RULE 76 – RULE 77
The original of the will, marked as
G.R. No. L-53546 June 25, 1992
THE HEIRS OF THE LATE JESUS FRAN and CARMEN MEJIA
RODRIGUEZ, petitioners, vs.
HON. BERNARDO LL. SALAS, CONCEPCION MEJIA ESPINA and
MARIA MEJIA GANDIONGCO, respondents.
DAVIDE, JR., J.:
This is a petition for certiorari and prohibition under Rule 65 of the
Revised Rules of Court, with prayer for a writ of preliminary injunction,
to annul and set aside, for having been issued without jurisdiction or with
grave abuse of discretion amounting to lack of jurisdiction, the following
Orders of the respondent Judge in Special Proceedings No. 3309-R of
Branch VIII of the then Court of First Instance (now Regional Trial Court)
of Cebu entitled "In The Matter of the Petition for Probate of the Last Will
and Testament of Remedios Mejia Vda. de Tiosejo:"
1. The Order of 26 February 1980 setting for hearing private
respondents' Omnibus Motion for Reconsideration 1 which was filed six
(6) years, ten (10) months and eighteen (18) days after the probate
judgment was rendered and six (6) years and twenty-one (21) days after
the testate proceedings was declared closed and terminated; and
2. The Order of 2 June 1980 finding the signature of the testatrix
in the last will and testament to be a forgery and (a) declaring the
testatrix as having died intestate; (b) declaring the testamentary
dispositions in said last will and testament as null and void; (c) setting
aside the order dated 10 September 1973 declaring the testate
proceedings closed and terminated; (d) revoking the appointment of
Jesus Fran as executor while appointing respondent Concepcion M.
Espina as administratrix; and (e) ordering the conversion of the
proceedings to one of intestacy. 2 This Order effectively annulled and
set aside the probate judgment of 13 November 1972.
Petitioners would also have this Court nullify all other actions of
respondent Judge in said Sp. Proc. No. 3309-R; restore the status quo
therein prior to the issuance of the foregoing orders; and permanently
enjoin respondent Judge from reopening said proceedings.
The following facts are not controverted:
Remedios M. Vda. de Tiosejo, a widow, died on 10 July 1972 in Cebu
City with neither descendants nor ascendants; she left real and personal
properties located in Cebu City, Ormoc City and Puerto Bello, Merida,
Leyte. Earlier, on 23 April 1972, she executed a last will and testament
3 wherein she bequeathed to her collateral relatives (brothers, sisters,
nephews and nieces) all her properties, and designated Rosario Tan or,
upon the latter's death, Jesus Fran, as executor to serve without bond.
Instrumental witnesses to the will were Nazario Pacquiao, Alcio Demerre
and Primo Miro.
On 15 July 1972, Jesus Fran filed a petition with the Court of First
instance of Cebu for the probate of Remedios' last will and testament. 4
The case was raffled to the original Branch VIII thereof which was then
presided over by Judge Antonio D. Cinco. The petition alleged that
Rosario Tan is not physically well and, therefore, will not be assuming
the position of administratrix. Tan signed a waiver in favor of Jesus Fran
on the third page of the said petition. The probate court issued an order
setting the petition for hearing on 18 September 1972. Meanwhile, on
31 July 1972, the court appointed petitioner Jesus Fran as special
administrator.
On 10 August 1972, the private respondents, who are sisters of the
deceased, filed a manifestation 5 alleging that they needed time to study
the petition because some heirs who are entitled to receive their
respective shares have been intentionally omitted therein, and praying
that they be given ample time to file their opposition, after which the
hearing be reset to another date.
Private respondents did not file any opposition. Instead, they filed on 18
September 1972 a "Withdrawal of Opposition to the Allowance of
Probate (sic) of the Will" wherein they expressly manifested, with their
"full knowledge and consent that . . . they have no objection of (sic) the
allowance of the . . . will of the late Remedios Mejia Vda. de Tiosejo,"
and that they have "no objection to the issuance of letters testamentary
in favor of petitioner, Dr. Jesus Fran." 6
No other party filed an opposition. The petition thus became
uncontested.
During the initial hearing, petitioner Fran introduced the requisite
evidence to establish the jurisdictional facts.
Upon a determination that the court had duly acquired jurisdiction over
the uncontested petition for probate, Judge Cinco issued in open court
an order directing counsel for petitioner to present evidence proving the
authenticity and due execution of the will before the Clerk of Court who
was, accordingly, so authorized to receive the same.
The reception of evidence by the Clerk of Court immediately followed.
Petitioner Fran's first witness was Atty. Nazario R. Pacquiao, one at the
subscribing witnesses to the will.
Exhibit "F", and its English translation, marked as Exhibit "F-
Translation", were submitted to the Clerk of Court. 7 Petitioner Fran was
the second and also the last witness. He enumerated the names of the
surviving heirs of the deceased.
On 13 November 1972, the probate court rendered a decision admitting
to probate the will of the testatrix, Remedios Mejia Vda. de Tiosejo, and
appointing petitioner Fran as executor thereof. 8 The dispositive portion
of the decision reads:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered
declaring the last will and testament of the deceased Remedios Mejia
Vda. de Tiosejo marked as Exhibit F as admitted to probate. Dr. Jesus
Fran is hereby appointed as executor of the will. Let letters testamentary
be issued in favor of Dr. Jesus Fran. The special administrator's bond
put up by Dr. Jesus Fran as special administrator duly approved by this
Court shall serve and be considered as the executor's bond considering
that the special administrator and executor are one and the same
person.
The requisite notice to creditors was issued, but despite the expiration
of the period therein fixed, no claim was presented against the estate.
On 4 January 1973, petitioner Fran filed an Inventory of the Estate; 9
copies thereof were furnished each of the private respondents.
Subsequently, a Project of Partition based on the dispositions made in
the will and signed by all the devisees and legatees, with the exception
of Luis Fran, Remedios C. Mejia and respondent Concepcion M. Espina,
was submitted by the executor for the court's approval. 10 Said legatees
and devisees submitted certifications wherein they admit receipt of a
copy of the Project of Partition together with the notice of hearing, and
state that they had no objection to its approval. 11
The notice of hearing referred to in these certifications is the 6 August
1973 notice issued by the Clerk of Court setting the hearing on the
Project of Partition for 29 August 1973. 12
After the hearing on the Project of Partition, the court issued its Order of
10 September 1973 13 approving the same, declaring the parties therein
as the only heirs entitled to the estate of Remedios Mejia Vda. de
Tiosejo, directing the administrator to deliver to the said parties their
respective shares and decreeing the proceedings closed. The
dispositive portion thereof reads:
WHEREFORE, the signers (sic) to the project of partition are declared
the only, heirs entitled to the estate; the project of partition submitted is
ordered approved and the administrator is ordered to deliver to each one
of them their respective aliquot parts as distributed in the said project of
partition. It is understood that if there are expenses incurred or to be
incurred as expenses of partition, Section 3 of Rule 90 shall be followed.
Let this proceedings be now declared closed.
SO ORDERED.
Thereafter, the aforesaid Branch VIII of the Court of First Instance of
Cebu was converted to a Juvenile and Domestic Relations Court. On
November 1978, by virtue of Presidential Decree No. 1439, Branch XVII
(Davao City) of the Court of First Instance of Cebu, presided over by
herein respondent Judge, was officially transferred to Cebu City and
renumbered as Branch VIII.
On 1 October 1979, private respondents filed with the new Branch VIII
an Omnibus Motion for Reconsideration of the probate judgment of 13
November 1972 and the Order of partition of 10 September 1973, in said
motion, they ask the court to declare the proceedings still open and
admit their opposition to the allowance of the will, 14 which they filed on
1 October 1979. They allege that: (a) they were not furnished with a copy
of the will; (b) the will is a forgery; (c) they were not notified of any
resolution or order on their manifestation requesting time within which to
file their opposition, or of the order authorizing the clerk of court to
receive the evidence for the petitioner, or of the order closing the
proceedings; (d) the reception of evidence by the clerk of court was void
per the ruling in Lim Tanhu vs. Ramolete; 15 (e) the project of partition
contains no notice of hearing and they were not notified thereof; (f) the
petitioner signed the project of partition as administrator and not as
executor, thereby proving that the decedent died intestate; (g) the
petitioner did not submit any accounting as required by law; and (h) the
petitioner never distributed the estate to the devisees and legatees.
In a detailed opposition 16 to the above Omnibus Motion for
Reconsideration, petitioner Fran refuted all the protestations of private
respondents. Among other reasons, he stresses therein that: (a) private
respondents are in estoppel to question the will because they filed their
Withdrawal Of Opposition To The Allowance of Will which states that
after thoroughly studying the petition, to which was attached a copy of
the English translation of the will, they have no objection to its allowance;
the order directing the clerk of court to receive the evidence was dictated
in open court in the presence of private respondents; private respondent
Maria M. Gandiongco signed the Project of Partition and private
respondent Concepcion M. Espina submitted a certification stating
therein that she received the notice of hearing therefor and has no
objection to its approval; (b) except for some properties, either covered
by a usufruct under the will or agreed upon by the parties to be held in
common by reason of its special circumstance, there was an actual
distribution of the estate in accordance with the Project of Partition;
insofar as private respondents are concerned, they not only received
their respective shares, they even purchased the shares of the other
devisees. To top it all, private respondents' children, namely Rodrigo M.
Gandiongco, Jr. and Victor Espina, mortgaged their respective shares
in favor of a bank
Notwithstanding petitioners' objections, respondent Judge issued on 26
February 1980 an Order setting for hearing the said Omnibus Motion for
Reconsideration on 8 April 1980 so that "the witnesses and the exhibits
(may be) properly ventilated." 17
On 25 March 1980, petitioners filed a Motion to Dismiss the Omnibus
and to Reconsider the 26 February 1980 Order setting it for hearing on
17 April 1980, 18 but the respondent Judge prematurely denied it for
lack of merit in his Order of 31 March 1980. 19
Consequently, on 8 April 1980, the instant petition was filed challenging
the jurisdiction of the lower court in taking cognizance of the Omnibus
Motion for Reconsideration considering that the probate judgment and
the order approving the Project of Partition and terminating the
proceedings had long become final and had in fact been executed.
Private respondents had long lost their right to appeal therefrom. The
Omnibus Motion for Reconsideration cannot likewise be treated as a
petition for relief from judgment for under Rule 38 of the Revised Rules
of Court, the same must be filed within sixty (60) days from receipt of
notice of the judgment/order and within six (6) months from the date of
said judgment. Therefore, this remedy can no longer be availed of.
On 8 April 1980, the date the instant petition was filed, respondent Judge
proceeded with the hearing of the Omnibus Motion for Reconsideration.
He received the testimonies of private respondents and one Romeo O.
Varena, an alleged handwriting expert from the Philippine Constabulary,
who averred that the signature of the testatrix on the will is a forgery.
The respondent Judge likewise issued an Order on the same date
stating that unless he received a restraining order from this Court within
twenty (20) days therefrom, he will reopen Sp. Proc. No. 3309-R.
On 14 April 1980, petitioners filed a Supplemental Petition asking this
Court to restrain respondent Judge from reopening the case. 20
In their voluminous Comments and Opposition to the petition and
Supplemental Petition, 21 private respondents not only amplify in great
detail the grounds raised in their Omnibus Motion for Reconsideration,
they also squarely raise for the first time the following issues.
(a) The probate court never acquired jurisdiction over the case
since petitioner Jesus Fran failed to submit to the court the original of
the will.
(b) They were deprived of the opportunity to examine the will as
petitioner Jesus Fran did not attach it to the petition; what was attached
was only the English translation of the will.
(c) Even assuming that the probate judge could validly delegate
the reception of evidence to the Clerk of Court, the proceeding before
the latter would still be void as he failed to take an oath of office before
entering upon his duties as commissioner and failed to render a report
on the matters submitted to him.
(d) Respondent Maria M. Vda. de Gandiongco was defrauded
into (sic) signing the Project of Partition and respondent Concepcion M.
Espina, her certification, when they were misled by petitioner Fran into
believing that the Agreement of Petition to be submitted to the court is
the Extra Judicial Partition they signed on 7 May 1973.
(e) Petitioner Fran is guilty of fraud in urdervaluing the estate of
the late Remedios M. Vda. de Tiosejo by reporting properties worth only
P400,000.00 when in truth and in fact the estate has an aggregate value
of P2,094,333.00.
In the Resolution dated 2 June 1980, We issued a restraining order
enjoining respondent Judge from reopening Sp. Proc. No. 3309-R. 22
However, on the same date, before the restraining order was served on
him; respondent Judge issued the impugned order declaring the
testamentary dispositions of the will void, finding the signature of the late
Remedios M. Vda. de Tiosejo to be a forgery, decreeing the reopening
of Sp. Proc. No. 3309-R and converting the same into an intestate
proceeding. 23
Hence, on 6 June 1980, petitioners filed their Second Supplemental
Petition 24 asking this Court to declare as null and void the Order of 2
June 1980 and, pending such declaration, to restrain respondent Judge
from enforcing the same. Private respondents filed their Comment and
Opposition to the Second Supplemental Petition on 9 July 1980.
Thereafter, as mandated in the resolution of 30 June 1980, 25 this Court
gave due course to this case and required the parties to file their
respective Memoranda, which private respondents complied with on 16
August 1980; 26 petitioners filed theirs on 27 August 1980. 27
Consequently, the parties continued to file several pleadings reiterating
substantially the same allegations and arguments earlier submitted to
this Court.
On 22 March 1984, counsel for petitioners filed a manifestation informing
this Court of the death of petitioner Fran on 29 February 1984 and
enumerating therein his surviving heirs. On 2 April 1984, this Court
resolved to have said heirs substitute him in this case.
Over a year later, respondent Maria M. Vda. de Gandiongco filed an
affidavit, 28 sworn to before the acting Clerk of Court of the Regional
Trial Court in Cebu City, disclosing the following material facts: (a) she
signed the Omnibus Motion for Reconsideration dated 1 October 1979
without knowing or reading the contents thereof; (b) she saw the will of
the late Remedios M. Vda. de Tiosejo written in the Cebuano dialect
after the same was executed by the latter; the said will bearing the
authentic signature of Remedios was the very one presented to the
probate court by petitioner's counsel; (c) she received the notice of
hearing of the petition for probate and because she was convinced that
the signature of the testatrix was genuine, she, together with
Concepcion M. Espina, withdrew her opposition; (d) she received her
share of the estate of the late Remedios M. Vda. de Tiosejo which was
distributed in accordance with the provisions of the latter's will; and (e)
she did not authorize Atty. Numeriano Estenzo or other lawyers to
present a motion to this Court after 25 February 1981 when Estenzo
withdrew as counsel for private respondents. She then asks this Court
to consider as withdrawn her Opposition to the Allowance of the Will, her
participation in the Omnibus Motion for Reconsideration and her
Opposition to this petition.
Due to this development, We required private respondent Concepcion
M. Espina to comment on the affidavit of private respondent Maria M.
Vda. de Gandiongco.
On 17 August 1985, private respondents filed a joint manifestation 29
wherein they claim that Maria M. Vda. de Gandiongco does not
remember, executing the affidavit. A few weeks before the affidavit was
filed, particularly on 17 June 1985, Maria M. Vda. de Gandiongco was
confined in the hospital; she could not recall having signed, during this
period, any affidavit or recognized her sisters and other relatives.
On 19 September 1985, respondent Maria M. Vda. de Gandiongco,
through special counsel, filed a Manifestation/Motion with a second
Affidavit attached thereto30 confessing that she signed the Joint
Manifestation dated 16 August 1985 "without knowing or being informed
of its contents, and only upon Mrs. Concepcion Espina's request." She
reiterated her desire to withdraw from the Omnibus Motion for
Reconsideration filed in Sp. Proc. No, 3309-R as well as from the instant
petition.
Despite the valiant attempt of private respondent Concepcion M. Espina
to influence and control the action of Maria Gandiongco, there is nothing
in the records that would cast any doubt on the irrevocability of the
latter's decision to withdraw her participation in the Omnibus Motion for
Reconsideration and Opposition to this case. That decision, however, is
not a ground for dropping her as a private respondent as the respondent
Judge had already issued the abovementioned Order of 2 June 1980.
The petition and the supplemental petitions are impressed with merit.
We do not hesitate to rule that the respondent Judge committed grave
abuse of discretion amounting to lack of jurisdiction when he granted the
Omnibus Motion for Reconsideration and thereafter set aside the
probate judgment of 13 November 1972 in Sp. Proc. No. 3309-R,
declared the subject will of the testatrix a forgery, nullified the
testamentary dispositions therein and ordered the conversion of the
testate proceedings into one of intestacy.
It is not disputed that private respondents filed on the day of the initial
hearing of the petition their "Withdrawal of Opposition To Allowance of
Probate (sic) Will" wherein they unequivocally state that they have no
objection to the allowance of the will. For all legal intents and purposes,
they became proponents of the same.
After the probate court rendered its decision on 13 November 1972, and
there having been no claim presented despite publication of notice to
creditors, petitioner Fran submitted a Project of Partition which private
respondent Maria M. Vda. de Gandiongco voluntarily signed and to
which private respondent Espina expressed her conformity through a
certification filed with the probate court. Assuming for the sake of
argument that private respondents did not receive a formal notice of the
decision as they claim in their Omnibus Motion for Reconsideration,
these acts nevertheless constitute indubitable proof of their prior actual
knowledge of the same. A formal notice would have been an idle
ceremony. In testate proceedings, a decision logically precedes the
project of partition, which is normally an implementation of the will and
is among the last operative acts to terminate the proceedings. If private
respondents did not have actual knowledge of the decision, they should
have desisted from performing the above acts and instead demanded
from petitioner Fran the fulfillment of his alleged promise to show them
the will. The same conclusion refutes and defeats the plea that they were
not notified of the order authorizing the Clerk of Court to receive the
evidence and that the Clerk of Court did not notify them of the date of
the reception of evidence. Besides, such plea must fail because private
respondents were present when the court dictated the said order.
Neither do We give any weight to the contention that the reception of
evidence by the Clerk of Court is null and void per the doctrine laid, down
in Lim Tanhu vs. Ramolete. 31 In the first place, Lim Tanhu was decided
on 29 August 1975, nearly four (4) years after the probate court
authorized the Clerk of Court to receive the evidence for the petitioner
in this case. A month prior to Lim Tanhu, or on 30 July 1975, this Court,
in Laluan vs. Malpaya, 32 recognized and upheld the practice of
delegating the reception of evidence to Clerks of Court. Thus:
No provision of law or principle of public policy prohibits a court from
authorizing its clerk of court to receive the evidence of a party litigant.
After all, the reception of evidence by the clerk of court constitutes but a
ministerial task — the taking down of the testimony of the witnesses and
the marking of the pieces of documentary evidence, if any, adduced by
the party present. This task of receiving evidence precludes, on the part
of the clerk of court the exercise of judicial discretion usually called for
when the other party who is present objects to questions propounded
and to the admission of the documentary evidence proffered. 33 More
importantly, the duty to render judgment on the merits of the case still
rests with the judge who is obliged to personally and directly prepare the
decision based upon the evidence reported. 34
But where the proceedings before the clerk of court and the concomitant
result thereof, i.e., the judgment rendered by the court based on the
evidence presented in such limited proceedings, prejudice the
substantial rights of the aggrieved party, then there exists, sufficient
justification to grant the latter complete opportunity to thresh out his case
in court. 35
Monserrate vs. Court of Appeals, 36 decided on 29 September 1989,
reiterated this rule. Lim Tanhu then cannot be used as authority to nullify
the order of the probate court authorizing the Clerk of Court to receive
the evidence for the rule is settled that "when a doctrine of this Court is
overruled and a different view is adopted, the new doctrine should be
applied prospectively, and should not apply to parties who had relied on
the old doctrine and acted on the faith thereof." 37 It may also be
emphasized in this connection that Lim Tanhu did not live long; it was
subsequently overruled in Gochangco vs. Court of First Instance of
Negros Occidental, 38 wherein this Court, en banc, through Justice, now
Chief Justice, Andres R. Narvasa, in reference to what the trial court
termed as "the doctrinal rule laid down in the recent case of Lim Tan Hu
(sic) vs. Ramolete," ruled:
Now, that declaration does not reflect long observed and established
judicial practice with respect to default cases. It is not quite consistent,
too, with the several explicitly authorized instances under the Rules
where the function of receiving evidence and even of making
recommendatory findings of facts on the basis thereof may be delegated
to commissioners, inclusive of the Clerk of Court. These instances are
set out in Rule 33, . . . ; Rule 67 and 69, . . . ; Rule 86, . . . ; Rule 136, .
. . . In all these instances, the competence of the clerk of court is
assumed. Indeed, there would seem, to be sure, nothing intrinsically
wrong in allowing presentation of evidence ex parte before a Clerk of
Court. Such a procedure certainly does not foreclose relief to the party
adversely affected who, for valid cause and upon appropriate and
seasonable application, may bring about the undoing thereof or the
elimination of prejudice thereby caused to him; and it is, after all, the
Court itself which is duty bound and has the ultimate responsibility to
pass upon the evidence received in this manner, discarding in the
process such proofs as are incompetent and then declare what facts
have thereby been established. In considering and analyzing the
evidence preparatory to rendition of judgment on the merits, it may not
unreasonably be assumed that any serious error in the ex-parte
presentation of evidence, prejudicial to any absent party, will be detected
and duly remedied by the Court, and/or may always, in any event, be
drawn to its attention by any interested party.
xxx xxx xxx
It was therefore error for the Court a quo to have declared the judgment
by default to be fatally flawed by the fact that the plaintiff's evidence had
been received not by the Judge himself but by the clerk of court.
The alternative claim that the proceedings before the Clerk of Court were
likewise void because said official did not take an oath is likewise
untenable. The Clerk of Court acted as such when he performed the
delegated task of receiving evidence. It was not necessary for him to
take an oath for that purpose; he was bound by his oath of office as a
Clerk of Court. Private respondents are obviously of the impression that
by the delegation of the reception of evidence to the Clerk of Court, the
latter became a commissioner as defined under Rule 33 of the Rules of
Court entitled Trial by Commissioner. This is not correct; as this Court
said in Laluan:
The provisions of Rule 33 of the Rules of Court invoked by both parties
properly relate to the reference by a court of any or all of the issues in a
case to a person so commissioned to act or report thereon. These
provisions explicitly spell out the rules governing the conduct of the
court, the commissioner, and the parties before, during, and after the
reference proceedings. Compliance with these rules of conduct
becomes imperative only when the court formally orders a reference of
the case to a commissioner. Strictly speaking then, the provisions of
Rule 33 find no application to the case at bar where the court a quo
merely directed the clerk of court to take down the testimony of the
witnesses presented and to mark the documentary evidence proferred
on a date previously set for hearing.
Belatedly realizing the absence of substance of the above grounds,
private respondents now claim in their Comments to the Petition and the
Supplemental Petition that the trial court never acquired jurisdiction over
the petition because only the English translation of the will — and not a
copy of the same — was attached to the petition; the will was not even
submitted to the court for their examination within twenty (20) days after
the death of the testatrix; and that there was fraud in the procurement of
the probate judgment principally because they were not given any
chance to examine the signature of the testatrix and were misled into
signing the withdrawal of their opposition on the assurance of petitioner
Fran and their sister, Rosario M. Tan, that the will would be shown to
them during the trial. These two grounds easily serve as the bases for
the postulation that the decision is null and void and so, therefore, their
omnibus motion became all the more timely and proper.
The contentions do not impress this Court.
In Santos vs. Castillo 39 and Salazar vs. Court of First Instance of
Laguna, 40 decided six (6) months apart in 1937, this Court already
ruled that it is not necessary that the original of the will be attached to
the petition. In the first, it ruled: "The original of said document [the will]
must be presented or sufficient reasons given to justify the
nonpresentation of said original and the acceptance of the copy or
duplicate thereof." 41 In the second case, this Court was more emphatic
in holding that:
The law is silent as to the specific manner of bringing the jurisdictional
allegations before the court, but practice and jurisprudence have
established that they should be made in the form of an application and
filed with the original of the will attached thereto. It has been the practice
in some courts to permit attachment of a mere copy of the will to the
application, without prejudice to producing the original thereof at the
hearing or when the court so requires. This precaution has been adopted
by some attorneys to forestall its disappearance, which has taken place
in certain cases. 42
That the annexing of the original will to the petition is not a jurisdictional
requirement is clearly evident in Section 1, Rule 76 of the Rules of Court
which allows the filing of a petition for probate by the person named
therein regardless of whether or not he is in possession of the will, or the
same is lost or destroyed. The section reads in full as follows:
Sec. 1. Who may petition for the allowance of will. — 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, whether the same be in his
possession or not, or is lost or destroyed.
In the instant case, a copy of the original will and its English translation
were attached to the petition as Annex "A" and Annex "A-1",
respectively, and made integral parts of the same. It is to be presumed
that upon the filing of the petition the Clerk of Court, or his duly
authorized subordinate, examined the petition and found that the
annexes mentioned were in fact attached thereto. If they were not, the
petition cannot be said to have been properly presented and the Clerk
of Court would not have accepted it for docketing. Under Section 6, Rule
136 of the Rules of Court, the Clerk of Court shall receive and file all
pleadings and other papers properly presented, endorsing on each such
paper the time when it was filed. The presumption of regularity in the
performance of official duty militates against private respondents' claim
that Annex "A" of the petition was not in fact attached thereto.
The certification of the Assistant Clerk of Court issued on 8 April
1980, 43 or SIX (6) months after the filing of the motion for
reconsideration, to the effect that as per examination of the records of
Sp. Proc. No. 3309-R, "the copy of the Will mentioned in the petition as
Annex "A" is not found to be attached as of this date in the said petition;
only the English Translation of said Will is attached thereof (sic) as
Annex "A-1" does not even save the day for private respondents. It is
not conclusive because it fails to state the fact that as hereafter shown,
the pages of the records which correspond to the four (4) pages of
Annex "A" were missing or were detached therefrom. As emphatically
asserted by the petitioners in their Reply to the Comments of private
respondents, 44 duly supported by a certification of the former Clerk of
Court of the original Branch VIII of the court below, 45 and which private
respondents merely generally denied in their motion for reconsideration
with comments and opposition to consolidated reply, 46 the four-page
xerox copy of will, marked as Annex "A" of the petition, became, as
properly marked by the personnel of the original Branch VIII of the court
below upon the filing of the petition, pages 5, 6, 7 and 8 while the
translation thereof, marked as Annex "A-1", became pages 9, 10, 11 and
12 of the records. The markings were done in long hand. The records of
the case were thereafter sent to the Clerk of Court, 14th Judicial District,
Cebu City on 9 February 1978. These records, now in the possession of
the respondent Judge, show that said pages 5, 6, 7 and 8 in long are
missing. As a consequence thereof, petitioners filed with the Executive
Judge of the court below an administrative complaint.
It is not likewise disputed that the original of the will was submitted in
evidence and marked as Exhibit "F". It forms part of the records of the
special proceedings — a fact which private respondents admit in their
Omnibus Motion for Reconsideration, thus:
9. That an examination of the alleged will of our deceased sister
has revealed that the signatures at the left hand margin of Exhibit "F",
are written by (sic) different person than the signature appearing at the
bottom of said alleged will . . . 47
The availability of the will since 18 September 1972 for their examination
renders completely baseless the private respondents' claim of fraud on
petitioner Fran's part in securing the withdrawal of their opposition to the
probate of the will. If indeed such withdrawal was conditioned upon
Fran's promise that the private respondents would be shown the will
during the trial, why weren't the appropriate steps taken by the latter to
confront Fran about this promise before certifications of conformity to
the project of partition were filed?
Granting for the sake of argument that the non-fulfillment of said promise
constitutes fraud, such fraud is not of the kind which provides sufficient
justification for a motion for reconsideration or a petition for relief from
judgment under Rule 37 and Rule 38, respectively, of the Rules of Court,
or even a separate action for annulment of judgment. It is settled that for
fraud to be invested with, sufficiency, it must be extrinsic or collateral to
the matters involved in the issues raised during the trial which resulted
in such judgment. 48
In Our jurisdiction, the following courses of action are open to an
aggrieved party to set aside or attack the validity of a final judgment:
(1) Petition for relief under Rule 38 of the Rules of Court which
must be filed within sixty (60) days after learning of the decision, but not
more than six (6) months after such decision is entered;
(2) By direct action, via a special civil action for certiorari, or by
collateral attack, assuming that the decision is void for want of
jurisdiction;
(3) By an independent civil action under Article 1114 of the Civil
Code, assuming that the decision was obtained through fraud and Rule
38 can not be applied. 49
It is not difficult to see that private respondents had lost their right to file
a petition for relief from judgment, it appearing that their omnibus motion
for reconsideration was filed exactly six (6) years, ten (10) months and
twenty-two (22) days after the rendition of the decision, and six (6) years,
one (1) month and thirteen (13) days after the court issued the order
approving the Project of Partition, to which they voluntarily expressed
their conformity through their respective certifications, and closing the
testate proceedings.
Private respondents did not avail of the other two (2) modes of attack.
