G.R. No.

162934 November 11, 2005

HEIRS OF BELINDA DAHLIA A. CASTILLO, namely, BENA JEAN, DANIEL, MELCHOR, MICHAEL
and DANIBEL, all surnamed CASTILLO, Petitioners,
vs.
DOLORES LACUATA-GABRIEL, Respondent.

DECISION

CALLEJO, SR., J.:

This is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) in CA-G.R. SP No.
70645, as well as its Resolution2 denying the motion for reconsideration thereof.

On January 25, 1989, Crisanta Yanga-Gabriel, wife of Lorenzo B. Almoradie, died in Malabon City, Metro
Manila, leaving behind a sizable inheritance consisting mostly of real estate and shares of stock. 3

A little over a month after Crisanta’s death, her mother, Crisanta Santiago Vda. de Yanga, commenced
an intestate proceeding before the Regional Trial Court (RTC) of Malabon City, Branch 72, docketed as
Spec. Proc. No. 192-MN. She alleged, among others, that to her knowledge, her daughter died intestate
leaving an estate with an estimated net value of ₱1,500,000.00 and that such estate was being managed
by her wastrel and incompetent son-in-law, Lorenzo, and by two other equally incompetent persons. She
prayed that letters of administration be issued to her son, Mariano Yanga, Jr., also the brother of the
deceased, and that she be awarded her share of the estate of her daughter after due hearing. 4 However,
the RTC appointed Lorenzo as administrator.

Meantime, the marriage between Crisanta Yanga-Gabriel and Lorenzo Almoradie was declared void for
being bigamous. The RTC then removed Lorenzo as administrator and appointed Mariano, Jr. in his
stead.5

On October 16, 1989, one Belinda Dahlia Y. Almoradie Castillo, claiming to be the only legitimate child of
Lorenzo and Crisanta, filed a motion for intervention.6 Resolution on this motion was, however, held in
abeyance pending some incidents in the CA.

On November 3, 1989, Roberto Y. Gabriel, the legally adopted son of Crisanta Y. Gabriel, filed before the
RTC of Malabon City a petition for probate of an alleged will and for the issuance of letters testamentary
in his favor. The petition was docketed as Spec. Proc. No. 211-MN. 7 He alleged that he discovered his
mother’s will on October 25, 1989 in which he was instituted as the sole heir of the testatrix, and
designated as alternate executor for the named executor therein, Francisco S. Yanga, a brother of
Crisanta, who had predeceased the latter sometime in 1985 or 1986.

On June 2, 1990, Belinda Castillo died.

The two (2) special proceedings were consolidated. On May 15, 1991, the RTC issued an Order
dismissing the intestate proceedings, Spec. Proc. No. 192-MN.8 Mariano Yanga, Jr. questioned the
dismissal of the intestate proceedings before the appellate court via a petition for certiorari (CA-G.R. SP
No. 25897).

On July 8, 1991, the probate court appointed Roberto Y. Gabriel as special administrator of his mother’s
estate.9
On May 23, 2001, the heirs of Belinda, namely, Bena Jean, Daniel, Melchor, Michael, and Danibel, all
surnamed Castillo, filed a Motion10 praying that they be substituted as party-litigants in lieu of their late
mother Belinda, who died in 1990.

On April 16, 2001, Roberto Gabriel died. His widow, Dolores L. Gabriel, filed a "Manifestation and
Motion"11 where she informed the
probate court of her husband’s death and prayed that she be admitted as substitute in place of her late
husband, and be appointed as administratrix of the estate of Crisanta Gabriel as well. She alleged that
she had a bachelor’s degree in law and had worked for several years in a law office. 12

On August 14, 2001, the heirs of Belinda opposed Dolores’ manifestation and motion. They averred that
Dolores was not Crisanta Gabriel’s next of kin, let alone the lawful wife of the late Roberto.13 This elicited
a Reply14 from Dolores where she refuted these allegations.

On August 24, 2001, Bena Jean filed a "Motion for Appointment as Administrator of the Estate of Crisanta
Y. Gabriel"15 praying that she be appointed administratrix of the estate of her grandmother Crisanta.

On October 11, 2001, Dolores opposed the motion of Bena Jean, claiming that the latter has neither
proven her kinship with Crisanta Gabriel nor shown any particular qualification to act as administratrix of
the estate.16

On November 28, 1991, the CA dismissed the petition for certiorari of Mariano Yanga, Jr. in CA-G.R. SP
No. 25897.

In a Resolution17 dated December 5, 2001, the lower court appointed Dolores as special administratrix
upon a bond of ₱200,000.00. The probate court merely noted the motion for substitution filed by the heirs
of Belinda,
stating that they were "mere strangers to the case" and that their cause could better be ventilated in a
separate proceeding. According to the trial court –

Contrary to the assertions of Oppositors Heirs of Belinda A. Castillo, movant Dolores L. Gabriel has amply
proven her kinship with petitioner Roberto Y. Gabriel, and therefore her kinship, by operation of law, with
decedent Crisanta Y. Gabriel. In the probate proceedings, this Court has the power to determine
questions as to who are the heirs of the decedent …, the recognition of a natural child …, the validity of
disinheritance effected by the testator … and the status of a woman who claims to be the lawful wife of
the decedent. ...

Guided by the foregoing precepts, this Court is of the opinion, and so holds, that movant Dolores L.
Gabriel has established her claim that she is the lawfully wedded wife of petitioner Roberto Y. Gabriel and
that the previous marriage between petitioner and one Lucita V. Cruz was already long dissolved prior to
the celebration of marriage between petitioner and movant Dolores L. Gabriel’s marriage in July 4, 1997.

And even assuming that movant Dolores L. Gabriel’s lawful relationship with petitioner, and corollarily
with the decedent, was not proven, the stringent rules regarding the order of preference in the
appointment of an Administrator does not find application in the instant case … for what is at stake here is
the appointment of a Special Administrator as such position was vacated by the death of the previously
appointed Special Administrator in the person of petitioner herein. The reason for the relaxation of the
rules regarding the appointment of a Special Administrator is the nature of its position, being merely
temporary and will subsist only until a regular administrator or executor is appointed.

…
In view thereof, movant Dolores L. Gabriel is hereby appointed as Special Administrator of the estate of
decedent Crisanta Y. Gabriel, and upon posting of a bond in the amount of ₱200,000.00 pursuant to the
mandate of Section 4, Rule 81 of the Rules of Court, may assume the functions and duties of such
Special Administrator.

