G. Garcia was residing in
Calamba, Laguna at the time of his death, and that he was a delegate to the 1971 Constitutional
Convention for the first district of Laguna.
On July 26, 1974, Preciosa B. Garcia and Agustina B. Garcia commenced a special action for
certiorari and/or prohibition and preliminary injunction before the Court of Appeals, docketed as

CA-G.R. No. 03221-SP. primarily to annul the proceedings before Judge Malvar in Sp. Proc. No. 27C of the Court of First Instance of Laguna, or, in the alternative, to vacate the questioned four
orders of that court, viz., one dated March 27, 1974, denying their motion for reconsideration of
the order denying their motion to dismiss the criminal and supplemental petitions on the issue,
among others, of jurisdiction, and the three others, all dated July 19, 1974, directing the delivery
of certain properties to the special administratrix, Virginia G. Fule, and to the court.
On January 30, 1975, the Court of Appeals rendered judgment annulling the proceedings before
Judge Severo A. Malvar in Sp. Proc. 27-C of the Court of First Instance of Calamba, Laguna, for
lack of jurisdiction.
Denied of their motion for reconsideration on March 31, 1975, Virginia G. Fule forthwith elevated
the matter to Us on appeal by certiorari. The case was docketed as G.R. No. L-40502.
However, even before Virginia G. Fule could receive the decision of the Court of Appeals, Preciosa
B. Garcia had already filed on February 1, 1975 a petition for letters of administration before the
Court of First Instance of Rizal, Quezon City Branch, docketed as Sp. Proc. No. Q-19738, over the
same intestate estate of Amado G. Garcia. On February 10, 1975, Preciosa B. Garcia urgently
moved for her appointment as special administratrix of the estate. Judge Vicente G. Ericta granted
the motion and appointed Preciosa B. Garcia as special administratrix upon a bond of P30,000.00.
Preciosa B. Garcia qualified and assumed the office.
For the first time, on February 14, 1975, Preciosa B. Garcia informed Judge Ericta of the pendency
of Sp. Proc. No. 27-C before Judge Malvar of the Court of First Instance of Laguna, and the
annulment of the proceedings therein by the Court of Appeals on January 30, 1975. She
manifested, however, her willingness to withdraw Sp. Proc. Q-19738 should the decision of the
Court of Appeals annulling the proceedings before the Court of First Instance of Laguna in Sp.
Proc. No. 27-C have not yet become final, it being the subject of a motion for reconsideration.
On March 10, 1973, Judge Ericta ordered the suspension of the proceedings before his court until
Preciosa B. Garcia inform the court of the final outcome of the case pending before the Court of
Appeals. This notwithstanding, Preciosa B. Garcia filed on December 11, 1975, an "Urgent Petition
for Authority to Pay Estate Obligations."
On December 13, 1975, Virginia G. Fule filed a "Special Appearance to Question Venue and
Jurisdiction" reiterating the grounds stated in the previous special appearance of March 3, 1975,
and calling attention that the decision of the Court of Appeals and its resolution denying the
motion for reconsideration had been appealed to this Court; that the parties had already filed their
respective briefs; and that the case is still pending before the Court.
On December 17, 1975, Judge Ernani Cruz Pano, who succeeded Judge Ericta, issued an order
granting Preciosa B. Garcia's "Urgent Petition for Authority to Pay Estate Obligations" in that the
payments were for the benefit of the estate and that there hangs a cloud of doubt on the validity of
the proceedings in Sp. Proc. No. 27-C of the Court of First Instance of Laguna.
A compliance of this Order was filed by Preciosa B. Garcia on January 12,1976.
On February 4,1974, VIRGINIA G. FULE instituted G.R. No. L-42670, a petition for certiorari with
temporary restraining order, to annul the proceedings in Sp. Proc. No. Q-19738 and to restrain
Judge Ernani Cruz Pao from further acting in the case. A restraining order was issued on
February 9, 1976.
We dismiss the appeal in G.R. No. L-40502 and the petition for certiorari in G.R. No. L-42670 for
the reasons and considerations hereinafter stated.

1. Section 1, Rule 73 of the Revised Rules of Court provides: "If the decedent is an inhabitant of
the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or
letters of administration granted, and his estate settled, in the Court of First Instance in the
province in which he resides at the time of his death, and if he is an inhabitant of a foreign
country, the Court of First Instance of any province in which he had estate. The court first taking
cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the
exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the
place of residence of the decedent, or of the location of his estate, shall not be contested in a suit
or proceeding, except in an appeal from that court, in the original case, or when the want of
jurisdiction appears on the record." With particular regard to letters of administration, Section 2,
Rule 79 of the Revised Rules of Court demands that the petition therefor should affirmatively
show the existence of jurisdiction to make the appointment sought, and should allege all the
necessary facts, such as death, the name and last residence of the decedent, the existence, and
situs if need be, of assets, intestacy, where this is relied upon, and the right of the person who
seeks administration, as next of kin, creditor, or otherwise, to be appointed. The fact of death of
the intestate and his last residence within the country are foundation facts upon which all
subsequent proceedings in the administration of the estate rest, and that if the intestate was not
an inhabitant of the state at the time of his death, and left no assets in the state, no jurisdiction is
3
conferred on the court to grant letters of administration.
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
4
Persons. Venue and Processes. It could not have been intended to define the jurisdiction over
the subject matter, because such legal provision is contained in a law of procedure dealing merely
with procedural matters. Procedure is one thing; jurisdiction over the subject matter is another.
The power or authority of the court over the subject matter "existed and was fixed before
procedure in a given cause began." That power or authority is not altered or changed by
procedure, which simply directs the manner in which the power or authority shall be fully and
justly exercised. There are cases though that if the power is not exercised conformably with the
provisions of the procedural law, purely, the court attempting to exercise it loses the power to
exercise it legally. However, this does not amount to a loss of jurisdiction over the subject matter.
Rather, it means that the court may thereby lose jurisdiction over the person or that the judgment
may thereby be rendered defective for lack of something essential to sustain it. The appearance of
this provision in the procedural law at once raises a strong presumption that it has nothing to do
with the jurisdiction of the court over the subject matter. In plain words, it is just a matter of
5
method, of convenience to the parties.
The Judiciary Act of 1948, as amended, confers upon Courts of First Instance jurisdiction over all
probate cases independently of the place of residence of the deceased. Because of the existence
of numerous Courts of First Instance in the country, the Rules of Court, however, purposedly fixes
the venue or the place where each case shall be brought. A fortiori, the place of residence of the
deceased in settlement of estates, probate of will, and issuance of letters of administration does
not constitute an element of jurisdiction over the subject matter. It is merely constitutive of venue.
And it is upon this reason that the Revised Rules of Court properly considers the province where
6
the estate of a deceased person shall be settled as "venue."
2. But, the far-ranging question is this: What does the term "resides" mean? Does it refer to the
actual residence or domicile of the decedent at the time of his death? We lay down the doctrinal
rule that the term "resides" connotes ex vi termini "actual residence" as distinguished from "legal
residence or domicile." This term "resides," like, the terms "residing" and "residence," is elastic
and should be interpreted in the light of the object or purpose of the statute or rule in which it is
7
employed. In the application of venue statutes and rules Section 1, Rule 73 of the Revised
Rules of Court is of such nature residence rather than domicile is the significant factor. Even
where the statute uses the word "domicile" still it is construed as meaning residence and not

domicile in the technical sense. Some cases make a distinction between the terms "residence"
and "domicile" but as generally used in statutes fixing venue, the terms are synonymous, and
8
convey the same meaning as the term "inhabitant." In other words, "resides" should be viewed
or understood in its popular sense, meaning, the personal, actual or physical habitation of a
person, actual residence or place of abode. It signifies physical presence in a place and actual
stay thereat. In this popular sense, the term means merely residence, that is, personal residence,
9
not legal residence or domicile. Residence simply requires bodily presence as an inhabitant in a
given place, while domicile requires bodily presence in that place and also an intention to make it
10
one's domicile. No particular length of time of residence is required though; however, the
11
residence must be more than temporary.
3. Divergent claims are maintained by Virginia G. Fule and Preciosa B. Garcia on the residence of
the deceased Amado G. Garcia at the time of his death. In her original petition for letters of
administration before the Court of First Instance of Calamba, Laguna, Virginia G. Fule measely
stated "(t)hat on April 26,1973, Amado G. Garcia, a property owner of Calamba, Laguna, died
intestate in the City of Manila, leaving real estate and personal properties in Calamba, Laguna, and
in other places within the jurisdiction of this Honorable Court." Preciosa B. Garcia assailed the
petition for failure to satisfy the jurisdictional requirement and improper laying of venue. For her,
the quoted statement avers no domicile or residence of the deceased Amado G. Garcia. To say
that as "property owner of Calamba, Laguna," he also resides in Calamba, Laguna, is, according
to her, non sequitur. On the contrary, Preciosa B. Garcia claims that, as appearing in his death
certificate presented by Virginia G. Fule herself before the Calamba court and in other papers, the
last residence of Amado G. Garcia was at 11 Carmel Avenue, Carmel Subdivision, Quezon City.
Parenthetically, in her amended petition, Virginia G. Fule categorically alleged that Amado G.
Garcia's "last place of residence was at Calamba, Laguna."
On this issue, We rule that the last place of residence of the deceased Amado G. Garcia was at 11
Carmel Avenue, Carmel Subdivision, Quezon City, and not at Calamba, Laguna. A death certificate
12
is admissible to prove the residence of the decedent at the time of his death. 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 decedent.
4. Preciosa B. Garcia's challenge to Virginia G. Fule's appointment as special administratrix is
another issue of perplexity. Preciosa B. Garcia claims preference to the appointment as surviving
spouse. Section 1 of Rule 80 provides that "(w)hen there is delay in granting letters testamentary
or of administration by any cause including an appeal from the allowance or disallowance of a
will, the court may appoint a special administrator to take possession and charge of the estate of
the deceased until the questions causing the delay are decided and executors or administrators

13

appointed. Formerly, the appointment of a special administrator was only proper when the
allowance or disallowance of a will is under appeal. The new Rules, however, broadened the basis
for appointment and such appointment is now allowed when there is delay in granting letters
testamentary or administration by
any cause e.g., parties cannot agree among
14
themselves. Nevertheless, the discretion to appoint a special administrator or not lies in the
15
probate court. That, however, is no authority for the judge to become partial, or to make his
personal likes and dislikes prevail over, or his passions to rule, his judgment. Exercise of that
discretion must be based on reason, equity, justice and legal principle. There is no reason why
the same fundamental and legal principles governing the choice of a regular administrator should
16
not be taken into account in the appointment of a special administrator. 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
17
respect is the beneficial interest of the appointee in the estate of the decedent. 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
18
ownership of a property.
Virginia G. Fule, however, disputes the status of Preciosa B. Garcia as the widow of the late
Amado G. Garcia. With equal force, Preciosa B. Garcia maintains that Virginia G. Fule has no
relation whatsoever with Amado G. Garcia, or that, she is a mere illegitimate sister of the latter,
19
incapable of any successional rights. On this point, We rule that Preciosa B. Garcia is prima
facie entitled to the appointment of special administratrix. It needs be emphasized that in the
issuance of such appointment, which is but temporary and subsists only until a regular
20
administrator is appointed, 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
21
parties in the administration as to be the basis of distribution. The preference of Preciosa B.
Garcia is with sufficient reason. In a Donation Inter Vivos executed by the deceased Amado G.
Garcia on January 8, 1973 in favor of Agustina B. Garcia, he indicated therein that he is married to
22
Preciosa B. Garcia. In his certificate of candidacy for the office of Delegate to the Constitutional
Convention for the First District of Laguna filed on September 1, 1970, he wrote therein the name
23
of Preciosa B. Banaticla as his spouse. Faced with these documents and the presumption that a
man and a woman deporting themselves as husband and wife have entered into a lawful contract
of marriage, Preciosa B. Garcia can be reasonably believed to be the surviving spouse of the late
24
Amado G. Garcia. Semper praesumitur pro matrimonio.
25

5. Under these circumstances and the doctrine laid down in Cuenco vs. Court of Appeals, this
Court under its supervisory authority over all inferior courts may properly decree that venue in the
instant case was properly assumed by and transferred to Quezon City and that it is in the interest
of justice and avoidance of needless delay that the Quezon City court's exercise of jurisdiction
over the settlement of the estate of the deceased Amado G. Garcia and the appointment of special
administratrix over the latter's estate be approved and authorized and the Court of First Instance
of Laguna be disauthorized from continuing with the case and instead be required to transfer all
the records thereof to the Court of First Instance of Quezon City for the continuation of the
proceedings.
6. Accordingly, the Order of Judge Ernani Cruz Pano of December 17, 1975, granting the "Urgent
Petition for Authority to Pay Estate Obligations" filed by Preciosa B. Garcia in Sp. Proc. No. Q19738, subject matter of G.R. No. L-42670, and ordering the Canlubang Sugar Estate to deliver to
her as special administratrix the sum of P48,874.70 for payment of the sum of estate obligations is
hereby upheld.