The probate judgment of 13 November 1972, long final and undisturbed
by any attempt to unsettle it, had inevitably passed beyond the reach of
the court below to annul or set the same aside, by mere motion, on the
ground that the will is a forgery. Settled is the rule that the decree of
probate is conclusive with respect to the due execution of the will and it
cannot be impugned on any of the grounds authorized by law, except
that of fraud, in any separate or independent action or proceeding. 50
We wish also to advert to the related doctrine which holds that final
judgments are entitled to respect and should not be disturbed;
otherwise, there would be a wavering of trust in the courts. 51 In Lee
Bun Ting vs. Aligaen, 52 this Court had the occasion to state the
rationale of this doctrine, thus:
Reasons of public policy, judicial orderliness, economy and judicial time
and the interests of litigants, as well as the peace and order of society,
all require that stability be accorded the solemn and final judgments of
the courts or tribunals of competent jurisdiction.
This is so even if the decision is incorrect 53 or, in criminal cases, the
penalty imposed is erroneous. 54
Equally baseless and unmeritorious is private respondents' contention
that the order approving the Project of Partition and closing the
proceedings is null and void because the Project of Partition did not
contain a notice of hearing and that they were not notified of the hearing
thereon. In truth, in her own certification 55 dated 5 September 1973,
private respondent Concepcion M. Espina admitted that she "received a
copy of the Project of Partition and the Notice of Hearing in the above-
entitled proceeding, and that she has no objection to the approval of the
said Project of Partition." The notice of hearing she referred to is the
Notice of Hearing For Approval of Project of Partition issued on 6 August
1973 by the Clerk of Court. 56 Private respondent Espina was lying
through her teeth when she claimed otherwise.
The non-distribution of the estate, which is vigorously denied by the
petitioners, is not a ground for the re-opening of the testate proceedings.
A seasonable motion for execution should have been filed. In De Jesus
vs.
Daza, 57 this Court ruled that if the executor or administrator has
possession of the share to be delivered, the probate court would have
jurisdiction within the same estate proceeding to order him to transfer
that possession to the person entitled thereto. This is authorized under
Section 1, Rule 90 of the Rules of Court. However, if no motion for
execution is filed within the reglementary period, a separate action for
the recovery of the shares would be in order. As We see it, the attack of
10 September 1973 on the Order was just a clever ploy to give
asemblance of strength and substance to the Omnibus Motion for
Reconsideration by depicting therein a probate court committing a series
of fatal, substantive and procedural blunders, which We find to be
imaginary, if not deliberately fabricated.
WHEREFORE, the instant petition and supplemental petitions are
GRANTED. The Order of respondent Judge of 2 June 1980 and all other
orders issued by him in Sp. Proc. No. 3309-R, as well as all other
proceedings had therein in connection with or in relation to the Omnibus
Motion for Reconsideration, are hereby ANNULLED and SET ASIDE.
The restraining order issued on 2 June 1980 is hereby made
PERMANENT.
Costs against private respondent Concepcion M. Espina.
G.R. No. 76714 June 2, 1994
SALUD TEODORO VDA. DE PEREZ, petitioner,
vs.HON. ZOTICO A. TOLETE in his capacity as Presiding Judge,
Branch 18, RTC, Bulacan, respondent.
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of
Court to set aside the Order dated November 19, 1986 of the Regional
Trial Court, Branch 18, Bulacan presided by respondent Judge Zotico A.
Tolete, in Special Proceedings No. 1793-M.
We grant the petition.
II
Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who
became American citizens, established a successful medical practice in
New York, U.S.A. The Cunanans lived at No. 2896 Citation Drive,
Pompey, Syracuse, New York, with their children, Jocelyn, 18;
Jacqueline, 16; and Josephine, 14.
On August 23, 1979, Dr. Cunanan executed a last will and testament,
bequeathing to his wife "all the remainder" of his real and personal
property at the time of his death "wheresoever situated" (Rollo, p. 35).
In the event he would survive his wife, he bequeathed all his property to
his children and grandchildren with Dr. Rafael G. Cunanan, Jr. as
trustee. He appointed his wife as executrix of his last will and testament
and Dr. Rafael G. Cunanan, Jr. as substitute executor. Article VIII of his
will states:
If my wife, EVELYN PEREZ-CUNANAN, and I shall die under such
circumstances that there is not sufficient evidence to determine the order
of our deaths, then it shall be presumed that I predeceased her, and my
estate shall be administered and distributed, in all respects, in
accordance with such presumption (Rollo, p. 41).
Four days later, on August 27, Dr. Evelyn P. Cunanan executed her own
last will and testament containing the same provisions as that of the will
of her husband. Article VIII of her will states:
If my husband, JOSE F. CUNANAN, and I shall die under such
circumstances that there is not sufficient evidence to determine the order
of our deaths, then it shall be presumed that he predeceased me, and
my estate shall be administered and distributed in all respects, in
accordance with such presumption. (Rollo, p. 31).
On January 9, 1982, Dr. Cunanan and his entire family perished when
they were trapped by fire that gutted their home. Thereafter, Dr. Rafael
G. Cunanan, Jr. as trustee and substitute executor of the two wills, filed
separate proceedings for the probate thereof with the Surrogate Court
of the County of Onondaga, New York. On April 7, these two wills were
admitted to probate and letters testamentary were issued in his favor.
On February 21, 1983, Salud Teodoro Perez, the mother of Dr. Evelyn
P. Cunanan, and petitioner herein, filed with the Regional P. Cunanan,
and petitioner herein, filed with the Regional Trial Court, Malolos,
Bulacan a petition for the reprobate of the two bills ancillary to the
probate proceedings in New York. She also asked that she be appointed
the special administratrix of the estate of the deceased couple consisting
primarily of a farm land in San Miguel, Bulacan.
On March 9, the Regional Trial Court, Branch 16, Malolos, Bulacan,
presided by Judge Gualberto J. de la Llana, issued an order, directing
the issuance of letters of special administration in favor of petitioner
upon her filing of a P10,000.00 bond. The following day, petitioner
posted the bond and took her oath as special administration.
As her first act of administration, petitioner filed a motion, praying that
the Philippine Life Insurance Company be directed to deliver the
proceeds in the amount of P50,000.00 of the life insurance policy taken
by Dr. Jose F. Cunanan with Dr. Evelyn Perez-Cunanan and their
daughter Jocelyn as beneficiaries. The trial court granted the motion.
Counsel for the Philippine American Life Insurance Company then filed
a manifestation, stating that said company then filed a manifestation,
stating that said company had delivered to petitioner the amount of
P49,765.85, representing the proceeds of the life insurance policy of Dr.
Jose F. Cunanan.
In a motion dated May 19, 1983, petitioner asked that Dr. Rafael
Cunanan, Sr. be ordered to deliver to her a Philippine Trust Company
passbook with P25,594.00 in savings deposit, and the Family Savings
Bank time deposit certificates in the total amount of P12,412.52.
On May 31, Atty. Federico Alday filed a notice of appearance as counsel
for the heirs of Dr. Jose F. Cunanan, namely, Dr. Rafael Cunanan, Sr.,
Priscilla Cunanan Bautista, Lydia Cunanan Ignacio, Felipe F. Cunanan
and Loreto Cunanan Concepcion (Cunanan heirs). He also manifested
that before receiving petitioner's motion of May 19, 1983, his clients were
unaware of the filing of the testate estate case and therefore, "in the
interest of simple fair play," they should be notified of the proceedings
(Records, p. 110). He prayed for deferment of the hearing on the
motions of May 19, 1983.
Petitioner then filed a counter manifestation dated June 13, 1983,
asserting: (1) that the "Cunanan collaterals are neither heirs nor
creditors of the late Dr. Jose F. Cunanan" and therefore, they had "no
legal or proprietary interests to protect" and "no right to intervene"; (2)
that the wills of Dr. Jose F. Cunanan and Dr. Evelyn Perez-Cunanan,
being American citizens, were executed in accordance with the
solemnities and formalities of New York laws, and produced "effects in
this jurisdiction in accordance with Art. 16 in relation to Art. 816 of the
Civil Code"; (3) that under Article VIII of the two wills, it was presumed
that the husband predeceased the wife; and (4) that "the Cunanan
collaterals are neither distributees, legatees or beneficiaries, much less,
heirs as heirship is only by institution" under a will or by operation of the
law of New York (Records, pp. 112-113).
On June 23, the probate court granted petitioner's motion of May 19,
1983. However, on July 21, the Cunanan heirs filed a motion to nullify
the proceedings and to set aside the appointment of, or to disqualify,
petitioner as special administratrix of the estates of Dr. Jose F. Cunanan
and Dr. Evelyn Perez-Cunanan. The motion stated: (1) that being the
"brothers and sisters and the legal and surviving heirs" of Dr. Jose F.
Cunanan, they had been "deliberately excluded" in the petition for the
probate of the separate wills of the Cunanan spouses thereby
misleading the Bulacan court to believe that petitioner was the sole heir
of the spouses; that such "misrepresentation" deprived them of their
right to "due process in violation of Section 4, Rule 76 of the Revised
Rules of Court; (2) that Dr. Rafael G. Cunanan, Jr., the executor of the
estate of the Cunanan spouses, was likewise not notified of the hearings
in the Bulacan court; (3) that the "misrepresentation and concealment
committed by" petitioner rendered her unfit to be a special administratrix;
(4) that Dr. Rafael G. Cunanan, Jr. had, by virtue of a verified power of
attorney, authorized his father,
Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that Dr.
Rafael Cunanan, Sr. is qualified to be a regular administrator "as
practically all of the subject estate in the Philippines belongs to their
brother, Dr. Jose F. Cunanan" (Records, pp. 118-122). Hence, they
prayed: (1) that the proceedings in the case be declared null and void;
(2) that the appointment of petitioner as special administratrix be set
aside; and (3) that Dr. Rafael Cunanan, Sr. be appointed the regular
administrator of the estate of the deceased spouses.
Thereafter, the Cunanan heirs filed a motion requiring petitioner to
submit an inventory or accounting of all monies received by her in trust
for the estate.
In her opposition, petitioner asserted: (1) that she was the "sole and only
heir" of her daughter, Dr. Evelyn Perez-Cunanan to the exclusion of the
"Cunanan collaterals"; hence they were complete strangers to the
proceedings and were not entitled to notice; (2) that she could not have
"concealed" the name and address of Dr. Rafael G. Cunanan, Jr.
because his name was prominently mentioned not only in the two wills
but also in the decrees of the American surrogate court; (3) that the rule
applicable to the case is Rule 77, not Rule 76, because it involved the
allowance of wills proved outside of the Philippines and that nowhere in
Section 2 of Rule 77 is there a mention of notice being given to the
executor who, by the same provision, should himself file the necessary
ancillary proceedings in this country; (4) that even if the Bulacan estate
came from the "capital" of Dr. Jose F. Cunanan, he had willed all his
worldly goods to his wife and nothing to his brothers and sisters; and (5)
that Dr. Rafael G. Cunanan, Jr. had unlawfully disbursed $215,000.00
to the Cunanan heirs, misappropriated $15,000.00 for himself and
irregularly assigned assets of the estates to his American lawyer
(Records, pp. 151-160).
In their reply, the Cunanan heirs stressed that on November 24, 1982,
petitioner and the Cunanan heirs had entered into an agreement in the
United States "to settle and divide equally the estates," and that under
Section 2 of Rule 77 the "court shall fix a time and place for the hearing
and cause notice thereof to be given as in case of an original will
presented for allowance" (Records, pp. 184-185).
Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for contempt
of court for failure to comply with the Order of June 23, 1983 and for
appropriating money of the estate for his own benefit. She also alleged
that she had impugned the agreement of November 24, 1982 before the
Surrogate Court of Onondaga, New York which rendered a decision on
April 13, 1983, finding that "all assets are payable to Dr. Evelyn P.
Cunanan’s executor to be then distributed pursuant to EPTL4-1.1 subd
[a] par [4]" (Rollo, p. 52).
On their part, the Cunanan heirs replied that petitioner was estopped
from claiming that they were heirs by the agreement to divide equally
the estates. They asserted that by virtue of Section 2 of Rule 77 of the
Rules of Court, the provisions of Sections 3, 4 and 5 of Rule 76 on the
requirement of notice to all heirs, executors, devisees and legatees must
be complied with. They reiterated their prayer: (1) that the proceedings
in the case be nullified; (2) that petitioner be disqualified as special
administratrix; (3) that she be ordered to submit an inventory of all
goods, chattels and monies which she had received and to surrender
the same to the court; and (4) that Dr. Rafael Cunanan, Sr. be appointed
the regular administrator.
Petitioner filed a rejoinder, stating that in violation of the April 13, 1983
decision of the American court Dr. Rafael G. Cunanan, Jr. made
"unauthorized disbursements from the estates as early as July 7, 1982"
(Records, p. 231). Thereafter, petitioner moved for the suspension of the
proceedings as she had "to attend to the settlement proceedings" of the
estate of the Cunanan spouses in New York (Records, p. 242). The
Cunanans heirs opposed this motion and filed a manifestation, stating
that petitioner had received $215,000.00 "from the Surrogate’s Court as
part of legacy" based on the aforesaid agreement of November 24, 1982
(Records, p. 248).
On February 21, 1984, Judge de la Llana issued an order, disallowing
the reprobate of the two wills, recalling the appointment of petitioner as
special administratrix, requiring the submission of petitioner of an
inventory of the property received by her as special administratrix and
declaring all pending incidents moot and academic. Judge de la Llana
reasoned out that petitioner failed to prove the law of New York on
procedure and allowance of wills and the court had no way of telling
whether the wills were executed in accordance with the law of New York.
In the absence of such evidence, the presumption is that the law of
succession of the foreign country is the same as the law of the
Philippines. However, he noted, that there were only two witnesses to
the wills of the Cunanan spouses and the Philippine law requires three
witnesses and that the wills were not signed on each and every page, a
requirement of the Philippine law.
On August 27, 1985, petitioner filed a motion for reconsideration of the
Order dated February 21, 1984, where she had sufficiently proven the
applicable laws of New York governing the execution of last wills and
testaments.
On the same day, Judge de la Llana issued another order, denying the
motion of petitioner for the suspension of the proceedings but gave her
15 days upon arrival in the country within which to act on the other order
issued that same day. Contending that the second portion of the second
order left its finality to the discretion of counsel for petitioner, the
Cunanans filed a motion for the reconsideration of the objectionable
portion of the said order so that it would conform with the pertinent
provisions of the Judiciary Reorganization Act of 1980 and the Interim
Rules of Court.
On April 30, 1985, the respondent Judge of Branch 18 of the Regional
Trial Court, Malolos, to which the reprobate case was reassigned, issued
an order stating that "(W)hen the last will and testament . . . was denied
probate," the case was terminated and therefore all orders theretofore
issued should be given finality. The same Order amended the February
21, 1984 Order by requiring petitioner to turn over to the estate the
inventoried property. It considered the proceedings for all intents and
purposes, closed (Records,
p. 302).
On August 12, petitioner filed a motion to resume proceedings on
account of the final settlement and termination of the probate cases in
New York. Three days later, petitioner filed a motion praying for the
reconsideration of the Order of April 30, 1985 on the strength of the
February 21, 1984 Order granting her a period of 15 days upon arrival
in the country within which to act on the denial of probate of the wills of
the Cunanan spouses. On August 19, respondent Judge granted the
motion and reconsidered the Order of April 30, 1985.
On August 29, counsel for petitioner, who happens to be her daughter,
Natividad, filed a motion praying that since petitioner was ailing in Fort
Lee, New Jersey, U.S.A. and therefore incapacitated to act as special
administratrix, she (the counsel) should be named substitute special
administratrix. She also filed a motion for the reconsideration of the
Order of February 21, 1984, denying probate to the wills of the Cunanan
spouses, alleging that respondent Judge "failed to appreciate the
significant probative value of the exhibits . . . which all refer to the offer
and admission to probate of the last wills of the Cunanan spouses
including all procedures undertaken and decrees issued in connection
with the said probate" (Records, pp. 313-323).
Thereafter, the Cunanans heirs filed a motion for reconsideration of the
Order of August 19, 1985, alleging lack of notice to their counsel.
On March 31, 1986, respondent Judge to which the case was
reassigned denied the motion for reconsideration holding that the
documents submitted by petitioner proved "that the wills of the testator
domiciled abroad were properly executed, genuine and sufficient to
possess real and personal property; that letters testamentary were
issued; and that proceedings were held on a foreign tribunal and proofs
taken by a competent judge who inquired into all the facts and
circumstances and being satisfied with his findings issued a decree
admitting to probate the wills in question." However, respondent Judge
said that the documents did not establish the law of New York on the
procedure and allowance of wills (Records, p. 381).
On April 9, 1986, petitioner filed a motion to allow her to present further
evidence on the foreign law. After the hearing of the motion on April 25,
1986, respondent Judge issued an order wherein he conceded that
insufficiency of evidence to prove the foreign law was not a fatal defect
and was curable by adducing additional evidence. He granted petitioner
45 days to submit the evidence to that effect.
However, without waiting for petitioner to adduce the additional
evidence, respondent Judge ruled in his order dated June 20, 1986 that
he found "no compelling reason to disturb its ruling of March 31, 1986"
but allowed petitioner to "file anew the appropriate probate proceedings
for each of the testator" (Records, p. 391).
The Order dated June 20, 1986 prompted petitioner to file a second
motion for reconsideration stating that she was "ready to submit further
evidence on the law obtaining in the State of New York" and praying that
she be granted "the opportunity to present evidence on what the law of
the State of New York has on the probate and allowance of wills"
(Records, p. 393).
On July 18, respondent Judge denied the motion holding that to allow
the probate of two wills in a single proceeding "would be a departure
from the typical and established mode of probate where one petition
takes care of one will." He pointed out that even in New York "where the
wills in question were first submitted for probate, they were dealt with in
separate proceedings" (Records, p. 395).
On August 13, 1986, petitioner filed a motion for the reconsideration of
the Order of July 18, 1986, citing Section 3, Rule 2 of the Rules of Court,
which provides that no party may institute more than one suit for a single
cause of action. She pointed out that separate proceedings for the wills
of the spouses which contain basically the same provisions as they even
named each other as a beneficiary in their respective wills, would go
against "the grain of inexpensive, just and speedy determination of the
proceedings" (Records, pp. 405-407).
On September 11, 1986, petitioner filed a supplement to the motion for
reconsideration, citing Benigno v. De La Peña, 57 Phil. 305 (1932)
(Records,
p. 411), but respondent Judge found that this pleading had been filed
out of time and that the adverse party had not been furnished with a
copy thereof. In her compliance, petitioner stated that she had furnished
a copy of the motion to the counsel of the Cunanan heirs and reiterated
her motion for a "final ruling on her supplemental motion" (Records, p.
421).
On November 19, respondent Judge issued an order, denying the
motion for reconsideration filed by petitioner on the grounds that "the
probate of separate wills of two or more different persons even if they
are husband and wife cannot be undertaken in a single petition"
(Records, pp. 376-378).
Hence, petitioner instituted the instant petition, arguing that the evidence
offered at the hearing of April 11, 1983 sufficiently proved the laws of the
State of New York on the allowance of wills, and that the separate wills
of the Cunanan spouses need not be probated in separate proceedings.
II
Petitioner contends that the following pieces of evidence she had
submitted before respondent Judge are sufficient to warrant the
allowance of the wills:
(a) two certificates of authentication of the respective wills of
Evelyn and Jose by the Consulate General of the Philippines (Exhs. "F"
and "G");
(b) two certifications from the Secretary of State of New York and
Custodian of the Great Seal on the facts that Judge Bernard L. Reagan
is the Surrogate of the Country of Onondaga which is a court of record,
that his signature and seal of office are genuine, and that the Surrogate
is duly authorized to grant copy of the respective wills of Evelyn and
Jose
(Exhs. "F-1" and "G-1");
(c) two certificates of Judge Reagan and Chief Clerk Donald E.
Moore stating that they have in their records and files the said wills which
were recorded on April 7, 1982 (Exhs. "F-2" and "G-2");
(d) the respective wills of Evelyn and Jose (Exhs. "F-3", "F-6" and
Exh. "G-3" — "G-6");
(e) certificates of Judge Reagan and the Chief Clerk certifying to
the genuineness and authenticity of the exemplified copies of the two
wills (Exhs. "F-7" and "F-7");
(f) two certificates of authentication from the Consulate General
of the Philippines in New York (Exh. "H" and "F").
(g) certifications from the Secretary of State that Judge Reagan
is duly authorized to grant exemplified copies of the decree of probate,
letters testamentary and all proceedings had and proofs duly taken
(Exhs. "H-1" and "I-1");
(h) certificates of Judge Reagan and the Chief Clerk that letters
testamentary were issued to Rafael G. Cunanan (Exhs. "H-2" and "I-2");
(i) certification to the effect that it was during the term of Judge
Reagan that a decree admitting the wills to probate had been issued and
appointing Rafael G. Cunanan as alternate executor (Exhs. "H-3" and
"I-10");
(j) the decrees on probate of the two wills specifying that
proceedings were held and proofs duly taken (Exhs. "H-4" and "I-5");
(k) decrees on probate of the two wills stating that they were
properly executed, genuine and valid and that the said instruments were
admitted to probate and established as wills valid to pass real and
personal property (Exhs. "H-5" and "I-5"); and
(l) certificates of Judge Reagan and the Chief Clerk on the
genuineness and authenticity of each other’s signatures in the
exemplified copies of the decrees of probate, letters testamentary and
proceedings held in their court (Exhs. "H-6" and "I-6") (Rollo, pp. 13-16).
Petitioner adds that the wills had been admitted to probate in the
Surrogate Court’s Decision of April 13, 1983 and that the proceedings
were terminated on November 29, 1984.
The respective wills of the Cunanan spouses, who were American
citizens, will only be effective in this country upon compliance with the
following provision of the Civil Code of the Philippines:
Art. 816. The will of an alien who is abroad produces effect in the
Philippines if made with the formalities prescribed by the law of the place
in which he resides, or according to the formalities observed in his
country, or in conformity with those which this Code prescribes.
Thus, proof that both wills conform with the formalities prescribed by
New York laws or by Philippine laws is imperative.
The evidence necessary for the reprobate or allowance of wills which
have been probated outside of the Philippines are as follows: (1) the due
execution of the will in accordance with the foreign laws; (2) the testator
has his domicile in the foreign country and not in the Philippines; (3) the
will has been admitted to probate in such country; (4) the fact that the
foreign tribunal is a probate court, and (5) the laws of a foreign country
on procedure and allowance of wills (III Moran Commentaries on the
Rules of Court, 1970 ed., pp. 419-429; Suntay v. Suntay, 95 Phil. 500
[1954]; Fluemer v. Hix, 54 Phil. 610 [1930]). Except for the first and last
requirements, the petitioner submitted all the needed evidence.
The necessity of presenting evidence on the foreign laws upon which
the probate in the foreign country is based is impelled by the fact that
our courts cannot take judicial notice of them (Philippine Commercial
and Industrial Bank v. Escolin, 56 SCRA 266 [1974]).
Petitioner must have perceived this omission as in fact she moved for
more time to submit the pertinent procedural and substantive New York
laws but which request respondent Judge just glossed over. While the
probate of a will is a special proceeding wherein courts should relax the
rules on evidence, the goal is to receive the best evidence of which the
matter is susceptible before a purported will is probated or denied
probate (Vda. de Ramos v. Court of Appeals, 81 SCRA 393 [1978]).
There is merit in petitioner’s insistence that the separate wills of the
Cunanan spouses should be probated jointly. Respondent Judge’s view
that the Rules on allowance of wills is couched in singular terms and
therefore should be interpreted to mean that there should be separate
probate proceedings for the wills of the Cunanan spouses is too literal
and simplistic an approach. Such view overlooks the provisions of
Section 2, Rule 1 of the Revised Rules of Court, which advise that the
rules shall be "liberally construed in order to promote their object and to
assist the parties in obtaining just, speedy, and inexpensive
determination of every action and proceeding."
A literal application of the Rules should be avoided if they would only
result in the delay in the administration of justice (Acain v. Intermediate
Appellate Court, 155 SCRA 100 [1987]; Roberts v. Leonidas, 129 SCRA
33 [1984]).
What the law expressly prohibits is the making of joint wills either for the
testator’s reciprocal benefit or for the benefit of a third person (Civil Code
of the Philippines, Article 818). In the case at bench, the Cunanan
spouses executed separate wills. Since the two wills contain essentially
the same provisions and pertain to property which in all probability are
conjugal in nature, practical considerations dictate their joint probate. As
this Court has held a number of times, it will always strive to settle the
entire controversy in a single proceeding leaving no root or branch to
bear the seeds of future litigation (Motoomull v. Dela Paz, 187 SCRA
743 [1990]).
This petition cannot be completely resolved without touching on a very
glaring fact — petitioner has always considered herself the sole heir of
Dr. Evelyn Perez Cunanan and because she does not consider herself
an heir of Dr. Jose F. Cunanan, she noticeably failed to notify his heirs
of the filing of the proceedings. Thus, even in the instant petition, she
only impleaded respondent Judge, forgetting that a judge whose order
is being assailed is merely a nominal or formal party (Calderon v.
Solicitor General, 215 SCRA 876 [1992]).
The rule that the court having jurisdiction over the reprobate of a will
shall "cause notice thereof to be given as in case of an original will
presented for allowance" (Revised Rules of Court, Rule 27, Section 2)
means that with regard to notices, the will probated abroad should be
treated as if it were an "original will" or a will that is presented for probate
for the first time. Accordingly, compliance with Sections 3 and 4 of Rule
76, which require publication and notice by mail or personally to the
"known heirs, legatees, and devisees of the testator resident in the
Philippines" and to the executor, if he is not the petitioner, are required.
The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner's
claim, are entitled to notices of the time and place for proving the wills.
Under Section 4 of Rule 76 of the Revised Rules of Court, the "court
shall also cause copies of the notice of the time and place fixed for
proving the will to be addressed to the designated or other known heirs,
legatees, and devisees of the testator, . . . "
WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge
shall allow petitioner reasonable time within which to submit evidence
needed for the joint probate of the wills of the Cunanan spouses and see
to it that the brothers and sisters of Dr. Jose F. Cunanan are given all
notices and copies of all pleadings pertinent to the probate proceedings.
SO ORDERED.
G.R. No. 77047 May 28, 1988
JOAQUINA R-INFANTE DE ARANZ, ANTONIO R-INFANTE,
CARLOS R. INFANTE, MERCEDES R-INFANTE DE LEDNICKY,
ALFREDO R-INFANTE, TERESITA R-INFANTE, RAMON R-
INFANTE, FLORENCIA R-INFANTE DE DIAS, MARTIN R-INFANTE,
JOSE R-INFANTE LINK and JOAQUIN R-INFANTE CAMPBELL,
petitioners, vs.
THE HON. NICOLAS GALING, PRESIDING JUDGE, REGIONAL
TRIAL COURT, NATIONAL CAPITAL JUDICIAL REGION, BRANCH
NO. 166, PASIG, METRO MANILA AND JOAQUIN R-INFANTE,
respondents.
PADILLA, J.:
This is a petition for review on certiorari of the decision 1 of the Court of
Appeals, dated 13 January 1987, in CA-G.R. SP No. 09622, entitled
"Joaquina R-Infante de Aranz, et al., petitioners vs. Hon. Nicolas Galing,
etc., et al., respondents," dismissing petitioners' petition for certiorari and
prohibition as-, sailing the orders 2 of the Regional Trial Court of Pasig,
Branch 166, dated 12 May 1986 and 30 May 1986, respectively, in Sp.
Proc. No. 9995, entitled, "In the Matter of Petition for Approval of the
Last Will and Testament of Montserrat R-Infante y G-Pola Joaquin R.
Infante, Petitioner."
On 3 March 1986, private respondent filed with the Regional Trial Court
of Pasig, Branch 166, a petition for the probate and allowance of the last
will and testament of the late Montserrat R-Infante y G-Pola The petition
specified the names and ad- dresses of herein petitioners as legatees
and devisees, as follows:
Joaquina R-Infante Roxas de Aranz residing at No. 86 10th St., New
Manila, Quezon City, Metro Manila;
Antonio R-Infante Roxas residing at #91 Cambridge, North Forbes,
Makati, Metro Manila;
Carlos R-Infante Roxas residing at #46 Washington St., Greenhills, San
Juan, Metro Manila;
Mercedes R-Infante Roxas de Lednicky residing at #386 P. Guevarra
St., San Juan, Metro Manila;
Alfredo R-Infante Roxas residing at #27 A Scout Tobias St., Quezon
City, Metro Manila;
Teresita R-Infante Roxas residing at #121 9th Street, New Manila,
Quezon City, Metro Manila;
Ramon R-Infante Roxas residing at #27 B Scout Tobias St., Quezon
City, Metro Manila;
Florencia R-Infante Roxas de Diaz residing at Calle Sancho Davila, 13-
19-D, Madrid, 28028 Spain;
Martin R-Infante Roxas residing at #2 Bongavilla St., Cubao, Quezon
City, Metro Manila;
Jose R-Infante Link residing at 174R-Pascual St., San Juan, Metro
Manila;
Joaquin R-Infante Campbell C/O Pilar Campbell, 15 Briones, Makati,
Metro Marta. 3
On 12 March 1986, the probate court issued an order selling the petition
for hearing on 5 May 1986 at 8:30 o'clock in the morning. Said order was
published in the "Nueva Era" A newspaper of general circulation in Metro
Manila once a week for three (3) consecutive weeks. On the date of the
hearing, no oppositor appeared. The hearing was then reset to 12 May
1986, on which date, the probate court issued the following order:
There being no opposition to this instant case, as prayed for, the oner
to-receive Branch Clerk of Court is hereby designated Co evidence ex-
parte of the petitioner.