SO ORDERED.18

The heirs of Belinda moved to reconsider.19 In the meantime, Dolores took her oath of office on January
11, 2002.20

The probate court denied the motion for reconsideration filed by Belinda’s heirs in its Order 21 dated March
19, 2002. The said heirs then filed with the CA a petition for certiorari with prayer for a temporary
restraining order or/and preliminary injunction against Dolores and the probate court. The case was
docketed as CA-G.R. SP No. 70645. They prayed, among others, that Bena Jean be appointed as the
regular administratrix of Crisanta Gabriel’s estate, thus –

WHEREFORE, premises considered, petitioners most respectfully pray that:

1. Upon filing of this petition and in order not to prejudice the rights of petitioners, a temporary restraining
order and/or writ of preliminary injunction be issued against respondent Dolores L. Gabriel enjoining her
to cease and desist from acting as special administratrix of the estate of Crisanta Y. Gabriel;

2. After hearing and consideration, a writ of preliminary injunction be issued against respondent Dolores
L. Gabriel to cease and desist from acting as special administratrix of Crisanta Y. Gabriel until further
order from this Honorable Court;

3. An Order be issued nullifying and setting aside the assailed Orders dated December 5, 2001 and
March 19, 2002 both issued by the respondent Judge for having been rendered with grave abuse of
discretion amounting to lack of jurisdiction and for this Honorable Court to issue a new one by appointing
petitioner Bena Jean A. Castillo as regular administratrix of the estate of Crisanta Y. Gabriel.

Petitioner likewise prays for such other just, fair and equitable relief under the premises. 22

On October 30, 2003, the appellate court dismissed the petition in CA-G.R. SP No. 70645. It ruled that
the probate court did not commit grave abuse of discretion in appointing Dolores as special
administratrix.23

The heirs of Belinda Dahlia Castillo, now the petitioners, filed the instant petition for review
on certiorari against Dolores Lacuata-Gabriel, assigning the following errors –

With due respect, the decision dated October 30, 2003 rendered by the honorable court of appeals is
based on a misapprehension of facts.

With due respect, the honorable court of appeals erred in ruling that private respondent Dolores lacuata-
gabriel is entitled to the administration of the estate of Crisanta y. Gabriel, she being the heir of her
deceased husband whose estate is the former estate Of his adopting mother Crisanta as the sAme is
contrary to the law on succession.
 C

The appointment of private respondent Dolores lacuata-gabriel is contrary to the ruling laid down by this
honorable court in the case of Gonzalez vs. guido, 190 SCRA 112.

The honorable court of appeals erred in ruling that IT is section 1, rule 80 and not section 6, rule 78 of the
rules of court which is applicable in this case. 24

The assigned errors in this case boil down to the propriety of the appointment of respondent as special
administratrix of the estate left by Crisanta Yanga-Gabriel.

The petitioners argue that since the respondent does not have any right to inherit from their grandmother,
either by her own right or by the right of representation, she is not qualified to be appointed as
administratrix of the estate; in contrast, they are Crisanta Gabriel’s only compulsory heirs. They insist that
the respondent’s late husband, Roberto, was just a nephew of the decedent and not a legally adopted
son as he claimed to be. Even assuming
this claim was true, the fact that the respondent is not naturally related to the decedent by blood in the
direct descending line makes it unfair to appoint her as the special administratrix. Citing jurisprudence,
the petitioners explain that the principal consideration in the appointment of administrator of a deceased
person’s estate is the applicant’s interest therein. This is the same consideration which Section 6,25 Rule
78 of the Rules of Court takes into account in establishing the order of preference in the appointment of
such administrators. The underlying assumption behind this rule, the petitioners insist, is that those who
will reap the benefit of a wise, speedy, economical administration of the estate, or suffer the
consequences of waste, improvidence or mismanagement, have the highest interest and most influential
motive to administer the estate correctly. Lastly, the petitioners posit that since CA-G.R. SP No. 25897
had long been dismissed by the CA, a regular administrator of the said estate should now be appointed.

The petition is without merit.

In ruling against the petitioners and dismissing their petition, the CA ratiocinated as follows:

The appointment of a special administrator lies entirely in the discretion of the court. The order of
preference in the appointment of a regular administrator under Section 6, Rule 78 of the Rules of Court
does not apply to the selection of a special administrator. In the issuance of such appointment, which is
but temporary and subsists only until a regular administrator is appointed, the court determines who is
entitled to the administration of the estate of the decedent. On this point, We hold that the preference of
private respondent Dolores Gabriel is with sufficient reason.

The facts of this case show that Roberto Gabriel – the legally adopted son of Crisanta Yanga-Gabriel –
survived Crisanta’s death. When Crisanta died on January 25, 1989, her estate passed on to her
surviving adopted son Roberto. When Roberto himself later died on April 16, 2001, pursuant to the law on
succession, his own estate which he inherited from Crisanta passed on to his surviving widow, private
respondent.

While it is true, as petitioners submit, that private respondent is neither a compulsory nor a legal heir of
Crisanta Yanga-Gabriel and is considered a third person to the estate of Crisanta, nonetheless, private
respondent is undeniably entitled to the administration of the said estate because she is an heir of her
husband Roberto, whose estate is the former estate of his adopting mother Crisanta. 26

The ruling of the CA is correct. The Court has repeatedly held that the appointment of a special
administrator lies in the sound discretion of the probate court. 27 A special administrator is a representative
of a decedent appointed by the probate court to care for and preserve his estate until an executor or
general administrator is appointed.28 When appointed, a special administrator is regarded not as a
representative of the agent of the parties suggesting the appointment, but as the administrator in charge
of the estate, and, in fact, as an officer of the court.29 As such officer, he is subject to the supervision and
control of the probate court and is expected to work for the best interests of the entire estate, especially
its smooth administration and earliest settlement.30 The principal object of appointment of temporary
administrator is to preserve the estate until it can pass into hands of person fully authorized to administer
it for the benefit of creditors and heirs.31 In many instances, the appointment of administrators for the
estates of decedents frequently become involved in protracted litigations, thereby exposing such estates
to great waste and losses unless an authorized agent to collect the debts and preserve the assets in the
interim is appointed. The occasion for such an appointment, likewise, arises where, for some cause, such
as a pendency of a suit concerning the proof of the will, regular administration is delayed. 32

Section 1, Rule 80 of the Revised Rules of Court provides:

Section 1. Appointment of Special Administrator. – When there is delay in granting letters testamentary or
of administration by any cause including an appeal from the allowance or disallowance of a will, the court
may appoint a special administrator to take possession and charge of the estate of the deceased until the
questions causing the delay are decided and executors or administrators appointed.

The new Rules have broadened the basis for the appointment of an administrator, and such appointment
is allowed when there is delay in granting letters testamentary or administration by any cause, e.g.,
parties cannot agree among themselves. Nevertheless, the discretion to appoint a special administrator
or not lies in the probate court.33 In De Guzman v. Guadiz, Jr.,34 the Court further elucidated –

Under the above rule, the probate court may appoint a special administrator should there be a delay in
granting letters testamentary or of administration occasioned by any cause including an appeal from the
allowance or disallowance of a will. Subject to this qualification, the appointment of a special administrator
lies in the discretion of the Court. This discretion, however, must be sound, that is, not whimsical, or
contrary to reason, justice, equity or legal principle.