IN VIEW OF THE FOREGOING, the petitions of petitioner Virginia Garcia Fule in G.R. No. L-40502
and in G.R. No. L42670 are hereby denied, with costs against petitioner.
SO ORDERED.
Teehankee (Chairman), Makasiar, Aquino and Concepcion, Jr., JJ., concur.
Muoz Palma, J., took no part.

EMILIA FIGURACION-GERILLA, G.R. No. 154322

Petitioner,
Present:
PUNO, J., Chairperson,
SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA and
GARCIA, JJ.
CAROLINA VDA. DE FIGURACION,*
ELENA FIGURACION-ANCHETA,*
HILARIA A. FIGURACION, FELIPA
FIGURACION-MANUEL, QUINTIN
FIGURACION and
MARY FIGURACION-GINEZ,
Respondents. Promulgated:
August 22, 2006
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
CORONA, J.:

In this petition for review on certiorari,[1] petitioner Emilia Figuracion-Gerilla challenges the decision[2] and
resolution[3] of the Court of Appeals (CA) affirming the decision of the Regional Trial Court (RTC)
of Urdaneta City, Pangasinan, Branch 49, which dismissed her complaint for partition. The properties involved are
two parcels of land which belonged to her late father,Leandro Figuracion.

The facts of the case follow.[4]

Spouses Leandro and respondent Carolina Figuracion (now both deceased) had six children: petitioner and
respondents

ElenaFiguracion-Ancheta (now

deceased), Hilaria Figuracion, Felipa Figuracion-

Manuel, Quintin Figuracion and Mary Figuracion-Ginez.

On August 23, 1955, Leandro executed a deed of quitclaim over his real properties in favor of his six
children. When he died in 1958, he left behind two parcels of land: (1) Lot 2299 of the Cadastral Survey
of Urdaneta consisting of 7,547 square meters with Transfer Certificate of Title (TCT) No. 4221-P in the name
of Leandro Figuracion, married to Carolina Adviento and (2) Lot 705 of the Cadastral Survey of Urdaneta with an
area of 2,900 sq. m. with TCT No. 4220-P also in the name of Leandro Figuracion, married to

Carolina Adviento. Leandro had inherited both lots from his deceased parents, [5] as evidenced by Original Certificate
of Title (OCT) Nos. 16731 and 16610, respectively, issued by the Register of Deeds of the Province of Pangasinan.

Leandro sold a portion of Lot 2299 to Lazaro Adviento, as a result of which TCT No. 4221-P was cancelled
and TCT No. 101331 was issued to Lazaro Adviento, married to Rosenda Sagueped as owner of the 162 sq. m.
and Leandro Figuracion, married to Carolina Adviento as owner of 7,385 sq. m. This lot continued to be in the name
of Leandro in Tax Declaration No. 616 for the year 1985.

What gave rise to the complaint for partition, however, was a dispute between petitioner and her sister,
respondent Mary, over the eastern half of Lot 707 of the Cadastral Survey of Urdaneta with an area of 3,164 sq. m.

Lot 707 belonged to Eulalio Adviento, as evidenced by OCT No. 15867 issued on February 9,
1916. When Adviento died, his two daughters, Agripina Adviento (his daughter by his first wife) and respondent
Carolina (his daughter by his second wife), succeeded him to it. On November 28, 1961, Agripina executed a
quitclaim in favor of petitioner over the one-half eastern portion of Lot 707. Agripina died on July 28, 1963, single
and without any issue. Before her half-sisters death, however, respondent Carolina adjudicated unto herself, via
affidavit under Rule 74 of the Rules of Court, the entire Lot 707 which she later sold to
respondents Felipa and Hilaria. The latter two immediately had OCT No. 15867 cancelled, on December 11,
1962. A new title, TCT No. 42244, was then issued in the names of Felipa and Hilaria for Lot 707.

In February 1971, petitioner and her family went to the United States where they stayed for ten
years. Returning in 1981,[6]she built a house made of strong materials on the eastern half-portion of Lot 707. She
continued paying her share of the realty taxes thereon.
It was sometime later that this dispute erupted. Petitioner sought the extrajudicial partition of all properties
held in common by her and respondents. On May 23, 1994, petitioner filed a complaint in the RTC
of Urdaneta City, Branch 49, for partition, annulment of documents, reconveyance, quieting of title and damages
against respondents, praying, among others, for: (1) thepartition of Lots 2299 and 705; (2) the nullification of the
affidavit of self-adjudication executed by respondent Carolina over Lot 707, the deed of absolute sale in favor of
respondents Felipa and Hilaria, and TCT No. 42244; (3) a declaration that petitioner was the owner of one-half of
Lot 707 and (4) damages. The case was docketed as Civil Case No. U-5826.

On the other hand, respondents took the position that Leandros estate should first undergo settlement
proceedings before partition among the heirs could take place. And they claimed that an accounting of expenses
chargeable to the estate was necessary for such settlement.

On June 26, 1997,[7] the RTC[8] rendered judgment nullifying Carolinas affidavit of self-adjudication and
deed of absolute sale of Lot 707. It also declared Lots 2299 and 705 as exclusive properties
of Leandro Figuracion and therefore part of his estate.The RTC, however, dismissed the complaint for
partition, reconveyance and damages on the ground that it could not grant thereliefs prayed for by petitioner without
any (prior) settlement proceedings wherein the transfer of title of the properties should first be effected.
On appeal, the CA upheld the dismissal of petitioners action for partition for being premature. The CA
reversed the decision, however, with respect to the nullification of the self-adjudication and the deed of
sale. Upholding the validity of the affidavit of self-adjudication and deed of sale as to Carolinas one-half proindiviso share, it instead partitioned Lot 707. Dissatisfied, respondents elevated the CA decision to this Court in
G.R. No. 151334, entitled Carolina vda. de Figuracion, et al. v. Emilia Figuracion-Gerilla.[9]

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 distributed.

Respondents claim that: (1) the properties constituting Leandros estate cannot be partitioned before his estate is
settled and (2) there should be an accounting before anything else, considering that they (respondents) had to spend
for the maintenance of the deceasedLeandro Figuracion and his wife in their final years, which support was
supposed to come from the income of the properties. Among other things, respondents apparently wanted petitioner
to share in the expenses incurred for the care of their parents during the ten years she stayed in the United States,
before she could get her part of the estate while petitioner apparently wanted her gross share, without first
contributing to the expenses.

In any event, there appears to be a complication with respect to the partition of Lot 705. The records refer
to a case entitledFiguracion, et al. v. Alejo currently pending in the CA. The records, however, give no clue or
information regarding what exactly this case is all about. Whatever the issues may be, suffice it to say that partition
is premature when ownership of the lot is still in dispute.[10]

Petitioner faces a different problem with respect to Lot 2299. Section 1, Rule 69 of the Rules of Court
provides:
SECTION 1. Complaint in action for partition of real estate. A person having the right to compel
the partition of real estate may do so as provided in this Rule, setting forth in his complaint the
nature and extent of his title and an adequate description of the real estate of which partition is
demanded and joining as defendants all other persons interested in the property.

The right to an inheritance is transmitted immediately to the heirs by operation of law, at the moment of
death of the decedent. There is no doubt that, as one of the heirs of Leandro Figuracion, petitioner has a legal
interest in Lot 2299. But can she compel partition at this stage?
There are two ways by which partition can take place under Rule 69: by agreement under Section 2 [11] 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]

WHEREFORE, the petition is hereby DENIED. The Court of Appeals decision and resolution in CAG.R. CV No. 58290 are AFFIRMED in so far as the issue of the partition of Lots 2299 and 705 is concerned.

But with respect to Lot 707, we make no ruling on the validity of Carolina vda. de Figuracions affidavit of
self-adjudication

and

deed

of

sale

in

favor

of Felipa and Hilaria Figuracion in

view

of

the

fact

that Carolina vda. de Figuracion, et al. v. EmiliaFiguracion-Gerilla (G.R. No. 151334) is still pending in this
Division.
Costs against petitioner.
SO ORDERED.

G.R. No. 151334

February 13, 2013

CAROLINA (CARLINA) VDA. DE FIGURACION, HEIRS OF ELENA FIGURACION-ANCHETA, namely:

LEONCIO ANCHETA, JR., and ROMULO ANCHETA, HEIRS OF HILARIA A. FIGURACION, namely:
FELIPA FIGURACION-MANUEL, MARY FIGURACION-GINEZ, and EMILIA FIGURACION-GERILLA,
AND HEIRS OF QUINTIN FIGURACION, namely: LINDA M. FIGURACION, LEANDRO M.
FIGURACION,
II,
and
ALLAN
M.
FIGURACION, Petitioners,
vs.
EMILIA FIGURACION-GERILLA, Respondent.
DECISION
REYES, J.:
1

At bar is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the
2
Decision dated December 11, 2001 of the Court of Appeals (CA) in CA-G.R. CV No. 58290, which
3
reversed and set aside the Decision dated June 26, 1997 of the Regional Trial Court (RTC) of Urdaneta,
Pangasinan, Branch 49. The RTC decision (1) dismissed respondent Emilia Figuracion-Gerillas (Emilia)
complaint for partition, annulment of documents, reconveyance, quieting of title and damages, and (2)
annulled the Affidavit of Self-Adjudicationexecuted by petitioner Carolina (Carlina) Vda. De Figuracion
(Carolina).
The Facts
The parties are the heirs of Leandro Figuracion (Leandro) who died intestate in May 1958. Petitioner
Carolina is the surviving spouse. The other petitioners Elena Figuracion-Ancheta, Hilaria A. Figuracion
(Hilaria), Felipa Figuracion-Manuel (Felipa), Quintin Figuracion, and Mary Figuracion-Ginez and
4
respondent Emilia were Carolina and Leandros children.
Subject of the dispute are two parcels of land both situated in Urdaneta, Pangasinan, which were
acquired by Leandro during his lifetime. These properties were: (1) Lot No. 2299 with a land area of 7,547
5
square meters originally covered by Transfer Certificate of Title (TCT) No. 4221-P; and (2) Lot No. 705
measuring 2,900 square meters and covered by TCT No. 4220-P. Both lands were registered in the name
of "Leandro Figuracion married to Carolina Adviento". Leandro executed a Deed of Quitclaim over the
above real properties in favor of his six (6) children on August 23, 1955. Their shares, however, were not
delineated with particularity because spouses Leandro and Carolina reserved the lots and its fruits for
their expenses.
Also involved in the controversy is Lot No. 707 of the Cadastral Survey of Urdaneta, Pangasinan, with an
area of 3,164 square meters originally owned by Eulalio Adviento (Eulalio), covered by Original Certificate
of Title (OCT) No. 15867 issued in his name on August 21, 1917. Eulalio begot Agripina Adviento
(Agripina) with his first wife Marcela Estioko (Marcela), whom Eulalio survived. When he remarried,
Eulalio had another daughter, herein petitioner Carolina, with his second wife, Faustina Escabesa
6
(Faustina).
7

On November 28, 1961, Agripina executed a Deed of Quitclaim over the eastern half of Lot No. 707 in
favor of her niece, herein respondent Emilia.
Soon thereafter or on December 11, 1962, petitioner Carolina executed an Affidavit of Self9
Adjudication adjudicating unto herself the entire Lot No. 707 as the sole and exclusive heir of her
10
deceased parents, Eulalio and Faustina. On the same date, Carolina also executed a Deed of Absolute
11
Sale over Lot No. 707 in favor of petitioners Hilaria and Felipa, who in turn immediately caused the
12
cancellation of OCT No. 15867 and the issuance of TCT No. 42244 in their names.