SO ORDERED. 4
On the same day (12 May 1986), private respondent presented his
evidence ex-parte and placed Arturo Arceo one of the testamentary
witnesses, on the witness stand. During the proceedings, private
respondent was appointed executor.
On 14 May 1986, petitioners filed a motion for reconsideration of the
order of 12 May 1986 alleging that, as named legatees, no notices were
sent to them as required by Sec. 4, Rule 76 of the Rules of Court and
they prayed that they be given a period of ten (10) days within which to
file their opposition to the probate of the will.
On 30 May 1986, the probate court, acting on the opposition of private
respondent and the reply thereto of petitioners, issued an order denying
petitioners motion for reconsideration.
Thereafter, petitioners filed with this Court a petition for certiorari and
prohibition which was, however, referred to the Court of Appeals. On 13
January 1987, the Court of Appeals promulgated a decision dismissing
the petition. 5 Hence, the instant petition.
It is the view of petitioners that the Court of Appeals erred in holding that
personal notice of probate proceedings to the known legatees and
devisees is not a jurisdictional requirement in the probate of a will.
Contrary to the holding of the Court of Appeals that the requirement of
notice on individual heirs, legatees and devisees is merely a matter of
procedural convenience to better satisfy in some instances the
requirements of due process, petitioners allege that under Sec. 4 of Rule
76 of the Rules of Court, said requirement of the law is mandatory and
its omission constitutes a reversible error for being constitutive of grave
abuse of discretion. 6
We grant the petition:
Sec. 4, Rule 76 of the Rules of Cof reads:
SEC. 4. Heirs, devisees, legatees, and executors to be notified by mail
or personally. — The court shag also cause copies of the notice of the
time and place fixed for proving the will to be addressed to the
designated or other known heirs, legatees, and devisees of the testator
resident in the Philippines at their places of residence, and deposited in
the post office with the postage thereon prepaid at least twenty (20) days
before the hearing, if such places of residence be known. A copy of the
notice must in like manner be mailed to the person named as executor,
if he be not, the petitioner; also, to any person named as co-executor
not petitioning, if their places of residence be known. Personal service
of copies of the notice at least ten (10) days before the day of hearing
shall be equivalent to mailing.
It is clear from the aforecited rule that notice of the time and place of the
hearing for the allowance of a will shall be forwarded to the designated
or other known heirs, legatees, and devisees residing in the Philippines
at their places of residence, if such places of residence be known. There
is no question that the residences of herein petitioners legatees and
devisees were known to the probate court. The petition for the allowance
of the wig itself indicated the names and addresses of the legatees and
devisees of the testator. 7 But despite such knowledge, the probate
court did not cause copies of the notice to be sent to petitioners. The
requirement of the law for the allowance of the will was not satisfied by
mere publication of the notice of hearing for three (3) weeks in a
newspaper of general circulation in the province.
The case of Joson vs. Nable 8 cited by the Court of Appeals in its
assailed decision to support its theory is not applicable in the present
case. In that case, petitioners Purificacion Joson and Erotica Joson
failed to contest the will of Tomas Joson because they had not been
notified of the hearing of the petition for probate. he the petition included
the residence of petitioners as Dagupan Street No. 83, Manila,
petitioners claimed that their residence was not Dagupan Street No. 83,
Manila. There the Court said:
Petitioners maintain that no notice was received by them partly because
their residence was not Dagupan Street No. 83 as alleged in the petition
for probate. If the allegation of the petition was wrong and the true
residence of petitioners was not known, then notice upon them
individually was not necessary. Under the provision abovequoted,
individual notice upon heirs, legatees and devisees is necessary only
when they are known or when their places of residence are known. In
other instances, such notice is not necessary and the court may acquire
and exercise jurisdiction simply upon the publication of the notice in a
newspaper of general circulation. ... 9
In Re: Testate Estate of Suntay, 10 the Court, speaking thru Mr. Justice
Sabino Padilla, said:
... It is a proceedings in rem and for the validity of such proceedings
personal notice or by publication or both to all interested parties must be
made. The interested parties in the case were known to reside in the
Philippines. The evidence shows that no such notice was received by
the interested parties residing in the Philippines (pp. 474, 476, 481, 503-
4, t.s.n., hearing of 24 February 1948). The proceedings had in the
municipal district court of Amoy, China, may be likened to a deposition
or to a perpetuation of testimony, and even if it were so it does not
measure or come up to the standard of such proceedings in the
Philippines for lack of notice to all interested parties and the proceedings
were held at the back of such interested parties.
xxx xxx xxx
... In view thereof, the will and the alleged probate thereof cannot be said
to have been done in accordance with the accepted basic and
fundamental concepts and principles followed in the probate and
allowance of wills. Consequently, the authenticated transcript of
proceedings held in the municipal district court of Amoy, China, cannot
be deemed and accepted as proceedings leading to the probate or
allowance of a will and, therefore, the will referred to therein cannot be
allowed, filed and recorded by a competent court of court. 11
WHEREFORE, the decision of the Court of Appeals dated 13 January
1987 is hereby ANNULLED and SET ASIDE. The case is hereby
ordered remanded to the Regional Trial Court of Pasig for further
proceedings in accordance with this decision. No costs.
SO ORDERED.
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF
RICARDO B. BONILLA deceased, MARCELA RODELAS, petitioner-
appellant, vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO
SUMULONG, intervenor.
RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final
determination pursuant to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with the Court of First
Instance of Rizal for the probate of the holographic will of Ricardo B.
Bonilla and the issuance of letters testamentary in her favor. The
petition, docketed as Sp. Proc. No. 8432, was opposed by the appellees
Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias
and Ephraim Bonilla on the following grounds:
(1) Appellant was estopped from claiming that the deceased left a will
by failing to produce the will within twenty days of the death of the
testator as required by Rule 75, section 2 of the Rules of Court;
(2) The alleged copy of the alleged holographic will did not contain a
disposition of property after death and was not intended to take effect
after death, and therefore it was not a will
(3) The alleged hollographic will itself,and not an alleged copy thereof,
must be produced, otherwise it would produce no effect, as held in Gam
v. Yap, 104 Phil. 509; and
(4 ) The deceased did not leave any will, holographic or otherwise,
executed and attested as required by law.
The appellees likewise moved for the consolidation of the case with
another case Sp. Proc. No, 8275). Their motion was granted by the court
in an order dated April 4, 1977.
On November 13, 1978, following the consolidation of the cases, the
appellees moved again to dismiss the petition for the probate of the will.
They argued that:
(1) The alleged holographic was not a last will but merely an
instruction as to the management and improvement of the schools and
colleges founded by decedent Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be proved by secondary
evidence unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss was denied by
the court in its order of February 23, 1979.
The appellees then filed a motion for reconsideration on the ground that
the order was contrary to law and settled pronouncements and rulings
of the Supreme Court, to which the appellant in turn filed an opposition.
On July 23, 1979, the court set aside its order of February 23, 1979 and
dismissed the petition for the probate of the will of Ricardo B. Bonilla.
The court said:
... It is our considered opinion that once the original copy of the
holographic will is lost, a copy thereof cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held
that 'in the matter of holographic wills the law, it is reasonable to
suppose, regards the document itself as the material proof of
authenticity of said wills.
MOREOVER, this Court notes that the alleged holographic will was
executed on January 25, 1962 while Ricardo B. Bonilla died on May 13,
1976. In view of the lapse of more than 14 years from the time of the
execution of the will to the death of the decedent, the fact that the original
of the will could not be located shows to our mind that the decedent had
discarded before his death his allegedly missing Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to
the Court of Appeals in which it is contended that the dismissal of
appellant's petition is contrary to law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on
the ground that the appeal does not involve question of fact and alleged
that the trial court committed the following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST
HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT
HAS DISCARDED BEFORE HIS DEATH THE MISSING
HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S
WILL.
The only question here is whether a holographic will which was lost or
cannot be found can be proved by means of a photostatic copy.
Pursuant to Article 811 of the Civil Code, probate of holographic wills is
the allowance of the will by the court after its due execution has been
proved. The probate may be uncontested or not. If uncontested, at least
one Identifying witness is required and, if no witness is available, experts
may be resorted to. If contested, at least three Identifying witnesses are
required. However, if the holographic will has been lost or destroyed and
no other copy is available, the will can not be probated because the best
and only evidence is the handwriting of the testator in said will. It is
necessary that there be a comparison between sample handwritten
statements of the testator and the handwritten will. But, a photostatic
copy or xerox copy of the holographic will may be allowed because
comparison can be made with the standard writings of the testator. In
the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the
execution and the contents of a lost or destroyed holographic will may
not be proved by the bare testimony of witnesses who have seen and/or
read such will. The will itself must be presented; otherwise, it shall
produce no effect. The law regards the document itself as material proof
of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps
it may be proved by a photographic or photostatic copy. Even a
mimeographed or carbon copy; or by other similar means, if any,
whereby the authenticity of the handwriting of the deceased may be
exhibited and tested before the probate court," Evidently, the photostatic
or xerox copy of the lost or destroyed holographic will may be admitted
because then the authenticity of the handwriting of the deceased can be
determined by the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979,
denying appellant's motion for reconsideration dated August 9, 1979, of
the Order dated July 23, 1979, dismissing her petition to approve the will
of the late Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.

G.R. No. L-23445 June 23, 1966
REMEDIOS NUGUID, petitioner and appellant, vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and
appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962,
single, without descendants, legitimate or illegitimate. Surviving her
were her legitimate parents, Felix Nuguid and Paz Salonga Nuguid, and
six (6) brothers and sisters, namely: Alfredo, Federico, Remedios,
Conrado, Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First
Instance of Rizal a holographic will allegedly executed by Rosario
Nuguid on November 17, 1951, some 11 years before her demise.
Petitioner prayed that said will be admitted to probate and that letters of
administration with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly
the legitimate father and mother of the deceased Rosario Nuguid,
entered their opposition to the probate of her will. Ground therefor, inter
alia, is that by the institution of petitioner Remedios Nuguid as universal
heir of the deceased, oppositors — who are compulsory heirs of the
deceased in the direct ascending line — were illegally preterited and that
in consequence the institution is void.
On August 29, 1963, before a hearing was had on the petition for
probate and objection thereto, oppositors moved to dismiss on the
ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion
to dismiss.1äwphï1.ñët
The court's order of November 8, 1963, held that "the will in question is
a complete nullity and will perforce create intestacy of the estate of the
deceased Rosario Nuguid" and dismissed the petition without costs.
A motion to reconsider having been thwarted below, petitioner came to
this Court on appeal.
1. Right at the outset, a procedural aspect has engaged our attention.
The case is for the probate of a will. The court's area of inquiry is limited
— to an examination of, and resolution on, the extrinsic validity of the
will. The due execution thereof, the testatrix's testamentary capacity,
and the compliance with the requisites or solemnities by law prescribed,
are the questions solely to be presented, and to be acted upon, by the
court. Said court at this stage of the proceedings — is not called upon
to rule on the intrinsic validity or efficacy of the provisions of the will, the
legality of any devise or legacy therein.1
A peculiar situation is here thrust upon us. The parties shunted aside the
question of whether or not the will should be allowed probate. For them,
the meat of the case is the intrinsic validity of the will. Normally, this
comes only after the court has declared that the will has been duly
authenticated.2 But petitioner and oppositors, in the court below and
here on appeal, travelled on the issue of law, to wit: Is the will intrinsically
a nullity?
We pause to reflect. If the case were to be remanded for probate of the
will, nothing will be gained. On the contrary, this litigation will be
protracted. And for aught that appears in the record, in the event of
probate or if the court rejects the will, probability exists that the case will
come up once again before us on the same issue of the intrinsic validity
or nullity of the will. Result: waste of time, effort, expense, plus added
anxiety. These are the practical considerations that induce us to a belief
that we might as well meet head-on the issue of the validity of the
provisions of the will in question.3 After all, there exists a justiciable
controversy crying for solution.
2. Petitioner's sole assignment of error challenges the correctness of the
conclusion below that the will is a complete nullity. This exacts from us
a study of the disputed will and the applicable statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and memory,
having amassed a certain amount of property, do hereby give, devise,
and bequeath all of the property which I may have when I die to my
beloved sister Remedios Nuguid, age 34, residing with me at 38-B Iriga,
Q.C. In witness whereof, I have signed my name this seventh day of
November, nineteen hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code
which, in part, provides:
ART. 854. The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator, shall annul
the institution of heir; but the devises and legacies shall be valid insofar
as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a
reproduction of Article 814 of the Civil Code of Spain of 1889, which is
similarly herein copied, thus —
Art. 814. The preterition of one or all of the forced heirs in the direct line,
whether living at the time of the execution of the will or born after the
death of the testator, shall void the institution of heir; but the legacies
and betterments4 shall be valid, in so far as they are not inofficious. ...
A comprehensive understanding of the term preterition employed in the
law becomes a necessity. On this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se
le nombra siquiera o aun nombrandole como padre, hijo, etc., no se le
instituya heredero ni se le deshereda expresamente ni se le asigna parte
alguna de los bienes, resultando privado de un modo tacito de su
derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el
testamento omita el testador a uno cualquiera de aquellos a quienes por
su muerte corresponda la herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso.
b) Que la omision sea completa; que el heredero forzoso nada reciba
en el testamento.
It may now appear trite bat nonetheless helpful in giving us a clear
perspective of the problem before us, to have on hand a clear-cut
definition of the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54
A. 342, 343, 204 Pa. 484.6
The word "annul" as used in statute requiring court to annul alimony
provisions of divorce decree upon wife's remarriage means to reduce to
nothing; to annihilate; obliterate; blot out; to make void or of no effect; to
nullify; to abolish. N.J.S.A. 2:50 — 38 (now N.J.S. 2A:34-35). Madden
vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of
no effect; to nullify; to abolish; to do away with. Ex parte Mitchell, 123 W.
Va. 283, 14 S.E. 2d. 771, 774.8
And now, back to the facts and the law. The deceased Rosario Nuguid
left no descendants, legitimate or illegitimate. But she left forced heirs in
the direct ascending line her parents, now oppositors Felix Nuguid and
Paz Salonga Nuguid. And, the will completely omits both of them: They
thus received nothing by the testament; tacitly, they were deprived of
their legitime; neither were they expressly disinherited. This is a clear
case of preterition. Such preterition in the words of Manresa "anulara
siempre la institucion de heredero, dando caracter absoluto a este
ordenamiento referring to the mandate of Article 814, now 854 of the
Civil Code.9 The one-sentence will here institutes petitioner as the sole,
universal heir — nothing more. No specific legacies or bequests are
therein provided for. It is in this posture that we say that the nullity is
complete. Perforce, Rosario Nuguid died intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja
de existir, en todo o en parte? No se añade limitacion alguna, como en
el articulo 851, en el que se expresa que se anulara la institucion de
heredero en cuanto prejudique a la legitima del deseheredado Debe,
pues, entenderse que la anulacion es completa o total, y que este
articulo como especial en el caso que le motiva rige con preferencia al
817. 10
The same view is expressed by Sanchez Roman: —
La consecuencia de la anulacion o nulidad de la institucion de heredero
por pretericion de uno, varios o todos los forzosos en linea recta, es la
apertura de la sucesion intestada total o parcial. Sera total, cuando el
testador que comete la pretericion, hubiese dispuesto de todos los
bienes por titulo universal de herencia en favor de los herederos
instituidos, cuya institucion se anula, porque asi lo exige la generalidad
del precepto legal del art. 814, al determinar, como efecto de la
pretericion, el de que "anulara la institucion de heredero." ... 11
Really, as we analyze the word annul employed in the statute, there is
no escaping the conclusion that the universal institution of petitioner to
the entire inheritance results in totally abrogating the will. Because, the
nullification of such institution of universal heir — without any other
testamentary disposition in the will — amounts to a declaration that
nothing at all was written. Carefully worded and in clear terms, Article
854 offers no leeway for inferential interpretation. Giving it an expansive
meaning will tear up by the roots the fabric of the statute. On this point,
Sanchez Roman cites the "Memoria annual del Tribunal Supreme,
correspondiente a 1908", which in our opinion expresses the rule of
interpretation, viz:

... El art. 814, que preceptua en tales casos de pretericion la nulidad de
la institucion de heredero, no consiente interpretacion alguna favorable
a la persona instituida en el sentido antes expuesto aun cuando
parezca, y en algun caso pudiera ser, mas o menos equitativa, porque
una nulidad no significa en Derecho sino la suposicion de que el hecho
o el acto no se ha realizado, debiendo por lo tanto procederse sobre tal
base o supuesto, y consiguientemente, en un testamento donde falte la
institucion, es obligado llamar a los herederos forzosos en todo caso,
como habria que llamar a los de otra clase, cuando el testador no
hubiese distribudo todos sus bienes en legados, siendo tanto mas
obligada esta consecuencia legal cuanto que, en materia de
testamentos, sabido es, segun tiene declarado la jurisprudencia, con
repeticion, que no basta que sea conocida la voluntad de quien testa si
esta voluntad no aparece en la forma y en las condiciones que la ley ha
exigido para que sea valido y eficaz, por lo que constituiria una
interpretacion arbitraria, dentro del derecho positivo, reputar como
legatario a un heredero cuya institucion fuese anulada con pretexto de
que esto se acomodaba mejor a la voluntad del testador, pues aun
cuando asi fuese, sera esto razon para modificar la ley, pero no autoriza
a una interpretacion contraria a sus terminos y a los principios que
informan la testamentifaccion, pues no porque parezca mejor una cosa
en el terreno del Derecho constituyente, hay razon para convereste
juicio en regla de interpretacion, desvirtuando y anulando por este
procedimiento lo que el legislador quiere establecer. 12
3. We should not be led astray by the statement in Article 854 that,
annullment notwithstanding, "the devises and legacies shall be valid
insofar as they are not inofficious". Legacies and devises merit
consideration only when they are so expressly given as such in a will.
Nothing in Article 854 suggests that the mere institution of a universal
heir in a will — void because of preterition — would give the heir so
instituted a share in the inheritance. As to him, the will is inexistent.
There must be, in addition to such institution, a testamentary disposition
granting him bequests or legacies apart and separate from the nullified
institution of heir. Sanchez Roman, speaking of the two component parts
of Article 814, now 854, states that preterition annuls the institution of
the heir "totalmente por la pretericion"; but added (in reference to
legacies and bequests) "pero subsistiendo ... todas aquellas otras
disposiciones que no se refieren a la institucion de heredero ... . 13 As
Manresa puts it, annulment throws open to intestate succession the
entire inheritance including "la porcion libre (que) no hubiese dispuesto
en virtud de legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us except the
institution of petitioner as universal heir. That institution, by itself, is null
and void. And, intestate succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective
disinheritance rather than one of preterition". 15 From this, petitioner
draws the conclusion that Article 854 "does not apply to the case at bar".
This argument fails to appreciate the distinction between pretention and
disinheritance.
Preterition "consists in the omission in the testator's will of the forced
heirs or anyone of them, either because they are not mentioned therein,
or, though mentioned, they are neither instituted as heirs nor are
expressly disinherited." 16 Disinheritance, in turn, "is a testamentary
disposition depriving any compulsory heir of his share in the legitime for
a cause authorized by law. " 17 In Manresa's own words: "La privacion
expresa de la legitima constituye la desheredacion. La privacion tacita
de la misma se denomina pretericion." 18 Sanchez Roman emphasizes
the distinction by stating that disinheritance "es siempre voluntaria";
preterition, upon the other hand, is presumed to be "involuntaria". 19
Express as disinheritance should be, the same must be supported by a
legal cause specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's parents, the
forced heirs. It simply omits their names altogether. Said will rather than
be labeled ineffective disinheritance is clearly one in which the said
forced heirs suffer from preterition.
On top of this is the fact that the effects flowing from preterition are totally
different from those of disinheritance. Preterition under Article 854 of the
Civil Code, we repeat, "shall annul the institution of heir". This annulment
is in toto, unless in the will there are, in addition, testamentary
dispositions in the form of devises or legacies. In ineffective
disinheritance under Article 918 of the same Code, such disinheritance
shall also "annul the institution of heirs", put only "insofar as it may
prejudice the person disinherited", which last phrase was omitted in the
case of preterition. 21 Better stated yet, in disinheritance the nullity is
limited to that portion of the estate of which the disinherited heirs have
been illegally deprived. Manresa's expressive language, in commenting
on the rights of the preterited heirs in the case of preterition on the one
hand and legal disinheritance on the other, runs thus: "Preteridos,
adquiren el derecho a todo; desheredados, solo les corresponde un
tercio o dos tercios, 22 el caso. 23
5. Petitioner insists that the compulsory heirs ineffectively disinherited
are entitled to receive their legitimes, but that the institution of heir "is
not invalidated," although the inheritance of the heir so instituted is
reduced to the extent of said legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief Justice
Moran in the Neri case heretofore cited, viz:
But the theory is advanced that the bequest made by universal title in
favor of the children by the second marriage should be treated as legado
and mejora and, accordingly, it must not be entirely annulled but merely
reduced. This theory, if adopted, will result in a complete abrogation of
Articles 814 and 851 of the Civil Code. If every case of institution of heirs
may be made to fall into the concept of legacies and betterments
reducing the bequest accordingly, then the provisions of Articles 814 and
851 regarding total or partial nullity of the institution, would. be absolutely
meaningless and will never have any application at all. And the
remaining provisions contained in said article concerning the reduction
of inofficious legacies or betterments would be a surplusage because
they would be absorbed by Article 817. Thus, instead of construing, we
would be destroying integral provisions of the Civil Code.
The destructive effect of the theory thus advanced is due mainly to a
failure to distinguish institution of heirs from legacies and betterments,
and a general from a special provision. With reference to article 814,
which is the only provision material to the disposition of this case, it must
be observed that the institution of heirs is therein dealt with as a thing
separate and distinct from legacies or betterments. And they are
separate and distinct not only because they are distinctly and separately
treated in said article but because they are in themselves different.
Institution of heirs is a bequest by universal title of property that is
undetermined. Legacy refers to specific property bequeathed by a
particular or special title. ... But again an institution of heirs cannot be
taken as a legacy. 25
The disputed order, we observe, declares the will in question "a
complete nullity". Article 854 of the Civil Code in turn merely nullifies "the
institution of heir". Considering, however, that the will before us solely
provides for the institution of petitioner as universal heir, and nothing
more, the result is the same. The entire will is null.
Upon the view we take of this case, the order of November 8, 1963 under
review is hereby affirmed. No costs allowed. So ordered.
G.R. No. L-13938 July 31, 1968
IN THE MATTER OF THE PROBATE OF THE WILL OF CHRISTIAN
HARRIS, Deceased. PEDRO BUTIONG, petitioner-appellee,
vs. THE SURIGAO CONSOLIDATED MINING CO., INC., oppositor-
appellant.
CONCEPCION, C.J.:
Direct appeal from an order of the Court of First Instance of Surigao
allowing a given instrument to probate as the last will and testament of
Christian Harris.
On September 7, 1954, Pedro Butiong commenced Special
Proceedings No. 737 of said Court for the probate of a document —
attached to his petition, and later marked as Exhibit G — purporting to
have been executed by Christian Harris as his last will and testament.
Paragraph IV of said Exhibit G reads:
I hereby make, appoint and constitute Pedro Butiong, who is my adopted
son and whom I have reared and brought up since he was still about two
(2) years old, as my sole and universal heir of all my properties located
in the Philippines, consisting of shares of stock and interest in the
Mindanao Mother Lode Mining Co., Inc., located at Mabuhay, Surigao,
Surigao, and of shares of stock, interest and one (1%) per cent royalty
in the Surigao Consolidated Mining Co., Inc., located at Siano, Surigao.
The Surigao Consolidated Mining Co., Inc. opposed the probate of said
Exhibit G upon the ground of forgery. After appropriate proceedings, the
lower court issued an order, dated June 15, 1957, admitting the disputed
document to probate. Hence, this appeal by said Company —
hereinafter referred to as appellant — upon the ground that the lower
court erred:
1) In not holding that the "Semana," in which notice of the hearing of said
petition had been published, is not a newspaper of general circulation in
the Province of Surigao;
2) In finding that Pedro Butiong and Clementino Sykimte are the next of
kin of Harris;
3) In holding that appellant had not proven that Harris did not own the
property and interest disposed of in his last will; 1äwphï1.ñët
4) In giving credence to the testimony of the attesting witnesses;
5) In giving credence to Butiong's explanation regarding the temporary
disappearance of Exhibit G; and
6) In allowing Exhibit G to probate, instead of declaring that the alleged
signatures of Harris thereon are a "forgery."
Upon the other hand, Butiong maintains that the lower court erred in
entertaining appellant's opposition and in not dismissing its appeal.
It is obvious that Butiong's contention is well taken. Indeed, it is well-
settled that one who has or can have no interest in succeeding a
decedent cannot oppose the probate of his alleged will.1 Appellant
herein does not claim to have such interest in the succession to Christian
Harris. Accordingly, the lower court should not have considered its
opposition to the probate of Exhibit G, much less given due course to
the present appeal.
Independently of the foregoing, appellant's assignment of errors are
devoid of merit. Indeed, the notice of hearing issued by the Justice of
the Peace of the provincial capital, "for and in the absence of the District
judge," states that the "Semana," in which said notice was ordered and
was in fact published, is of general circulation in the Province of Surigao,
and there is no evidence to the contrary.
Again, the question whether or not Butiong and Sykimte are related to
the deceased, and whether the latter really owns the property and
interests sought to be disposed of in Exhibit G, are immaterial to the
probate thereof. At any rate, the testimony of Clemente Sykimte, who
used to act as the secretary of Harris, during his lifetime and that of
appellant's general superintendent of operations, J.B. Harrison, have
established the fact that Harris had in his name four (4) mining claims,
two (2) of which were operated by the appellant. In fact, appellant's
Articles of Incorporation show, also, that Harris was one of its
incorporators, with a subscription of 900,000 shares of stock. In addition
thereof, he had 75,000 shares of stock in the Mindanao Mother Lode
Mining Co., Inc.
It is true that, testifying as appellant's witness, Martin S. Ramos, as
alleged handwriting expert, expressed the opinion that the supposed
signature of Harris on Exhibit G is forged. This negative evidence was
more than offset, however, by the testimony of Vicente C. Fernandez,
Bernardino O. Almeda and Mateo Penafiel to the effect that, after
reading Exhibit G aloud and announcing that it was the true expression
of his will, Harris — who was of sound mind and spoke, as well as
understood, both English and Spanish — signed thereon in their
presence, and they, in turn, signed on said instrument, in the presence
of each other and that of Harris, in accordance with law. Besides, their
testimony on the genuineness of the signature of Harris on Exhibit G
was corroborated by the testimony of Butiong and Sykimte, as well as
by handwriting expert, Dr. Paul R. Verzosa, aside from having been
confirmed by His Honor, the trial Judge, who compared said signature
with the admittedly genuine signatures of Harris, used as standards in
the lower court. It is thus apparent that Butiong's evidence is much
weightier than that of appellant herein.
As regards the delay in the filing of Exhibit G for probate, Butiong
explained it as follows: Harris died in Surigao, Surigao, on December 7,
1941, or on the eve of the outbreak of war in the Pacific. Inasmuch as,
soon thereafter, the Japanese forces occupied the province of Surigao,
Butiong evacuated from Surigao, Surigao, and transferred Exhibit G,
from a wooden trunk he has in his house, to a valise belonging to his
uncle, Bernardino Butiong, with whom he lived, in the barrio of Alegria,
Municipality of Mainit. After liberation, neither he (Pedro Butiong) nor
Bernardino could, however, find Exhibit G until August 20, 1954, when
Bernardino located it accidentally while looking for other papers. There
upon Exhibit G was filed in court for probate.
The records before us do not furnish sufficient data to warrant denying
credence to the testimony of Pedro Butiong and Bernardino Butiong, to
this effect. At any rate, since the authenticity of the signature of Harris
on Exhibit G and the due execution thereof, as his last will and
testament, have been satisfactorily established, the explanation for the
delay in its presentation for probate has become of minimal importance.
WHEREFORE, the order appealed from is hereby affirmed, with costs
against appellant, Surigao Consolidated Mining Co., Inc. It is so ordered.
G.R. No. L-23135 December 26, 1967
TESTATE ESTATE OF HILARION RAMAGOSA. MARIANO
SUMILANG, petitioner-appellee, vs.
SATURNINA RAMAGOSA, SANTIAGO RAMAGOSA, ENRIQUE
PABELLA, LICERIA PABELLA and ANDREA RAVALO, oppositors-
appellants.
MAKALINTAL, J.:
On July 5, 1960 Mariano Sumilang filed in the Court of First Instance of
Quezon a petition for the probate of a document alleged to be the last
will and testament of Hilarion Ramagosa, who died on December 1,
1959. Said document, written in Tagalog and dated February 26, 1949,
institutes petitioner as sole heir of the testator.