The basis for appointing a special administrator under the Rules is broad enough to include any cause or
reason for the delay in granting letters testamentary or of administration as where a contest as to the will
is being carried on in the same or in another court, or where there is an appeal pending as to the
proceeding on the removal of an executor or administrator, or in cases where the parties cannot agree
among themselves. Likewise, when from any cause general administration cannot be immediately
granted, a special administrator may be appointed to collect and preserve the property of the deceased.

It is obvious that the phrase "by any cause" includes those incidents which transpired in the instant case
clearly showing that there is a delay in the probate of the will and that the granting of letters testamentary
will consequently be prolonged necessitating the immediate appointment of a special administrator. 35

As enunciated above, the probate court has ample jurisdiction to appoint respondent as special
administratrix. The deceased Crisanta Yanga-Gabriel left a document purporting to be her will where her
adopted son, Roberto, was named as the sole heir of all her properties. However, pending probate of the
will, Roberto died leaving his widow, the respondent herein, as his sole heir. Thus, the respondent has
much stake in Crisanta’s estate in case the latter’s will is allowed probate. It needs to be emphasized that
in the appointment of a special administrator (which is but temporary and subsists only until a regular
administrator is appointed), the probate court does not determine the shares in the decedent’s estate, but
merely appoints who is entitled to administer the estate. The issue of heirship is one to be determined in
the decree of distribution, and the findings of the court on the
relationship of the parties in the administration as to be the basis of distribution.36 Thus, the preference of
respondent is sound, that is, not whimsical, or contrary to reason, justice, equity or legal principle.
The petitioners’ strenuous invocation of Section 6, Rule 78 of the Rules of Court is misplaced. The rule
refers to the appointment of regular administrators of estates; Section 1, Rule 80, on the other hand,
applies to the appointment of a special administrator. It has long been settled that the appointment of
special administrators is not governed by the rules regarding the appointment of regular
administrators.37 Thus, in Roxas v. Pecson,38 this Court ruled:

It is well settled that the statutory provisions as to the prior or preferred right of certain persons to the
appointment of administrator under Section 1, Rule 81, as well as the statutory provisions as to causes
for removal of an executor or administrator under section 653 of Act No. 190, now Section 2, Rule 83, do
not apply to the selection or removal of special administrator. ... As the law does not say who shall be
appointed as special administrator and the qualifications the appointee must have, the judge or court has
discretion in the selection of the person to be appointed, discretion which must be sound, that is, not
whimsical or contrary to reason, justice or equity.

On the plea of the petitioners for this Court to appoint their co-petitioner, Bena Jean Castillo, as the
regular administratrix of the estate of Crisanta Yanga-Gabriel, the matter should be addressed to the
probate court for its consideration. It is not for this Court to preempt the discretion of the probate court
and appoint a regular administrator in the present action.

WHEREFORE, the petition is hereby DENIED. The Decision of the Court of Appeals in CA-G.R. SP No.
70645, dated October 30, 2003, and its Resolution of March 26, 2004 are AFFIRMED. Costs against the
petitioners.

SO ORDERED.

G.R. No. 166520 March 14, 2008

VILMA C. TAN, GERARDO "JAKE" TAN and GERALDINE TAN, REPRESENTED BY EDUARDO
NIERRAS, Petitioners,
vs.
THE HON. FRANCISCO C. GEDORIO, JR., IN HIS CAPACITY AS PRESIDING JUDGE OF THE
REGIONAL TRIAL COURT, BRANCH 12, ORMOC CITY, ROGELIO LIM SUGA and HELEN TAN
RACOMA, REPRESENTED BY ROMUALDO LIM, Respondents.

DECISION

CHICO-NAZARIO, J.:

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking the reversal of the
Decision1 dated 29 July 2004 of the Court of Appeals in CA-G.R. SP No. 79335. The assailed Decision of
the Court of Appeals affirmed the Order2 dated 17 July 2003 of the Regional Trial Court (RTC) of Ormoc
City in SP. PROC. No. 4014-0 denying reconsideration of its Order dated 12 June 2003 whereby it
appointed Romualdo D. Lim as special administrator to the estate of the late Gerardo Tan.

The factual and procedural antecedents of this case are as follows:

Gerardo Tan (Gerardo) died on 14 October 2000, leaving no will. On 31 October 2001, private
respondents, who are claiming to be the children of Gerardo Tan, filed with the RTC a Petition for the
issuance of letters of administration. The Petition was docketed as Special Proceeding No. 4014-0 and
was raffled to Branch 12. Petitioners, claiming to be legitimate heirs of Gerardo Tan, filed an Opposition
to the Petition.
Private respondents then moved for the appointment of a special administrator, asserting the need for a
special administrator to take possession and charge of Gerardo’s estate until the Petition can be resolved
by the RTC or until the appointment of a regular administrator. They prayed that their attorney-in-fact,
Romualdo D. Lim (Romualdo), be appointed as the special administrator. Petitioners filed an Opposition
to private respondents’ Motion for Appointment, arguing that none of the private respondents can be
appointed as the special administrator since they are not residing in the country. Petitioners contend
further that Romualdo does not have the same familiarity, experience or competence as that of their co-
petitioner Vilma C. Tan (Vilma) who was already acting as de facto administratrix of his estate since his
death.

On 18 March 2002, Atty. Clinton Nuevo (Nuevo), as court-appointed commissioner, issued directives to
Vilma, in her capacity as de facto administratrix, to wit:

b.1.) requiring the de facto administratrix Ms. Vilma Tan to deposit in the fiduciary account of the
Court all money and or cash at hand or deposited in the bank(s) which rightfully belong to the
estate of the decedent within five (5) days from receipt hereof;

b.2.) requiring the same administratrix to deposit in the same account the proceeds of all
sugarcane harvest or any crop harvest, if any, done in the past or is presently harvesting or about
to undertake, which belong to the estate of the decedent;

b.3.) relative to the foregoing, the same de facto administratrix is also required to submit a
financial report to the Commission as regards the background of the cash at hand or deposited in
bank(s), if any, the expenses incurred in course of her administration and other relevant facts
including that of the proceeds of the sugarcane/crop harvest, which submission will be done upon
deposit of the foregoing with the court as above-required.3

More than a year later or on 23 May 2003, the RTC, acting on the private respondents’ Urgent Ex-
parte Motion to resolve pending incident, gave Vilma another 10 days to comply with the directive of Atty.
Nuevo. Again, no compliance has been made.

Consequently, on 12 June 2003, RTC Judge Eric F. Menchavez issued an Order4 appointing Romualdo
as special administrator of Gerardo’s Estate, the fallo of which states:

Foregoing considered, the motion for the appointment of a special administrator is hereby GRANTED. Mr.
Romualdo D. Lim is hereby appointed as Special Administrator and shall immediately take possession
and charge of the goods, chattels, rights, credits and estate of the deceased and preserve the same for
the executor or administrator afterwards appointed, upon his filing of a bond in the amount of ₱50,000.00
and upon approval of the same by this Court.5

Petitioners filed on 19 June 2003 a Motion for Reconsideration of the foregoing Order, claiming that
petitioner Vilma should be the one appointed as special administratix as she was allegedly next of kin of
the deceased.