In 1971, Emilia and her family went to the United States and returned to the Philippines only in 1981.
Upon her return and relying on the Deed of Quitclaim, she built a house on the eastern half of Lot No.
13
707.
The legal debacle of the Figuracions started in 1994 when Hilaria and her agents threatened to demolish
the house of Emilia who, in retaliation, was prompted to seek the partition of Lot No. 707 as well as Lot
Nos. 2299 and 705. The matter was initially brought before the Katarungang Pambarangay, but no
14
amicable settlement was reached by the parties. On May 23, 1994, respondent Emilia instituted the
15
herein Complaint for the partition of Lot Nos. 2299, 705 and 707, annulment of the Affidavit of SelfAdjudication, Deed of Absolute Sale and TCT No. 42244, reconveyance of eastern half portion of Lot No.
707, quieting of title and damages.
In opposition, the petitioners averred the following special and affirmative defenses: (1) the respondents
cause of action had long prescribed and that she is guilty of laches hence, now estopped from bringing
the suit; (2) TCT No. 42244 in the name of Felipa and Hilaria have already attained indefeasibility and
conclusiveness as to the true owners of Lot No. 707; and (3) an action for partition is no longer tenable
because Felipa and Hilaria have already acquired rights adverse to that claimed by respondent Emilia
16
and the same amount to a repudiation of the alleged co-ownership.
During pre-trial conference, the issues were simplified into: (1) whether or not Lot Nos. 2299 and 705 are
the exclusive properties of Leandro; and (2) whether or not respondent Emilia is the owner of the eastern
17
half of Lot No. 707.
On the basis of the evidence adduced by the parties, the RTC rendered its Decision dated June 26, 1997
disposing as follows:
WHEREFORE, premises considered, the complaint for partition, reconveyance, quieting of title and
damages is hereby ordered dismissed whereas the affidavit of self-adjudication[,] deed of sale and the
transfer certificate of title involving Lot 707 are hereby declared null and void.
No costs.
SO ORDERED.

18

The RTC ruled that a partition of Lot Nos. 2299 and 705 will be premature since their ownership is yet to
be transmitted from Leandro to his heirs whose respective shares thereto must still be determined in
estate settlement proceedings. Anent Lot No. 707, the RTC held that petitioner Carolina transferred only
her one-half () share to Felipa and Hilaria and any conveyance of the other half pertaining to Agripina
was void. While the RTC nullified the Affidavit of Self-Adjudication, Deed of Absolute Sale and TCT No.
42244, it refused to adjudicate the ownership of the lots eastern half portion in favor of respondent Emilia
19
since a settlement of the estate of Eulalio is yet to be undertaken.
Respondent Emilia appealed to the CA, which, in its Decision dated December 11, 2001, ruled that the
RTC erred in refusing to partition Lot No. 707. The CA explained that there is no necessity for placing Lot
No. 707 under judicial administration since Carolina had long sold her pro indiviso share to Felipa and
Hilaria. Thus, when Carolina sold the entire Lot No. 707 on December 11, 1962 as her own, the sale
affected only her share and not that belonging to her co-owner, Agripina. The proper action in such case
is not the nullification of the sale, or for the recovery of possession of the property owned in common from
the third person, but for a division or partition of the entire lot. Such partition should result in segregating
the portion belonging to the seller and its delivery to the buyer.
The CA, however, agreed with the RTC that a partition of Lot Nos. 2299 and 705 is indeed premature
considering that there is a pending legal controversy with respect to Lot No. 705 and the accounting of

the income from Lot No. 2299 and of the expenses for the last illness and burial of Leandro and Carolina,
for which the lots appear to have been intended.
Accordingly, the decretal portion of the CA decision reads:
WHEREFORE, premises considered, the present appeal is hereby GRANTED and the decision appealed
from in Civil Case No. U-5826 is hereby VACATED and SET ASIDE. A new judgment is hereby rendered
declaring Lot No. 707 covered by TCT No. 42244 to be owned by appellant Emilia Figuracion-Gerilla
[herein respondent], pro indiviso share, appellee Felipa Figuracion [herein petitioner], pro
indiviso share, and appellee Hilaria Figuracion [herein petitioner], pro indiviso share, who are hereby
directed to partition the same and if they could not agree on a partition, they may petition the trial court for
the appointment of a commissioner to prepare a project of partition, in accordance with the procedure as
provided in Rule 69 of the 1997 Rules of Civil Procedure, as amended.
No pronouncement as to costs.
SO ORDERED.

20

Respondent Emilia appealed the CAs decision to the Court, docketed as G.R. No. 154322. In a Decision
promulgated on August 22, 2006, the Court denied the appeal, concurring with the CAs ruling that a
partition of Lot Nos. 2299 and 705 would be inappropriate considering that: (1) the ownership of Lot No.
705 is still in dispute; and (2) there are still unresolved issues as to the expenses chargeable to the estate
of Leandro.
The present petition involves the appeal of the petitioners who attribute this sole error committed by the
CA:
THE DECISION RENDERED BY THE HONORABLE COURT OF APPEALS IS CONTRARY TO LAW
21
AND EXISTING JURISPRUDENTIAL DICTA LAID DOWN BY THE HONORABLE SUPREME COURT.
In view of the Courts ruling in G.R. No. 154322, the ensuing discussion shall concern only Lot No. 707.
The Arguments of the Parties
The petitioners argue that respondent Emilia has no valid basis for her claim of ownership because
the Deed of Quitclaim executed in her favor by Agripina was in fact a deed of donation that contained no
acceptance and thus, void. The petitioners attached a copy of the Deed of Quitclaim and stressed on the
following portions, viz:
I, AGRIPINA ESTIOKO ADVIENTO, of le[ga]l age, Filipino citizen, single and a resident [of] San Vicenter
(sic), Urdaneta City, Pangasinan, for and in consideration of the sum of ONE PESO ([P]1.00), Philippine
Currency and the services rendered by my niece EMILIA FIGURACION, 20 years old, single, Filipino
citizen and a resident of San Vicente, Urdaneta City, Pangasinan, do hereby by these presentsw (sic)
RENOUNCE, RELEASE and forever QUITCLAIM in favor of EMILIA FIGURACION, her heirs, and
assigns the ONE[-]HALF (1/2) eastern portion of the following parcel of land more particularly described
22
and bounded as follows to wit[.]
They further aver that the Deed of Quitclaim is riddled with defects that evoke questions of law,
because: (a) it has not been registered with the Register of Deeds, albeit, allegedly executed as early as
1961; (b) a certification dated June 3, 2003 issued by the Office of the Clerk of Court (OCC) of the RTC of
Urdaneta, Pangasinan, shows that it does not have a copy of the Deed of Quitclaim; (c) the Office of the
National Archives which is the depository of old and new notarized documents has no record of the Deed
23
of Quitclaim as evidenced by a certification dated May 19, 2003; and (d) Atty. Felipe V. Abenojar, who

supposedly notarized the Deed of Quitclaim was not commissioned to notarize in 1961 per the
24
certification dated June 9, 2003 from the OCC of the RTC of Urdaneta, Pangasinan.
Respondent Emilia, on the other hand, contends that the Deed of Quitclaim should be considered an
onerous donation that requires no acceptance as it is governed by the rules on contracts and not by the
25
formalities for a simple donation.
The Courts Ruling
Issues not raised before the courts a quo cannot be raised for the first time in a petition filed
under Rule 45
Records show that there is a palpable shift in the defense raised by the petitioners before the RTC and
the CA.
26

In the Pre-Trial Order of the RTC dated April 4, 1995, the parties agreed to limit the issue with regard to
Lot No. 707 as follows: whether or not respondent Emilia is the owner of the eastern half portion of Lot
No. 707. The petitioners supporting theory for this issue was that "the Deed of Quitclaim dated November
28, 1961 was rendered ineffective by the issuance of [TCT No. 42244] in the name of Felipa and
27
Hilaria." On appeal to the CA, however, the petitioners raised a new theory by questioning the execution
and enforceability of the Deed ofQuitclaim. They claimed that it is actually a donation that was not
28
accepted in the manner required by law.
The inconsistent postures taken by the petitioners breach the basic procedural tenet that a party cannot
change his theory on appeal as expressly adopted in Rule 44, Section 15 of the Rules of Court, which
reads:
Sec. 15. Questions that may be raised on appeal. Whether or not the appellant has filed a motion for new
trial in the court below, he may include in his assignment of errors any question of law or fact that has
been raised in the court below and which is within the issues framed by the parties.
Fortifying the rule, the Court had repeatedly emphasized that defenses not pleaded in the answer may
not be raised for the first time on appeal. When a party deliberately adopts a certain theory and the case
is decided upon that theory in the court below, he will not be permitted to change the same on appeal,
29
because to permit him to do so would be unfair to the adverse party. The Court had likewise, in
numerous times, affirmed that points of law, theories, issues and arguments not brought to the attention
of the lower court need not be, and ordinarily will not be, considered by a reviewing court, as these cannot
be raised for the first time at such late stage. Basic considerations of due process underlie this rule. It
would be unfair to the adverse party who would have no opportunity to present further evidence material
to the new theory, which it could have done had it been aware of it at the time of the hearing before the
30
trial court.
While a party may change his theory on appeal when the factual bases thereof would not require
presentation of any further evidence by the adverse party in order to enable it to properly meet the issue
31
raised in the new theory, this exception does not, however, obtain in the case at hand.
Contrary to the petitioners assertion, the Court finds that the issues on the supposed defects and actual
nature of the Deed of Quitclaim are questions of fact that require not only a review or re-evaluation of the
evidence already adduced by the parties but also the reception of new evidence as the petitioners
32
themselves have acknowledged when they attached in the petition several certifications in support of
their new argument. It is settled that questions of fact are beyond the province of a Rule 45 petition since
33
the Court is not a trier of facts.