The petition for probate was opposed by two (2) of oppositors —
appellants herein — who questioned the due execution of the document,
claiming that it was made under duress and was not really intended by
the deceased to be his last will and testament. Aside from merely
opposing the petition for probate, the first set of oppositors — Saturnino
and Santiago Ramagosa — also claimed that they, instead of petitioner,
were entitled to inherit the estate of the deceased. The other oppositors
representing themselves simply as next of kin, appropriately prayed only
for the disallowance of the will.
At the hearings of the petition petitioner adduced his evidence, and then
rested his case on February 16, 1961. Reception of oppositors' evidence
was set for July 14, 1961. However, on July 3, 1961 oppositors moved
for the dismissal of the petition for probate mainly on the ground that "the
court lacks jurisdiction over the subject-matter because the last will and
testament of the decedent, if ever it was really executed by him, was
revoked by implication of law six years before his death." Oppositors
alleged that after making the will Hilarion Ramagosa sold to petitioner
Mariano Sumilang and his brother Mario the parcels of land described
therein, so that at the time of the testator's death the titles to said lands
were no longer in his name.
Petitioner filed his opposition to the motion for dismissal on July 17, 1961
supplemented it by another opposition on August 14, 1961, and by a
rejoinder on August 21, 1961. Finally, on October 22, 1962 petitioner
moved to strike out the oppositors' pleadings on two grounds, namely:
1. That oppositors have no legal standing in court and they are bereft of
personality to oppose the probate of the last will and testament of the
testators; and
2. That oppositors have no valid claim and interest in the distribution of
(the) estate of the aforesaid testator and no existing valid right
whatsoever.
On October 18, 1963 the court a quo issued the order now subject of
this appeal, which read as follows:
Acting on the motion to dismiss filed by the oppositors dated July 31,
1961, the same is hereby denied for the allegations contained therein
goes (sic) to the very intrinsic value of the will and other grounds stated
on said motion to dismiss are without merit.itc-alf With respect to the
motion to strike out opposition and all other pleadings of oppositors filed
by the petitioner, it appears that oppositors have no relationship
whatsoever within the fifth degree as provided by law and therefore the
oppositors are totally strangers to the deceased whose will is under
probate. This being so, the motion to strike out opposition and all other
pleadings pertinent thereto is hereby ordered stricken out of the record.
The petition below being for the probate of a will, the court's area of
inquiry is limited to the extrinsic validity thereof. The testator's
testamentary capacity and the compliance with the formal requisites or
solemnities prescribed by law are the only questions presented for the
resolution of the court. Any inquiry into the intrinsic validity or efficacy of
the provisions of the will or the legality of any devise or legacy is
premature. (Nuguid vs. Nuguid, G.R. No. L-23445, June 23, 1966).
To establish conclusively as against everyone and once for all, the facts
that a will was executed with the formalities required by law and that the
testator was in a condition to make a will, is the only purpose of the
proceedings . . . for the probate of a will. The judgment in such
proceedings determines and can determine nothing more. (Alemany, et
al. vs. CFI of Manila, 3 Phil. 424).
Oppositors would want the court a quo to dismiss petition for probate on
the ground that the testator had impliedly revoked his will by selling, prior
to his death, the lands disposed of therein.
True or not, the alleged sale is no ground for the dismissal of the petition
for probate. Probate is one thing the validity of the testamentary
provisions is another.itc-alf The first decides the execution of the
document and the testamentary capacity of the testator; the second
relates to descent and distribution.
The alleged revocation implied from the execution of the deeds of
conveyance in favor of the testamentary heir is plainly irrelevant to and
separate from the question of whether the testament was duly executed.
For one, if the will is not entitled to probate, or its probate is denied, all
questions of revocation become superfluous: in law, there is no such will
and hence there would be nothing to revoke. Then, again, the revocation
invoked by the oppositors-appellants is not an express one, but merely
implied from subsequent acts of the testatrix allegedly evidencing an
abandonment of the original intention to bequeath or devise the
properties concerned. As such, the revocation would not affect the will
itself, but merely the particular devise or legacy.itc-alf (Fernandez, et al.
vs. Dimagiba, L-23638 and Reyes, et al. vs. Dimagiba, L-23662, October
12, 1967.)
In their brief, oppositors do not take issue with the court a quo's finding
that they "have no relationship whatsoever within the fifth degree as
provided by law and therefore . . . are totally (sic) strangers to the
deceased whose will is under probate." They do not attempt to show that
they have some interest in the estate which must be protected. The
uncontradicted evidence, consisting of certified true copies of the
parties' baptism and marriage certificates, support the said court's
finding in this respect.
It is a well-settled rule that in order that a person may be allowed to
intervene in a probate proceeding he must have an interest in the estate,
or in the will, or in the property to be affected by it either as executor or
as a claimant of the estate (Ngo The Hua vs. Chung Kiat Hua, et al., L-
17091, September 30, 1963); and an interested party has been defined
as one who would be benefited by the estate such as an heir or one who
has a claim against the estate like a creditor. (Teotico vs. Del Val, etc.,
G.R. No. L- 18753, March 26, 1965.)
The reason for the rule excluding strangers from contesting the will, is
not that thereby the court may be prevented from learning facts which
would justify or necessitate a denial of probate, but rather that the courts
and the litigants should not be molested by the intervention in the
proceedings of persons with no interest in the estate which would entitle
them to be heard with relation thereto. (Paras vs. Narciso, 35 Phil. 244.)
Sometime after this case was elevated to this Court appellee moved to
dismiss the appeal on the ground that the order appealed from is
interlocutory. We deferred action on the motion until after the brief of
both parties had been filed. The motion, although now practically
academic in view of our resolution of the main issue involved, must be
denied, since the order of the lower court striking out appellants'
opposition to the probate of the will on the ground that they have no
personality to intervene in the case, was final and therefore appealable
order insofar as they were concerned.
The order appealed from is hereby affirmed, with costs against
oppositors- appellants.
[G.R. No. 45629. September 22, 1938.]
ATILANO G. MERCADO, Petitioner, v. ALFONSO SANTOS, Judge
of First Instance of Pampanga, and IÑIGO S. DAZA, Provincial
Fiscal of Pampanga, Respondents. ROSARIO BASA DE LEON, ET
AL., intervenors.
SYLLABUS
1. WILLS; CONCLUSIVENESS OF THE DUE EXECUTION OF A
PROBATED WILL. — Section 625 of the Code of Civil Procedure is
explicit as to the conclusiveness of the due execution of a probated will.
It provides: "No will shall pass either the real or personal estate, unless
it is proved and allowed in the Court of First Instance, or by appeal to
the Supreme Court; and the allowance by the court of a will of real and
personal estate shall be conclusive as to its due execution."cralaw
virtua1aw library
2. ID.; ID. — The probate of a will by the probate court having jurisdiction
thereof is considered as conclusive as to its due execution and validity,
and is also conclusive that the testator was of sound and disposing mind
at the time when he executed the will, and was not acting under duress,
menace, fraud, or undue influence, and that the will is genuine and not
a forgery.
3. ID.; ID.; PROCEEDING "IN REM." — The probate of a will in this
jurisdiction is a proceeding in rem. The provision of notice by publication
as a prerequisite to the allowance of a will is constructive notice to the
whole world, and when probate is granted, the judgment of the court is
binding upon everybody, even against the State.
4. ID.; ID.; CONCLUSIVE PRESUMPTION. — Conclusive presumptions
are inferences which the law makes so peremptory that it will not allow
them to be overturned by any contrary proof however strong. The will in
question having been probated by a competent court, the law will not
admit any proof to overthrow the legal presumption that it is genuine and
not a forgery.
5. ID.; ID.; CRIMINAL ACTION AGAINST FORGER OF A DULY
PROBATED WILL. — Upon the facts stated in the opinion of the court,
it was held: That in view of the provisions of sections 306, 333 and 625
of the Code of Civil Procedure, criminal action will not lie in this
jurisdiction against the forger of a will which had been duly admitted to
probate by a court of competent jurisdiction.
6. CRIMINAL LAW; PROSECUTION OF OFFENSES; RIGHT TO A
SPEEDY TRIAL. — The prosecution of offenses is a matter of public
interest and it is the duty of the government or those acting in its behalf
to prosecute all cases to their termination without oppressive, capricious
and vexatious delay. The Constitution does not say that the right to a
speedy trial may be availed of only where the prosecution for crime is
commenced and undertaken by the fiscal. It does not exclude from its
operation cases commenced by private individuals. Where once a
person is prosecuted criminally, he is entitled to a speedy trial,
irrespective of the nature of the offense or the manner in which it is
authorized to be commenced. In any event, even the actuations of the
fiscal himself in this case is not entirely free from criticism.
7. ID.; ID. — In Kalaw v. Apostol (G. R. No. 45591, Oct. 15, 1937), the
Supreme Court observed that the prosecuting officer is in charge and
has under the direction and control all prosecutions for public offenses
(sec. 1681 and 2465 of the Rev. Adm. Code), and that it is his duty to
see that criminal cases are heard without vexatious, capricious and
oppressive delays so that the courts of justice may dispose of them on
the merits and determine whether the accused is guilty or not. This is as
clear an admonition as could be made. An accused person is entitled to
a trial at the earliest opportunity. (Sutherland on the Constitution, 664;
United States v. Fox, 3 Mont., 512.) He cannot be oppressed by delaying
the commencement of trial for an unreasonable length of time. If the
proceedings pending trial are deferred, the trial itself is necessarily
delayed.
8. ID.; ID.; ID. — It is not to be supposed, of course, that the Constitution
intends to remove from the prosecution every reasonable opportunity to
prepare for trial. Impossibilities cannot be expected or extraordinary
efforts required on the part of the prosecutor or the court. As stated by
the Supreme Court of the United States, "The right of a speedy trial is
necessarily relative. It is consistent with delays and depends upon
circumstances. It secures rights to a defendant. It does not preclude the
rights of public justice." (Beavers v. Haubert [1905], 198 U. S., 86; 25 S.
Ct., 573; 49 Law. ed., 950, 954.)
DECISION
LAUREL, J.:
On May 28, 1931, the petitioner herein filed in the Court of First Instance
of Pampanga a petition for the probate of the will of his deceased wife,
Ines Basa. Without any opposition, and upon the testimony of Benigno
F. Gabino, one of the attesting witnesses, the probate court, on June 27,
1931, admitted the will to probate. Almost three years later, on April 11,
1934, the five intervenors herein moved ex parte to reopen the
proceedings, alleging lack of jurisdiction of the court to probate the will
and to close the proceedings. Because filed ex parte, the motion was
denied. The same motion was filed a second time, but with notice to the
adverse party. The motion was nevertheless denied by the probate court
on May 24, 1934. On appeal to this court, the order of denial was
affirmed on July 26, 1935. (Basa v. Mercado, 33 off. Gaz., 2521.)
It appears that on October 27, 1932, i. e., sixteen months after the
probate of the will of Ines Basa, intervenor Rosario Basa de Leon filed
with the justice of the peace court of San Fernando, Pampanga, a
complaint against the petitioner herein, for falsification or forgery of the
will probated as above indicated. The petitioner was arrested. He put up
a bond in the sum of P4,000 and engaged the services of an attorney to
undertake his defense. Preliminary investigation of the case was
continued twice upon petition of the complainant. The complaint was
finally dismissed, at the instance of the complainant herself, in an order
dated December 8, 1932. Three months later, or on March 2, 1933, the
same intervenor charged the petition for the second time with the same
offense, presenting the complaint this time in the justice of the peace
court of Mexico, Pampanga. The petitioner was again arrested, again
put up a bond in the sum of P4,000, and engaged the services of counsel
to defend him. This second complaint, after investigation, was also
dismissed, again at the instance of the complainant herself who alleged
that the petitioner was in poor health. That was on April 27, 1933. Some
nine months later, on February 2, 1934, to be exact, the same intervenor
accused the same petitioner for the third time of the same offense. The
information was filed by the provincial fiscal of Pampanga in the justice
of the peace court of Mexico. The petitioner was again arrested, again
put up a bond of P4,000, and engaged the services of defense counsel.
The case was dismissed on April 24, 1934, after due investigation, on
the ground that the will alleged to have been falsified had already been
probated and there was no evidence that the petitioner had forged the
signature of the testatrix appearing thereon, but that, on the contrary,
the evidence satisfactorily established the authenticity of the signature
aforesaid. Dissatisfied with the result, the provincial fiscal, on May 9,
1934, moved in the Court of First Instance of Pampanga for
reinvestigation of the case. The motion was granted on May 23, 1934,
and, for the fourth time, the petitioner was arrested, filed a bond and
engaged the services of counsel to handle his defense. The
reinvestigation dragged on for almost a year until February 18, 1934,
when the Court of First Instance ordered that the case be tried on the
merits. The petitioner interposed a demurrer on November 25, 1935, on
the ground that the will alleged to have been forged had already been
probated. This demurrer was overruled on December 24, 1935,
whereupon an exception was taken and a motion for reconsideration
and notice of appeal were filed. The motion for reconsideration and the
proposed appeal were denied on January 14, 1936. The case
proceeded to trial, and forthwith petitioner moved to dismiss the case
claiming again that the will alleged to have been forged had already
been probated and, further, that the order probating the will is conclusive
as to the authenticity and due execution thereof. The motion was
overruled and the petitioner filed with the Court of Appeals a petition for
certiorari with preliminary injunction to enjoin the trial court from further
proceedings in the matter. The injunction was issued and thereafter, on
June 19, 1937, the Court of Appeals denied the petition for certiorari,
and dissolved the writ of preliminary injunction. Three justices dissented
in a separate opinion. The case is now before this court for review on
certiorari.
Petitioner contends: (1) that the probate of the will of his deceased wife
is a bar to his criminal prosecution for the alleged forgery of the said will;
and, (2) that he has been denied the constitutional right to a speedy trial.
1. Section 306 of our Code of Civil Procedure provides as to the effect
of judgment:jgc:chanrobles.com.ph
"SEC. 306. Effect of judgment. — The effect of a judgment or final order
in an action or special proceeding before a court or judge of the
Philippine Islands or of the United States, or of any State or Territory of
the United States, having jurisdiction to pronounce the judgment or
order, may be as follows:jgc:chanrobles.com.ph
"1. In case of a judgment or order against a specific thing, or in respect
to the probate of a will, or the administration of the estate of a deceased
person, or in respect to the personal, political, or legal condition or
relation of a particular person, the judgment or order is conclusive upon
the title of the thing, the will or administration, or the condition or relation
of the person: Provided, That the probate of a will or granting of letters
of administration shall only be prima facie evidence of the death of the
testator or intestate:chanrob1es virtual 1aw library
x x x conclusive:jgc:chanrobles.com.ph
(Emphasis ours.)
Section 625 of the same Code is more explicit as to the conclusiveness
of the due execution of a probated will. It says:jgc:chanrobles.com.ph
"SEC. 625. Allowance Necessary, and Conclusive as to Execution. —
No will shall pass either the real or personal estate, unless it is proved
and allowed in the Court of First Instance, or by appeal to the Supreme
Court; and the allowance by the court of a will of real and personal estate
shall be conclusive as to its due execution." (Emphasis ours.)
In Manahan v. Manahan (58 Phil., 448, 451), we
held:jgc:chanrobles.com.ph
". . . The decree of probate is conclusive with respect to the due
execution thereof and it cannot be impugned on any of the grounds
authorized by law, except that of fraud, in any separate or independent
action or proceeding. (Sec. 625, Code of Civil Procedure; Castaneda v.
Alemany, 3 Phil., 426; Pimentel v. Palanca, 5 Phil., 436; Sahagun v. De
Gorostiza, 7 Phil., 347; Limjuco v. Ganara, 11 Phil., 393; Montañano v.
Suesa, 14 Phil., 676; In re Estate of Johnson, 39 Phil., 156; Riera v.
Palmaron, 40 Phil., 105; Austria v. Ventenilla, 21 Phil., 180; Ramirez v.
Gmur, 42 Phil., 855; and Chiong Joc-soy v. Vano, 8 Phil., 119."cralaw
virtua1aw library
In 28 R. C. L., p. 377, section 378, it is said:jgc:chanrobles.com.ph
"The probate of a will by the probate court having jurisdiction thereof is
usually considered as conclusive as to its due execution and validity,
and is also conclusive that the testator was of sound and disposing mind
at the time when he executed the will, and was not acting under duress,
menace, fraud, or undue influence, and that the will is genuine and not
a forgery." (Emphasis ours.)
As our law on wills, particularly section 625 of our Code of Civil
Procedure aforequoted, was taken almost bodily from the Statutes of
Vermont, the decisions of the Supreme Court of that State relative to the
effect of the probate of a will are of persuasive authority in this
jurisdiction. The Vermont statute as to the conclusiveness of the due
execution of a probated will reads as follows:jgc:chanrobles.com.ph
"SEC. 2356. No will shall pass either real or personal estate, unless it is
proved and allowed in the probate court, or by appeal in the country or
supreme court; and the probate of a will of real or personal estate shall
be conclusive as to its due execution." (Vermont Statutes, p. 451.)
Said the Supreme Court of Vermont in the case of Missionary Society v.
Eelss (68 Vt., 497, 504): "The probate of a will by the probate court
having jurisdiction thereof, upon the due notice, is conclusive as to its
due execution against the whole world. (Vt. St., sec. 2336; Foster’s Exrs.
v. Dickerson, 64 Vt., 233.)"
The probate of a will in this jurisdiction is a proceeding in rem. The
provision of notice by publication as a prerequisite to the allowance of a
will is constructive notice to the whole world, and when probate is
granted, the judgment of the court is binding upon everybody, even
against the State. This court held in the case of Manalo v. Paredes and
Philippine Food Co. (47 Phil., 938):jgc:chanrobles.com.ph
"The proceeding for the probate of a will is one in rem (40 Cyc., 1265),
and the court acquires jurisdiction over all the persons interested,
through the publication of the notice prescribed by section 630 of the
Code of Civil Procedure, and any order that may be entered therein is
binding against all of them.
"Through the publication of the petition for the probate of the will, the
court acquires jurisdiction over all such persons as are interested in said
will; and any judgment that may be rendered after said proceeding is
binding against the world."cralaw virtua1aw library
In Everrett v. Wing (103 Vt., 488, 492), the Supreme Court of Vermont
held:jgc:chanrobles.com.ph
"In this State the probate of a will is a proceeding in rem, being in form
and substance upon the will itself to determine its validity. The judgment
determines the status of the instrument, whether it is or is not the will of
the testator. When the proper steps required by law have been taken the
judgment is binding upon everybody, and makes the instrument as to all
the world just what the judgment declares it to be. (Woodruff v. Taylor,
20 Vt., 65, 73; Burbeck v. Little, 50 Vt., 713; 715; Missionary Society v.
Eells, 68 Vt., 497, 504; 35 Atl. 463.) The proceedings before the probate
court are statutory and are not governed by common-law rules as to
parties or causes of action. (Holdrige v. Holdrige’s Estate, 53 Vt., 546,
550; Purdy v. Estate of Purdy, 67 Vt. 50, 55; 30 Atl., 695.) No process is
issued against anyone in such proceedings, but all persons interest in
determining the state or conditions of the instrument are constructively
notified by the publication of notice as required by G. L. 3219. (Woodruff
v. Taylor, supra; In re Warner’s Estate 98 Vt., 254; 271; 127 Atl., 362.)"
Section 333, paragraph 4, of the Code of Civil Procedure establishes an
incontrovertible presumption in favor of judgments declared by it to be
"SEC. 333. Conclusive Presumptions. — The following presumptions or
deductions, which the law expressly directs to be made from particular
facts, are deemed conclusive:jgc:chanrobles.com.ph
"x x x
"4. The judgment or order of a court, when declared by this code to be
conclusive."cralaw virtua1aw library
Conclusive presumptions are inferences which the law makes so
peremptory that it will not allow them to be overturned by any contrary
proof however strong. (Brant v. Morning Journal Ass’n., 80 N. Y. S.,
1002, 1004; 81 App. Div., 183; see, also, Joslyn v. Puloer, 59 Hun., 129,
140; 13 N. Y. S., 311.) The will in question having been probated by a
competent court, the law will not admit any proof to overthrow the legal
presumption that it is genuine and not a forgery.
The majority decision of the Court of Appeals cites English decisions to
bolster up its conclusion that "the judgment admitting the will to probate
is binding upon the whole world as to the due execution and
genuineness of the will insofar as civil rights and liabilities are
concerned, but not for the purpose of punishment of a crime." The cases
of Dominus Rex v. Vincent, 93 English Reports, Full Reprint, 648 and
Dominus Rex v. Rodes, 93 English Reports, Full Reprint, 795, the first
case being decided in 1721, were cited to illustrate the earlier English
decisions to the effect that upon indictment for forging a will, the
probating of the same is conclusive evidence in the defendant’s favor of
its genuine character. Reference is made, however, to the cases of Rex
v. Gibson, 168 English Reports, Full Reprint, 836, footnote (a), decided
in 1802, and Rex v. Buttery and Macnamarra, 168 English Reports, Full
Reprint, 836, decided in 1818, which establish a contrary rule. Citing
these later cases, we find the following quotation from Black on
Judgments, Vol. II, page 764:jgc:chanrobles.com.ph
"A judgment admitting a will to probate cannot be attacked collaterally
although the will was forged; and a payment to the executor names
therein of a debt due the decedent will discharge the same,
notwithstanding the spurious character of the instrument probated. It has
also been held that, upon an indictment for forging a will, the probate of
the paper in question is conclusive evidence in the defendant’s favor of
its genuine character. But this particular point has lately been ruled
otherwise."cralaw virtua1aw library
It was the case of Rex v. Buttery, supra, which induced the Supreme
Court of Massachusetts in the case of Waters v. Stickney (12 Allen 1;
90 Am. Dec., 122) also cited by the majority opinion, to hold that
"according to later and sounder decisions, the probate, though
conclusive until set aside of the disposition of the property, does not
protect the forger from punishment." This was reproduced in 28 R. C. L.,
p. 376, and quoted in Barry v. Walker 9103 Fla., 533; 137 So., 711, 715),
and Thompson v. Freeman (149 So., 740, 742), also cited in support of
the majority opinion of the Court of Appeals. The dissenting opinion of
the Court of Appeals in the instant case under review makes a cursory
study of the statutes obtaining in England, Massachusetts and Florida,
and comes to the conclusion that the decisions cited in the majority
opinion do not appear to "have been promulgated in the face of statutes
similar to ours." The dissenting opinion cites Wharton’s Criminal
Evidence (11th ed., sec. 831), to show that the probate of a will in
England is only prima facie proof of the validity of the will (Op. Cit.
quoting Marriot v. Marriot, 93 English Reprint, 770); and 21 L. R. A. (pp.
686-689 and note), to show that in Massachusetts there is no statute
making the probate of a will conclusive, and that in Florida the statute
(sec. 1810, Revised Statutes) makes the probate conclusive evidence
as to the validity of the will with regard to personal, and prima facie as
to real estate. The cases decided by the Supreme Court of Florida cited
by the majority opinion, supra, refer to wills of both personal and real
estate.
The petitioner cites the case of State v. McGlynn (20 Cal., 233, decided
in 1862), in which Justice Norton of the Supreme Court of California,
makes the following review of the nature of probate proceedings in
England with respect to wills personal and real
property:jgc:chanrobles.com.ph
"In England, the probate of wills of personal estate belongs to the
Ecclesiastical Courts. No probate of a will relating to real estate is there
necessary. The real estate, upon the death of the party seized, passes
immediately to the devisee under the will if there be one; or if there be
no will, to the heir at law. The person who thus becomes entitled takes
possession. If one person claims to be the owner under a will, and
another denies the validity of the will and claims to be the owner as heir
at law, an action of ejectment is brought against the party who may be
in possession by the adverse claimant; and on the trial of such an action,
the validity of the will is contested, and evidence may be given by the
respective parties as to any fraud practiced upon him, or as to the actual
execution of it, or as to any other circumstance affecting its character as
a valid devise of the real estate in dispute. The decision upon the validity
of the will in such action becomes res adjudicata, and is binding and
conclusive upon the parties to that action and upon any reason who may
subsequently acquire the title from either of those parties; but the
decision has no effect upon other parties, and does not settle what may
be called the status or character of the will, leaving it subject to be
enforced as a valid will, or defeated as invalid, whenever other parties
may have a contest depending upon it. A judicial determination of the
character of the will itself. It does not necessarily or ordinarily arise from
any controversy between adverse claimants, but is necessary in order
to authorize a disposition of the personal estate in pursuance of its
provisions. In case of any controversy between adverse claimants of the
personal estate, the probate is given in evidence and is binding upon the
parties, who are not at liberty to introduce any other evidence as to the
validity of the will."cralaw virtua1aw library
The intervenors, on the other hand, attempt to show that the English law
on wills is different from that stated in the case of State v. McGlynn,
supra, citing the following statutes:chanrob1es virtual 1aw library
1. The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26).
2. The Court of Probate Act, 1857 (20 & 21 Vict. c. 77).
3. The Judicature Act, 1873 (36 & 37 Vict. c. 66).
The Wills Act of 1837 provides that probate may be granted of "every
instrument purporting to be testamentary and executed in accordance
with the statutory requirements . . . if it disposes of property, whether
personal or real." the Ecclesiastical Courts which took charge of
testamentary causes (Ewell’s Blackstone [1910], p. 460), were
determined by the Court of Probate Act of 1857, and the Court of
Probate in turn was, together with other courts, incorporated into the
Supreme Court of Judicature, and transformed into the Probate Division
thereof, by the Judicature Act of 1873. (Lord Halsbury, The Laws of
England [1910], pp. 151-156.) The intervenors overlook the fact,
however, that the case of Rex v. Buttery and Macnamarra, supra, upon
which they rely in support of their theory that the probate of a forged will
does not protect the forger from punishment, was decided long before
the foregoing amendatory statutes to the English law on wills were
enacted. The case of State v. McGlynn may be considered, therefore,
as more or less authoritative on the law of England at the time of the
promulgation of the decision in the case of Rex v. Buttery and
Macnamarra.
In the case of State v. McGlynn, the Attorney-General of California filed
an information to set aside the probate of the will of one Broderick, after
the lapse of one year provided by the law of California for the review of
an order probating a will, in order that the estate may be escheated to
the State of California, on the ground that the probated will was forged
and that Broderick therefore died intestate, leaving no heirs,
representatives or devisees capable of inheriting his estate. Upon these
facts, the Supreme Court of California held:jgc:chanrobles.com.ph
"The fact that a will purporting to be the genuine will of Broderick,
devising his estate to a devisee capable of inheriting and holding it, has
been admitted to probate and established as a genuine will by the
decree of a Probate Court having jurisdiction of the case, renders it
necessary to decide whether that decree, and the will established by it,
or either of them, can be set aside and vacated by the judgment of any
other court. If it shall be found that the decree of the Probate Court, not
reversed by the appellate court, is final and conclusive, and not liable to
be vacated or questioned by any other court, either incidentally or by
any direct proceeding, for the purpose of impeaching it, and that so long
as the probate stands the will must be recognized and admitted in all
courts to be valid, then it will be immaterial and useless to inquire
whether the will in question was in fact genuine or forged." (State v.
McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 121.)
Although in the foregoing case the information filed by the State was to
set aside the decree of probate on the ground that the will was forged,
we see no difference in principle between that case and the case at bar.
A subtle distinction could perhaps be drawn between setting aside a
decree of probate, and declaring a probated will to be a forgery. it is
clear, however, that a duly probated will cannot be declared to be a
forgery without disturbing in a way the decree allowing said will to
probate. It is at least anomalous that a will should be regarded as
genuine for one purpose and spurious for another.
The American and English cases show a conflict of authorities on the
question as to whether or not the probate of a will bars criminal
prosecution of the alleged forger of the probated will. We have examined
some important cases and have come to the conclusion that no fixed
standard may be adopted or drawn therefrom, in view of the conflict no
less than of diversity of statutory provisions obtaining in different
jurisdictions. It behooves us, therefore, as the court of last resort, to
choose that rule most consistent with our statutory law, having in view
the needed stability of property rights and the public interest in general.
To be sure, we have seriously reflected upon the dangers of evasion
from punishment of culprits deserving of the severity of the law in cases
where, as here, forgery is discovered after the probate of the will and the
prosecution is had before the prescription of the offense. By and large,
however, the balance seems inclined in favor of the view that we have
taken. Not only does the law surround the execution of the will with the
necessary formalities and require probate to be made after an elaborate
judicial proceeding, but section 113, not to speak of section 513, of our
Code of Civil Procedure provides for an adequate remedy to any party
who might have been adversely affected by the probate of a forged will,
much in the same way as other parties against whom a judgment is
rendered under the same or similar circumstances. (Pecson v. Coronel,
43 Phil., 358.) The aggrieved party may file an application for relief with
the proper court within a reasonable time, but in no case exceeding six
months after said court has rendered the judgment of probate, on the
ground of mistake, inadvertence, surprise or excusable neglect. An
appeal lies to review the action of a court of first instance when that court
refuses to grant relief. (Banco Español-Filipino v. Palanca, 37 Phil., 921;
Philippine Manufacturing Co. v. Imperial, 47 Phil., 810; Samia v. Medina,
56 Phil., 613.) After a judgment allowing a will to be probated has
become final and unappelable, and after the period fixed by section 113
of the Code of Civil Procedure has expired, the law as an expression of
the legislative wisdom goes no further and the case ends there.