On 17 July 2003, respondent Judge Francisco Gedorio (Gedorio), in his capacity as RTC Executive
Judge, issued an Order6 denying petitioners’ Motion for Reconsideration.1avvphi1

Petitioners instituted with the Court of Appeals a Petition for Certiorari and Prohibition assailing the 17
July 2003 Order, again insisting on petitioner Vilma’s right to be appointed as special administratix.
Petitioners likewise prayed for the issuance of preliminary injunction and/or temporary restraining order
(TRO) to enjoin Romualdo from entering the estate and acting as special administrator thereof.
On 29 July 2004, the Court of Appeals issued a Decision denying petitioners’ Petition. On 6 December
2004, the Court of Appeals similarly denied the ensuing Motion for Reconsideration filed by petitioners, to
wit:

WHEREFORE, in view of all the foregoing premises, judgment is hereby rendered by us DENYING and
DISMISSING the petition filed in this case and AFFIRMING the assailed order in Special Proceeding No.
4014-0.7

On 22 January 2005, petitioners filed the instant Petition for Review on Certiorari assigning the following
errors:

I.

THE COURT OF APPEALS AND THE COURT A QUO BOTH GRIEVOUSLY ERRED IN
DENYING PETITIONERS’ PLEA TO BE GIVEN PRIMACY IN THE ADMINISTRATION OF
THEIR FATHER’S ESTATE.

II.

THE COURT OF APPEALS LIKEWISE ERRED IN DENYING PETITIONERS’ PLEA FOR THE
ISSUANCE OF A WRIT OF PRELIMINARY INJUNCTION AND/OR A TEMPORARY
RESTRAINING ORDER AGAINST PRIVATE RESPONDENTS AND THEIR ATTORNEY-IN-
FACT.8

On 14 February 2005, this Court issued a Resolution9 denying the Petition on the ground of late filing,
failure to submit an affidavit of service of a copy of the Petition on the Court of Appeals and proof of such
service, failure to properly verify the Petition, and failure to pay the deposit for the Salary Adjustment for
the Judiciary (SAJ) fund and sheriff’s fee. Upon Motion for Reconsideration filed by petitioners, however,
this Court issued on 18 July 2005 a Resolution10 reinstating the Petition.

Petitioners contend11 that they should be given priority in the administration of the estate since they are
allegedly the legitimate heirs of the late Gerardo, as opposed to private respondents, who are purportedly
Gerardo’s illegitimate children. Petitioners rely on the doctrine that generally, it is the nearest of kin,
whose interest is more preponderant, who is preferred in the choice of administrator of the decedent’s
estate.

Petitioners also claim that they are more competent than private respondents or their attorney-in-fact to
administer Gerardo’s estate. Petitioners Vilma and Gerardo "Jake" Tan (Jake) claim to have lived for a
long time and continue to reside on Gerardo’s estate, while respondents are not even in the Philippines,
having long established residence abroad.

Petitioners additionally claim that petitioner Vilma has been acting as the administratrix of the estate since
Gerardo’s death on 14 October 2000 and is thus "well steeped in the actual management and operation
of the estate (which essentially consists of agricultural landholdings)."12

As regards the denial of petitioners’ plea for the issuance of a Writ of Preliminary Injunction and/or TRO,
petitioners argue that such denial would leave Romualdo, private respondents’ attorney-in-fact, free to
enter Gerardo’s estate and proceed to act as administrator thereof to the prejudice of petitioners.

The appeal is devoid of merit.

The order of preference petitioners speak of is found in Section 6, Rule 78 of the Rules of Court, which
provides:
SEC. 6. When and to whom letters of administration granted.—If no executor is named in the will, or the
executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate,
administration shall be granted:

(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion
of the court, or to such person as such surviving husband or wife, or next of kin, requests to have
appointed, if competent and willing to serve;

(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected
by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty
(30) days after the death of the person to apply for administration or to request that administration
be granted to some other person, it may be granted to one or more of the principal creditors, if
competent and willing to serve;

(c) If there is no such creditor competent and willing to serve, it may be granted to such other
person as the court may select.

However, this Court has consistently ruled that the order of preference in the appointment of a regular
administrator as provided in the afore-quoted provision does not apply to the selection of a special
administrator.13 The preference under Section 6, Rule 78 of the Rules of Court for the next of kin refers to
the appointment of a regular administrator, and not of a special administrator, as the appointment of
the latter lies entirely in the discretion of the court, and is not appealable.14

Not being appealable, the only remedy against the appointment of a special administrator is Certiorari
under Rule 65 of the Rules of Court, which was what petitioners filed with the Court of Appeals. Certiorari,
however, requires nothing less than grave abuse of discretion, a term which implies such capricious and
whimsical exercise of judgment which is equivalent to an excess or lack of jurisdiction. The abuse of
discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law, or to act at all in contemplation of law.15

We agree with the Court of Appeals that there was no grave abuse of discretion on the part of respondent
Judge Gedorio in affirming Judge Menchavez’s appointment of Romualdo as special administrator. Judge
Menchavez clearly considered petitioner Vilma for the position of special administratrix of Gerardo’s
estate, but decided against her appointment for the following reasons:

Atty. Clinton C. Nuevo, in his capacity as court appointed commissioner, directed oppositor Vilma Tan in
the latter’s capacity as de fact[o] administratrix, to deposit in the fiduciary account of the court all money
and cash at hand or deposited in the banks which rightfully belong to the estate within five days from
receipt of the directive. Oppositor Vilma Tan was likewise directed to deposit in the same account the
proceeds of all sugarcane harvest or any crop from the estate of the decedent. She was likewise directed
to submit a financial report as regards the background of the cash on hand, if any, the expenses incurred
in the course of her administration. The directive was issued by Atty. Nuevo on March 18, 2002 or more
than a year ago. On May 23, 2003, this Court, acting on the urgent ex parte motion to resolve pending
incident, gave Vilma Tan another ten days to comply with the directive of Atty. Nuevo. Again, no
compliance has been made.

This Court is called upon to preserve the estate of the late Gerardo Tan for the benefit of all heirs be that
heir is (sic) the nearest kin or the farthest kin. The actuation of oppositor Vilma Tan does not satisfy the
requirement of a special administrator who can effectively and impartially administer the estate of
Gerardo Tan for the best interest of all the heirs.16 (Emphases supplied.)

Assuming for the sake of argument that petitioner Vilma is indeed better suited for the job as special
administratrix, as opposed to Romualdo, who was actually appointed by the court as special administrator
of Gerardo’s estate, the latter’s appointment, at best, would constitute a mere error of judgment and
would certainly not be grave abuse of discretion. An error of judgment is one which the court may commit
in the exercise of its jurisdiction, and which error is reviewable only by an appeal. On the other hand, an
error of jurisdiction is one in which the act complained of was issued by the court, officer or a quasi-
judicial body without or in excess of jurisdiction, or with grave abuse of discretion which is tantamount to
lack or excess of jurisdiction.17 The Court of Appeals could not have reversed a mere error of judgment in
a Certiorari petition.