Accordingly, the Court will not give due course to the new issues raised by the petitioners involving the
nature and execution of the Deed of Quitclaim. For their failure to advance these questions during trial,
34
the petitioners are now barred by estoppel from imploring an examination of the same.
The
respondent
partition of Lot No. 707

can

compel

the

The first stage in an action for partition is the settlement of the issue of ownership. Such an action will not
lie if the claimant has no rightful interest in the subject property. In fact, the parties filing the action are
required by the Rules of Court to set forth in their complaint the nature and the extent of their title to the
property. It would be premature to effect a partition until and unless the question of ownership is first
35
definitely resolved.
Here, the respondent traces her ownership over the eastern half of Lot No. 707 from the Deed of
Quitclaimexecuted by Agripina, who in turn, was the co-owner thereof being one of the legitimate heirs of
Eulalio. It is well to recall that the petitioners failed to categorically dispute the existence of the Deed of
Quitclaim. Instead, they averred that it has been rendered ineffective by TCT No. 42244 in the name of
Felipa and Hilariathis contention is, of course, flawed.
Mere issuance of a certificate of title in the name of any person does not foreclose the possibility that the
real property may be under coownership with persons not named in the certificate, or that the registrant
may only be a trustee, or that other parties may have acquired interest over the property subsequent to
36
the issuance of the certificate of title. Stated differently, placing a parcel of land under the mantle of the
Torrens system does not mean that ownership thereof can no longer be disputed. The certificate cannot
37
always be considered as conclusive evidence of ownership. In this case, co-ownership of Lot No. 707
was precisely what respondent Emilia was able to successfully establish, as correctly found by
the RTC and affirmed by the CA.
The status of Agripina and Carolina as the legitimate heirs of Eulalio is an undisputed fact. As such heirs,
they became co-owners of Lot No. 707 upon the death of Eulalio on July 20, 1930. Since Faustina was
predeceased by Eulalio, she likewise became a co-owner of the lot upon Eulalios death. Faustinas
share, however, passed on to her daughter Carolina when the former died on October 18, 1949.
The Affidavit of Self-Adjudication executed by Carolina did not prejudice the share of Agripina because it
is not legally possible for one to adjudicate unto himself an entire property he was not the sole owner of.
38
A co-owner cannot alienate the shares of her other co-owners nemo dat qui non habet.
Hence, Lot No. 707 was a co-owned property of Agripina and Carolina. As co-owners, each of them had
full ownership of her part and of the fruits and benefits pertaining thereto. Each of them also had the right
39
to alienate the lot but only in so far as the extent of her portion was affected.
Thus, when Carolina sold the entire Lot No. 707 on December 11, 1962 to Hilaria and Felipa without the
consent of her co-owner Agripina, the disposition affected only Carolinas pro indiviso share, and the
vendees, Hilaria and Felipa, acquired only what corresponds to Carolinas share. A co-owner is entitled to
sell his undivided share; hence, a sale of the entire property by one co-owner without the consent of the
other co-owners is not null and void and only the rights of the co-owner/seller are transferred, thereby
40
making the buyer a co-owner of the property.
Accordingly, the deed of sale executed by Carolina in favor of Hilaria and Felipa was a valid conveyance
but only insofar as the share of Carolina in the co-ownership is concerned. As Carolinas successors-ininterest to the property, Hilaria and Felipa could not acquire any superior right in the property than what
Carolina is entitled to or could transfer or alienate after partition.
In a contract of sale of co-owned property, what the vendee obtains by virtue of such a sale are the same
rights as the vendor had as co-owner, and the vendee merely steps into the shoes of the vendor as co-

41

owner. Hilaria and Felipa did not acquire the undivided portion pertaining to Agripina, which has already
been effectively bequeathed to respondent Emilia as early as November 28, 1961 thru the Deed of
Quitclaim. In turn, being the successor-in-interest of Agripinas share in Lot No. 707, respondent Emilia
took the formers place in the co-ownership and as such co-owner, has the right to compel partition at any
42
time.
The
respondents
for
partition
acquisitive prescription or laches

right
is

to
not

barred

demand
by

The petitioners posit that the issuance of TCT No. 42244 in the name of Hilaria and Felipa over Lot No.
707 on December 11, 1962 was an express repudiation of the co-ownership with respondent Emilia.
Considering the period of time that has already lapsed since then, acquisitive prescription has already set
in and the respondent is now barred by laches from seeking a partition of the subject lot.
The contention is specious.
Co-heirs or co-owners cannot acquire by acquisitive prescription the share of the other co-heirs or co43
owners absent a clear repudiation of the co ownership. The act of repudiation, as a mode of terminating
co-ownership, is subject to certain conditions, to wit: (1) a co-owner repudiates the co-ownership; (2) such
an act of repudiation is clearly made known to the other co-owners; (3) the evidence thereon is clear and
conclusive; and (4) he has been in possession through open, continuous, exclusive, and notorious
44
possession of the property for the period required by law.
The petitioners failed to comply with these conditions. The act of Hilaria and Felipa in effecting the
registration of the entire Lot No. 707 in their names thru TCT No. 42244 did not serve to effectively
repudiate the co-ownership. The respondent built her house on the eastern portion of the lot in 1981
without any opposition from the petitioners. Hilaria also paid realty taxes on the lot, in behalf of the
45
respondent, for the years 1983-1987. These events indubitably show that Hilaria and Felipa failed to
assert exclusive title in themselves adversely to Emilia. Their acts clearly manifest that they recognized
the subsistence of their co-ownership with respondent Emilia despite the issuance of TCT No. 42244 in
1962. Their acts constitute an implied recognition of the co-ownership which in turn negates the presence
of a clear notice of repudiation to the respondent. To sustain a plea of prescription, it must always clearly
appear that one who was originally a joint owner has repudiated the claims of his co-owners, and that his
co-owners were apprised or should have been apprised of his claim of adverse and exclusive ownership
46
before the alleged prescriptive period began to run.
In addition, when Hilaria and Felipa registered the lot in their names to the exclusion of Emilia, an implied
trust was created by force of law and the two of them were considered a trustee of the respondents
47
undivided share. As trustees, they cannot be permitted to repudiate the trust by relying on the
48
registration. In Ringor v. Ringor, the Court had the occasion to explain the reason for this rule:
A trustee who obtains a Torrens title over a property held in trust for him by another cannot
repudiate the trust by relying on the registration. A Torrens Certificate of Title in Joses name did not
vest ownership of the land upon him. The Torrens system does not create or vest title. It only confirms
and records title already existing and vested. It does not protect a usurper from the true owner. The
Torrens system was not intended to foment betrayal in the performance of a trust. It does not permit one
to enrich himself at the expense of another. Where one does not have a rightful claim to the property, the
Torrens system of registration can confirm or record nothing. Petitioners cannot rely on the registration of
the lands in Joses name nor in the name of the Heirs of Jose M. Ringor, Inc., for the wrong result they
seek. For Jose could not repudiate a trust by relying on a Torrens title he held in trust for his coheirs.1wphi1 The beneficiaries are entitled to enforce the trust, notwithstanding the irrevocability of the
49
Torrens title. The intended trust must be sustained. (Citations omitted and emphasis ours)

Further, records do not reflect conclusive evidence showing the manner of occupation and possession
exercised by Hilaria and Felipa over the lot from the time it was registered in their names. The only
evidence of possession extant in the records dates back only to 1985 when Hilaria and Felipa declared
50
the lot in their names for taxation purposes. Prescription can only produce all its effects when acts of
ownership, or in this case, possession, do not evince any doubt as to the ouster of the rights of the other
co-owners. Hence, prescription among co-owners cannot take place when acts of ownership exercised
51
are vague or uncertain.
Moreover, the evidence relative to the possession, as a fact upon which the alleged prescription is based,
must be clear, complete and conclusive in order to establish said prescription without any shadow of
doubt; and when upon trial it is not shown that the possession of the claimant has been adverse and
exclusive and opposed to the rights of the others, the case is not one of ownership, and partition will
52
lie. The petitioners failed to muster adequate evidence of possession essential for the reckoning of the
10-year period for acquisitive prescription.
The express disavowal of the co-ownership did not happen on December 11, 1962 when TCT No. 42244
was issued but in 1994 when Hilaria attempted to demolish Emilias house thus explicitly excluding her
from the co-ownership. It was the only time that Hilaria and Felipa made known their denial of the coownership. On the same year, the respondent instituted the present complaint for partition; hence, the
period required by law for acquisitive period to set in was not met.
Anent laches, the Court finds it unavailing in this case in view of the proximity of the period when the coownership was expressly repudiated and when the herein complaint was filed. Laches is the negligence
or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to
53
assert it has abandoned it or declined to assert it. More so, laches is a creation of equity and its
application is controlled by equitable considerations. It cannot be used to defeat justice or perpetrate
fraud and injustice. Neither should its application be used to prevent the rightful owners of a property from
54
recovering what has been fraudulently registered in the name of another.
Partition of Lot No. 707
55

Under the Old Civil Code which was then in force at the time of Eulalio and Marcelas marriage, Lot No.
56
707 was their conjugal property. When Marcela died, one-half of the lot was automatically reserved to
57
Eulalio, the surviving spouse, as his share in the conjugal partnership. Marcelas rights to the other half,
58
in turn, were transmitted to her legitimate child, Agripina and surviving spouse Eulalio. Under Article 834
of the Old Civil Code, Eulalio was entitled only to the usufruct of the lot while the naked ownership
belonged to Agripina. When he remarried, Eulalios one half portion of the lot representing his share in the
conjugal partnership and his usufructuary right over the other half were brought into his second marriage
59
with Faustina.
When Eulalio died on July 20, 1930, portion of the lot was reserved for Faustina as her share in the
60
conjugal partnership. The remaining were transmitted equally to the widow Faustina and Eulalios
children, Carolina and Agripina.61 However, Faustina is only entitled to the usufruct of the third available
62
for betterment.
The usufructuary of Eulalio over the portion inherited by Agripina earlier was merged with her naked
63
ownership. Upon the death of Faustina, the shares in Lot No. 707 which represents her share in the
64
conjugal partnership and her inheritance from Eulalio were in turn inherited by Carolina including
65
Faustinas usufructuary rights which were merged with Carolinas naked ownership.
Consequently, Agripina is entitled to 5/8 portion of Lot No. 707 while the remaining 3/8 pertains to
Carolina. Thus, when Carolina sold Lot No. 707 to Hilaria and Felipa, the sale affected only 3/8 portion of
the subject lot. Since theDeed of Quitclaim, bequeathed only the eastern portion of Lot No. 707 in favor

of Emilia instead of Agripinas entire 5/8 share thereof, the remaining 1/8 portion shall be inherited by
66
Agripinas nearest collateral relative, who, records show, is her sister Carolina.
In sum, the CA committed no reversible error in holding that the respondent is entitled to have Lot No.
707 partitioned. The CA judgment must, however, be modified to conform to the above-discussed
apportionment of the lot among Carolina, Hilaria, Felipa and Emilia.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CV No. 58290
dated December 11, 2001, is AFFIRMED with MODIFICATIONS as follows: (1) 3/8 portion of Lot No.
707 shall pertain in equal shares to Hilaria Figuracion and Felipa Figuracion-Manuel; (2) portion of Lot.
No. 707 shall pertain to Emilia Figuracion-Gerilla; and (3) 1/8 portion of Lot No. 707 shall pertain to the
estate of Carolina (Carlina) Vda. De Figuracion. The case is REMANDED to the Regional Trial Court of
Urdaneta, Pangasinan, Branch 49, who is directed to conduct a PARTITION BY COMMISSIONERS and
effect the actual physical partition of the subject property, as well as the improvements that lie therein, in
the foregoing manner. The trial court is DIRECTED to appoint not more than three (3) competent and
disinterested persons, who should determine the technical metes and bounds of the property and the
proper share appertaining to each co-owner, including the improvements, in accordance with Rule 69 of
the Rules of Court. When it is made to appear to the commissioners that the real estate, or a portion
thereof, cannot be divided without great prejudice to the interest of the parties, the court a quomay order it
assigned to one of the parties willing to take the same, provided he pays to the other parties such sum or
sums of money as the commissioners deem equitable, unless one of the parties interested ask that the
property be sold instead of being so assigned, in which case the court shall order the commissioners to
sell the real estate at public sale, and the commissioners shall sell the same accordingly, and thereafter
distribute the proceeds of the sale appertaining to the just share of each co-owner. No pronouncement as
to costs.
SO ORDERED.