". . . The court of chancery has no capacity, as the authorities have
settled, to judge or decide whether a will is or is not a forgery; and hence
there would be an incongruity in its assuming to set aside a probate
decree establishing a will, on the ground that the decree was procured
by fraud, when it can only arrive at the fact of such fraud by first deciding
that the will was a forgery. There seems, therefore, to be a substantial
reason, so long as a court of chancery is not allowed to judge of the
validity of a will, except as shown by the probate, for the exception of
probate decrees from the jurisdiction which courts of chancery exercise
in setting aside other judgments obtained by fraud. But whether the
exception be founded in good reason or otherwise, it has become too
firmly established to be disregarded. At the present day, it would not be
a greater assumption to deny the general rule that courts of chancery
may set aside judgments procured by fraud, than to deny the exception
to that rule in the case of probate decrees. We must acquiesce in the
principle established by the authorities, if we are unable to approve of
the reason. Judge Story was a staunch advocate for the most enlarged
jurisdiction of courts of chancery, and was reluctant to allow the
exception in cases of wills, but was compelled to yield to the weight of
authority. He says: ’No other excepted case is known to exist; and it is
not easy to discover the grounds upon which this exception stands, in
point of reason or principle, although it is clearly settled by authority.’ (1
Story’s Eq. Jur. sec. 440.)" (State v. McGlyn,, 20 Cl., 233; 81 Am. Dec.,
118, 129. See, also, Tracy v. Muir, 121 American State Reports, 118,
125.) .
We hold, therefore, that in view of the provisions of sections 306, 333
and 625 of our Code of Civil Code Procedure, criminal action will not lie
in this jurisdiction against the forger of a will which had been duly
admitted to probate by a court of competent jurisdiction.
The resolution of the foregoing legal question is sufficient to dispose of
the case. However, the other legal question with reference to the denial
to the accused of his right to a speedy trial having been squarely raised
and submitted, we shall proceed to consider the same in the light of
cases already adjudicated by this court.
2. The Constitution of the Philippines provides that "In all criminal
prosecutions the accused . . . shall enjoy the right . . . to have a speedy
. . . trial . . . (Art. III, sec, 1, par. 17. See, also G. O. No. 58 sec. 15, NO.
7.) Similar provisions are to be found in the President’s Instructions to
the Second Philippine Commission (par. 11), the Philippine Bill of July
1, 1902 (sec. 5, par. 2) and the Jones Act of August 29, 1916 (sec. 3,
par. 2). The provision in the foregoing organic acts appear to have been
taken from similar provisions in the Constitution of the United States (6th
Amendment) and those of the various states of the American Union. A
similar injunction is contained in the Malolos Constitution (art. 8, Title
IV), not to speak of other constitutions. More than once this court had
occasion to set aside the proceedings in criminal cases to give effect to
the constitutional injunction of speedy trial. (Conde v. Judge of First
Instance and Fiscal of Tayabas [1923], 45 Phil., 173; Conde v. Rivera
and Unson [1924], 45 Phil., 650; People v. Castañeda and Fernandez
[1936]), 35 Off. GAz., 1269; Kalaw v. Apostol, Oct. 15, 1937, G. R. No.
45591; Esguerra v. De la Costa, Aug. 30, 1938, G. R. NO. 46039.)
In Conde v. Rivera and Unson, supra, decided before the adoption of
our Constitution, we said:jgc:chanrobles.com.ph
"Philippine organic and statutory law expressly guarantee that in all
criminal prosecutions the accused shall enjoy the right to have a speedy
trial. Aurelia Conde, like all other accused persons, has a right to a
speedy trial in order that if innocent she may go free, and she has been
deprived of that right in defiance of law. Dismissed from her humble
position, and compelled to dance attendance on courts while
investigations and trials are arbitrarily postponed without her consent, is
palpably and openly unjust to her and a detriment to the public. By the
use of reasonable diligence, the prosecution could have settled upon the
appropriate information, could have settled upon the appropriate
information, could have attended to the formal preliminary examination,
and could have prepared the case for a trial free from vexatious,
capricious, and oppressive delays."cralaw virtua1aw library
In People v. Castañeda and Fernandez, supra, this court found that the
accused had not been given a fair and impartial trial. The case was to
have been remanded to the court a quo for a new trial before an impartial
judge. This step, however, was found unnecessary. A review of the
evidence convinced this court that a judgment of conviction for theft, as
changed, could not be sustained and, having in view the right to a
speedy trial guaranteed by the Constitution to every person accused of
crime, entered a judgment acquitting the accused, with costs de oficio.
We said:jgc:chanrobles.com.ph
". . . The Constitution, Article III, section 1, paragraph 17, guarantees to
every accused person the right to a speedy trial. This criminal
proceeding has been dragging on for almost five years now. The
accused have twice appealed to this court for redress from the wrong
that they have suffered at the hands of the trial court. At least one of
them, namely Pedro Fernandez alias Piro, had been confined in prison
from July 20, 1932 to November 27, 1934, for inability to post the
required bond of P3,000 which was finally reduced to P300. The
Government should be the last to set an example of delay and
oppression in the administration of justice and it is the moral and legal
obligation of this court to see that the criminal proceedings against the
accused come to an end and that they be immediately discharged from
the custody of the law. (Conde v. Rivera and Unson, 45 Phil., 651.)"
In Kalaw v. Apostol, supra, the petitioner invoked and this court applied
and gave effect to the doctrines stated in the second Conde case, supra.
In granting the writs prayed for, this court, after referring to the
constitutional and statutory provisions guaranteeing to persons accused
of crime the right to a speedy trial, said:
"Se infiere de los ………………………….. prontamente."
Esguerra v. De la Costa, supra, was a petition for mandamus to compel
the respondent judge of the Court of First Instance of Rizal to dismiss
the complaint filed in a criminal case against the petitioner, to cancel the
bond put up by the said petitioner and to declare the costs de oficio. In
accepting the contention that the petitioner had been denied speedy
trial, this court said:jgc:chanrobles.com.ph
"Consta que en menos de un año el recurrente fue procesado
criminalmente por el ageldao delito de abusos deshonestos, en el
Juzgado de Paz del Municipio de Cainta, Rizal. Como consecuencia de
las denuncias que contra el se presentaron fue arrestado tres veces y
para gozar de libertad provisional, en espera de los juicios, se vio
obligado a prestar tres fianzas por la suma de P1,000 cada una. Si no
se da fin al proceso que ultimamente se ha incoado contra el recurrente
la incertidumbre continuara cerniendose sobre el y las consiguientes
molestias y preocupaciones continuaran igualmente abrumandole. El
Titulo III, articulo 1, No. 17, de la Constitucio preceptua que en todo
proceso criminal el acusado tiene derecho de ser juzgado pronta y
publicamente. El Articulo 15, No. 7, de la Orden General No. 58 dispone
asimismo que en las causas criminales el acusado tendra derecho a ser
juzgado pronta y publicamente. Si el recurrente era realmente culpable
del delito que se le imputo, tenia de todos modos derechos a que fuera
juzgado pronta y publicamente y sin dilaciones arbitrarias y vejatorias.
Hemos declarado reiteradamente que existe un remedio positivo para
los casos en que se viola el derecho constitucional del acusado de ser
juzgado prontamente. El acusado que es privado de su derecho
fundamental de ser enjuiciado rapidamente tiene derecho a pedir que
se le ponga en libertad, si estuviese detenido, o a que la causa que
pende contra el sea sobreseida definitivamente. (Conde contra Rivera
y Unson, 45 Jur. Fil., 682; In the matter of Ford [1911], 160 Cal., 334; U.
S. v. Fox [1880], 3 Mont., 512; Kalaw contra Apostol, R. G. No. 45591,
Oct. 15, 1937; Pueblo contra Castañeda y Fernandez, 35 Gac. Of.,
1357.)"
We are again called upon to vindicate the fundamental right to a speedy
trial. The facts of the present case may be at variance with those of the
cases hereinabove referred to. Nevertheless, we are of the opinion that,
under the circumstances, we should consider the substance of the right
instead of indulging in more or less academic or undue factual
differentiations. The petitioner herein has been arrested four times, has
put up a bond in the sum of P4,000 and has engaged the services of
counsel to undertake his defense an equal number of times. The first
arrest was made upon a complaint filed by one of the intervenors herein
for alleged falsification of a will which, sixteen months before, had been
probated in court. This complaint, after investigation, was dismissed at
the complaint’s own request. The second arrest was made upon a
complaint charging the same offense and this complaint, too, was
dismissed at the behest of the complainant herself who alleged the quite
startling ground that the petitioner was in poor health. The third arrest
was made following the filing of an information by the provincial fiscal of
Pampanga, which information was dismissed, after due investigation,
because of insufficiency of the evidence. The fourth arrest was made
when the provincial fiscal secured a reinvestigation of the case against
the petitioner on the pretext that he had additional evidence to present,
although such evidence does not appear to have ever been presented.
It is true that provincial fiscal did not intervene in the case until February
2, 1934, when he presented an information charging the petitioner, for
the third time, of the offense of falsification. This, however, does not
matter. The prosecution of offenses is a matter of public interest and it
is the duty of the government or those acting in its behalf to prosecute
all cases to their termination without oppressive, capricious and
vexatious delay. The Constitution does not say that the right to a speedy
trial may be availed of only where the prosecution for crime is
commenced and undertaken by the fiscal. It does not exclude from its
operation cases commenced by private individuals. Where once a
person is prosecuted criminally, he is entitled to a speedy trial,
irrespective of the nature of the offense or the manner in which it is
authorized to be commenced. In any event, even the actuations of the
fiscal himself in this case is not entirely free from criticism. From October
27, 1932, when the first complaint was filed in the justice of the peace
court of San Fernando, to February 2, 1934, when the provincial fiscal
filed his information with the justice of the peace of Mexico, one year,
three months and six days transpired; and from April 27, 1933, when the
second criminal complaint was dismissed by the justice of the peace of
Mexico, to February 2, 1934, nine months and six days elapsed. The
investigation following the fourth arrest, made after the fiscal had
secured a reinvestigation of the case, appears also to have dragged on
for about a year. There obviously has been a delay, and considering the
antecedent facts and circumstances within the knowledge of the fiscal,
the delay may not at all be regarded as permissible. In Kalaw v. Apostol,
supra, we observed that the prosecuting officer is in charge of and has
under his direction and control all prosecutions for public offenses (secs.
1681 and 2465 of the Rev. Adm. Code), and that it is his duty to see that
criminal cases are heard without vexatious, capricious and oppressive
delays so that the courts of justice may dispose of them on the merits
and determine whether the accused is guilty or not. This is as clear an
admonition as could be made. an accused person is entitled to a trial at
the earliest opportunity. (Sutherland on the Constitution, p. 664; United
States v. Fox, 3 Mont., 512.) He cannot be oppressed by delaying the
commencement of trial for an unreasonable length of time. If the
proceedings pending trial are deferred, the trial itself is necessarily
delayed. It is not to be supposed, of course, that the Constitution intends
to remove from the prosecution every reasonable opportunity to prepare
for trial. Impossibilities cannot be expected or extraordinary efforts
required on the part of the prosecutor or the court. As stated by the
Supreme Court of the United States, "The right of a speedy trial is
necessarily relative. It is consistent with delays and depends upon
circumstances. It secures rights to a defendant. It does preclude the
rights of public justice." (Beavers v. Haubert [1905], 198 U. S. 86; 25 S.
Ct., 573; 49 Law. ed., 950, 954.)
It may be true, as seems admitted by counsel for the intervenors, in
paragraph 8, page 3 of his brief, that the delay was due to "the efforts
towards reaching an amicable extrajudicial compromise," but this fact,
we think, casts doubt instead upon the motive which led the intervenors
to bring criminal action against the petitioner. The petitioner claims that
the intention of the intervenors was to press upon settlement, with the
continuous threat of criminal prosecution, notwithstanding the probate
of the will alleged to have been falsified. Argument of counsel for the
petitioner in this regard is not without justification. Thus after the filing of
the second complaint with the justice of the peace court of Mexico,
complainant herself, as we have seen, asked for dismissal of the
complaint, on the ground that "el acusado tenia la salud bastante
delicada," and, apparently because of failure to arrive at any settlement,
she decided to renew her complaint.
Counsel for the intervenors contend — and the contention is sustained
by the Court of Appeals — that the petitioner did not complain heretofore
of the denial of his constitutional right to a speedy trial. This is a mistake.
When the petitioner, for the fourth time, was ordered arrested by the
Court of First Instance of Pampanga, he moved for reconsideration of
the order of arrest, alleging, among other things, "Que por estas
continuas acusaciones e investigaciones, el acusado compareciente no
obsdtante su mal estado de salud desde el año 1932 en que tuvo que
ser operado por padecer de tuberculosis ha tenido que sostener litigios
y ha sufrido la mar de humiliaciones y zozobras y ha incurrido en
enormes gastos y molestias y ha desatendido su quebrantada salud."
The foregoing allegation was inserted on page 6 of the amended petition
for certiorari presented to the Court of Appeals. The constitutional issue
also appears to have been actually raised and considered in the Court
of Appeals. In the majority opinion of that court, it is
stated:jgc:chanrobles.com.ph
"Upon the foregoing facts, counsel for the petitioner submits for the
consideration of this court the following questions of law: First, that the
respondent court acted arbitrarily and with abuse of its authority, with
serious damage and prejudice to the rights and interests of the
petitioner, in allowing that the latter be prosecuted and arrested for the
fourth time, and that he be subjected, also for the fourth time, to a
preliminary investigation for the same offense, thereby converting the
court into an instrument of oppression and vengeance on the pat of the
alleged offended parties, Rosario Basa Et. Al.;. . . ."cralaw virtua1aw
library
And in the dissenting opinion, we find the following opening
paragraph:jgc:chanrobles.com.ph
"We cannot join in a decision declining to stop a prosecution that has
dragged for about five years and caused the arrest on four different
occasions of a law abiding citizen for the alleged offense of falsifying a
will that years before, had been declared genuine and valid by a court
of competent jurisdiction."cralaw virtua1aw library
From the view we take of the instant case, the petitioner is entitled to
have the criminal proceedings against him quashed. The judgment of
the Court of Appeals is hereby reversed, without pronouncement
regarding costs. So ordered.
G.R. No. L-26743 May 31, 1972
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF
CIPRIANO ABUT, deceased. GENEROSO ABUT, petitioner,
GAVINA ABUT, petitioner-appellant, vs.
FELIPE ABUT, PRESENTACION DE RODRIGUEZ and ABSOLUTO
ABUT, oppositors-appellees.
MAKALINTAL, J.:p
This is an appeal from an order dated July 2, 1966 of the Court of First
Instance of Misamis Oriental (Br. IV) in its Sp. Proc. No. 911. The said
order states:
Gavina Abut, through counsel, seeks the admission of the amended
petition in which she substitutes for the original petitioner, Generoso
Abut, who died after his original petition was filed, published and the
Court had taken jurisdiction thereof. In the original petition the deceased
Generoso Abut appears to have been named executor of the will of the
deceased Cipriano Abut; that he was in possession and custody of the
latter's will; and that he sought to be named executor of the will of the
deceased Cipriano Abut. In the amended petition Gavina Abut alleges
that the will was delivered to her by Generoso Abut before his death and
that it is now in her custody and possession, and she prays that she be
appointed administratrix of the estate of the deceased Cipriano Abut.
Considering the foregoing amendments embodied in the amended
petition, and the fact that publication of the petition is a jurisdictional
matter intended to inform whomsoever may be interested in said petition
and to afford him or her an opportunity to assert his or her rights, the
Court believes that the original petition should be, as it is hereby
dismissed, without prejudice to the filing of another petition pursuant to
the requirements of the Rules of Court.
The decisive facts are largely matters of record. On August 4, 1965
Generoso Abut, one of the children of the deceased Cipriano Abut by
his second marriage and the person named as executor in a will
allegedly executed by the said deceased, filed a petition before the court
a quo praying that after due notice and hearing the said will be approved
and allowed and that letters testamentary issue in his favor. In an
amended order dated September 1, 1965 the court a quo motu proprio
set the petition for hearing and further directed compliance with Sections
3 and 4 of Rule 76 of the Rules of Court.1 These procedural steps
admittedly took place.
Opposition to the petition was filed by the children of Cipriano Abut by
his first marriage, namely, Felipe Abut, Presentacion de Rodriguez and
Absoluto Abut, now appellees here.
During the pendency of the case below but before the court a quo could
even start the formal hearing of the petition, which had been delayed by
several postponements, Generoso Abut, the original petitioner who
initiated the probate proceeding, died on January 10, 1966. This
eventuality prompted Gavina Abut, a sister of Generoso Abut and an
heir and devisee under the will of the testator Cipriano Abut, to ask the
court a quo to substitute her in lieu of Generoso Abut and to admit an
amended petition wherein she prayed that the probate of the will be
allowed and that letters of administration with the will annexed be issued
in her favor. For reasons stated in its order of July 2, 1966, hereinabove
quoted, the court a quo dismissed the petition originally brought by the
deceased Generoso Abut, "without prejudice to the filing of another
petition pursuant to the requirements of the Rules of Court."
The issue is whether or not the probate court correctly dismissed the
petition simply because the original petitioner — who was the executor
named in the will sought to be probated — died before the petition could
be heard and/or terminated. Stated otherwise, after the court had
acquired jurisdiction over the case involving probate of the will, did the
demise of the original petitioner during the pendency of the proceeding
divest the court of such jurisdiction and preclude the continuation of the
case on the theory that the amended petition filed by herein petitioner,
who admittedly was a person having an interest in the estate, seeking
to substitute her in place of the original petitioner, but with a similar
prayer for the allowance of the same will, required a new publication in
order to invest the court with jurisdiction.
We find the dismissal of the original petition for probate and the refusal
of the probate court to admit the amended petition without a new
publication thereof to be untenable. The jurisdiction of the court became
vested upon the filing of the original petition and upon compliance with
Sections 3 and 4 of Rule 76.2
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 deceased. The fact that the amended petition named additional heirs
not included in the original petition3 did not require that notice of the
amended petition be published anew. All that Section 4 of Rule 76
provides is that those heirs be notified of the hearing for the probate of
the will, either by mail or personally. In the case of Perez vs. Perez4 this
Court explained:
Thus it appears that such "no notice" argument has no legal foundation.
At any rate the omission, if any, did not affect the jurisdiction of the court;
it constituted a mere procedural error that may or may not be the basis
of reversal (Jocson vs. Nable, 48 O.G. 90). Indeed, this Tribunal has
ruled that the court acquires jurisdiction over all persons interested in
the estate through the publication of the petition in the newspapers (In
re Estate of Johnson, 39 Phil. 159; Jocson vs. Nable, supra) — which in
this case admittedly took place.
Service of notice on individual heirs or legatees or devisees is a matter
of procedural convenience, not jurisdictional requisite. So much so that
even if the names of some legatees or heirs had been omitted from the
petition for allowance of the will — and therefore were not advised —
the decree allowing the will does not ipso facto become void for want of
jurisdiction ...
Jurisdiction of the court once acquired continues until the termination of
the case,5 and remains unaffected by subsequent events. The court
below erred in holding that it was divested of jurisdiction just because
the original petitioner died before the petition could be formally heard.
Parties who could have come in and opposed the original petition, as
herein appellees did, could still come in and oppose the amended
petition, having already been notified of the pendency of the proceeding
by the publication of the notice thereof.
The admission of the amended petition, of course, does not mean that
Gavina Abut's prayer that she be appointed administratrix with the will
annexed is necessarily meritorious. It simply recognizes that since the
lower court has acquired jurisdiction over the res, such jurisdiction
continues until the termination of the case. The first question that the
lower court should hear and decide is the probate of the will; and the
question of whether or not Gavina Abut should be appointed
administratrix must be decided on the basis of the facts to be presented
and after the will is proved and allowed, as provided in Section 6 of Rule
78.
WHEREFORE, the order dated July 2, 1966 is set aside and the case is
remanded below, with direction for the lower court to admit the amended
petition and thereafter proceed accordingly. Costs against oppositors-
appellees.
G.R. No. 78590 June 20, 1988
PEDRO DE GUZMAN, petitioner, vs.
THE HONORABLE JUDGE ZOSIMO Z. ANGELES, RTC BRANCH 58,
MAKATI, METRO, MANILA; DEPUTY SHERIFFS JOSE B. FLORA
and HONORIO SANTOS and ELAINE G. DE GUZMAN, respondents.
GUTIERREZ, JR., J.:
May a probate court act on and/or grant motions for the appointment of
a special administrator, for the issuance of a writ of possession of
alleged properties of the deceased person, and for assistance to
preserve the estate in a petition for the settlement of the intestate estate
even before the court has caused notice to be served upon all interested
parties pursuant to section 3, Rule 79 of the Revised Rules of Court?
On May 5, 1987, private respondent Elaine G. de Guzman filed a petition
for the settlement of the intestate estate of Manolito de Guzman, before
the Regional Trial Court of Makati, Metro Manila. The case was
docketed as Special Proceedings .No. M-1436.
The petition alleges that: (1) on March 22,1987, Manolito de Guzman
died in Makati, Metro Manila; (2) at the time of his death, the decedent
was a resident of Makati, Metro Manila; (3) decedent left personal and
real properties as part of his estate, listed in Annexes "A," "B," "C" and
"D;" (4) the properties were acquired after the marriage of the petitioner
to the decedent and therefore are included in their conjugal partnership;
(5) the estate of -the decedent has a probable net value which may be
provisionally assessed at P4,000,000.00 more or less; (6) the possible
creditors of the estate, who have accounts payable. and existing claims
against the firm — C. SANTOS Construction are listed in Annex "E;" (7)
the compulsory heirs of the decedent are the as the surviving spouse
and their two (2) minor children namely: Charmane Rose de Guzman 11
years and Peter Brian de Guzman, 9 years old; (8) after diligent search
and inquiry to ascertain whether the decedent left a last will and
testament, none has been found and according to the best knowledge
information and belief of the petitioner, Manolito de Guzman died
intestate; and (9) the petitioner as the survey surviving spouse of the
decedent, is most qualified and entitled to the grant of letters of
administration.
On May 22, 1987, the private respondent filed a motion for writ of
possession over five (5) — vehicles registered under the name of
Manolito de Guzman, alleged to be conjugal properties of the de
Guzman's but which are at present in the possession of the private
respondent's father-in- law, herein petitioner Pedro de Guzman. The
motion stated that as co-owner and heir, the private respondent must
have the possession of said vehicles in order to preserve the assets of
her late husband. On the same day, the lower court issued an order
setting for hearing the motion on May 27, 1987 directing the deputy
sheriff to notify petitioner Pedro de Guzman at the expense of the private
respondent.
The scheduled May 27, 1987 hearing was postponed on motion of
petitioner's counsel, Atty. Ricardo Fojas. The petitioner was also given
three (3) days from May 27, 1987 to give his comment on the motion for
a writ of possession. The hearing was reset to June 5, 1987 at 3:00 p.m.
On May 29, 1987, the petitioner's counsel filed a notice of appearance
and an "Urgent Motion For Extension of Time to File an Opposition and
for Resetting of the Hearing."
The motion was granted and the petitioner was given five (5) days from
receipt of the order within which to file his opposition to the motion for a
writ of possession. The hearing was reset to June 15, 1987 at 2:00 in
the afternoon.
In the meantime, on May 28, 1987, the private respondent filed her "Ex-
Parte Motion to Appoint Petitioner as Special Administratrix of the Estate
of Manolito de Guzman."
In an order dated May 28,1987, the aforesaid motion was set for hearing
on June 5, 1987. In this same order, the lower court directed that all
parties in the case be notified. However, no notice of the order was given
to the petitioner.
In an order dated June 5, 1987, the lower court granted the private
respondent's motion to be appointed as special administratrix, to wit:
Finding the motion for appointment of special administratrix, on the
ground alleged therein to be well-founded, and finding further that it is to
be the best interest of the Estate of Manolito de Guzman that petitioner-
movant Elaine G. de Guzman, be appointed as Special Administratrix in
this case, said motion is granted.
WHEREFORE, Elaine G. de Guzman, petitioner-movant, is hereby
appointed as Special Administratrix of the Estate of the deceased
Manolito de Guzman, pending appointment of a regular administrator.
The bond for the said special administratrix is hereby fixed in the amount
of P200,000.00. (Rollo, p. 40)
On June 8, 1987, the lower court issued another order, to wit:
Acting on the Urgent Ex-Parte Motion for Assistance" filed by Petitioner-
Special Administratrix Elaine de Guzman for appointment of Deputy
Sheriffs Honorio Santos and Jose B. Flora together with some military
men and/or policemen to assist her in preserving the estate of Manolito
de Guzman, the motion is granted and the Deputy Sheriffs Honorio
Santos and Jose B. Flora are hereby appointed for that purpose,
provided that the subject matter of the motion for writ of possession
pending before this Court shall not be affected. (Rollo, p. 41)
Trouble ensued when the respondents tried to enforce the above order.
The petitioner resisted when Deputy Sheriffs Jose B. Flora and Honorio
Santos tried to take the subject vehicles on the ground that they were
his personal properties. According to the petitioner, this resulted in a
"near shoot-out between members of the Makati Police, who were to
maintain peace and order, and the CAPCOM soldiers who were
ostensibly aiding respondent sheriffs and Elaine G. de Guzman" and
that "the timely arrival of Mayor Jejomar Binay of Makati defused the
very volatile situation which resulted in an agreement between the
parties that the bulldozer, sought to be taken, be temporarily placed in
the custody of Mayor Binay, while the parties seek clarification of the
order from respondent Judge Zosimo Angeles the next day, June 9,
1981 at 10:30 a.m."
In the conference held before the respondent court attended by the
counsels for both parties, the June 8, 1987 order was clarified to the
effect that the order "must be merely to take and preserve assets
admittedly belonging to the estate, but not properties, the ownership of
which is claimed by third persons."
The petitioner then filed a manifestation listing properties which he
claimed to be his own.
Thereafter, the instant petition was filed to annul the lower court's orders
dated June 5, 1987 and June 8, 1987.
In a resolution dated June 10, 1987, we issued a temporary restraining
order enjoining the respondent court from enforcing the two questioned
orders. In another resolution dated October 28, 1987, we gave due
course to the petition.
The petitioner contends that the June 5, 1987 order is a patent nullity,
the respondent court not having acquired jurisdiction to appoint a special
administratrix because the petition for the settlement of the estate of
Manolito de Guzman was not yet set for hearing and published for three
consecutive weeks, as mandated by the Rules of Court. The petitioner
also stresses that the appointment of a special administratrix constitutes
an abuse of discretion for having been made without giving petitioner
and other parties an opportunity to oppose said appointment.
Anent the June 8, 1987 order, the petitioner alleges that the immediate
grant of the motion praying for the court's assistance in the preservation
of the estate of the deceased, "without notice to the petitioner Pedro de
Guzman, and its immediate implementation on the very same day by
respondent Elaine G. de Guzman with the assistance of respondents
deputy sheriffs, at no other place but at the home of the petitioner Pedro
de Guzman, are eloquent proofs that all the antecedent events were
intended solely to deprive petitioner de Guzman of his property without
due process of law." He also prays that the respondent Judge be
disqualified from further continuing the case.
As stated earlier, the pivotal issue in the instant petition hinges on
whether or not a probate court may appoint a special administratrix and
issue a writ of possession of alleged properties of a decedent for the
preservation of the estate in a petition for the settlement of the intestate
estate of the said deceased person even before the probate court
causes notice to be served upon all interested parties pursuant to
section 3, Rule 79 of the Revised Rules of Court.
As early as March 18, 1937, in the case of Santos v. Castillo (64 Phil.
211) we ruled that before a court may acquire jurisdiction over the case
for the probate of a will and the administration of the properties left by a
deceased person, the application must allege the residence of the
deceased and other indispensable facts or circumstances and that the
applicant is the executor named in the will or is the person who had
custody of the will to be probated.
In the instant case, there is no doubt that the respondent court acquired
jurisdiction over the proceedings upon the filing of a petition for the
settlement of an intestate estate by the private respondent since the
petition had alleged all the jurisdictional facts, the residence of the
deceased person, the possible heirs and creditors and the probable
value of the estate of the deceased Manolito de Guzman pursuant to
Section 2, Rule 79 of the Revised Rules of Court.
We must, however, differentiate between the jurisdiction of the probate
court over the proceedings for the administration of an estate and its
jurisdiction over the persons who are interested in the settlement of the
estate of the deceased person. The court may also have jurisdiction over
the "estate" of the deceased person but the determination of the
properties comprising that estate must follow established rules.
Section 3, Rule 79 of the Revised Rules of Court provides:
Court to set time for hearing. — Notice thereof. — When a petition for
letters of administration is filed in the court having jurisdiction, such court
shall fix a time and place for hearing the petition, and shall cause notice
thereof to be given to the known heirs and creditors of the decedent, and
to any other persons believed to have an interest in the estate, in the
manner provided in sections 3 and 4 of Rule 76.
It is very clear from this provision that the probate court must cause
notice through publication of the petition after it receives the same. The
purpose of this notice is to bring all the interested persons within the
court's jurisdiction so that the judgment therein becomes binding on all
the world. (Manalo v. Paredes, 47 Phil. 938; Moran, Comment on the
Rules of Court Volume 3,1980 Edition) Where no notice as required by
Section 3, Rule 79 of the Rules of Court has been given to persons
believed to have an interest in the estate of the deceased person; the
proceeding for the settlement of the estate is void and should be
annulled. The requirement as to notice is essential to the validity of the
proceeding in that no person may be deprived of his right to property
without due process of law. (Eusebio v. Valmores, 96 Phil. 163).