Furthermore, petitioners were not able to sufficiently substantiate their claim that their co-petitioner Vilma
would have been the more competent and capable choice to serve as the special administratrix of
Gerardo’s estate. Contrary to petitioners’ bare assertions, both the RTC and the Court of Appeals found
that the documented failure of petitioner Vilma to comply with the reportorial requirements after the lapse
of a considerable length of time certainly militates against her appointment.

We find immaterial the fact that private respondents reside abroad, for the same cannot be said as
regards their attorney-in-fact, Romualdo, who is, after all, the person appointed by the RTC as special
administrator. It is undisputed that Romualdo resides in the country and can, thus, personally administer
Gerardo’s estate.

If petitioners really desire to avail themselves of the order of preference provided in Section 6, Rule 78 of
the Rules of Court, so that petitioner Vilma as the supposed next of kin of the late Gerardo may take over
administration of Gerardo’s estate, they should already pursue the appointment of a regular administrator
and put to an end the delay which necessitated the appointment of a special administrator. The
appointment of a special administrator is justified only when there is delay in granting letters,
testamentary (in case the decedent leaves behind a will) or administrative (in the event that the decedent
leaves behind no will, as in the Petition at bar) occasioned by any cause. 18 The principal object of the
appointment of a temporary administrator is to preserve the estate until it can pass into the hands of a
person fully authorized to administer it for the benefit of creditors and heirs. 19

In the case at bar, private respondents were constrained to move for the appointment of a special
administrator due to the delay caused by the failure of petitioner Vilma to comply with the directives of the
court-appointed commissioner. It would certainly be unjust if petitioner Vilma were still appointed special
administratix, when the necessity of appointing one has been brought about by her defiance of the lawful
orders of the RTC or its appointed officials. Petitioners submit the defense that petitioner Vilma was
unable to comply with the directives of the RTC to deposit with the court the income of Gerardo’s estate
and to provide an accounting thereof because of the fact that Gerardo’s estate had no income. This
defense is clearly specious and insufficient justification for petitioner Vilma’s non-compliance. If the estate
truly did not have any income, petitioners should have simply filed a manifestation to that effect, instead
of continuing to disregard the court’s orders.

Finally, as we are now resolving the case in favor of private respondents, there is no longer any need to
discuss petitioners’ arguments regarding the denial by the appellate court of their prayer for the issuance
of a writ of preliminary injunction and/or TRO.

WHEREFORE, the instant Petition for Review on Certiorari is DENIED. The Decision dated 29 July 2004
of the Court of Appeals in CA-G.R. SP No. 79335 affirming the Order dated 17 July 2003 of the Regional
Trial Court (RTC) of Ormoc City, in SP. PROC. No. 4014-0 denying reconsideration of its Order dated 12
June 2003, whereby it appointed Romualdo D. Lim as special administrator of the estate of Gerardo Tan,
is AFFIRMED. Costs against petitioners.

SO ORDERED.

G.R. No. L-2211 December 20, 1948

NATIVIDAD I. VDA. DE ROXAS, petitioner,
vs.
POTENCIANO PECSON, Judge of First Instance of Bulacan, MARIA ROXAS and PEDRO
ROXAS, respondents.

Claro M. Recto and Francisco A. Rodrigo for petitioner.

Estanislao A. Fernandez, Jr., and Gerardo M. Alfonso for respondents.

FERIA, J.:

This is a petition for certiorari filed against the respondent judge of the Court of First Instance of Bulacan.

The facts in this case may be summarily stated as follows: Pablo M. Roxas died leaving properties in
Bulacan. The other respondents Maria and Pedro Roxas, sister and brother respectively of the deceased,
filed on August 3, 1946, a petition for the administration of the latter's estate, in special intestate
proceeding No. 1707 of the Court of First Instance of Bulacan, and Maria Roxas was appointed special
administratrix upon an ex-parte petition. On August 10, 1946, the petitioner Natividad Vda. de Roxas,
widow of Pablo M. Roxas, filed a petition for the probate of an alleged will of her deceased husband, and
for her appointment as executrix of his estate designated is said will, and the petition was docketed as
special proceeding No. 172 of the same court. In said will the deceased bequeathed one-half of his estate
to his widow, the herein petitioner, and the other half to Reynaldo Roxas, an adulterous child 9 years old
of the decedent. Upon agreement of both parties, the intestate proceeding No. 170 was dismissed and
ordered closed by the court.

In view of the opposition to the probate of the will by the respondents Maria and Pedro Roxas, the
petitioner was appointed on September 10, 1946, special administratrix and qualified as such over the
objection of the respondents Maria and Pedro Roxas, who sought the appointment of Maria as such. The
said respondents filed on October 21, 1946, a motion for reconsideration of the order of the court
appointing the petitioner as special administratrix, with an alternative prayer that Maria Roxas be
appointed as special co-administratrix, which motion was not acted upon.

After hearing on December 15, 1947, the respondent judge rendered a decision denying the probate of
the will presented by the petitioner on the ground that the attesting witnesses did not sign their respective
names in the presence of the testator, from which the petitioner has appealed, and the appeal is now
pending.

On December 29, 1947, the respondents Maria and Pedro Roxas renewed their petition for the
appointment of Maria Roxas as special administratrix or special co-administratrix, and on May 5, 1948,
the respondent judge rendered his resolution appointing the petitioner Natividad I. Vda. de Roxas as
special administratrix only of all the conjugal properties of the deceased, and Maria Roxas as special
administratrix of all capital or properties belonging exclusively to the deceased Pablo M. Roxas.

The present petition for certiorari has been filed with this Court against the last order or resolution of the
Court of First Instance of Bulacan based on the ground that the respondent judge acted in excess of the
court's jurisdiction in appointing two special co-administratices of the estate of the deceased Pablo
Roxas, one of the capital or properties belonging exclusively to the deceased, and another of his conjugal
properties with his wife (now widow), the petitioner.

It is well settled that the statutory provisions as to the prior or preferred right of certain persons to the
appointment of administrator under section 1, Rule 81, as well as the statutory provisions as to causes for
removal of an executor or administrator under section 653 of Act No. 190, now section 2, Rule 83, do not
apply to the selection or removal of special administrator. (21 Am. Jur., 833; De Gala vs. Gonzales and
Ona, 53 Phil., 104, 106.) As the law does not say who shall be appointed as special administrator and the
qualifications the appointee must have, the judge or court has discretion in the selection of the person to
be appointed, discretion which must be sound, that is, not whimsical or contrary to reason, justice or
equity.