[G.R. No. 129163. April 22, 2003]

VOLTAIRE ARBOLARIO, LUCENA ARBOLARIO TA-ALA, FE ARBOLARIO, EXALTACION

ARBOLARIO, CARLOS ARBOLARIO, and Spouses ROSALITA RODRIGUEZ and CARLITO
SALHAY, petitioners, vs. COURT OF APPEALS, IRENE COLINCO, RUTH COLINCO, ORPHA
COLINCO and GOLDELINA COLINCO, respondents.
DECISION
PANGANIBAN, J.:
Once a valid marriage is established, it is deemed to continue until proof that it has been legally
ended is presented. Thus, the mere cohabitation of the husband with another woman will not give rise to
a presumption of legitimacy in favor of the children born of the second union, until and unless there be
convincing proof that the first marriage had been lawfully terminated; and the second, lawfully entered
into.

The Case
[1]

Before us is a Petition for Review under Rule 45 of the Rules of Court, challenging the February
[2]
[3]
28, 1995 Decision and the March 5, 1997 Resolution of the Court of Appeals (CA) in CA-GR No.
38583. The assailed Decision disposed as follows:
WHEREFORE, premises considered, the judgment appealed from is hereby REVERSED and a new one is
accordingly entered
(a) in Civil Case No. 385, DISMISSING the complaint and [counter-claim];
(b) in Civil Case No. 367, ORDERING the defendant spouses to vacate the premises occupied within Lot 323, Ilog
Cadastre, registered under T.C.T. No. 140081 in favor of Irene Colinco, Ruth Colinco, Orpha Colinco and Goldelina
Colinco.[4]
On the other hand, the assailed Resolution denied reconsideration:

[5]

The Facts
The facts of the case are summarized by the CA as follows:
The original owners of the controverted lot, spouses Anselmo Baloyo and Macaria Lirazan had five (5) children,
namely: (1) Agueda Colinco, (2) Catalina Baloyo, (3) Eduardo Baloyo, (4) Gaudencia Baloyo, and (5) Julian
Baloyo. All of the above-named persons are now dead.
The first child, Agueda Colinco, was survived by her two children, namely, Antonio Colinco and [respondent] Irene
Colinco. Antonio Colinco predeceased his three daughters, herein [respondents], Ruth, Orpha, and Goldelina, all
surnamed Colinco.
The second child, Catalina Baloyo, was married to Juan Arbolario. Their union was blessed with the birth of only
one child, Purificacion Arbolario, who, in 1985, died a spinster and without issue.
Records disclose moreover that decedent Purificacions father, Juan Arbolario, consorted with another woman by the
name of Francisca Malvas. From this cohabitation was born the [petitioners], viz, Voltaire Arbolario, Lucena
Arbolario Taala, Fe Arbolario, Exaltacion Arbolario, and Carlos Arbolario (referred to hereinafter as Arbolarios). It
is significant to note, at this juncture, that all the foregoing [petitioners] were born well before the year 1951.
In 1946, it appears that the third child, Eduardo Baloyo, sold his entire interest in Lot 323 to his sister, Agueda
Baloyo Colinco, by virtue of a notarized document acknowledged before Notary Public Deogracias Riego.
In 1951, a notarized declaration of heirship was executed by and between Agueda, Catalina, Gaudencia, and their
brothers Eduardo and Julian, who extrajudicially declared themselves to be the only heirs of the late spouses
Anselmo Baloyo and Macaria Lirazan. The fourth child, Gaudencia Baloyo, conveyed her interest in the said lot in
favor of her two nieces, Irene Colinco to one-half (1/2) and Purificacion Arbolario to the other half.
And as far as Julian Baloyo -- the fifth and last child --was concerned, records could only show that he was married
to a certain Margarita Palma; and that he died, presumably after 1951 without any issue.
Purificacion Arbolario was then allowed to take possession of a portion of the disputed parcel until her death
sometime in 1984 or 1985.
It was under the foregoing set of facts that [respondents] Irene Colinco, Ruth Colinco, Orpha Colinco, and Goldelina
Colinco, believing themselves to be the only surviving heirs of Anselmo Baloyo and Macaria Lirazan, executed a
Declaration of Heirship and Partition Agreement, dated May 8, 1987 where they adjudicated upon themselves their
proportionate or ideal shares in O.C.T. No. 16361, viz: Irene Colinco, to one-half (1/2); while the surviving
daughters of her (Irenes) late brother Antonio, namely Ruth, Orpha, and Goldelina Colinco, to share in equal, ideal
proportions to the remaining half (1/2).This forthwith brought about the cancellation of O.C.T. No. 16361, and the
issuance of T.C.T. No. T-140018 in their names and conformably with the aforesaid distribution.
On October 2, 1987, the Colincos filed Civil Case No. 367 against Spouses Rosalita Rodriguez Salhay and Carlito
Salhay, seeking to recover possession of a portion of the aforesaid lot occupied by [respondent] spouses (Salhays
hereinafter) since 1970.
The Salhays alleged in their defense that they have been the lawful lessees of the late Purificacion Arbolario since
1971 up to 1978; and that said spouses allegedly purchased the disputed portion of Lot No. 323 from the deceased
lessor sometime in [September] 1978.
Meanwhile, or on May 9, 1988 -- before Civil Case No. 367 was heard and tried on the merits -- Voltaire M.
Arbolario, Fe Arbolario, Lucena Arbolario Ta-ala, Exaltacion Arbolario, Carlos Arbolario (Arbolarios, collectively)

and spouses Carlito Salhay and Rosalita Rodriguez Salhay (the same defendants in Civil Case No. 367), filed Civil
Case No. 385 [f]or Cancellation of Title with Damages, against the plaintiffs in Civil Case No. 367. The Arbolarios,
joined by the Salhays, contend that the Declaration of Heirship and Partition Agreement executed by the Colincos
was defective and thus voidable as they (Arbolarios) were excluded therein. The Arbolarios claim that they
succeeded intestate to the inheritance of their alleged half-sister, Purificacion Arbolario; and, as forced heirs, they
should be included in the distribution of the aforesaid lot.[6]

Ruling of the Trial Court

After a full-blown trial on the consolidated cases, the Regional Trial Court (RTC) of Kabankalan,
[7]
Negros Occidental (Branch 61) rendered its judgment, the dispositive portion of which reads thus:
WHEREFORE, premises considered, judgment is hereby rendered in favor of the [Arbolarios] and
against the [Colincos] in Civil Case No. 385 -1) Declaring that the Declaration of Heirship and Partition Agreement, dated May 8, 1987, executed by Irene, Ruth,
Orpha and Goldelina, all surnamed Colinco, as null and void and of no effect insofar as the share of Purificacion
Arbolario in Lot No. 323 is concerned[;]
2) Ordering the Register of Deeds of Negros Occidental to cancel Transfer Certificate of Title No. T-140018 and
issue a new one in the names of Voltaire Arbolario, Lucena Arbolario Ta-ala, Carlos Arbolario, Fe Arbolario and
Exaltacion Arbolario, 3/8 share or One thousand Six Hundred Forty Three Point Five (1,643.5) square meters, and
the remaining 5/8 share or One Thousand Seventy Two Point Five (1,072.5) square meters in the names of Irene
Colinco, Ruth Colinco, Orpha Colinco and Goldelina Colingco or other heirs, if any[;]
3) Ordering the [Respondents] Irene, Ruth, Orpha and Goldelina, all surnamed Colinco, to pay jointly and severally
to [Petitioners] Voltaire M. Arbolario, et al., the sum of Ten Thousand Pesos (P10,000.00) as moral damages, Five
Thousand Pesos (P5,000.00) as attorneys fees and the x x x sum of One Thousand Pesos (P1,500.00) as appearance
fees; and
in Civil Case No. 367 -1) Ordering the dismissal of [respondents] complaint and the [petitioners] counter-claim for lack of legal basis.
In both cases -1) Ordering the Colincos to pay costs.[8]
The trial court held that the Arbolarios were the brothers and the sisters of the deceased Purificacion
Arbolario, while the Colincos were her cousins and nieces. Pursuant to Article 1009 of the Civil Code, the
Colincos could not inherit from her, because she had half-brothers and half-sisters. Their 1987
Declaration of Heirship and Partition Agreement was made in bad faith, because they knew all along the
existence of, and their relationship with, the Arbolarios. The Salhays, on the other hand, had no document
to prove their acquisition and possession of a portion of the disputed lot.

Ruling of the Court of Appeals

On appeal, the CA rejected the contention of petitioners that the cohabitation of their father with their
natural mother, Francisca Malvas, was by virtue of a valid marriage. The appellate court observed that
the Arbolarios had all been born before the death of Catalina Baloyo, as shown by the Deed of

Declaration of Heirship, which she had executed in 1951. No evidence was ever presented showing that
her conjugal union with Juan Arbolario had been judicially annulled or lawfully ended before that
year. Because it was also in 1951 when Juan Arbolario cohabited with Francisca Malvas, their union was
presumably extramarital. Consequently, their children are illegitimate half-brothers and half-sisters of
Purificacion, the daughter of Juan and Catalina.
Illegitimate children are barred by Article 992 of the Civil Code from inheriting intestate from the
legitimate children and relatives of their father or mother. As the illegitimate siblings of the late
Purificacion Arbolario, petitioners cannot conveniently undermine the legal limitations by insisting that
they were treated as half-brothers and half-sisters by the deceased.
On the other hand, there is no impediment for respondents to declare themselves as the sole and
forced heirs of Anselmo Baloyo and Macaria Lirazan. Moreover, there is no clear and reliable evidence to
support the allegation of the Salhays that they purchased from the decedent, Purificacion Arbolario, the
lot that they have been occupying since 1970.
Hence, this Petition.

[9]

Issues
In their Memorandum, petitioners raise the following issues for our consideration:
I
The Honorable Court of Appeals committed grave and serious error in considering the Arbolarios illegitimate
children and not entitled to inherit from their half-sister Purificacion Arbolario.
II
The Honorable Court of Appeals committed grave and serious error in considering the purchase of the property by
Rosela Rodriguez and subsequent acquisition by Petitioners Rosalita Rodriguez and Carlito Salhay improper.
III
The Honorable Court of Appeals committed grave and serious error in deciding that the court a quo had no right to
distribute the said property.[10]
In other words, petitioners are questioning the CA 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.

This Courts Ruling

The Petition has no merit.