Verily, notice through publication of the petition for the settlement of the
estate of a deceased person is jurisdictional, the absence of which
makes court orders affecting other persons, subsequent to the petition
void and subject to annulment. (See Eusebio v. Valmores, supra)
In the instant case, no notice as mandated by section 3, Rule 79 of the
Revised Rules of Court was caused to be given by the probate court
before it acted on the motions of the private respondent to be appointed
as special administratrix, to issue a writ of possession of alleged
properties of the deceased person in the widow's favor, and to grant her
motion for assistance to preserve the estate of Manolito de Guzman.
The "explanation" which we required of the respondent Judge for his
apparent haste in issuing the questioned orders, states:
xxx xxx xxx
10. In issuing the subject Orders, undersigned acted in the honest
conviction that it would be to the best interest of the estate without
unduly prejudicing any interested party or third person. Any delay in
issuing the said Orders might have prejudiced the estate for the
properties may be lost, wasted or dissipated in the meantime. (Rollo, p.
86)
xxx xxx xxx
This explanation while seemingly plausible does not sufficiently explain
the disregard of the Rule. If indeed, the respondent court had the welfare
of both the estate and the person who have interest in the estate, then
it could have caused notice to be given immediately as mandated by the
Revised Rules of Court. All interested persons including herein
petitioner who is the biggest creditor of the estate listed in the Petition
(P850,240.80) could have participated in the proceedings especially so,
because the respondent immediately filed a motion to have herself
appointed as administratrix. A special administrator has been defined as
the "representative of decedent appointed by the probate court to care
for and preserve his estate until an executor or general administrator is
appointed." (Jones v. Minnesota Transfer R. Co. 1965 ed., at 106 cited
in Fule v. Court of Appeals, 74 SCRA 189). The petitioner as creditor of
the estate has a similar interest in the preservation of the estate as the
private respondent who happens to be the widow of deceased Manolito
de Guzman. Hence, the necessity of notice as mandated by the Rules
of Court. It is not clear from the records exactly what emergency would
have ensued if the appointment of an administrator was deferred at least
until the most interested parties were given notice of the proposed
action. No unavoidable delay in the appointment of a regular
administrator is apparent from the records.
As argued by the petitioner:
The position of special administrator, by the very nature of the powers
granted thereby, is one of trust and confidence. It is a fiduciary position
and, therefore, requires a comprehensive determination of the suitability
of the applicant to such position. Hence, under Philippine jurisprudence,
it has been settled that the same fundamental and legal principles
governing the choice of a regular administrator should be taken in
choosing the special administrator (Francisco, Vol. VB, page 46 citing
the cases of Ozaeta v. Pecson, Ibid. and Roxas v. Pecson, Ibid.)
In order to fully and correctly ascertain the suitability of the applicant to
the trust, a hearing is obviously necessary wherein the applicant can
prove his qualifications and at the same time affording oppositors, given
notice of such hearing and application, the opportunity to oppose or
contest such application.
The requirement of a hearing and the notification to all the known heirs
and other interested parties as to the date thereof is essential to the
validity of the proceeding for the appointment of an administrator "in
order that no person may be deprived of his right or property without due
process of law" (Eusebio v. Valmores, 97 Phil. 163). Moreover, a hearing
is necessary in order to fully determine the suitability of the applicant to
the trust, by giving him the opportunity to prove his qualifications and
affording oppositors, if any, to contest the said application. (Matute v.
Court of Appeals, 26 SCRA 770; emphasis supplied).
Since the position of special administrator is a very sensitive one which
requires trust and confidence, it is essential that the suitability of the
applicant be ascertained in a hearing with due notice to all oppositors
who may object precisely to the applicant's suitability to the trust. (Rollo,
pp. 103-104)
If emergency situations threatening the dissipation of the assets of an
estate justify a court's immediately taking some kind of temporary action
even without the required notice, no such emergency is shown in this
case. The need for the proper notice even for the appointment of a
special administrator is apparent from the circumstances of this case.
The respondent Judge himself explains that the order for the
preservation of the estate was limited to properties not claimed by third
parties. If certain properties are already in the possession of the
applicant for special administratrix and are not claimed by other persons,
we see no need to hurry up and take special action to preserve those
properties. As it is, the sheriffs took advantage of the questioned order
to seize by force, properties found in the residence of the petitioner
which he vehemently claims are owned by him and not by the estate of
the deceased person.
The petitioner also asks that the respondent Judge be disqualified from
continuing with the proceedings of the case on the ground that he is
partial to the private respondent.
In view of the fact that the respondent Judge in his "Explanation"
requests that he be inhibited from further active on the case, this issue
has now become academic. We accept Judge Angeles" voluntary
inhibition in line with our ruling in Pimentel v. Salanga (21 SCRA 160).
As we stated in Query of Executive Judge Estrella T. Estrada, Regional
Trial Court of Malolos, Bulacan on the conflicting views of Regional Trial
Court—Judges Manalo and Elisaga Re: Criminal Case No. 4954 — M
Administrative Matter No. 87-9-3918-RTC, October 26, 1987:
xxx xxx xxx
... A judge may not be legally prohibited from sitting in a litigation. But
when suggestion is made of record that he might be induced to act in
favor of one party or with bias or prejudice against a litigant arising out
of circumstances reasonably capable of inciting such a state of mind, he
should conduct a careful self-examination. He should exercise his
discretion in a way that the people's faith in the courts of justice is not
impaired. A salutary norm is that he reflect on the probability that a losing
party might nurture at the back of his mind the thought that the judge
had unmeritoriously tilted the scales of justice against him. That passion
on the part of a judge may be generated because of serious charges of
misconduct against him by a suitor or his counsel, is not altogether
remote. He is a man, subject to the frailties of other men. He should,
therefore, exercise great care and caution before making up his mind to
act or withdraw from a suit Where that party or counsel is involved. He
could in good grace inhibit himself where that case could be heard by
another judge and where no appreciable prejudice would be occasioned
to others involved thereon. On the result of his decisions to sit or not sit
may depend to a great extent that all-important confidence in the
impartiality of the judiciary. If after reflection he should resolve to
voluntarily desist from sitting in a case where his motives or fairness
might be seriously impugned, his action is to be interpreted as giving
meaning and substance to the second paragraph of Section 1, Rule 137.
He serves the cause of the law who forestalls miscarriage of justice.
Considering the foregoing, we find no need to discuss the other issues
raised in the petition.
WHEREFORE, the instant petition is GRANTED. The questioned orders
of the Regional Trial Court, Branch 58 of Makati are hereby set aside.
The case is ordered remanded to the lower court for the hearing of the
petition with previous notice to all interested parties as required by law.
In view of the voluntary inhibition of the respondent Judge, the Executive
Judge of the Regional Trial Court, Makati is directed to re-raffle the case
to another branch of the court. The Temporary Restraining Order dated
June 10, 1987 is made permanent. No costs.
G.R. No. 156021 September 23, 2005
CYNTHIA C. ALABAN, FRANCIS COLLADO, JOSE P. COLLADO,
JUDITH PROVIDO, CLARITA PROVIDO, ALFREDO PROVIDO,
MANUEL PROVIDO, JR., LORNA DINA E. PROVIDO, SEVERO
ARENGA, JR., SERGIO ARENGA, EDUARDO ARENGA, CAROL
ARENGA, RUTH BABASA, NORMA HIJASTRO, DOLORES M.
FLORES, ANTONIO MARIN, JR., JOSE MARIN, SR., and MATHILDE
MARIN, Petitioners, vs.
COURT OF APPEALS and FRANCISCO H. PROVIDO, Respondent.
DECISION
Tinga, J.:
This is a petition for review of the Resolutions1 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 Testament3 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 Order10 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 RTC’s Decision was
already final and executory even before petitioners’ filing of the motion
to reopen.12
Petitioners thereafter filed a petition13 with an application for preliminary
injunction with the CA, seeking the annulment of the RTC’s 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
Decision should be annulled and set aside on the ground of extrinsic
fraud and lack of jurisdiction on the part of the RTC.15
In its Resolution16 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 RTC’s
judgment only three and a half months after its promulgation.23
Respondent likewise maintains that no extrinsic fraud exists to warrant
the annulment of the RTC’s 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
forum–shopping, since the latter have a pending suit involving the same
issues as those in SP No. 00-135, that is SP No. 118126 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 respondent’s 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 RTC’s 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 respondent’s 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 respondent’s 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 heirs49 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.
Forum-shopping 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.
G.R. No. 189984 November 12, 2012
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE
LAST WILL AND TESTAMENT OF ENRIQUE S. LOPEZ RICHARD B.
LOPEZ, Petitioner, vs.
DIANA JEANNE LOPEZ, MARYBETH DE LEON and VICTORIA L.
TUAZON, Respondents.
PERLAS-BERNABE, J.:
This Petition for Review on Certiorari assails the March 30, 2009
Decision1 and October 22, 2009 Resolution2 of the Court of Appeals
(CA) in CA-G.R. CV No. 87064 which affirmed the August 26, 2005
Decision3 of the Regional Trial Court of Manila, Branch 42 (RTC), in SP.
Proc. No. 99-95225 disallowing the probate of the Last Will and
Testament of Enrique S. Lopez.
The Factual Antecedents
On June 21, 1999, Enrique S. Lopez (Enrique) died leaving his wife,
Wendy B. Lopez, and their four legitimate children, namely, petitioner
Richard B. Lopez (Richard) and the respondents Diana Jeanne Lopez
(Diana), Marybeth de Leon (Marybeth) and Victoria L. Tuazon (Victoria)
as compulsory heirs. Before Enrique’s death, he executed a Last Will
and Testament4 on August 10, 1996 and constituted Richard as his
executor and administrator.
On September 27, 1999, Richard filed a petition for the probate of his
father's Last Will and Testament before the RTC of Manila with prayer
for the issuance of letters testamentary in his favor. Marybeth opposed
the petition contending that the purported last will and testament was not
executed and attested as required by law, and that it was procured by
undue and improper pressure and influence on the part of Richard. The
said opposition was also adopted by Victoria.
After submitting proofs of compliance with jurisdictional requirements,
Richard presented the attesting witnesses, namely: Reynaldo Maneja;
Romulo Monteiro; Ana Maria Lourdes Manalo (Manalo); and the notary
public who notarized the will, Atty. Perfecto Nolasco (Atty. Nolasco). The
instrumental witnesses testified that after the late Enrique read and
signed the will on each and every page, they also read and signed the
same in the latter's presence and of one another. Photographs of the
incident were taken and presented during trial. Manalo further testified
that she was the one who prepared the drafts and revisions from Enrique
before the final copy of the will was made.
Likewise, Atty. Nolasco claimed that Enrique had been his client for
more than 20 years. Prior to August 10, 1996, the latter consulted him
in the preparation of the subject will and furnished him the list of his
properties for distribution among his children. He prepared the will in
accordance with Enrique's instruction and that before the latter and the
attesting witnesses signed it in the presence of one another, he
translated the will which was written in English to Filipino and added that
Enrique was in good health and of sound mind at that time.
On the other hand, the oppositors presented its lone witness, Gregorio
B. Paraon (Paraon), Officer-in-Charge of the Notarial Section, Office of
the Clerk of Court, RTC, Manila. His testimony centered mainly on their
findings that Atty. Nolasco was not a notary public for the City of Manila
in 1996, which on cross examination was clarified after Paraon
discovered that Atty. Nolasco was commissioned as such for the years
1994 to 1997.
Ruling of the RTC
In the Decision dated August 26, 2005,5 the RTC disallowed the probate
of the will for failure to comply with Article 805 of the Civil Code which
requires a statement in the attestation clause of the number of pages
used upon which the will is written. It held that while Article 809 of the
same Code requires mere substantial compliance of the form laid down
in Article 805 thereof, the rule only applies if the number of pages is
reflected somewhere else in the will with no evidence aliunde or extrinsic
evidence required. While the acknowledgment portion stated that the will
consists of 7 pages including the page on which the ratification and
acknowledgment are written, the RTC observed that it has 8 pages
including the acknowledgment portion. As such, it disallowed the will for
not having been executed and attested in accordance with law.
Aggrieved, Richard filed a Notice of Appeal which the RTC granted in
the Order dated October 26, 2005.6
Ruling of the Court of Appeals
On March 30, 2009,7 the CA issued the assailed decision dismissing the
appeal. It held that the RTC erroneously granted Richard's appeal as
the Rules of Court is explicit that appeals in special proceedings, as in
this case, must be made through a record on appeal. Nevertheless, even
on the merits, the CA found no valid reason to deviate from the findings
of the RTC that the failure to state the number of pages of the will in the
attestation clause was fatal. It noted that while Article 809 of the Civil
Code sanctions mere substantial compliance with the formal
requirements set forth in Article 805 thereof, there was a total omission
of such fact in the attestation clause. Moreover, while the
acknowledgment of the will made mention of "7 pages including the
page on which the ratification and acknowledgment are written," the will
had actually 8 pages including the acknowledgment portion thus,
necessitating the presentation of evidence aliunde to explain the
discrepancy. Richard's motion for reconsideration from the decision was
likewise denied in the second assailed Resolution8 dated October 22,
2009.
Hence, the instant petition assailing the propriety of the CA's decision.
Ruling of the Court
The petition lacks merit.
The provisions of the Civil Code on Forms of Wills, particularly, Articles
805 and 809 of the Civil Code provide:
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.1âwphi1 (underscoring supplied)
ART. 809. 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.
The law is clear that the attestation must state the number of pages used
upon which the will is written. The purpose of the law is to safeguard
against possible interpolation or omission of one or some of its pages
and prevent any increase or decrease in the pages.9
While Article 809 allows substantial compliance for defects in the form
of the attestation clause, Richard likewise failed in this respect. The
statement in the Acknowledgment portion of the subject last will and
testament that it "consists of 7 pages including the page on which the
ratification and acknowledgment are written"10 cannot be deemed
substantial compliance. The will actually consists of 8 pages including
its acknowledgment which discrepancy cannot be explained by mere
examination of the will itself but through the presentation of evidence
aliund.11 On this score is the comment of Justice J.B.L. Reyes regarding
the application of Article 809, to wit:
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.12 (Emphasis supplied)
Hence, the CA properly sustained the disallowance of the will. Moreover,
it correctly ruled that Richard pursued the wrong mode of appeal as
Section 2(a), Rule 41 of the Rules of Court explicitly provides that in
special proceedings, as in this case, the appeal shall be made by record
on appeal.
WHEREFORE, premises considered, the petition is DENIED.
G.R. No. L-32636 March 17, 1930
In the matter Estate of Edward Randolph Hix, deceased.
A.W. FLUEMER, petitioner-appellant, vs.
ANNIE COUSHING HIX, oppositor-appellee.
MALCOLM, J.:
The special administrator of the estate of Edward Randolph Hix appeals
from a decision of Judge of First Instance Tuason denying the probate
of the document alleged to by the last will and testament of the
deceased. Appellee is not authorized to carry on this appeal. We think,
however, that the appellant, who appears to have been the moving party
in these proceedings, was a "person interested in the allowance or
disallowance of a will by a Court of First Instance," and so should be
permitted to appeal to the Supreme Court from the disallowance of the
will (Code of Civil Procedure, sec. 781, as amended; Villanueva vs. De
Leon [1925], 42 Phil., 780).
It is theory of the petitioner that the alleged will was executed in Elkins,
West Virginia, on November 3, 1925, by Hix who had his residence in
that jurisdiction, and that the laws of West Verginia Code, Annotated, by
Hogg, Charles E., vol. 2, 1914, p. 1690, and as certified to by the Director
of the National Library. But this was far from a compliance with the law.
The laws of a foreign jurisdiction do not prove themselves in our courts.
the courts of the Philippine Islands are not authorized to take American
Union. Such laws must be proved as facts. (In re Estate of Johnson
[1918], 39 Phil., 156.) Here the requirements of the law were not met.
There was no was printed or published under the authority of the State
of West Virginia, as provided in section 300 of the Code of Civil
Procedure. Nor was the extract from the law attested by the certificate
of the officer having charge of the original, under the sale of the State of
West Virginia, as provided in section 301 of the Code of Civil Procedure.
No evidence was introduced to show that the extract from the laws of
West Virginia was in force at the time the alleged will was executed.
In addition, the due execution of the will was not established. The only
evidence on this point is to be found in the testimony of the petitioner.
Aside from this, there was nothing to indicate that the will was
acknowledged by the testator in the presence of two competent
witnesses, of that these witnesses subscribed the will in the presence of
the testator and of each other as the law of West Virginia seems to
require. On the supposition that the witnesses to the will reside without
the Philippine Islands, it would then the duty of the petitioner to prove
execution by some other means (Code of Civil Procedure, sec. 633.)
It was also necessary for the petitioner to prove that the testator had his
domicile in West Virginia and not establish this fact consisted of the
recitals in the CATHY will and the testimony of the petitioner. Also in
beginning administration proceedings orginally in the Philippine Islands,
the petitioner violated his own theory by attempting to have the principal
administration in the Philippine Islands.
While the appeal pending submission in this court, the attorney for the
appellant presented an unverified petition asking the court to accept as
part of the evidence the documents attached to the petition. One of these
documents discloses that a paper writing purporting to be the was
presented for probate on June 8, 1929, to the clerk of Randolph Country,
State of West Virginia, in vacation, and was duly proven by the oaths of
Dana Wamsley and Joseph L. MAdden, the subscribing witnesses
thereto , and ordered to be recorded and filed. It was shown by another
document that, in vacation, on June 8, 1929, the clerk of court of
Randolph Country, West Virginia, appointed Claude W. Maxwell as
administrator, cum testamento annexo, of the estate of Edward
Randolph Hix, deceased. In this connection, it is to be noted that the
application for the probate of the will in the Philippines was filed on
February 20, 1929, while the proceedings in West Virginia appear to
have been initiated on June 8, 1929. These facts are strongly indicative
of an intention to make the Philippines the principal administration and
West Virginia the ancillary administration. However this may be, no
attempt has been made to comply with Civil Procedure, for no hearing
on the question of the allowance of a will said to have been proved and
allowed in West Virginia has been requested. There is no showing that
the deceased left any property at any place other than the Philippine
Islands and no contention that he left any in West Virginia.
Reference has been made by the parties to a divorce purported to have
been awarded Edward Randolph Hix from Annie Cousins Hix on
October 8, 1925, in the State of West specific pronouncements on the
validity or validity of this alleged divorce.
For all of the foregoing, the judgment appealed from will be affirmed,
with the costs of this instance against the appellant.
G.R. No. L-22595 November 1, 1927
Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator,
petitioner-appellee, vs.
ANDRE BRIMO, opponent-appellant.
ROMUALDEZ, J.:
The partition of the estate left by the deceased Joseph G. Brimo is in
question in this case.
The judicial administrator of this estate filed a scheme of partition. Andre
Brimo, one of the brothers of the deceased, opposed it. The court,
however, approved it.
The errors which the oppositor-appellant assigns are:
(1) The approval of said scheme of partition; (2) denial of his
participation in the inheritance; (3) the denial of the motion for
reconsideration of the order approving the partition; (4) the approval of
the purchase made by the Pietro Lana of the deceased's business and
the deed of transfer of said business; and (5) the declaration that the
Turkish laws are impertinent to this cause, and the failure not to
postpone the approval of the scheme of partition and the delivery of the
deceased's business to Pietro Lanza until the receipt of the depositions
requested in reference to the Turkish laws.
The appellant's opposition is based on the fact that the partition in
question puts into effect the provisions of Joseph G. Brimo's will which
are not in accordance with the laws of his Turkish nationality, for which
reason they are void as being in violation or article 10 of the Civil Code
which, among other things, provides the following:
Nevertheless, legal and testamentary successions, in respect to the
order of succession as well as to the amount of the successional rights
and the intrinsic validity of their provisions, shall be regulated by the
national law of the person whose succession is in question, whatever
may be the nature of the property or the country in which it may be
situated.
But the fact is that the oppositor did not prove that said testimentary
dispositions are not in accordance with the Turkish laws, inasmuch as
he did not present any evidence showing what the Turkish laws are on
the matter, and in the absence of evidence on such laws, they are
presumed to be the same as those of the Philippines. (Lim and Lim vs.
Collector of Customs, 36 Phil., 472.)
It has not been proved in these proceedings what the Turkish laws are.
He, himself, acknowledges it when he desires to be given an opportunity
to present evidence on this point; so much so that he assigns as an error
of the court in not having deferred the approval of the scheme of partition
until the receipt of certain testimony requested regarding the Turkish
laws on the matter.
The refusal to give the oppositor another opportunity to prove such laws
does not constitute an error. It is discretionary with the trial court, and,
taking into consideration that the oppositor was granted ample
opportunity to introduce competent evidence, we find no abuse of
discretion on the part of the court in this particular. There is, therefore,
no evidence in the record that the national law of the testator Joseph G.
Brimo was violated in the testamentary dispositions in question which,
not being contrary to our laws in force, must be complied with and
executed. lawphil.net
Therefore, the approval of the scheme of partition in this respect was not
erroneous.
In regard to the first assignment of error which deals with the exclusion
of the herein appellant as a legatee, inasmuch as he is one of the
persons designated as such in will, it must be taken into consideration
that such exclusion is based on the last part of the second clause of the
will, which says:
Second. I like desire to state that although by law, I am a Turkish citizen,
this citizenship having been conferred upon me by conquest and not by
free choice, nor by nationality and, on the other hand, having resided for
a considerable length of time in the Philippine Islands where I succeeded
in acquiring all of the property that I now possess, it is my wish that the
distribution of my property and everything in connection with this, my
will, be made and disposed of in accordance with the laws in force in the
Philippine islands, requesting all of my relatives to respect this wish,
otherwise, I annul and cancel beforehand whatever disposition found in
this will favorable to the person or persons who fail to comply with this
request.
The institution of legatees in this will is conditional, and the condition is
that the instituted legatees must respect the testator's will to distribute
his property, not in accordance with the laws of his nationality, but in
accordance with the laws of the Philippines.
If this condition as it is expressed were legal and valid, any legatee who
fails to comply with it, as the herein oppositor who, by his attitude in
these proceedings has not respected the will of the testator, as
expressed, is prevented from receiving his legacy.
The fact is, however, that the said condition is void, being contrary to
law, for article 792 of the civil Code provides the following:
Impossible conditions and those contrary to law or good morals shall be
considered as not imposed and shall not prejudice the heir or legatee in
any manner whatsoever, even should the testator otherwise provide.
And said condition is contrary to law because it expressly ignores the
testator's national law when, according to article 10 of the civil Code
above quoted, such national law of the testator is the one to govern his
testamentary dispositions.
Said condition then, in the light of the legal provisions above cited, is
considered unwritten, and the institution of legatees in said will is
unconditional and consequently valid and effective even as to the herein
oppositor.
It results from all this that the second clause of the will regarding the law
which shall govern it, and to the condition imposed upon the legatees,
is null and void, being contrary to law.
All of the remaining clauses of said will with all their dispositions and
requests are perfectly valid and effective it not appearing that said
clauses are contrary to the testator's national law.
Therefore, the orders appealed from are modified and it is directed that
the distribution of this estate be made in such a manner as to include
the herein appellant Andre Brimo as one of the legatees, and the
scheme of partition submitted by the judicial administrator is approved
in all other respects, without any pronouncement as to costs.
G.R. Nos. L-3087 and L-3088 July 31, 1954
In re: Testate Estate of the deceased JOSE B. SUNTAY. SILVINO
SUNTAY, petitioner-appellant, vs.
In re: Intestate Estate of the deceased JOSE B. SUNTAY,
FEDERICO C. SUNTAY, administrator-appellee.
PADILLA, J.:
This is an appeal from a decree of the Court of First Instance of Bulacan
disallowing the alleged will and testament executed in Manila on
November 1929, and the alleged last will and testament executed in
Kulangsu, Amoy, China, on 4 January 1931, by Jose B. Suntay. The
value of the estate left by the deceased is more than P50,000.
On 14 May 1934 Jose B. Suntay, a Filipino citizen and resident of the
Philippines, died in the city of Amoy, Fookien province, Republic of
China, leaving real and personal properties in the Philippines and a
house in Amoy, Fookien province, China, and children by the first
marriage had with the late Manuela T. Cruz namely, Apolonio,
Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano, and Jose,
Jr. and a child named Silvino by the second marriage had with Maria
Natividad Lim Billian who survived him. Intestate proceedings were
instituted in the Court of First Instance of Bulacan (special proceedings
No. 4892) and after hearing letters of administration were issued to
Apolonio Suntay. After the latter's death Federico C. Suntay was
appointed administrator of the estate. On 15 October 1934 the surviving
widow filed a petition in the Court of First Instance of Bulacan for the
probate of a last will and testament claimed to have been executed and
signed in the Philippines on November 1929 by the late Jose B. Suntay.
This petition was denied because of the loss of said will after the filing
of the petition and before the hearing thereof and of the insufficiency of
the evidence to establish the loss of the said will. An appeal was taken
from said order denying the probate of the will and this Court held the
evidence before the probate court sufficient to prove the loss of the will
and remanded the case to the Court of First Instance of Bulacan for the
further proceedings (63 Phil., 793). In spite of the fact that a commission
from the probate court was issued on 24 April 1937 for the taking of the
deposition of Go Toh, an attesting witness to the will, on 7 February 1938
the probate court denied a motion for continuance of the hearing sent by
cablegram from China by the surviving widow and dismissed the
petition. In the meantime the Pacific War supervened. After liberation,
claiming that he had found among the files, records and documents of
his late father a will and testament in Chinese characters executed and
signed by the deceased on 4 January 1931 and that the same was filed,
recorded and probated in the Amoy district court, Province of Fookien,
China, Silvino Suntay filed a petition in the intestate proceedings praying
for the probate of the will executed in the Philippines on November 1929
(Exhibit B) or of the will executed in Amoy, Fookien, China, on 4 January
1931 (Exhibit N).
There is no merit in the contention that the petitioner Silvino Suntay and
his mother Maria Natividad Lim Billian are estopped from asking for the
probate of the lost will or of the foreign will because of the transfer or
assignment of their share right, title and interest in the estate of the late
Jose B. Suntay to Jose G. Gutierrez and the spouses Ricardo Gutierrez
and Victoria Goño and the subsequent assignment thereof by the
assignees to Francisco Pascual and by the latter to Federico C. Suntay,
for the validity and legality of such assignments cannot be threshed out
in this proceedings which is concerned only with the probate of the will
and testament executed in the Philippines on November 1929 or of the
foreign will allegedly executed in Amoy on 4 January 1931 and claimed
to have been probated in the municipal district court of Amoy, Fookien
province, Republic of China.
As to prescription, the dismissal of the petition for probate of the will on
7 February 1938 was no bar to the filing of this petition on 18 June 1947,
or before the expiration of ten years.
As to the lost will, section 6, Rule 77, provides:
No will shall be proved as a lost or destroyed will unless the execution
and validity of the same be established, and the will is proved to have
been in existence at the time of the death of the testator, or is shown to
have been fraudulently or accidentally destroyed in the lifetime of the
testator without his knowledge, nor unless its provisions are clearly and
distinctly proved by at least two credible witnesses. When a lost will is
proved, the provisions thereof must be distinctly stated and certified by
the judge, under the seal of the court, and the certificate must be filed
and recorded as other wills are filed and recorded.
The witnesses who testified to the provisions of the lost will are Go Toh,
an attesting witness, Anastacio Teodoro and Ana Suntay. Manuel
Lopez, who was an attesting witness to the lost will, was dead at the
time of the hearing of this alternative petition. In his deposition Go Toh
testifies that he was one of the witnesses to the lost will consisting of
twenty-three sheets signed by Jose B. Suntay at the bottom of the will
and each and every page thereof in the presence of Alberto Barretto,
Manuel Lopez and himself and underneath the testator's signature the
attesting witnesses signed and each of them signed the attestation
clause and each and every page of the will in the presence of the testator
and of the other witnesses (answers to the 31st, 41st, 42nd, 49th, 50th,
55th and 63rd interrogatories, Exhibit D-1), but did not take part in the
drafting thereof (answer to the 11th interrogatory, Id.); that he knew the
contents of the will written in Spanish although he knew very little of that
language (answers to the 22nd and 23rd interrogatories and to X-2
cross-interrogatory, Id.) and all he knows about the contends of the lost
will was revealed to him by Jose B. Suntay at the time it was executed
(answers to the 25th interrogatory and to X-4 and X-8 cross-
interrogatories, Id.); that Jose B. Suntay told him that the contents
thereof are the same as those of the draft (Exhibit B) (answers to the
33rd interrogatory and to X-8 cross-interrogatory, Id.) which he saw in
the office of Alberto Barretto in November 1929 when the will was signed
(answers to the 69th, 72nd, and 74th interrogatories, Id); that Alberto
Barretto handed the draft and said to Jose B. Suntay: "You had better
see if you want any correction" (answers to the 81st, 82nd and 83rd
interrogatories, Id.); that "after checking Jose B. Suntay put the "Exhibit
B" in his pocket and had the original signed and executed" (answers to
the 91st interrogatory, and to X-18 cross-interrogatory, Id.); that Mrs.