There is nothing wrong in that the respondent judge, in exercising his discretion and appointing the
petitioner as special administratrix, had taken into consideration the beneficial interest of the petitioner in
the estate of the decedent and her being designated in the will as executrix thereof. But the respondent's
subsequent act of appointing her as special administratrix only of the conjugal or community property,
and Maria Roxas as special administratrix of the capital or exclusive property of the decedent, does not
seem to be in conformity with logic or reason. The petitioner has or claims to have the same beneficial
interest after the decision of the court disapproving the will, which is now pending on appeal, as she had
prior to it, because the decision is not yet final and may be reversed by the appellate court.

Besides, even if the will is not probated, the widow in the present case would have, under the law, the
right of usufruct over one-half of the exclusive property of the decedent, besides her share in the conjugal
partnership. The beneficial interest required as a qualification for appointment as administrator of the
estate of a decedent is the interest in the whole estate and not only in some part thereof. The petitioner
being entitled to one-half in usufruct of all the exclusive properties of the decedent, she would have as
much if not more interest in administering the entire estate correctly, in order to reap the benefit of a wise,
speedy, economical administration of the state, and not suffer the consequences of the waste,
improvidence or mismanagement thereof. The good or bad administration of the property may affect
rather the fruits than the naked ownership of a property.

However, for the decision of the question involved in this proceeding it is not necessary for us to
determine whether or not the respondent judge has acted with grave abuse of discretion in rendering the
resolution complained of for the reasons just stated, in view of our conclusion that the respondent judge
acted in excess of the court's jurisdiction in appointing two separate special administratices of the estate
of the decedent: one of the conjugal or community property and another of the capital or exclusive
property of the deceased Pablo M. Roxas.

According to section 2, Rule 75, taken from section 685 of the former Code of Civil Procedure, Act No.
190, as amended, "when the marriage is dissolved by the death of the husband or wife, the community
property shall be inventoried, administered, and liquidated, and the debts thereof paid, in the testate or
intestate proceedings of the deceased spouse." That is the reason why, according to section 4, Rule 78,
the "letters testamentary, or letters of administration with the will annexed, shall extend to all the estate of
the testator in the Philippines," and section 6, Rule 79, provides for appointment of one administrator in
case of intestacy, except in certain cases in which two or more joint, but not separate and independent,
administrators may be appointed under section 3, Rule 82. Therefore the administrator appointed to
administer and liquidate the exclusive property of a deceased spouse shall also administer, liquidate and
distribute the community property, because the estate of a deceased spouse which is to be settled, that
is, administered, liquidated and distributed, consists not only of the exclusive properties of the decedent,
but also of one-half of the assets of the conjugal partnership, if any, which may pertain to the deceased,
as determined after the liquidation thereof in accordance with the provisions of articles 1421 to 1424 of
the Civil Code.

There is absolutely no reason for appointing two separate administrators, specially if the estate to be
settled is that of a deceased husband as in the present case, for according to articles 1422 and 1423 of
the Civil Code, only after the dowry and parapherna of the wife and the debts, charges, and obligations of
the conjugal partnership have been paid, the capital or exclusive property of the husband may be
liquidated and paid in so far as the inventoried estate may reach; and if the estate inventoried should not
be sufficient to pay the dowry and the parapherna of the wife and the debts, charges and obligations of
the partnership, the provision of Title XVII of the Civil Code relating to concurrence and preference of
credits shall be observed. If two separate administrators are appointed as done in the present case, in
every action which one of them may institute to recover properties or credit of the deceased, the
defendant may raise the question or set up the defense that the plaintiff has no cause of action, because
the property or credit in issue belongs to the class which is being administered by the other administrator,
which can not be done if the administrator of the entire estate is only one.

As under the law only one general administrator may be appointed to administer, liquidate and distribute
the estate of a deceased spouse, it clearly follows that only one special administrator may be appointed
to administer temporarily said estate, because a special administrator is but a temporary administrator
who is appointed to act in lieu of the general administrator. "When there is delay in granting letters
testamentary or of administration occasioned by an appeal from the allowance or disallowance of will, or
from any other cause, the court may appoint a special administrator to collect and take charge of the
estate of the deceased until the questions causing the delay are decided and executors or administrators
thereupon appointed," (sec. 1, Rule 81). Although his powers and duties are limited to "collect and take
charge of the goods, chattels, rights, credits, and estate of the deceased and preserve the same for the
executor or administrator afterwards appointed, and for that purpose may commence and maintain suits
as administrator, and may sell such perishable and other property as the court orders sold. A special
administrator shall not be liable to pay any debts of the deceased." (Section 2, Rule 81.)lawphil.net

In view of all the foregoing, we hold that the court below has no power to appoint two special
administratices of the estate of a deceased husband or wife, one of the community property and another
of the exclusive property of the decedent, and therefore the respondent judge acted in excess of the
court's jurisdiction in rendering or issuing the order complained of, and therefore said order is hereby set
aside, with costs against the respondents. So ordered.

Moran, C.J., Paras, Pablo, Perfecto, Bengzon, Briones, Tuason and JJ., concur.

G.R. No. 129505 January 31, 2000

OCTAVIO S. MALOLES II, petitioner,

vs.
PACITA DE LOS REYES PHILLIPS, respondent.

-----------------------------

G.R. No. 133359 January 31, 2000

OCTAVIO S. MALOLES II, petitioner,

vs.
COURT OF APPEALS, HON. FERNANDO V. GOROSPE, JR., in his Official Capacity as Presiding
Judge of RTC-Makati, Branch 61, and PACITA PHILLIPS as the alleged executrix of the alleged will
of the late Dr. Arturo de Santos, respondents.

MENDOZA, J.:

These are petitions for review on certiorari of the decisions of the Thirteenth and the Special Eighth
Divisions of the Court of Appeals which ruled that petitioner has no right to intervene in the settlement of
the estate of Dr. Arturo de Santos. The cases were consolidated considering that they involve the same
parties and some of the issues raised are the same.

The facts which gave rise to these two petitions are as follows:

On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of Makati City, filed a petition for probate
of his will1 in the Regional Trial Court, Branch 61, Makati, docketed as Sp. Proc. No. M-4223. In his
petition, Dr. De Santos alleged that he had no compulsory heirs; that he had named in his will as sole
legatee and devisee the Arturo de Santos Foundation, Inc.; that he disposed by his will his properties with
an approximate value of not less than P2,000,000.00; and that copies of said will were in the custody of
the named executrix, private respondent Pacita de los Reyes Phillips. A copy of the will 2 was annexed to
the petition for probate.

On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-Makati, Branch 61 issued an order
granting the petition and allowing the will. The order reads:

On 03 August 1995, the Court issued an Order setting the hearing of the petition on 12
September 1995, at 8:30 o'clock in the morning, copies of which were served to Arturo de Santos
Foundation, Inc. and Ms. Pacita de los Reyes Phillips (Officer's Return, dated 04 September
1995 attached to the records). When the case was called for hearing on the date set, no
oppositor appeared nor any written opposition was ever filed and on motion of petitioner, he was
allowed to adduce his evidence in support of the petition.