First Issue:
Illegitimacy of Petitioners

Petitioners contend that their illegitimacy is a far-fetched and scurrilous claim that is not supported by
the evidence on record. They maintain that the CA declared them illegitimate on the unproven allegation
that Catalina Baloyo had signed the Declaration of Heirship in 1951. They aver that this 1951 Declaration
does not contain her signature, and that she died in 1903:
Que Agueda Baloyo, Catalina Baloyo y Eduardo Baloyo murieron ab intestate en Ilog, Negros Occ.; la primera
fallecio en 11 de Noviembre de 1940, la segunda murio el ano 1903 y el ultimo en 28 de Marzo de 1947 x x x. [11]
We are not persuaded.
We begin our ruling with the general principle that the Supreme Court is not a trier of
[12]
facts. However, where the trial court and the CA arrived at different factual findings, a review of the
[13]
evidence on record may become necessary.
Petitioners, in effect, are asking us to evaluate the 1951 Declaration of Heirship, deduce that
Catalina Baloyo had long been dead before it was ever executed, and conclude that the Arbolarios are
legitimate half-brothers and half-sisters of Juan and Catalinas only daughter, Purificacion. What we see,
on the other hand, is a series of non sequiturs.
First, a review of the 1951 Declaration reveals that the year of Catalinas death was intercalated. The
first two numbers (1 and 9) and the last digit (3) are legible; but the third digit has been written over to
make it look like a 0. Further, the paragraph quoted by petitioners should show a chronological
progression in the heirs years of death: Agueda died in 1940 and Eduardo in 1947. Hence, if Catalina had
indeed died in 1903, why then was her name written after Aguedas and not before it? Moreover, the
document, being in Spanish, requires an official translation. We cannot readily accept the English
translation proffered by petitioners, since respondents did not agree to its correctness.Besides, it
consisted of only a paragraph of the whole document.
Second, there is no solid basis for the argument of petitioners that Juan Arbolarios marriage to
Francisca Malvas was valid, supposedly because Catalina Baloyo was already dead when they were
born. It does not follow that just because his first wife has died, a man is already conclusively married to
the woman who bore his children. A marriage certificate or other generally accepted proof is necessary to
establish the marriage as an undisputable fact.
Third, clear and substantial evidence is required to support the claim of petitioners that they were
preterited from the 1951 Declaration of Heirship. The RTC Decision merely declared that they were halfbrothers and half-sisters of Purificacion, while respondents were her cousins and nieces (collateral
relatives). It made no pronouncement as to whether they were her legitimate or illegitimate siblings. We
quote the appellate court:
x x x. Therefore, in the absence of any fact that would show that conjugal union of Juan Arbolario and Catalina
Baloyo had been judicially annulled before 1951, or before Juan Arbolario cohabited with Francisca Malvas, it
would only be reasonable to conclude that the foregoing union which resulted in the birth of the [Arbolarios] was
extra-marital. And consequently, x x x Voltaire Arbolario, et al., are illegitimate children of Juan Arbolario.
There is no presumption of legitimacy or illegitimacy in this jurisdiction (Article 261, New Civil Code); and
whoever alleges the legitimacy or illegitimacy of a child born after the dissolution of a prior marriage or the
separation of the spouses must introduce such evidence to prove his or her allegation (Ibid.; Sec. 4, Rule 131, New
Rules on Evidence). It is the x x x Arbolarios, claiming to be born under a validly contracted subsequent marriage,
who must show proof of their legitimacy. But this, they have miserably failed to do.[14]
[15]

Paternity or filiation, or the lack of it, is a relationship that must be judicially established. It stands
[16]
to reason that children born within wedlock are legitimate. Petitioners, however, failed to prove the fact
(or even the presumption) of marriage between their parents, Juan Arbolario and Francisca Malvas;
hence, they cannot invoke a presumption of legitimacy in their favor.

As it is, we have to follow the settled rule that the CAs factual findings cannot be set aside, because
[17]
they are supported by the evidence on record. As held by the appellate court, without proof that
Catalina died in 1903, her marriage to Juan is presumed to have continued.Even where there is actual
severance of the filial companionship between spouses, their marriage subsists, and either spouses
[18]
cohabitation with any third party cannot be presumed to be between husband and wife.

Second Issue:
Evidence of Purchase
Petitioners contend that the CA committed a serious error when it disregarded the testimony that the
Salhays had purchased the portion of the lot they had been occupying since 1970. This issue, according
to them, was not even raised by respondents in the latters appeal to the CA.
We disagree. Although the sale was not expressly assigned as an error in their Brief, respondents
(as petitioners in the CA) still assailed the existence of the sale when they argued thus:
As to the spouses Carlito Salhay and Rosalita R. Salhay, they could not present any written contract to support their
claim to having purchased a portion of Lot 323 where their house stands. Rosalita R. Salhay on the witness stand
testified under oath that she has no contract of sale in her favor because it was her mother, Rosela Rodriguez who
had purchased the land, but she was not able to produce any evidence of such sale in favor of her mother. She
declared that she has never paid land taxes for the land.[19]
Hence, they prayed for the reversal of the appealed RTC Decision in toto. The CA, on the other
hand, categorically ruled that no clear and reliable evidence had been introduced to prove such bare
[allegation] that a portion of the disputed lot had ever been purchased by the Salhays. Besides, no
favorable supporting evidence was cited by petitioners in their Memorandum. Thus, we find no reason to
overturn the CAs factual finding on this point.

Third Issue:
Partition
Petitioners also contend that the Court of Appeals overstepped its bounds when it ruled that since
respondents did not raise the issue of partition on appeal, the RTC had no jurisdiction to divide the
disputed lot. The CA held, however, that the partition of the property had not been contemplated by the
parties, because respondents merely sought recovery of possession of the parcel held by the Salhays,
while petitioners sought the annulment of the Deed of Partition respondents had entered into.
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
[20]
property and a right to enjoy the allotted estate without supervision or interference.
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
[21]
the recovery of ownership and possession.
WHEREFORE, the Petition is DENIED, and the appealed Decision AFFIRMED. Costs against
petitioners.
SO ORDERED.

FELIX AZUELA, G.R. No. 122880

Petitioner,
Present:
QUISUMBING, J.,
Chairperson,
- versus - CARPIO,
CARPIO MORALES, and
TINGA, JJ.
COURT OF APPEALS,
GERALDA AIDA CASTILLO Promulgated:
substituted by ERNESTO G.
CASTILLO, April 12, 2006
Respondents.
x----------------------------------------------------------------------------x

DECISION
TINGA, J.:

The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E. Igsolo (decedent),
who died on 16 December 1982 at the age of 80. In refusing to give legal recognition to the due execution of this
document, the Court is provided the opportunity to assert a few important doctrinal rules in the execution of notarial
wills, all self-evident in view of Articles 805 and 806 of the Civil Code.

A will whose attestation clause does not contain the number of pages on which the will is written is
fatally defective. A will whose attestation clause is not signed by the instrumental witnesses is fatally defective.
And perhaps most importantly, a will which does not contain an acknowledgment, but a mere jurat, is fatally
defective. Any one of these defects is sufficient to deny probate. A notarial will with all three defects is just
aching for judicial rejection.

There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of imperatives for the
proper execution of a notarial will. Full and faithful compliance with all the detailed requisites under Article 805 of
the Code leave little room for doubt as to the validity in the due execution of the notarial will. Article 806 likewise
imposes another safeguard to the validity of notarial wills that they be acknowledged before a notary public by the

testator and the witnesses. A notarial will executed with indifference to these two codal provisions opens itself to
nagging questions as to its legitimacy.

The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) of Manila.
The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo, which
was notarized on 10 June 1981. Petitioner is the son of the cousin of the decedent.

The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput
siyam
(79)
na
gulang,
nasa
hustong
pagi-isip, pag-unawa at memoria ay
naghahayag na ito na ang aking huling habilin at testamento,
at binabali wala kolahat ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del
Norte,
La
Loma
ayong sa kaugalian at patakaran ng simbahangkatoliko at ang taga-pagingat (Executor) ng habiling ito ay magtatayo ng bantayog upang silbing ala-ala
akin ng akingpamilya at kaibigan;

sangsa

Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na

si
Felix
Azuela,
na siyang nag-alaga sa
akin
sa mahabang panahon, yaong mga bahay na nakatirik sa lote numero 28,
Block
24
at nakapangalan sa PechatenKorporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bah
ay na nakatirik sa inoopahan kong lote, numero 43,
Block
24
na pagaari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at
lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela
at ang pagkakaloob kong ito ay walang pasubalit atkondiciones;
PangatloNa ninunumbrahan ko si
VART
PAGUE
na siyang nagpapatupad ng huling habiling ito at kagustuhan ko rin na hindina kailanman siyang
mag-lagak ng piyansiya.

Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.

(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)

PATUNAY NG MGA SAKSI

Ang kasulatang ito,
na binubuo ng ____ dahon pati ang huling dahong ito,
na ipinahayag sa amin ni Eugenia
E.
Igsolo,tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981,
ay nilagdaan ng nasabing tagapagmana sa ilalim ngkasulatang nabanggit at
sa kaliwang panig ng lahat at bawat dahon,
sa harap ng lahat at bawat sa amin,
at kami namang mgasaksi ay lumagda sa harap ng nasabing tagapagmana at
sa harap ng lahat at bawat isa sa amin,
sa ilalim ng nasabing kasulatan at
sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite
on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.

Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.

(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-8[1]

The three named witnesses to the will affixed their signatures on the left-hand margin of both pages of the will, but
not at the bottom of the attestation clause.

The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely: petitioner
himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner prayed that the will be
allowed, and that letters testamentary be issued to the designated executor, Vart Prague.

The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the attorney-infact of the 12 legitimate heirs of the decedent.[2] Geralda Castillo claimed that the will is a forgery, and that the true
purpose of its emergence was so it could be utilized as a defense in several court cases filed by oppositor against
petitioner, particularly for forcible entry and usurpation of real property, all centering on petitioners right to occupy
the properties of the decedent.[3] It also asserted that contrary to the representations of petitioner, the decedent was
actually survived by 12 legitimate heirs, namely her grandchildren, who were then residing abroad. Per records, it
was subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965, [4] and the mother of a
legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months. [5]

Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance with
law. She pointed out that decedents signature did not appear on the second page of the will, and the will was not
properly acknowledged. These twin arguments are among the central matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992.[6] The RTC favorably took
into account the testimony of the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito
Estrada. The RTC also called to fore the modern tendency in respect to the formalities in the execution of a will x x
x with the end in view of giving the testator more freedom in expressing his last wishes; [7] and from this perspective,
rebutted oppositors arguments that the will was not properly executed and attested to in accordance with law.
After a careful examination of the will and consideration of the testimonies of the
subscribing and attesting witnesses, and having in mind the modern tendency in respect to the
formalities in the execution of a will, i.e., the liberalization of the interpretation of the law on the
formal requirements of a will with the end in view of giving the testator more freedom in
expressing his last wishes, this Court is persuaded to rule that the will in question is authentic and
had been executed by the testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end of the will
after the signature of the testatrix, the following statement is made under the sub-title, Patunay Ng
Mga Saksi:
Ang kasulatang ito,
na binubuo ng _____ dahon pati ang huling dahong ito,
na ipinahayag sa amin niEugenia

N.

Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika10 ng Hunyo 1981,
ay nilagdaan ngnasabing tagapagmana sa ilalim ng kasulatang nabanggit at
sa kaliwang panig ng lahat at bawat dahon,
sa harap nglahat at bawat sa amin,
at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at
sa harap nglahat at bawat isa sa amin,
sa ilalim ng nasabing kasulatan at
sa kaliwang panig ng lahat at bawat dahon ngkasulatan ito.
The aforequoted declaration comprises the attestation clause and the acknowledgement
and is considered by this Court as a substantial compliance with the requirements of the law.
On the oppositors contention that the attestation clause was not signed by the subscribing
witnesses at the bottom thereof, this Court is of the view that the signing by the subscribing
witnesses on the left margin of the second page of the will containing the attestation clause and
acknowledgment, instead of at the bottom thereof, substantially satisfies the purpose of
identification and attestation of the will.
With regard to the oppositors argument that the will was not numbered correlatively in
letters placed on upper part of each page and that the attestation did not state the number of pages
thereof, it is worthy to note that the will is composed of only two pages. The first page contains
the entire text of the testamentary dispositions, and the second page contains the last portion of the
attestation clause and acknowledgement. Such being so, the defects are not of a serious nature as
to invalidate the will. For the same reason, the failure of the testatrix to affix her signature on the
left margin of the second page, which contains only the last portion of the attestation clause and
acknowledgment is not a fatal defect.
As regards the oppositors assertion that the signature of the testatrix on the will is a
forgery, the testimonies of the three subscribing witnesses to the will are convincing enough to
establish the genuineness of the signature of the testatrix and the due execution of the will. [8]

The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his since deceased motherin-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court of Appeals reversed the trial court and
ordered the dismissal of the petition for probate.[9] The Court of Appeals noted that the attestation clause failed to
state the number of pages used in the will, thus rendering the will void and undeserving of probate. [10]

Hence, the present petition.

Petitioner argues that the requirement under Article 805 of the Civil Code that the number of pages used in
a notarial will be stated in the attestation clause is merely directory, rather than mandatory, and thus susceptible to
what he termed as the substantial compliance rule.[11]

The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which we replicate in
full.

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof
by the testator himself or by the testator's name written by some other person in his presence, and
by his express direction, and attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on
the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part
of each page.
The attestation shall state the number of pages used upon which the will is written, and
the fact that the testator signed the will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of the instrumental witnesses, and that
the latter witnessed and signed the will and all the pages thereof in the presence of the testator and
of one another.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted
to them.
Art. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will, or file another with
the office of the Clerk of Court.

The appellate court, in its Decision, considered only one defect, the failure of the attestation clause to state the
number of pages of the will. But an examination of the will itself reveals several more deficiencies.

As admitted by petitioner himself, the attestation clause fails to state the number of pages of the will.[12] There was
an incomplete attempt to comply with this requisite, a space having been allotted for the insertion of the number of
pages in the attestation clause. Yet the blank was never filled in; hence, the requisite was left uncomplied with.

The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy Coque v.
Navas L. Sioca[13] and In re: Will of Andrada.[14] In Uy Coque, the Court noted that among the defects of the will in

question was the failure of the attestation clause to state the number of pages contained in the will. [15] In ruling that
the will could not be admitted to probate, the Court made the following consideration which remains highly relevant
to this day: The purpose of requiring the number of sheets to be stated in the attestation clause is obvious; the
document might easily be so prepared that the removal of a sheet would completely change the testamentary
dispositions of the will and in the absence of a statement of the total number of sheets such removal might be
effected by taking out the sheet and changing the numbers at the top of the following sheets or pages. If, on
the other hand, the total number of sheets is stated in the attestation clause the falsification of the document will
involve the inserting of new pages and the forging of the signatures of the testator and witnesses in the margin, a
matter attended with much greater difficulty.[16]

The case of In re Will of Andrada concerned a will the attestation clause of which failed to state the number
of sheets or pages used. This consideration alone was sufficient for the Court to declare unanim[ity] upon the point
that the defect pointed out in the attesting clause is fatal. [17] It was further observed that it cannot be denied that the x
x x requirement affords additional security against the danger that the will may be tampered with; and as the
Legislature has seen fit to prescribe this requirement, it must be considered material. [18]
Against these cited cases, petitioner cites Singson v. Florentino[19] and Taboada v. Hon. Rosal,[20] wherein
the Court allowed probate to the wills concerned therein despite the fact that the attestation clause did not state the
number of pages of the will. Yet the appellate court itself considered the import of these two cases, and made the
following distinction which petitioner is unable to rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit D), will readily show that the attestation
does not state the number of pages used upon which the will is written. Hence, the Will is void and
undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in Manuel Singson versus Emilia
Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118
SCRA 195, to the effect that a will may still be valid even if the attestation does not contain the
number of pages used upon which the Will is written. However, the Decisions of the Supreme
Court are not applicable in the aforementioned appeal at bench. This is so because, in the case
of Manuel Singson versus Emilia Florentino, et al., supra, although the attestation in the subject
Will did not state the number of pages used in the will, however, the same was found in the last
part of the body of the Will:
xxx

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645,
which requires that the attestation clause shall state the number of pages or
sheets upon which the will is written, which requirement has been held to be
mandatory as an effective safeguard against the possibility of interpolation or
omission of some of the pages of the will to the prejudice of the heirs to whom
the property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180;
Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30;
Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil.
611). The ratio decidendi of these cases seems to be that the attestation clause
must contain a statement of the number of sheets or pages composing the will
and that if this is missing or is omitted, it will have the effect of invalidating the
will if the deficiency cannot be supplied, not by evidence aliunde, but by a
consideration or examination of the will itself. But here the situation is
different. While the attestation clause does not state the number of sheets or
pages upon which the will is written, however, the last part of the body of the
will contains a statement that it is composed of eight pages, which circumstance
in our opinion takes this case out of the rigid rule of construction and places it
within the realm of similar cases where a broad and more liberal view has been
adopted to prevent the will of the testator from being defeated by purely
technical considerations. (page 165-165, supra) (Underscoring supplied)
In Apolonio Tabaoda versus Hon. Avelino Rosal, et al. supra, the notarial acknowledgement in the
Will states the number of pages used in the:
xxx

We have examined the will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect
were it not for the fact that, in this case, it is discernible from the entire will that
it is really and actually composed of only two pages duly signed by the testatrix
and her instrumental witnesses. As earlier stated, the first page which contains
the entirety of the testamentary dispositions is signed by the testatrix at the end
or at the bottom while the instrumental witnesses signed at the left margin. The
other page which is marked as Pagina dos comprises the attestation clause and
the acknowledgment. The acknowledgment itself states that this Last Will and
Testament consists of two pages including this page (pages 200-201, supra)
(Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is not stated in any part of
the Will. The will does not even contain any notarial acknowledgment wherein the number of
pages of the will should be stated.[21]

Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a time when
the statutory provision governing the formal requirement of wills was Section

618 of the Code of Civil Procedure.[22] Reliance on these cases remains apropos, considering that the requirement
that the attestation state the number of pages of the will is extant from Section 618.[23] However, the enactment of
the Civil Code in 1950 did put in force a rule of interpretation of the requirements of wills, at least insofar as the
attestation clause is concerned, that may vary from the philosophy that governed these two cases. Article 809 of the
Civil Code states: In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence,
defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if
it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of
article 805.

In the same vein, petitioner cites the report of the Civil Code Commission, which stated that the underlying
and fundamental objective permeating the provisions on the [law] on [wills] in this project consists in the
[liberalization] of the manner of their execution with the end in view of giving the testator more [freedom] in
[expressing] his last wishes. This objective is in accord with the [modern tendency] in respect to the formalities in
the execution of wills.[24] However, petitioner conveniently omits the qualification offered by the Code Commission
in the very same paragraph he cites from their report, that such liberalization be but with sufficient safeguards and
restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon
the testator.[25]
Caneda v. Court of Appeals[26] features an extensive discussion made by Justice Regalado, speaking for the
Court on the conflicting views on the manner of interpretation of the legal formalities required in the execution of
the attestation clause in wills.[27] Uy Coque and Andrada are cited therein, along with several other cases, as
examples of the application of the rule of strict construction. [28] However, the Code Commission opted to
recommend a more liberal construction through the substantial compliance rule under Article 809. A cautionary note
was struck though by Justice J.B.L. Reyes as to how Article 809 should be applied:

x x x The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered; whether the
signatures appear in each and every page; whether the subscribing witnesses are three or the will
was notarized. All these are facts that the will itself can reveal, and defects or even omissions
concerning them in the attestation clause can be safely disregarded. But the total number of

pages, and whether all persons required to sign did so in the presence of each other must
substantially appear in the attestation clause, being the only check against perjury in the
probate proceedings.[29] (Emphasis supplied.)

The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision, considering
that the failure to state the number of pages of the will in the attestation clause is one of the defects which cannot be
simply disregarded. In Caneda itself, the Court refused to allow the probate of a will whose attestation clause failed
to state that the witnesses subscribed their respective signatures to the will in the presence of the testator and of each
other,[30] the other omission cited by Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.

Caneda suggested: [I]t may thus be stated that the rule, as it now stands, is that omission which can be
supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal
and, correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those
omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation
clause and ultimately, of the will itself.[31]Thus, a failure by the attestation clause to state that the testator signed
every page can be liberally construed, since that fact can be checked by a visual examination; while a failure by the
attestation clause to state that the witnesses signed in one anothers presence should be considered a fatal flaw since
the attestation is the only textual guarantee of compliance.[32]

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
in Singson 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 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.

The Court could thus end here and affirm the Court of Appeals. However, an examination of the will itself
reveals a couple of even more critical defects that should necessarily lead to its rejection.

For one, the attestation clause was not signed by the instrumental witnesses. While the signatures of
the 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.
Cagro v. Cagro[36] is material on this point. As in this case, the signatures of the three witnesses to the will
do not appear at the bottom of the attestation clause, although the page containing the same is signed by the
witnesses on the left-hand margin.[37] While three (3) Justices[38] considered the signature requirement had been
substantially complied with, a majority of six (6), speaking through Chief Justice Paras, ruled that the attestation
clause had not been duly signed, rendering the will fatally defective.

There is no question that the signatures of the three witnesses to the will do not appear at the
bottom of the attestation clause, although the page containing the same is signed by the witnesses
on the left-hand margin.
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 lefthand 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 witnesses.[39]

The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the
requirement that the instrumental witnesses sign each page of the will, from the requisite that the will be attested and
subscribed by [the instrumental witnesses]. 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.

Thus, the subject will cannot be considered to have been validly attested to by the instrumental witnesses,
as they failed to sign 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 non-observance 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,

wrote Nilagdaan ko at ninotario ko ngayong10 ng Hunyo 10

the
(sic),

notary

public, Petronio Y.

Bautista,

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. Ajurat 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.

It may not have been said before, but we can assert the rule, self-evident 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.

There are two other requirements under Article 805 which were not fully satisfied by the will in question.
We need not discuss them at length, as they are no longer material to the

disposition of this case. The provision requires that the testator and the instrumental witnesses sign each and every
page of the will on the left margin, except the last; and that all the pages shall be numbered correlatively in letters
placed on the upper part of each page. In this case, the decedent, unlike the witnesses, failed to sign both pages of
the will on the left margin, her only signature appearing at the so-called logical end[44] of the will on its first page.
Also, the will itself is not numbered correlatively in letters on each page, but instead numbered with Arabic
numerals. There is a line of thought that has disabused the notion that these two requirements be construed as
mandatory.[45] Taken in isolation, these omissions, by themselves, may not be sufficient to deny probate to a will.
Yet even as these omissions are not decisive to the adjudication of this case, they need not be dwelt on, though
indicative as they may be of a general lack of due regard for the requirements under Article 805 by whoever
executed the will.