Suntay had the draft of the will (Exhibit B) translated into Chinese and
he read the translation (answers to the 67th interrogatory, Id.); that he
did not read the will and did not compare it (check it up) with the draft
(Exhibit B) (answers to X-6 and X-20 cross-interrogatories, Id.).
Ana Suntay testifies that sometime in September 1934 in the house of
her brother Apolonio Suntay she learned that her father left a will
"because of the arrival of my brother Manuel Suntay, who was bringing
along with him certain document and he told us or he was telling us that
it was the will of our father Jose B. Suntay which was taken from Go
Toh. ..." (p. 524, t. s. n., hearing of 24 February 1948); that she saw her
brother Apolonio Suntay read the document in her presence and of
Manuel and learned of the adjudication made in the will by her father of
his estate, to wit: one-third to his children, one-third to Silvino and his
mother and the other third to Silvino, Apolonio, Concepcion and Jose,
Jr. (pp. 526-8, 530-1, 542, t. s. n. Id.); that "after Apolonio read that
portion, then he turned over the document to Manuel, and he went
away," (p. 528, t. s. n., Id.). On cross-examination, she testifies that she
read the part of the will on adjudication to know what was the share of
each heir (pp. 530, 544, t. s. n., Id.) and on redirect she testifies that she
saw the signature of her father, Go Toh, Manuel Lopez and Alberto
Barretto (p. 546, t. s. n., Id.).
Anastacio Teodoro testifies that one day in November 1934 (p. 273, t. s.
n., hearing of 19 January 1948), before the last postponement of the
hearing granted by the Court, Go Toh arrived at his law office in the De
los Reyes Building and left an envelope wrapped in red handkerchief
[Exhibit C] (p. 32, t. s. n., hearing of 13 October 1947); that he checked
up the signatures on the envelope Exhibit A with those on the will placed
in the envelope (p. 33, t. s. n., Id.); that the will was exactly the same as
the draft Exhibit B (pp. 32, 47, 50, t. s. n., Id.).
If the will was snatched after the delivery thereof by Go Toh to Anastacio
Teodoro And returned by the latter to the former because they could not
agree on the amount of fees, the former coming to the latter's office
straight from the boat (p. 315, t. s. n., hearing of 19 January 1948) that
brought him to the Philippines from Amoy, and that delivery took place
in November 1934 (p. 273, t. s. n., Id.), then the testimony of Ana Suntay
that she saw and heard her brother Apolonio Suntay read the will
sometime in September 1934 (p. 524, t. s. n., hearing of 24 February
1948), must not be true.
Although Ana Suntay would be a good witness because she was
testifying against her own interest, still the fact remains that she did not
read the whole will but only the adjudication (pp. 526-8, 530-1, 542, t. s.
n., Id.) and saw only the signature, of her father and of the witnesses Go
Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n., Id.). But her
testimony on cross-examination that she read the part of the will on
adjudication is inconsistent with her testimony in chief that after Apolonio
had read that part of the will he turned over or handed the document to
Manuel who went away (p. 528, t. s. n., Id.).
If it is true that Go Toh saw the draft Exhibit B in the office of Alberto
Barretto in November 1929 when the will was signed, then the part of
his testimony that Alberto Barretto handed the draft to Jose B. Suntay to
whom he said: "You had better see if you want any correction" and that
"after checking Jose B. Suntay put the "Exhibit B" in his pocket and had
the original signed and executed" cannot be true, for it was not the time
for correcting the draft of the will, because it must have been corrected
before and all corrections and additions written in lead pencil must have
been inserted and copied in the final draft of the will which was signed
on that occasion. The bringing in for the draft (Exhibit B) on that occasion
is just to fit it within the framework of the appellant's theory. At any rate,
all of Go Toh's testimony by deposition on the provisions of the alleged
lost will is hearsay, because he came to know or he learned to them from
information given him by Jose B. Suntay and from reading the translation
of the draft (Exhibit B) into Chinese.
Much stress is laid upon the testimony of Federico C. Suntay who
testifies that he read the supposed will or the alleged will of his father
and that the share of the surviving widow, according to the will, is two-
thirds of the estate (p. 229, t. s. n., hearing of 24 October 1947). But this
witness testified to oppose the appointment of a co-administrator of the
estate, for the reason that he had acquired the interest of the surviving
widow not only in the estate of her deceased husband but also in the
conjugal property (pp. 148, 205, 228, 229, 231, t. s. n., Id.) Whether he
read the original will or just the copy thereof (Exhibit B) is not clear. For
him the important point was that he had acquired all the share,
participation and interest of the surviving widow and of the only child by
the second marriage in the estate of his deceased father. Be that as it
may, his testimony that under the will the surviving widow would take
two-thirds of the estate of the late Jose B. Suntay is at variance with
Exhibit B and the testimony of Anastacio Teodoro. According to the
latter, the third for strict legitime is for the ten children; the third for
betterment is for Silvino, Apolonio, Concepcion and Jose Jr.; and the
third for free disposal is for the surviving widow and her child Silvino.
Hence, granting that there was a will duly executed by Jose B. Suntay
placed in the envelope (Exhibit A) and that it was in existence at the time
of, and not revoked before, his death, still the testimony of Anastacio
Teodoro alone falls short of the legal requirement that the provisions of
the lost will must be "clearly and distinctly proved by at least two credible
witnesses." Credible witnesses mean competent witnesses and those
who testify to facts from or upon hearsay are neither competent nor
credible witnesses.
On the other hand, Alberto Barretto testifies that in the early part of 1929
he prepared or drew up two mills for Jose B. Suntay at the latter's
request, the rough draft of the first will was in his own handwriting, given
to Manuel Lopez for the final draft or typing and returned to him; that
after checking up the final with the rough draft he tore it and returned the
final draft to Manuel Lopez; that this draft was in favor of all the children
and the widow (pp. 392-4, 449, t. s. n., hearing of 21 February 1948);
that two months later Jose B. Suntay and Manuel Lopez called on him
and the former asked him to draw up another will favoring more his wife
and child Silvino; that he had the rough draft of the second will typed
(pp. 395, 449 t. s. n., Id.) and gave it to Manuel Lopez (p. 396, t. s. n.,
Id.); that he did not sign as witness the second will of Jose B. Suntay
copied from the typewritten draft [Exhibit B] (p. 420, t. s. n., Id.); that the
handwritten insertions or additions in lead pencil to Exhibit B are not his
(pp. 415-7 435-6, 457, t. s. n., Id.); that the final draft of the first will made
up of four or five pages (p. 400, t. s. n., Id.) was signed and executed,
two or three months after Suntay and Lopez had called on him (pp. 397-
8, 403, 449, t. s. n., Id.) in his office at the Cebu Portland Cement in the
China Banking Building on Dasmariñas street by Jose B. Suntay,
Manuel Lopez and a Chinaman who had all come from Hagonoy (p. 398,
t. s. n., Id.); that on that occasion they brought an envelope (Exhibit A)
where the following words were written: "Testamento de Jose B. Suntay"
(pp. 399, 404, t. s. n., Id.); that after the signing of the will it was placed
inside the envelope (Exhibit A) together with an inventory of the
properties of Jose B. Suntay and the envelope was sealed by the
signatures of the testator and the attesting witnesses (pp. 398, 401, 441,
443, 461, t. s. n., Id.); that he again saw the envelope (Exhibit A) in his
house one Saturday in the later part of August 1934, brought by Go Toh
and it was then in perfect condition (pp. 405-6, 411, 440-2, t. s. n., Id.);
that on the following Monday Go Toh went to his law office bringing
along with him the envelope (Exhibit A) in the same condition; that he
told Go Toh that he would charge P25,000 as fee for probating the will
(pp. 406, 440-2, Id.); that Go Toh did not leave the envelope (Exhibit A)
either in his house or in his law office (p. 407, t. s. n., Id.); that Go Toh
said he wanted to keep it and on no occasion did Go Toh leave it to him
(pp. 409, 410, t. s. n., Id.).
The testimony of Go Toh taken and heard by Assistant Fiscal F. B. Albert
in connection with the complaint for estafa filed against Manuel Suntay
for the alleged snatching of the envelope (Exhibit A), corroborates the
testimony of Alberto Barretto to the effect that only one will was signed
by Jose B. Suntay at his office in which he (Alberto Barretto), Manuel
Lopez and Go Toh took part as attesting witnesses (p. 15, t. s. n., Exhibit
6). Go Toh testified before the same assistant fiscal that he did not leave
the will in the hands of Anastacio Teodoro (p. 26, t. s. n., Exhibit 6). He
said, quoting his own words, "Because I can not give him this envelope
even though the contract (on fees) was signed. I have to bring that
document to court or to anywhere else myself." (p. 27, t. s. n., Exhibit 6).
As to the will claimed to have been executed on 4 January 1931 in Amoy,
China, the law on the point in Rule 78. Section 1 of the rule provides:
Wills proved and allowed in a foreign country, according to the laws of
such country, may be allowed, filed, and recorded by the proper Court
of First Instance in the Philippines.
Section 2 provides:
When a copy of such will and the allowance thereof, duly authenticated,
is filed with a petition for allowance in the Philippines, by the executor or
other person interested, in the court having jurisdiction, such court shall
fix a time and place for the hearing, and cause notice thereof to be given
as in case of an original will presented for allowance.
Section 3 provides:
If it appears at the hearing that the will should be allowed in the
Philippines, the court shall so allow it, and a certificate of its allowance,
signed by the Judge, and attested by the seal of the courts, to which
shall be attached a copy of the will, shall be filed and recorded by the
clerk, and the will shall have the same effect as if originally proved and
allowed in such court.
The fact that the municipal district court of Amoy, China, is a probate
court must be proved. The law of China on procedure in the probate or
allowance of wills must also be proved. The legal requirements for the
execution of a valid will in China in 1931 should also be established by
competent evidence. There is no proof on these points. The unverified
answers to the questions propounded by counsel for the appellant to the
Consul General of the Republic of China set forth in Exhibits R-1 and R-
2, objected to by counsel for the appellee, are inadmissible, because
apart from the fact that the office of Consul General does not qualify and
make the person who holds it an expert on the Chinese law on
procedure in probate matters, if the same be admitted, the adverse party
would be deprived of his right to confront and cross-examine the
witness. Consuls are appointed to attend to trade matters. Moreover, it
appears that all the proceedings had in the municipal district court of
Amoy were for the purpose of taking the testimony of two attesting
witnesses to the will and that the order of the municipal district court of
Amoy does not purport to probate the will. In the absence of proof that
the municipal district court of Amoy is a probate court and on the
Chinese law of procedure in probate matters, it may be presumed that
the proceedings in the matter of probating or allowing a will in the
Chinese courts are the a deposition or to a perpetuation of testimony,
and even if it were so it does not measure same as those provided for
in our laws on the subject. It is a proceedings in rem and for the validity
of such proceedings personal notice or by publication or both to all
interested parties must be made. The interested parties in the case were
known to reside in the Philippines. The evidence shows that no such
notice was received by the interested parties residing in the Philippines
(pp. 474, 476, 481, 503-4, t. s. n., hearing of 24 February 1948). The
proceedings had in the municipal district court of Amoy, China, may be
likened toe or come up to the standard of such proceedings in the
Philippines for lack of notice to all interested parties and the proceedings
were held at the back of such interested parties.
The order of the municipal district court of Amoy, China, which reads as
follows:
ORDER:

SEE BELOW
The above minutes were satisfactorily confirmed by the interrogated
parties, who declare that there are no errors, after said minutes were
loudly read and announced actually in the court.
Done and subscribed on the Nineteenth day of the English month of the
35th year of the Republic of China in the Civil Section of the Municipal
District Court of Amoy, China.
HUANG KUANG CHENG
Clerk of Court
CHIANG TENG HWA
Judge
(Exhibit N-13, p. 89 Folder of Exhibits.).
does not purport to probate or allow the will which was the subject of the
proceedings. In view thereof, the will and the alleged probate thereof
cannot be said to have been done in accordance with the accepted basic
and fundamental concepts and principles followed in the probate and
allowance of wills. Consequently, the authenticated transcript of
proceedings held in the municipal district court of Amoy, China, cannot
be deemed and accepted as proceedings leading to the probate or
allowance of a will and, therefore, the will referred to therein cannot be
allowed, filed and recorded by a competent court of this country.
The decree appealed from is affirmed, without pronouncement as to
costs.
G.R. No. 139868 June 8, 2006
ALONZO Q. ANCHETA, Petitioner, vs.
CANDELARIA GUERSEY-DALAYGON, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Spouses Audrey O’Neill (Audrey) and W. Richard Guersey (Richard)
were American citizens who have resided in the Philippines for 30 years.
They have an adopted daughter, Kyle Guersey Hill (Kyle). On July 29,
1979, Audrey died, leaving a will. In it, she bequeathed her entire estate
to Richard, who was also designated as executor.1 The will was
admitted to probate before the Orphan’s Court of Baltimore, Maryland,
U.S.A, which named James N. Phillips as executor due to Richard’s
renunciation of his appointment.2 The court also named Atty. Alonzo Q.
Ancheta (petitioner) of the Quasha Asperilla Ancheta Pena & Nolasco
Law Offices as ancillary administrator.3
In 1981, Richard married Candelaria Guersey-Dalaygon (respondent)
with whom he has two children, namely, Kimberly and Kevin.
On October 12, 1982, Audrey’s will was also admitted to probate by the
then Court of First Instance of Rizal, Branch 25, Seventh Judicial District,
Pasig, in Special Proceeding No. 9625.4 As administrator of Audrey’s
estate in the Philippines, petitioner filed an inventory and appraisal of
the following properties: (1) Audrey’s conjugal share in real estate with
improvements located at 28 Pili Avenue, Forbes Park, Makati, Metro
Manila, valued at P764,865.00 (Makati property); (2) a current account
in Audrey’s name with a cash balance of P12,417.97; and (3) 64,444
shares of stock in A/G Interiors, Inc. worth P64,444.00.5
On July 20, 1984, Richard died, leaving a will, wherein he bequeathed
his entire estate to respondent, save for his rights and interests over the
A/G Interiors, Inc. shares, which he left to Kyle.6 The will was also
admitted to probate by the Orphan’s Court of Ann Arundel, Maryland,
U.S.A, and James N. Phillips was likewise appointed as executor, who
in turn, designated Atty. William Quasha or any member of the Quasha
Asperilla Ancheta Pena & Nolasco Law Offices, as ancillary
administrator.
Richard’s will was then submitted for probate before the Regional Trial
Court of Makati, Branch 138, docketed as Special Proceeding No. M-
888.7 Atty. Quasha was appointed as ancillary administrator on July 24,
1986.8
On October 19, 1987, petitioner filed in Special Proceeding No. 9625, a
motion to declare Richard and Kyle as heirs of Audrey.9 Petitioner also
filed on October 23, 1987, a project of partition of Audrey’s estate, with
Richard being apportioned the ¾ undivided interest in the Makati
property, 48.333 shares in A/G Interiors, Inc., and P9,313.48 from the
Citibank current account; and Kyle, the ¼ undivided interest in the
Makati property, 16,111 shares in A/G Interiors, Inc., and P3,104.49 in
cash.10
The motion and project of partition was granted and approved by the
trial court in its Order dated February 12, 1988.11 The trial court also
issued an Order on April 7, 1988, directing the Register of Deeds of
Makati to cancel TCT No. 69792 in the name of Richard and to issue a
new title in the joint names of the Estate of W. Richard Guersey (¾
undivided interest) and Kyle (¼ undivided interest); directing the
Secretary of A/G Interiors, Inc. to transfer 48.333 shares to the Estate of
W. Richard Guersey and 16.111 shares to Kyle; and directing the
Citibank to release the amount of P12,417.97 to the ancillary
administrator for distribution to the heirs.12
Consequently, the Register of Deeds of Makati issued on June 23, 1988,
TCT No. 155823 in the names of the Estate of W. Richard Guersey and
Kyle.13
Meanwhile, the ancillary administrator in Special Proceeding No. M-888
also filed a project of partition wherein 2/5 of Richard’s ¾ undivided
interest in the Makati property was allocated to respondent, while 3/5
thereof were allocated to Richard’s three children. This was opposed by
respondent on the ground that under the law of the State of Maryland,
"a legacy passes to the legatee the entire interest of the testator in the
property subject of the legacy."14 Since Richard left his entire estate to
respondent, except for his rights and interests over the A/G Interiors,
Inc, shares, then his entire ¾ undivided interest in the Makati property
should be given to respondent.
The trial court found merit in respondent’s opposition, and in its Order
dated December 6, 1991, disapproved the project of partition insofar as
it affects the Makati property. The trial court also adjudicated Richard’s
entire ¾ undivided interest in the Makati property to respondent.15
On October 20, 1993, respondent filed with the Court of Appeals (CA)
an amended complaint for the annulment of the trial court’s Orders dated
February 12, 1988 and April 7, 1988, issued in Special Proceeding No.
9625.16 Respondent contended that petitioner willfully breached his
fiduciary duty when he disregarded the laws of the State of Maryland on
the distribution of Audrey’s estate in accordance with her will.
Respondent argued that since Audrey devised her entire estate to
Richard, then the Makati property should be wholly adjudicated to him,
and not merely ¾ thereof, and since Richard left his entire estate, except
for his rights and interests over the A/G Interiors, Inc., to respondent,
then the entire Makati property should now pertain to respondent.
Petitioner filed his Answer denying respondent’s allegations. Petitioner
contended that he acted in good faith in submitting the project of partition
before the trial court in Special Proceeding No. 9625, as he had no
knowledge of the State of Maryland’s laws on testate and intestate
succession. Petitioner alleged that he believed that it is to the "best
interests of the surviving children that Philippine law be applied as they
would receive their just shares." Petitioner also alleged that the orders
sought to be annulled are already final and executory, and cannot be set
aside.
On March 18, 1999, the CA rendered the assailed Decision annulling
the trial court’s Orders dated February 12, 1988 and April 7, 1988, in
Special Proceeding No. 9625.17 The dispositive portion of the assailed
Decision provides:
WHEREFORE, the assailed Orders of February 12, 1998 and April 7,
1988 are hereby ANNULLED and, in lieu thereof, a new one is entered
ordering:
(a) The adjudication of the entire estate of Audrey O’Neill Guersey in
favor of the estate of W. Richard Guersey; and
(b) The cancellation of Transfer Certificate of Title No. 15583 of the
Makati City Registry and the issuance of a new title in the name of the
estate of W. Richard Guersey.
SO ORDERED.18
Petitioner filed a motion for reconsideration, but this was denied by the
CA per Resolution dated August 27, 1999.19
Hence, the herein petition for review on certiorari under Rule 45 of the
Rules of Court alleging that the CA gravely erred in not holding that:
A) THE ORDERS OF 12 FEBRUARY 1988 AND 07 APRIL 1988 IN
SPECIAL PROCEEDINGS NO. 9625 "IN THE MATTER OF THE
PETITION FOR PROBATE OF THE WILL OF THE DECEASED
AUDREY GUERSEY, ALONZO Q. ANCHETA, ANCILLARY
ADMINISTRATOR", ARE VALID AND BINDING AND HAVE LONG
BECOME FINAL AND HAVE BEEN FULLY IMPLEMENTED AND
EXECUTED AND CAN NO LONGER BE ANNULLED.
B) THE ANCILLARY ADMINISTRATOR HAVING ACTED IN GOOD
FAITH, DID NOT COMMIT FRAUD, EITHER EXTRINSIC OR
INTRINSIC, IN THE PERFORMANCE OF HIS DUTIES AS ANCILLARY
ADMINISTRATOR OF AUDREY O’NEIL GUERSEY’S ESTATE IN THE
PHILIPPINES, AND THAT NO FRAUD, EITHER EXTRINSIC OR
INTRINSIC, WAS EMPLOYED BY [HIM] IN PROCURING SAID
ORDERS.20
Petitioner reiterates his arguments before the CA that the Orders dated
February 12, 1988 and April 7, 1988 can no longer be annulled because
it is a final judgment, which is "conclusive upon the administration as to
all matters involved in such judgment or order, and will determine for all
time and in all courts, as far as the parties to the proceedings are
concerned, all matters therein determined," and the same has already
been executed.21
Petitioner also contends that that he acted in good faith in performing
his duties as an ancillary administrator. He maintains that at the time of
the filing of the project of partition, he was not aware of the relevant laws
of the State of Maryland, such that the partition was made in accordance
with Philippine laws. Petitioner also imputes knowledge on the part of
respondent with regard to the terms of Aubrey’s will, stating that as early
as 1984, he already apprised respondent of the contents of the will and
how the estate will be divided.22
Respondent argues that petitioner’s breach of his fiduciary duty as
ancillary administrator of Aubrey’s estate amounted to extrinsic fraud.
According to respondent, petitioner was duty-bound to follow the
express terms of Aubrey’s will, and his denial of knowledge of the laws
of Maryland cannot stand because petitioner is a senior partner in a
prestigious law firm and it was his duty to know the relevant laws.
Respondent also states that she was not able to file any opposition to
the project of partition because she was not a party thereto and she
learned of the provision of Aubrey’s will bequeathing entirely her estate
to Richard only after Atty. Ancheta filed a project of partition in Special
Proceeding No. M-888 for the settlement of Richard’s estate.
A decree of distribution of the estate of a deceased person vests the title
to the land of the estate in the distributees, which, if erroneous may be
corrected by a timely appeal. Once it becomes final, its binding effect is
like any other judgment in rem.23 However, in exceptional cases, a final
decree of distribution of the estate may be set aside for lack of
jurisdiction or fraud.24 Further, in Ramon v. Ortuzar,25 the Court ruled
that a party interested in a probate proceeding may have a final
liquidation set aside when he is left out by reason of circumstances
beyond his control or through mistake or inadvertence not imputable to
negligence.26
The petition for annulment was filed before the CA on October 20, 1993,
before the issuance of the 1997 Rules of Civil Procedure; hence, the
applicable law is Batas Pambansa Blg. 129 (B.P. 129) or the Judiciary
Reorganization Act of 1980. An annulment of judgment filed under B.P.
129 may be based on the ground that a judgment is void for want of
jurisdiction or that the judgment was obtained by extrinsic fraud.27 For
fraud to become a basis for annulment of judgment, it has to be extrinsic
or actual,28 and must be brought within four years from the discovery of
the fraud.29
In the present case, respondent alleged extrinsic fraud as basis for the
annulment of the RTC Orders dated February 12, 1988 and April 7,
1988. The CA found merit in respondent’s cause and found that
petitioner’s failure to follow the terms of Audrey’s will, despite the latter’s
declaration of good faith, amounted to extrinsic fraud. The CA ruled that
under Article 16 of the Civil Code, it is the national law of the decedent
that is applicable, hence, petitioner should have distributed Aubrey’s
estate in accordance with the terms of her will. The CA also found that
petitioner was prompted to distribute Audrey’s estate in accordance with
Philippine laws in order to equally benefit Audrey and Richard Guersey’s
adopted daughter, Kyle Guersey Hill.
Petitioner contends that respondent’s cause of action had already
prescribed because as early as 1984, respondent was already well
aware of the terms of Audrey’s will,30 and the complaint was filed only
in 1993. Respondent, on the other hand, justified her lack of immediate
action by saying that she had no opportunity to question petitioner’s acts
since she was not a party to Special Proceeding No. 9625, and it was
only after Atty. Ancheta filed the project of partition in Special
Proceeding No. M-888, reducing her inheritance in the estate of Richard
that she was prompted to seek another counsel to protect her interest.31
It should be pointed out that the prescriptive period for annulment of
judgment based on extrinsic fraud commences to run from the discovery
of the fraud or fraudulent act/s. Respondent’s knowledge of the terms of
Audrey’s will is immaterial in this case since it is not the fraud complained
of. Rather, it is petitioner’s failure to introduce in evidence the pertinent
law of the State of Maryland that is the fraudulent act, or in this case,
omission, alleged to have been committed against respondent, and
therefore, the four-year period should be counted from the time of
respondent’s discovery thereof.
Records bear the fact that the filing of the project of partition of Richard’s
estate, the opposition thereto, and the order of the trial court disallowing
the project of partition in Special Proceeding No. M-888 were all done in
1991.32 Respondent cannot be faulted for letting the assailed orders to
lapse into finality since it was only through Special Proceeding No. M-
888 that she came to comprehend the ramifications of petitioner’s acts.
Obviously, respondent had no other recourse under the circumstances
but to file the annulment case. Since the action for annulment was filed
in 1993, clearly, the same has not yet prescribed.
Fraud takes on different shapes and faces. In Cosmic Lumber
Corporation v. Court of Appeals,33 the Court stated that "man in his
ingenuity and fertile imagination will always contrive new schemes to
fool the unwary."
There is extrinsic fraud within the meaning of Sec. 9 par. (2), of B.P. Blg.
129, where it is one the effect of which prevents a party from hearing a
trial, or real contest, or from presenting all of his case to the court, or
where it operates upon matters, not pertaining to the judgment itself, but
to the manner in which it was procured so that there is not a fair
submission of the controversy. In other words, extrinsic fraud refers to
any fraudulent act of the prevailing party in the litigation which is
committed outside of the trial of the case, whereby the defeated party
has been prevented from exhibiting fully his side of the case by fraud or
deception practiced on him by his opponent. Fraud is extrinsic where the
unsuccessful party has been prevented from exhibiting fully his case, by
fraud or deception practiced on him by his opponent, as by keeping him
away from court, a false promise of a compromise; or where the
defendant never had any knowledge of the suit, being kept in ignorance
by the acts of the plaintiff; or where an attorney fraudulently or without
authority connives at his defeat; these and similar cases which show that
there has never been a real contest in the trial or hearing of the case are
reasons for which a new suit may be sustained to set aside and annul
the former judgment and open the case for a new and fair hearing.34
The overriding consideration when extrinsic fraud is alleged is that the
fraudulent scheme of the prevailing litigant prevented a party from
having his day in court.35
Petitioner is the ancillary administrator of Audrey’s estate. As such, he
occupies a position of the highest trust and confidence, and he is
required to exercise reasonable diligence and act in entire good faith in
the performance of that trust. Although he is not a guarantor or insurer
of the safety of the estate nor is he expected to be infallible, yet the same
degree of prudence, care and judgment which a person of a fair average
capacity and ability exercises in similar transactions of his own, serves
as the standard by which his conduct is to be judged.36
Petitioner’s failure to proficiently manage the distribution of Audrey’s
estate according to the terms of her will and as dictated by the applicable
law amounted to extrinsic fraud. Hence the CA Decision annulling the
RTC Orders dated February 12, 1988 and April 7, 1988, must be upheld.
It is undisputed that Audrey Guersey was an American citizen domiciled
in Maryland, U.S.A. During the reprobate of her will in Special
Proceeding No. 9625, it was shown, among others, that at the time of
Audrey’s death, she was residing in the Philippines but is domiciled in
Maryland, U.S.A.; her Last Will and Testament dated August 18, 1972
was executed and probated before the Orphan’s Court in Baltimore,
Maryland, U.S.A., which was duly authenticated and certified by the
Register of Wills of Baltimore City and attested by the Chief Judge of
said court; the will was admitted by the Orphan’s Court of Baltimore City
on September 7, 1979; and the will was authenticated by the Secretary
of State of Maryland and the Vice Consul of the Philippine Embassy.
Being a foreign national, the intrinsic validity of Audrey’s will, especially
with regard as to who are her heirs, is governed by her national law, i.e.,
the law of the State of Maryland, as provided in Article 16 of the Civil
Code, to wit:
Art. 16. Real property as well as personal property is subject to the law
of the country where it is situated.
However, intestate and testamentary succession, both with respect to
the order of succession and to the amount of successional rights and to
the intrinsic validity of testamentary provisions, shall be regulated by the
national law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of the
country wherein said property may be found. (Emphasis supplied)
Article 1039 of the Civil Code further provides that "capacity to succeed
is governed by the law of the nation of the decedent."
As a corollary rule, Section 4, Rule 77 of the Rules of Court on Allowance
of Will Proved Outside the Philippines and Administration of Estate
Thereunder, states:
SEC. 4. Estate, how administered.—When a will is thus allowed, the
court shall grant letters testamentary, or letters of administration with the
will annexed, and such letters testamentary or of administration, shall
extend to all the estate of the testator in the Philippines. Such estate,
after the payment of just debts and expenses of administration, shall be
disposed of according to such will, so far as such will may operate upon
it; and the residue, if any, shall be disposed of as is provided by law in
cases of estates in the Philippines belonging to persons who are
inhabitants of another state or country. (Emphasis supplied)
While foreign laws do not prove themselves in our jurisdiction and our
courts are not authorized to take judicial notice of them;37 however,
petitioner, as ancillary administrator of Audrey’s estate, was duty-bound
to introduce in evidence the pertinent law of the State of Maryland.38
Petitioner admitted that he failed to introduce in evidence the law of the
State of Maryland on Estates and Trusts, and merely relied on the
presumption that such law is the same as the Philippine law on wills and
succession. Thus, the trial court peremptorily applied Philippine laws
and totally disregarded the terms of Audrey’s will. The obvious result
was that there was no fair submission of the case before the trial court
or a judicious appreciation of the evidence presented.