Petitioner personally appeared before this Court and was placed on the witness stand and was
directly examined by the Court through "free wheeling" questions and answers to give this Court
a basis to determine the state of mind of the petitioner when he executed the subject will. After
the examination, the Court is convinced that petitioner is of sound and disposing mind and not
acting on duress, menace and undue influence or fraud, and that petitioner signed his Last Will
and Testament on his own free and voluntary will and that he was neither forced nor influenced
by any other person in signing it.

Furthermore, it appears from the petition and the evidence adduced that petitioner in his lifetime,
executed his Last Will and Testament (Exhs. "A", "A-1", "A-2", "A-4", "A-5") at his residence
situated at 9 Bauhinia corner Intsia Streets, Forbes Park, Makati City; said Last Will and
Testament was signed in the presence of his three (3) witnesses, namely, to wit: Dr. Elpidio
Valencia (Exhs. "A-6", "A-7", "A-8", "A-16", "A-16-A"), Atty. Edward J. Berenguer (Exhs. "A-3", "A-
3-A", "A-9", "A-10", & "A-11"), and Atty. Victoria C. delos Reyes (Exhs. "A-12", "A-13", "A-14", "A-
17", & "A-18"), who in turn, in the presence of the testator and in the presence of each and all of
the witnesses signed the said Last Will and Testament and duly notarized before Notary Public
Anna Melissa L. Rosario (Exh. "A-15"); on the actual execution of the Last Will and Testament,
pictures were taken (Exhs. "B" to "B-3").

Petitioner has no compulsory heirs and Arturo de Santos Foundation, Inc., with address at No. 9
Bauhinia corner Intsia Streets, Forbes Park, Makati City has been named as sole legatee and
devisee of petitioner's properties, real and personal, approximately valued at not less than P2
million, Ms. Pacita de los Reyes Phillips was designated as executor and to serve as such without
a bond.1âwphi1.nêt

From the foregoing facts, the Court finds that the petitioner has substantially established the
material allegations contained in his petition. The Last Will and Testament having been executed
and attested as required by law; that testator at the time of the execution of the will was of sane
mind and/or not mentally incapable to make a Will; nor was it executed under duress or under the
influence of fear or threats; that it was in writing and executed in the language known and
understood by the testator duly subscribed thereof and attested and subscribed by three (3)
credible witnesses in the presence of the testator and of another; that the testator and all the
attesting witnesses signed the Last Will and Testament freely and voluntarily and that the testator
has intended that the instrument should be his Will at the time of affixing his signature thereto.

WHEREFORE, as prayed for by the petitioner (testator himself) the petition for the allowance of
the Last Will and Testament of Arturo de Santos is hereby APPROVED and ALLOWED.
Shortly after the probate of his will, Dr. De Santos died on February 26, 1996.

On April 3, 1996, petitioner Octavio S. Maloles II filed a motion for intervention claiming that, as the only
child of Alicia de Santos (testator's sister) and Octavio L. Maloles, Sr., he was the sole full-blooded
nephew and nearest of kin of Dr. De Santos. He likewise alleged that he was a creditor of the testator.
Petitioner thus prayed for the reconsideration of the order allowing the will and the issuance of letters of
administration in his name.

On the other hand, private respondent Pacita de los Reyes Phillips, the designated executrix of the will,
filed a motion for the issuance of letters testamentary with Branch 61. Later, however, private respondent
moved to withdraw her motion. This was granted, while petitioner was required to file a memorandum of
authorities in support of his claim that said court (Branch 61) still had jurisdiction to allow his intervention. 3

Petitioner filed his memorandum of authorities on May 13, 1996. On the other hand, private respondent,
who earlier withdrew her motion for the issuance of letters testamentary in Branch 61, refiled a petition for
the same purpose with the Regional Trial Court, Makati, which was docketed as Sp. Proc. No. M-4343
and assigned to Branch 65.

Upon private respondent's motion, Judge Salvador Abad Santos of Branch 65 issued an order, dated
June 28, 1996, appointing her as special administrator of Dr. De Santos's estate.

On July 29, 1996, petitioner sought to intervene in Sp. Proc. No. M-4343 and to set aside the appointment
of private respondent as special administrator. He reiterated that he was the sole and full blooded
nephew and nearest of kin of the testator; that he came to know of the existence of Sp. Proc. No. M-4343
only by accident; that the probate proceedings in Sp. Proc. No. M-4223 before Branch 61 of the same
court was still pending; that private respondent misdeclared the true worth of the testator's estate; that
private respondent was not fit to be the special administrator of the estate; and that petitioner should be
given letters of administration for the estate of Dr. De Santos.

On August 28, 1996, Judge Abad Santos ordered the transfer of Sp. Proc. No. M-4343 to Branch 61, on
the ground that "[it] is related to the case before Judge Gorospe of RTC Branch 61 . . ."

It appears, however, that in Sp. Proc. No. M-4223, Judge Gorospe had denied on August 26, 1996
petitioner's motion for intervention. Petitioner brought this matter to the Court of Appeals which, in a
decision4 promulgated on February 13, 1998, upheld the denial of petitioner's motion for intervention.

Meanwhile, Judge Gorospe issued an order, dated September 4, 1996, returning the records of Sp. Proc.
No. M-4343 to Branch 65 on the ground that there was a pending case involving the Estate of Decedent
Arturo de Santos pending before said court. The order reads:

Acting on the ORDER dated 28 August 1996 of Branch 65, this Court, transferring this case to
this Branch 61 on the ground that this case is related with a case before this Court, let this case
be returned to Branch 65 with the information that there is no related case involving the ESTATE
OF DECEDENT ARTURO DE SANTOS pending before this Branch.

There is, however, a case filed by ARTURO DE SANTOS, as petitioner under Rule 76 of the
Rules of Court for the Allowance of his will during his lifetime docketed as SP. PROC. NO. M-
4223 which was already decided on 16 February 1996 and has become final.

It is noted on records of Case No. M-4223 that after it became final, herein Petitioner Pacita de
los Reyes Phillips filed a MOTION FOR THE ISSUANCE OF LETTERS TESTAMENTARY, which
was subsequently withdrawn after this Court, during the hearing, already ruled that the motion
 could not be admitted as the subject matter involves a separate case under Rule 78 of the Rules
of Court, and movant withdrew her motion and filed this case (No. 4343).

Octavio de Santos Maloles [II] filed a MOTION FOR INTERVENTION before Case No. M-4223
and this motion was already DENIED in the order (Branch 61) of 26 August 1996 likewise for the
same grounds that the matter is for a separate case to be filed under Rule 78 of the Rules of
Court and cannot be included in this case filed under Rule 76 of the Rules of Court.

It is further noted that it is a matter of policy that consolidation of cases must be approved by the
Presiding Judges of the affected Branches.