All told, the string of mortal defects which the will in question suffers from makes the probate denial
inexorable.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.

CYNTHIA C. ALABAN, G.R. No. 156021

FRANCIS COLLADO, JOSE
P. COLLADO, JUDITH Present:
PROVIDO, CLARITA PROVIDO,
ALFREDO PROVIDO, MANUEL PUNO, J.,
PROVIDO, JR., LORNA DINA Chairman,
E. PROVIDO, SEVERO ARENGA, AUSTRIA-MARTINEZ,
JR., SERGIO ARENGA, EDUARDO CALLEJO, SR.,
ARENGA, CAROL ARENGA, RUTH TINGA, and
BABASA, NORMA HIJASTRO, CHICO-NAZARIO, JJ.
DOLORES M. FLORES, ANTONIO
MARIN, JR., JOSE MARIN, SR., and
MATHILDE MARIN, Promulgated:
Petitioners,
September 23, 2005
- versus COURT OF APPEALS and
FRANCISCO H. PROVIDO,
Respondents.
x-------------------------------------------------------------------x
DECISION
TINGA, J.:

This is a petition for review of the Resolutions[1] of the Court of Appeals (CA) in CA-G.R. SP No.
69221,[2] dismissing petitioners petition for annulment of judgment.

On 8 November 2000, respondent Francisco Provido (respondent) filed a petition,

docketed as SP Proc. No. 00-135, for the probate of the Last Will and Testament[3] of the late
Soledad Provido Elevencionado (decedent), who died on 26 October 2000 in Janiuay,
Iloilo.[4] Respondent alleged that he was the heir of the decedent and the executor of her will.
On 30 May 2001, the Regional Trial Court (RTC), Branch 68, in P.D. Monfort North,
Dumangas, Iloilo, rendered its Decision,[5] allowing the probate of the will of the decedent and
directing the issuance of letters testamentary to respondent. [6]

More than four (4) months later, or on 4 October 2001, herein petitioners filed a motion for the
reopening of the probate proceedings.[7] Likewise, they filed an opposition to the allowance of

the

will

of

the

decedent,

as

well

as

the

issuance

of

letters

testamentary

to

respondent,[8] claiming that they are the intestate heirs of the decedent. Petitioners claimed
that the RTC did not acquire jurisdiction over the petition due to non-payment of the correct
docket fees, defective publication, and lack of notice to the other heirs. Moreover, they alleged
that the will could not have been probated because: (1) the signature of the decedent was
forged; (2) the will was not executed in accordance with law, that is, the witnesses failed to sign
below the attestation clause; (3) the decedent lacked testamentary capacity to execute and
publish a will; (4) the will was executed by force and under duress and improper pressure; (5)
the decedent had no intention to make a will at the time of affixing of her signature; and (6) she
did not know the properties to be disposed of, having included in the will properties which no
longer belonged to her. Petitioners prayed that the letters testamentary issued to respondent be
withdrawn and the estate of the decedent disposed of under intestate succession. [9]

On 11 January 2002, the RTC issued an Order[10] denying petitioners motion for being
unmeritorious. Resolving the issue of jurisdiction, the RTC held that petitioners were deemed
notified of the hearing by publication and that the deficiency in the payment of docket fees is
not a ground for the outright dismissal of the petition. It merely required respondent to pay the
deficiency.[11] Moreover, the RTCs Decision was already final and executory even before
petitioners filing of the motion to reopen.[12]
Petitioners thereafter filed a petition[13] with an application for preliminary injunction with the
CA, seeking the annulment of the RTCs Decision dated 30 May 2001 and Order dated 11
January 2002. They claimed that after the death of the decedent, petitioners, together with
respondent, held several conferences to discuss the matter of dividing the estate of the
decedent, with respondent agreeing to a one-sixth (1/6) portion as his share. Petitioners
allegedly drafted a compromise agreement to implement the division of the estate. Despite
receipt of the agreement, respondent refused to sign and return the same. Petitioners opined
that respondent feigned interest in participating in the compromise agreement so that they
would not suspect his intention to secure the probate of the will. [14] They claimed that they
learnt of the probate proceedings only in July of 2001, as a result of which they filed their
motion to reopen the proceedings and admit their opposition to the probate of the will only on 4

October 2001. They argued that the RTC Decisionshould be annulled and set aside on the
ground of extrinsic fraud and lack of jurisdiction on the part of the RTC. [15]

In its Resolution[16] promulgated on 28 February 2002, the CA dismissed the petition. It found
that there was no showing that petitioners failed to avail of or resort to the ordinary remedies of
new trial, appeal, petition for relief from judgment, or other appropriate remedies through no
fault of their own.[17] Moreover, the CA declared as baseless petitioners claim that the
proceedings in the RTC was attended by extrinsic fraud. Neither was there any showing that
they availed of this ground in a motion for new trial or petition for relief from judgment in the
RTC, the CA added.[18] Petitioners sought reconsideration of the Resolution, but the same was
denied by the CA for lack of merit.[19]
Petitioners now come to this Court, asserting that the CA committed grave abuse of discretion
amounting to lack of jurisdiction when it dismissed their petition for the alleged failure to show
that they have not availed of or resorted to the remedies of new trial, appeal, petition for relief
from judgment or other remedies through no fault of their own, and held that petitioners were
not denied their day in court during the proceedings before the RTC. [20] In addition, they assert
that this Court has yet to decide a case involving Rule 47 of the Rules of Court and, therefore,
the instant petition should be given due course for the guidance of the bench and bar. [21]

For his part, respondent claims that petitioners were in a position to avail of the remedies
provided in Rules 37 and 38, as they in fact did when they filed a motion for new
trial.[22] Moreover, they could have resorted to a petition for relief from judgment since they
learned

of

the

RTCs

judgment

only

three

and

half

months

after

its

promulgation.[23] Respondent likewise maintains that no extrinsic fraud exists to warrant the
annulment of the RTCs Decision, since there was no showing that they were denied their day in
court. Petitioners were not made parties to the probate proceedings because the decedent did
not institute them as her heirs.[24] Besides, assuming arguendo that petitioners are heirs of the
decedent, lack of notice to them is not a fatal defect since personal notice upon the heirs is a
matter of procedural convenience and not a jurisdictional requisite. [25] Finally, respondent
charges petitioners of forumshopping, since the latter have a pending suit involving the same

issues as those in SP No. 00-135, that is SP No. 1181[26] filed before Branch 23, RTC of General
Santos City and subsequently pending on appeal before the CA in CA-G.R. No.74924.[27]

It appears that one of the petitioners herein, Dolores M. Flores (Flores), who is a niece of
the decedent, filed a petition for letters of administration with the RTC of General Santos City,
claiming that the decedent died intestate without any issue, survived by five groups of
collateral heirs. Flores, armed with a Special Power of Attorney from most of the other
petitioners, prayed for her appointment as administratrix of the estate of the decedent. The
RTC dismissed the petition on the ground of lack of jurisdiction, stating that the probate court
in Janiuay, Iloilo has jurisdiction since the venue for a petition for the settlement of the estate
of a decedent is the place where the decedent died. This is also in accordance with the rule that
the first court acquiring jurisdiction shall continue hearing the case to the exclusion of other
courts, the RTC added.[28] On 9 January 2002, Flores filed a Notice of Appeal

[29]

and on 28

January 2002, the case was ordered forwarded to the CA. [30]

Petitioners maintain that they were not made parties to the case in which the decision
sought to be annulled was rendered and, thus, they could not have availed of the ordinary
remedies of new trial, appeal, petition for relief from judgment and other appropriate remedies,
contrary to the ruling of the CA. They aver that respondents offer of a false compromise and his
failure to notify them of the probate of the will constitute extrinsic fraud that necessitates the
annulment of the RTCs judgment.[31]

The petition is devoid of merit.

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

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 proceedings.

Under the Rules of Court, any executor, devisee, or legatee named in a will, or any other
person interested in the estate may, at any time after the death of the testator, petition the
court having jurisdiction to have the will allowed. [36] Notice of the time and place for proving the
will must be published for three (3) consecutive weeks, in a newspaper of general circulation in
the province,[37] as well as furnished to the designated or other known heirs, legatees, and
devisees of the testator.[38] Thus, it has been held that a proceeding for the probate of a will is
one in rem, such that with the corresponding publication of the petition the court's jurisdiction
extends to all persons interested in said will or in the settlement of the estate of the
decedent.[39]

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 remedy.

For failure to make use without sufficient justification of the said remedies available to
them, petitioners could no longer resort to a petition for annulment of judgment; otherwise,
they would benefit from their own inaction or negligence. [41]

Even casting aside the procedural requisite, the petition for annulment of judgment must still
fail for failure to comply with the substantive requisites, as the appellate court ruled.

An action for annulment of judgment is a remedy in law independent of the case where
the judgment sought to be annulled was rendered. [42] The purpose of such action is to have the
final and executory judgment set aside so that there will be a renewal of litigation. It is resorted
to in cases where the ordinary remedies of new trial, appeal, petition for relief from judgment,
or other appropriate remedies are no longer available through no fault of the petitioner, [43] and
is based on only two grounds: extrinsic fraud, and lack of jurisdiction or denial of due
process.[44] A person need not be a party to the judgment sought to be annulled, and it is only
essential that he can prove his allegation that the judgment was obtained by the use of fraud
and collusion and he would be adversely affected thereby. [45]

An action to annul a final judgment on the ground of fraud lies only if the fraud is
extrinsic or collateral in character.[46] Fraud is regarded as extrinsic where it prevents a party
from having a trial or from presenting his entire case to the court, or where it operates upon
matters pertaining not to the judgment itself but to the manner in which it is procured. 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. [47]

To sustain their allegation of extrinsic fraud, petitioners assert that as a result of respondents
deliberate omission or concealment of their names, ages and residences as the other heirs of
the decedent in his petition for allowance of the will, they were not notified of the proceedings,
and thus they were denied their day in court. In addition, they claim that respondents offer of a
false compromise even before the filing of the petition prevented them from appearing and
opposing the petition for probate.

The Court is not convinced.

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.

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.

One other vital point is the issue of forum-shopping against petitioners. Forumshopping consists of filing multiple suits in different courts, either simultaneously or
successively, involving the same parties, to ask the courts to rule on the same or related
causes and/or to grant the same or substantially same reliefs,[51] on the supposition that one
or the other court would make a favorable disposition. [52] Obviously, the parties in the instant

case, as well as in the appealed case before the CA, are the same. Both cases deal with the
existence and validity of the alleged will of the decedent, with petitioners anchoring their cause
on the state of intestacy. In the probate proceedings, petitioners position has always been that
the decedent left no will and if she did, the will does not comply with the requisites of a valid
will. Indeed, that position is the bedrock of their present petition. Of course, respondent
maintains the contrary stance. On the other hand, in the petition for letters of administration,
petitioner Flores prayed for her appointment as administratrix of the

estate on the theory that the decedent died intestate. The petition was dismissed on the ground
of lack of jurisdiction, and it is this order of dismissal which is the subject of review in CA-G.R.
No. 74924. Clearly, therefore, there is forum-shopping.

Moreover, petitioners failed to inform the Court of the said pending case in their
certification against forum- shopping. Neither have they done so at any time thereafter. The
Court notes that even in the petition for annulment of judgment, petitioners failed to inform the
CA of the pendency of their appeal in CA-G.R. No. 74924, even though the notice of appeal was
filed way before the petition for annulment of judgment was instituted.

WHEREFORE, the petition is DENIED. Costs against petitioners.

SO ORDERED.