Petitioner insists that his application of Philippine laws was made in good
faith. The Court cannot accept petitioner’s protestation. How can
petitioner honestly presume that Philippine laws apply when as early as
the reprobate of Audrey’s will before the trial court in 1982, it was already
brought to fore that Audrey was a U.S. citizen, domiciled in the State of
Maryland. As asserted by respondent, petitioner is a senior partner in a
prestigious law firm, with a "big legal staff and a large library."39 He had
all the legal resources to determine the applicable law. It was incumbent
upon him to exercise his functions as ancillary administrator with
reasonable diligence, and to discharge the trust reposed on him
faithfully. Unfortunately, petitioner failed to perform his fiduciary duties.
Moreover, whether his omission was intentional or not, the fact remains
that the trial court failed to consider said law when it issued the assailed
RTC Orders dated February 12, 1988 and April 7, 1988, declaring
Richard and Kyle as Audrey’s heirs, and distributing Audrey’s estate
according to the project of partition submitted by petitioner. This
eventually prejudiced respondent and deprived her of her full
successional right to the Makati property.
In GSIS v. Bengson Commercial Bldgs., Inc.,40 the Court held that when
the rule that the negligence or mistake of counsel binds the client deserts
its proper office as an aid to justice and becomes a great hindrance and
chief enemy, its rigors must be relaxed to admit exceptions thereto and
to prevent a miscarriage of justice, and the court has the power to except
a particular case from the operation of the rule whenever the purposes
of justice require it.
The CA aptly noted that petitioner was remiss in his responsibilities as
ancillary administrator of Audrey’s estate. The CA likewise observed that
the distribution made by petitioner was prompted by his concern over
Kyle, whom petitioner believed should equally benefit from the Makati
property. The CA correctly stated, which the Court adopts, thus:
In claiming good faith in the performance of his duties and
responsibilities, defendant Alonzo H. Ancheta invokes the principle
which presumes the law of the forum to be the same as the foreign law
(Beam vs. Yatco, 82 Phil. 30, 38) in the absence of evidence adduced
to prove the latter law (Slade Perkins vs. Perkins, 57 Phil. 205, 210). In
defending his actions in the light of the foregoing principle, however, it
appears that the defendant lost sight of the fact that his primary
responsibility as ancillary administrator was to distribute the subject
estate in accordance with the will of Audrey O’Neill Guersey.
Considering the principle established under Article 16 of the Civil Code
of the Philippines, as well as the citizenship and the avowed domicile of
the decedent, it goes without saying that the defendant was also duty-
bound to prove the pertinent laws of Maryland on the matter.
The record reveals, however, that no clear effort was made to prove the
national law of Audrey O’Neill Guersey during the proceedings before
the court a quo. While there is claim of good faith in distributing the
subject estate in accordance with the Philippine laws, the defendant
appears to put his actuations in a different light as indicated in a portion
of his direct examination, to wit:
xxx
It would seem, therefore, that the eventual distribution of the estate of
Audrey O’Neill Guersey was prompted by defendant Alonzo H.
Ancheta’s concern that the subject realty equally benefit the plaintiff’s
adopted daughter Kyle Guersey.
Well-intentioned though it may be, defendant Alonzo H. Ancheta’s action
appears to have breached his duties and responsibilities as ancillary
administrator of the subject estate. While such breach of duty admittedly
cannot be considered extrinsic fraud under ordinary circumstances, the
fiduciary nature of the said defendant’s position, as well as the resultant
frustration of the decedent’s last will, combine to create a circumstance
that is tantamount to extrinsic fraud. Defendant Alonzo H. Ancheta’s
omission to prove the national laws of the decedent and to follow the
latter’s last will, in sum, resulted in the procurement of the subject orders
without a fair submission of the real issues involved in the case.41
(Emphasis supplied)
This is not a simple case of error of judgment or grave abuse of
discretion, but a total disregard of the law as a result of petitioner’s abject
failure to discharge his fiduciary duties. It does not rest upon petitioner’s
pleasure as to which law should be made applicable under the
circumstances. His onus is clear. Respondent was thus excluded from
enjoying full rights to the Makati property through no fault or negligence
of her own, as petitioner’s omission was beyond her control. She was in
no position to analyze the legal implications of petitioner’s omission and
it was belatedly that she realized the adverse consequence of the same.
The end result was a miscarriage of justice. In cases like this, the courts
have the legal and moral duty to provide judicial aid to parties who are
deprived of their rights.42
The trial court in its Order dated December 6, 1991 in Special
Proceeding No. M-888 noted the law of the State of Maryland on Estates
and Trusts, as follows:
Under Section 1-301, Title 3, Sub-Title 3 of the Annotated Code of the
Public General Laws of Maryland on Estates and Trusts, "all property of
a decedent shall be subject to the estate of decedents law, and upon his
death shall pass directly to the personal representative, who shall hold
the legal title for administration and distribution," while Section 4-408
expressly provides that "unless a contrary intent is expressly indicated
in the will, a legacy passes to the legatee the entire interest of the
testator in the property which is the subject of the legacy". Section 7-
101, Title 7, Sub-Title 1, on the other hand, declares that "a personal
representative is a fiduciary" and as such he is "under the general duty
to settle and distribute the estate of the decedent in accordance with the
terms of the will and the estate of decedents law as expeditiously and
with as little sacrifice of value as is reasonable under the
circumstances".43
In her will, Audrey devised to Richard her entire estate, consisting of the
following: (1) Audrey’s conjugal share in the Makati property; (2) the
cash amount of P12,417.97; and (3) 64,444 shares of stock in A/G
Interiors, Inc. worth P64,444.00. All these properties passed on to
Richard upon Audrey’s death. Meanwhile, Richard, in his will,
bequeathed his entire estate to respondent, except for his rights and
interests over the A/G Interiors, Inc. shares, which he left to Kyle. When
Richard subsequently died, the entire Makati property should have then
passed on to respondent. This, of course, assumes the proposition that
the law of the State of Maryland which allows "a legacy to pass to the
legatee the entire estate of the testator in the property which is the
subject of the legacy," was sufficiently proven in Special Proceeding No.
9625. Nevertheless, the Court may take judicial notice thereof in view of
the ruling in Bohanan v. Bohanan.44 Therein, the Court took judicial
notice of the law of Nevada despite failure to prove the same. The Court
held, viz.:
We have, however, consulted the records of the case in the court below
and we have found that during the hearing on October 4, 1954 of the
motion of Magdalena C. Bohanan for withdrawal of P20,000 as her
share, the foreign law, especially Section 9905, Compiled Nevada Laws,
was introduced in evidence by appellants' (herein) counsel as Exhibit "2"
(See pp. 77-79, Vol. II, and t.s.n. pp. 24-44, Records, Court of First
Instance). Again said law was presented by the counsel for the executor
and admitted by the Court as Exhibit "B" during the hearing of the case
on January 23, 1950 before Judge Rafael Amparo (see Records, Court
of First Instance, Vol. 1).
In addition, the other appellants, children of the testator, do not dispute
the above-quoted provision of the laws of the State of Nevada. Under all
the above circumstances, we are constrained to hold that the pertinent
law of Nevada, especially Section 9905 of the Compiled Nevada Laws
of 1925, can be taken judicial notice of by us, without proof of such law
having been offered at the hearing of the project of partition.
In this case, given that the pertinent law of the State of Maryland has
been brought to record before the CA, and the trial court in Special
Proceeding No. M-888 appropriately took note of the same in
disapproving the proposed project of partition of Richard’s estate, not to
mention that petitioner or any other interested person for that matter,
does not dispute the existence or validity of said law, then Audrey’s and
Richard’s estate should be distributed according to their respective wills,
and not according to the project of partition submitted by petitioner.
Consequently, the entire Makati property belongs to respondent.
Decades ago, Justice Moreland, in his dissenting opinion in Santos v.
Manarang,45 wrote:
A will is the testator speaking after death. Its provisions have
substantially the same force and effect in the probate court as if the
testator stood before the court in full life making the declarations by word
of mouth as they appear in the will. That was the special purpose of the
law in the creation of the instrument known as the last will and testament.
Men wished to speak after they were dead and the law, by the creation
of that instrument, permitted them to do so x x x All doubts must be
resolved in favor of the testator's having meant just what he said.
Honorable as it seems, petitioner’s motive in equitably distributing
Audrey’s estate cannot prevail over Audrey’s and Richard’s wishes. As
stated in Bellis v. Bellis:46
x x x whatever public policy or good customs may be involved in our
system of legitimes, Congress has not intended to extend the same to
the succession of foreign nationals. For it has specifically chosen to
leave, inter alia, the amount of successional rights, to the decedent's
national Law. Specific provisions must prevail over general ones.47
Before concluding, the Court notes the fact that Audrey and Richard
Guersey were American citizens who owned real property in the
Philippines, although records do not show when and how the Guerseys
acquired the Makati property.
Under Article XIII, Sections 1 and 4 of the 1935 Constitution, the
privilege to acquire and exploit lands of the public domain, and other
natural resources of the Philippines, and to operate public utilities, were
reserved to Filipinos and entities owned or controlled by them. In
Republic v. Quasha,48 the Court clarified that the Parity Rights
Amendment of 1946, which re-opened to American citizens and
business enterprises the right in the acquisition of lands of the public
domain, the disposition, exploitation, development and utilization of
natural resources of the Philippines, does not include the acquisition or
exploitation of private agricultural lands. The prohibition against
acquisition of private lands by aliens was carried on to the 1973
Constitution under Article XIV, Section 14, with the exception of private
lands acquired by hereditary succession and when the transfer was
made to a former natural-born citizen, as provided in Section 15, Article
XIV. As it now stands, Article XII, Sections 7 and 8 of the 1986
Constitution explicitly prohibits non-Filipinos from acquiring or holding
title to private lands or to lands of the public domain, except only by way
of legal succession or if the acquisition was made by a former natural-
born citizen.
In any case, the Court has also ruled that if land is invalidly transferred
to an alien who subsequently becomes a citizen or transfers it to a
citizen, the flaw in the original transaction is considered cured and the
title of the transferee is rendered valid.49 In this case, since the Makati
property had already passed on to respondent who is a Filipino, then
whatever flaw, if any, that attended the acquisition by the Guerseys of
the Makati property is now inconsequential, as the objective of the
constitutional provision to keep our lands in Filipino hands has been
achieved.
WHEREFORE, the petition is denied. The Decision dated March 18,
1999 and the Resolution dated August 27, 1999 of the Court of Appeals
are AFFIRMED.
G.R. No. 156330 November 19, 2014
NEDLLOYD LIJNEN B.V. ROTTERDAM and THE EAST ASIATIC
CO., LTD., Petitioners, vs.
GLOW LAKS ENTERPRISES, LTD., Respondent.
PEREZ, J.:
This is a Petition for Review on Certiorari1 filed pursuant to Ruic 45 of
the Revised Rules of Comi, primarily assailing the 11 December 2002
Resolution rendered by the Special Former Sixteenth Division of the
Court of Appeals in CA-G.R. CV No. 48277,2 the decretal portion of
which states:
WHEREFORE, the appeal is GRANTED and the April 29. 1994 Decision
of the Regional Trial Court of Manila, Branch 52 thereof' in Civil Case
No. 88-45595, SET ASIDE. Nedlloyd Lijncn B.V. Rotterdam and The
East Asiatic Co., Ltd arc ordered to pay Glow l ,aks Enterprises, I ,td. the
following:
1. The invoice value of the goodslost worth $53,640.00, or its equivalent
in Philippine currency;
2. Attorney’s fees of ₱50,000.00; and
3. Costs.3
The Facts
Petitioner Nedlloyd Lijnen B.V. Rotterdam (Nedlloyd) is a foreign
corporation engaged in the business of carrying goods by sea, whose
vessels regularly call at the port of Manila. It is doing business in the
Philippines thru its local ship agent, co-petitioner East Asiatic Co., Ltd.
(East Asiatic).
Respondent Glow Laks Enterprises,Ltd., is likewise a foreign
corporation organized and existing under the laws of Hong Kong. It is
not licensed to do, and it is not doing business in, the Philippines.
On or about 14 September 1987, respondent loaded on board M/S
Scandutch at the Port of Manila a total 343 cartoons of garments,
complete and in good order for pre-carriage tothe Port of Hong Kong.
The goods covered by Bills of Lading Nos. MHONX-2 and MHONX-34
arrived in good condition in Hong Kong and were transferred to M/S
Amethyst for final carriage to Colon, Free Zone, Panama. Both vessels,
M/S Scandutch and M/S Amethyst, are owned by Nedlloyd represented
in the Phlippines by its agent, East Asiatic. The goods which were valued
at US$53,640.00 was agreed to be released to the consignee, Pierre
Kasem, International, S.A., upon presentation of the original copies of
the covering bills of lading.5 Upon arrival of the vessel at the Port of
Colon on 23 October 1987, petitioners purportedly notified the
consignee of the arrival of the shipments, and its custody was turned
over tothe National Ports Authority in accordance with the laws, customs
regulations and practice of trade in Panama. By an unfortunate turn
ofevents, however, unauthorized persons managed to forge the
covering bills of lading and on the basis of the falsified documents, the
ports authority released the goods.
On 16 July 1988, respondent filed a formal claim with Nedlloyd for the
recovery of the amount of US$53,640.00 representing the invoice value
of the shipment but to no avail.6 Claiming that petitioners are liable for
the misdelivery of the goods, respondent initiated Civil Case No. 88-
45595 before the Regional Trial Court (RTC) of Manila, Branch 52,
seeking for the recovery of the amount of US$53,640.00, including the
legal interest from the date of the first demand.7
In disclaiming liability for the misdelivery of the shipments, petitioners
asserted in their Answer8 that they were never remiss in their obligation
as a common carrier and the goods were discharged in good order and
condition into the custody of the National Ports Authority of Panama in
accordance with the Panamanian law. They averred that they cannot be
faulted for the release of the goods to unauthorized persons, their
extraordinary responsibility as a common carrier having ceased at the
time the possession of the goods were turned over to the possession of
the port authorities.
After the Pre-Trial Conference, trial on the merits ensued. Both parties
offered testimonial and documentary evidence to support their
respective causes. On 29 April 2004, the RTC rendered a Decision9
ordering the dismissal of the complaint but granted petitioners’
counterclaims. In effect, respondent was directed to pay petitioners the
amount of ₱120,000.00 as indemnification for the litigation expenses
incurred by the latter. In releasing the common carrier from liability for
the misdelivery of the goods, the RTC ruled that Panama law was duly
proven during the trial and pursuant to the said statute, carriers of goods
destined to any Panama port of entry have to discharge their loads into
the custody of Panama Ports Authority to make effective government
collection of port dues, customs duties and taxes. The subsequent
withdrawal effected by unauthorized persons on the strength of falsified
bills of lading does not constitute misdelivery arising from the fault of the
common carrier. The decretal part of the RTC Decision reads:
WHEREFORE, judgment is renderedfor [petitioners] and against
[Respondent], ordering the dismissal of the complaint and ordering the
latter to pay [petitioners] the amount of ONE HUNDRED TWENTY
THOUSAND PESOS (₱120,000.00) on their counterclaims.
Cost against [Respondent].10
On appeal, the Court of Appeals reversed the findings of the RTC and
held that foreign laws were not proven in the manner provided by
Section 24, Rule 132 of the Revised Rules of Court, and therefore, it
cannot be given full faith and credit.11 For failure to prove the foreign
law and custom, it is presumed that foreign laws are the sameas our
local or domestic or internal law under the doctrine of processual
presumption. Under the New Civil Code, the discharge of the goods
intothe custody of the ports authority therefore does not relieve the
commoncarrier from liability because the extraordinary responsibility of
the common carriers lasts until actual or constructive delivery of the
cargoes tothe consignee or to the person who has the right to receive
them. Absent any proof that the notify party or the consignee was
informed of the arrival of the goods, the appellate court held that the
extraordinary responsibility of common carriers remains. Accordingly,
the Court of Appeals directed petitioners to pay respondent the value of
the misdelivered goods in the amount of US$53,640.00.
The Issues
Dissatisfied with the foregoing disquisition, petitioners impugned the
adverse Court of Appeals Decision before the Court on the following
grounds:
I.THERE IS ABSOLUTELY NO NEED TO PROVE PANAMANIAN
LAWS BECAUSE THEYHAD BEEN JUDICIALLY ADMITTED. AN
ADMISSION BY A PARTY IN THE COURSE OF THE PROCEEDINGS
DOES NOT REQUIRE PROOF.
II.BY PRESENTING AS EVIDENCE THE [GACETA] OFFICIAL OF
REPUBLICA DE PANAMA NO. 17.596 WHERE THE APPLICABLE
PANAMANIAN LAWS WERE OFFICIALLY PUBLISHED, AND THE
TESTIMONY OF EXPERT WITNESSES, PETITIONERS WERE ABLE
TO PROVE THE LAWS OF PANAMA.
III.IF WE HAVE TO CONCEDE TO THE COURT OF APPEALS’
FINDING THAT THERE WAS FAILURE OF PROOF, THE LEGAL
QUESTION PRESENTED TO THE HONORABLE COURT SHOULD
BE RESOLVED FAVORABLY BECAUSE THE CARRIER
DISCHARGED ITS DUTY WHETHER UNDER THE PANAMANIAN
LAW OR UNDER PHILIPPINE LAW.12
The Court’s Ruling
We find the petition bereft of merit.
It is well settled that foreign laws do not prove themselves in our
jurisdiction and our courts are not authorized to take judicial notice of
them. Like any other fact, they must be alleged and proved.13 To prove
a foreign law, the party invoking it must present a copy thereof and
comply with Sections 24 and 25 of Rule 132 of the Revised Rules of
Court14 which read: SEC. 24. Proof of official record. — The record of
public documents referred to in paragraph (a) of Section 19, when
admissible for any purpose, may be evidenced by an official publication
thereof or by a copy attested by the officer having the legal custody of
the record, or by his deputy, and accompanied, if the record is not kept
in the Philippines, with a certificate that such officer has the custody. If
the office in which the record is kept is in a foreigncountry, the certificate
may be made by a secretary of the embassy or legation, consul general,
consul, vice- consul, or consular agent or by any officer in the foreign
service of the Philippines stationed in the foreign country in which the
record is kept, and authenticated by the seal of his office.

SEC. 25. What attestation of copy must state. — Whenever a copy of a
document or record is attested for the purpose of the evidence, the
attestation must state,in substance, that the copy is a correct copy of the
original, or a specific part thereof, as the case may be. The attestation
must be under the official seal of the attesting officer, if there be any, or
if he be the clerk of a court having a seal, under the seal of such court.
For a copy of a foreign public document to be admissible, the following
requisites are mandatory: (1) itmust be attested by the officer having
legal custody of the records or by his deputy; and (2) it must be
accompanied by a certificate by a secretary of the embassy or legation,
consul general, consul, vice-consular or consular agent or foreign
service officer, and with the seal of his office.15 Such official publication
or copy must be accompanied, if the record is not kept in the Philippines,
with a certificate that the attesting officer has the legal custody
thereof.16 The certificate may be issued by any of the authorized
Philippine embassy or consular officials stationed in the foreign country
in which the record is kept, and authenticated by the seal of his office.17
The attestation must state, in substance, that the copy is a correct copy
of the original, or a specific part thereof, as the case may be, and mustbe
under the official seal of the attesting officer.18
Contrary to the contention of the petitioners, the Panamanian laws,
particularly Law 42 and its Implementing Order No. 7, were not duly
proven in accordance with Rules of Evidence and as such, it cannot
govern the rights and obligations of the parties in the case at bar. While
a photocopy of the Gaceta Official of the Republica de Panama No.
17.596, the Spanish text of Law 42 which is theforeign statute relied
upon by the court a quoto relieve the common carrier from liability, was
presented as evidence during the trial of the case below, the same
however was not accompanied by the required attestation and
certification.
It is explicitly required by Section 24, Rule 132 of the Revised Rules of
Court that a copy of the statute must be accompanied by a certificate of
the officer who has legal custody of the records and a certificate made
by the secretary of the embassy or legation, consul general, consul,
vice-consular or by any officer in the foreign service of the Philippines
stationed in the foreign country, and authenticated by the seal of his
office. The latter requirement is not merely a technicality but is intended
to justify the giving of full faith and credit to the genuineness of the
document in a foreign country.19 Certainly, the deposition of Mr. Enrique
Cajigas, a maritime law practitioner in the Republic of Panama, before
the Philippine Consulate in Panama, is not the certificate contemplated
by law. At best, the deposition can be considered as an opinion of an
expert witness who possess the required special knowledge on the
Panamanian laws but could not be recognized as proof of a foreign law,
the deponent not being the custodian of the statute who can guarantee
the genuineness of the document from a foreign country. To admit the
deposition as proof of a foreign law is, likewise, a disavowal of the
rationaleof Section 24, Rule 132 of the Revised Rules of Court, which
isto ensure authenticity of a foreign law and its existence so as to justify
its import and legal consequence on the event or transaction in issue.
The above rule, however, admits exceptions, and the Court in certain
cases recognized that Section 25, Rule132 of the Revised Rules of
Court does not exclude the presentation of other competent evidence to
prove the existence of foreign law. In Willamete Iron and Steel Works v.
Muzzal20 for instance, we allowed the foreign law tobe established on
the basis of the testimony in open court during the trial in the Philippines
of an attorney-atlaw in San Francisco, California, who quoted the
particular foreign law sought to be established.21 The ruling is peculiar
to the facts. Petitioners cannot invoke the Willamete ruling to secure
affirmative relief since their so called expert witness never appeared
during the trial below and his deposition, that was supposed to establish
the existence of the foreign law, was obtained ex-parte.
It is worth reiterating at this point that under the rules of private
international law, a foreign law must be properly pleaded and proved as
a fact. In the absence of pleading and proof, the laws of the foreign
country or state will be presumed to be the same as our local or domestic
law. This is known as processual presumption.22 While the foreign law
was properly pleaded in the case at bar, it was,however, proven not in
the manner provided by Section 24, Rule 132 of the Revised Rules of
Court. The decision of the RTC, which proceeds from a disregard of
specific rules cannot be recognized.
Having settled the issue on the applicable Rule, we now resolve the
issue of whether or not petitioners are liable for the misdelivery of goods
under Philippine laws.
Under the New Civil Code, common carriers, from the nature of their
business and for reasons of public policy, are bound to observe
extraordinary diligencein the vigilance over goods, according to the
circumstances of each case.23 Common carriers are responsible for
loss, destruction or deterioration of the goods unless the same is due to
flood, storm, earthquake or other natural disaster or calamity.24
Extraordinary diligence is that extreme care and caution which persons
of unusual prudence and circumspection use for securing or preserving
their own property or rights.25 This expecting standardimposed on
common carriers in contract of carrier of goods is intended to tilt the
scales in favor of the shipper who is at the mercy of the common carrier
once the goods have been lodged for the shipment.26 Hence, in case
of loss of goods in transit, the common carrier is presumed under the
law to have been in fault or negligent.27
While petitioners concede that, as a common carrier, they are bound to
observe extraordinary diligence in the care and custody of the goods in
their possession, they insist that they cannot be held liable for the loss
of the shipments, their extraordinary responsibility having ceased at the
time the goods were discharged into the custody of the customs
arrastreoperator, who in turn took complete responsibility over the care,
storage and delivery of the cargoes.28
In contrast, respondent, submits that the fact that the shipments were
not delivered to the consignee as statedin the bill of lading or to the party
designated or named by the consignee, constitutes misdelivery thereof,
and under the law it is presumed that the common carrier is at fault or
negligent if the goods they transported, as in this case, fell into the hands
of persons who have no right to receive them.
We sustain the position of the respondent.
Article 1736 and Article 1738 are the provisions in the New Civil Code
which define the period when the common carrier is required to exercise
diligence lasts, viz:
Article 1736. The extraordinary responsibility of the common carrier lasts
from the time the goodsare unconditionally placed in the possession of,
and received by the carrier for transportation until the same are
delivered, actually or constructively, by the carrier to the consignee, or
to the person who has a right to receive them, without prejudice to the
provisions of article 1738.
Article 1738. The extraordinary liability of the common carrier continues
to be operative even during the time the goods are stored in a
warehouse of the carrier at the place of destination, until the consignee
has been advised of the arrival of the goods and has had reasonable
opportunity thereafter to remove them or otherwise dispose of them.
Explicit is the rule under Article 1736 of the Civil Code that the
extraordinary responsibility of the common carrier begins from the time
the goods are delivered to the carrier.29 This responsibility remains in
full force and effect even when they are temporarily unloaded or stored
in transit, unless the shipper or owner exercises the right of stop page in
transitu, and terminates only after the lapse of a reasonable time for the
acceptance, of the goods by the consignee or such other person entitled
to receive them.30
It was further provided in the samestatute that the carrier may be
relieved from the responsibility for loss or damage to the goods upon
actual or constructive delivery of the same by the carrier to the
consignee or to the person who has the right to receive them.31 In sales,
actual delivery has been defined as the ceding of the corporeal
possession by the seller, and the actual apprehension of the corporeal
possession by the buyer or by some person authorized by him to receive
the goods as his representative for the purpose of custody or disposal.32
By the same token, there is actual delivery in contracts for the transport
of goods when possession has been turned over to the consignee or to
his duly authorized agent and a reasonable time is given him to remove
the goods.33
In this case, there is no dispute that the custody of the goods was never
turned over to the consignee or his agents but was lost into the hands
of unauthorized persons who secured possession thereof on the
strength of falsified documents. The loss or the misdelivery of the goods
in the instant case gave rise to the presumption that the common carrier
is at fault or negligent.
A common carrier is presumed to have been negligent if it fails to prove
that it exercised extraordinary vigilance over the goods it transported.34
When the goods shipped are either lost or arrived in damaged condition,
a presumption arises against the carrier of its failure to observe that
diligence, and there need not be an express finding of negligence to hold
it liable.35 To overcome the presumption of negligence, the common
carrier must establish by adequateproof that it exercised extraordinary
diligence over the goods.36 It must do more than merely show that some
other party could be responsible for the damage.37
In the present case, petitioners failed to prove that they did exercise the
degree of diligence required by law over the goods they transported.
Indeed, aside from their persistent disavowal of liability by conveniently
posing an excuse that their extraordinary responsibility isterminated
upon release of the goods to the Panamanian Ports Authority,
petitioners failed to adduce sufficient evidence they exercised
extraordinary care to prevent unauthorized withdrawal of the shipments.
Nothing in the New Civil Code, however, suggests, even remotely, that
the common carriers’ responsibility over the goods ceased upon delivery
thereof to the custom authorities. To the mind of this Court, the contract
of carriage remains in full force and effect even after the delivery of the
goods to the port authorities; the only delivery that releases it from their
obligation to observe extraordinary care is the delivery to the consignee
or his agents. Even more telling of petitioners’ continuing liability for the
goods transported to the fact that the original bills of lading up to this
time, remains in the possession of the notify party or consignee. Explicit
on this point is the provision of Article 353 of the Code of Commerce
which provides:

Article 353. The legal evidence of the contract between the shipper and
the carrier shall be the bills of lading, by the contents of which the
disputes which may arise regarding their execution and performance
shall be decided, no exceptions being admissible other than those of
falsity and material error in the drafting.

After the contract has been complied with, the bill of lading which the
carrier has issued shall be returned to him, and by virtue of the exchange
of this title with the thing transported, the respective obligations and
actions shall be considered cancelled, unless in the same act the claim
which the parties may wish to reserve be reduced to writing, with the
exception of that provided for in Article 366.

In case the consignee, upon receiving the goods, cannot return the bill
of lading subscribed by the carrier, because of its loss or of any other
cause, he must give the latter a receiptfor the goods delivered, this
receipt producing the same effects as the return of the bill of lading.

While surrender of the original bill of lading is not a condition precedent

for the common carrier to bedischarged from its contractual obligation,
there must be, at the very least, an acknowledgement of the delivery by
signing the delivery receipt, if surrender of the original of the bill of lading
is not possible.38 There was neither surrender of the original copies of
the bills of lading nor was there acknowledgment of the delivery in the
present case. This leads to the conclusion that the contract of carriage
still subsists and petitioners could be held liable for the breach thereof.

Petitioners could have offered evidence before the trial court to show
that they exercised the highest degree of care and caution even after
the goods was turned over to the custom authorities, by promptly
notifying the consignee of its arrival at the P01i of Cristobal in order to
afford them ample opportunity to remove the cargoes from the port of
discharge. We have scoured the records and found that neither the
consignee nor the notify paiiy was informed by the petitioners of the
arrival of the goods, a crucial fact indicative of petitioners' failure to
observe extraordinary diligence in handling the goods entrusted to their
custody for transport. They could have presented proof to show that they
exercised extraordinary care but they chose in vain, full reliance to their
cause on applicability of Panamanian law to local jurisdiction. It is for this
reason that we find petitioners liable for the misdelivery of the goods. It
is evident from the review of the records and by the evidence adduced
by the respondent that petitioners failed to rebut the prima facie
presumption of negligence. We find no compelling reason to depa1i from
the ruling of the Court of Appeals that under the contract of carriage,
petitioners are liable for the value of the misdelivcred goods.

WHEREFORE, premises considered, the petition is hereby DENIED.

The assailed Resolution of the Court of Appeals is hereby AFFIRMED.

SO ORDERED.