Initially, in his decision dated September 23, 1996,5 Judge Abad Santos appeared firm in his position that
" . . . it would be improper for (Branch 65) to hear and resolve the petition (Sp. Proc. No. M-4343),"
considering that the probate proceedings were commenced with Branch 61. He thus ordered the transfer
of the records back to the latter branch. However, he later recalled his decision and took cognizance of
the case "to expedite the proceedings." Thus, in his Order, dated October 21, 1996, he stated:

Considering the refusal of the Hon. Fernando V. Gorospe, Jr. of Branch 61 to continue hearing
this case notwithstanding the fact that said branch began the probate proceedings of the estate of
the deceased and must therefore continue to exercise its jurisdiction to the exclusion of all others,
until the entire estate of the testator had been partitioned and distributed as per Order dated 23
September 1996, this branch (Regional Trial Court Branch 65) shall take cognizance of the
petition if only to expedite the proceedings, and under the concept that the Regional Trial Court of
Makati City is but one court.

Furnish a copy of this order to the Office of the Chief justice and the Office of the Court
Administrator, of the Supreme Court; the Hon. Fernando V. Gorospe, Jr.; Pacita De Los Reyes
Phillips, Petitioner; and Octavio de Santos Maloles, Intervenor.

On November 4, 1996, Judge Abad Santos granted petitioner's motion for intervention. Private
respondent moved for a reconsideration but her motion was denied by the trial court. She then filed a
petition for certiorari in the Court of Appeals which, on February 26, 1997, rendered a decision 6 setting
aside the trial court's order on the ground that petitioner had not shown any right or interest to intervene in
Sp. Proc. No. M-4343.

Hence, these petitions which raise the following issues:

1. Whether or not the Honorable Regional Trial Court — Makati, Branch 61 has lost jurisdiction to
proceed with the probate proceedings upon its issuance of an order allowing the will of Dr. Arturo
de Santos.

2. Whether or not the Honorable (Regional Trial Court — Makati, Branch 65) acquired jurisdiction
over the petition for issuance of letters testamentary filed by (private) respondent.

3. Whether or not the petitioner, being a creditor of the late Dr. Arturo de Santos, has a right to
intervene and oppose the petition for issuance of letters testamentary filed by the respondent.

4. Whether or not (private) respondent is guilty of forum shopping in filing her petition for issuance
of letters testamentary with the Regional Trial Court — Makati, Branch 65 knowing fully well that
the probate proceedings involving the same restate estate of the decedent is still pending with the
Regional Trial Court — Makati, Branch 61.
First. Petitioner contends that the probate proceedings in Branch 61 of RTC-Makati did not terminate
upon the issuance of the order allowing the will of Dr. De Santos. Citing the cases of Santiesteban
v. Santiesteban7 and Tagle v. Manalo,8 he argues that the proceedings must continue until the estate is
fully distributed to the lawful heirs, devisees, and legatees of the testator, pursuant to Rule 73, §1 of the
Rules of Court. Consequently, petitioner contends that Branch 65 could not lawfully act upon private
respondent's petition for issuance of letters testamentary.

The contention has no merit.

In cases for the probate of wills, it is well-settled that the authority of the court is limited to ascertaining the
extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely executed the will in
accordance with the formalities prescribed by law. 9

Ordinarily, probate proceedings are instituted only after the death of the testator, so much so that, after
approving and allowing the will, the court proceeds to issue letters testamentary and settle the estate of
the testator. The cases cited by petitioner are of such nature. In fact, in most jurisdictions, courts cannot
entertain a petition for probate of the will of a living testator under the principle of ambulatory nature of
wills.10

However, Art. 838 of the Civil Code authorizes the filing of a petition for probate of the will filed by the
testator himself. It provides:

CIVIL CODE, ART. 838. No will shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court.

The testator himself may, during his lifetime, petition the court having jurisdiction for the
allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance
of wills after the testator's death shall govern.

The Supreme Court shall formulate such additional Rules of Court as may be necessary for the
allowance of wills on petition of the testator.

Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or
after his death, shall be conclusive as to its due execution.

Rule 76, §1 likewise provides:

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.

The testator himself may, during his lifetime, petition in the court for the allowance of his will.

The rationale for allowing the probate of wills during the lifetime of testator has been explained by the
Code Commission thus:

Most of the cases that reach the courts involve either the testamentary capacity of the testator or
the formalities adopted in the execution of wills. There are relatively few cases concerning the
intrinsic validity of testamentary dispositions. It is far easier for the courts to determine the mental
condition of a testator during his lifetime than after his death. Fraud, intimidation and undue
influence are minimized. Furthermore, if a will does not comply with the requirements prescribed
by law, the same may be corrected at once. The probate during the testator's life, therefore, will
 lessen the number of contest upon wills. Once a will is probated during the lifetime of the testator,
the only questions that may remain for the courts to decide after the testator's death will refer to
the intrinsic validity of the testamentary dispositions. It is possible, of course, that even when the
testator himself asks for the allowance of the will, he may be acting under duress or undue
influence, but these are rare cases.

After a will has been probated during the lifetime of the testator, it does not necessarily mean that
he cannot alter or revoke the same before his death. Should he make a new will, it would also be
allowable on his petition, and if he should die before he has had a chance to present such
petition, the ordinary probate proceeding after the testator's death would be in order. 11

Thus, after the allowance of the will of Dr. De Santos on February 16, 1996, there was nothing else for
Branch 61 to do except to issue a certificate of allowance of the will pursuant to Rule 73, §12 of the Rules
of Court. There is, therefore, no basis for the ruling of Judge Abad Santos of Branch 65 of RTC-Makati
that —

Branch 61 of the Regional Trial Court of Makati having begun the probate proceedings of the
estate of the deceased, it continues and shall continue to exercise said jurisdiction to the
exclusion of all others. It should be noted that probate proceedings do not cease upon the
allowance or disallowance of a will but continues up to such time that the entire estate of the
testator had been partitioned and distributed.

The fact that the will was allowed during the lifetime of the testator meant merely that the partition
and distribution of the estate was to be suspended until the latter's death. In other words, the
petitioner, instead of filing a new petition for the issuance of letters testamentary, should have
simply filed a manifestation for the same purpose in the probate court.12

Petitioner, who defends the order of Branch 65 allowing him to intervene, cites Rule 73, §1 which states:

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

The above rule, however, actually provides for the venue of actions for the settlement of the estate of
deceased persons. In Garcia Fule v. Court of Appeals, it was held:13

The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the clause "so far
as it depends on the place of residence of the decedent, or of the location of the state," is in
reality a matter of venue, as the caption of the Rule indicates: "Settlement of Estate of Deceased
Persons. Venue and Processes." It could not have been intended to define the jurisdiction over
the subject matter, because such legal provision is contained in a law of procedure dealing
merely with procedural matters. Procedure is one thing, jurisdiction over the subject matter is
another. The power or authority of the court over the subject matter "existed was fixed before
procedure in a given cause began." That power or authority is not altered or changed by
procedure, which simply directs the manner in which the power or authority shall be fully and
justly exercised. There are cases though that if the power is not exercised conformably with the
provisions of the procedural law, purely, the court attempting to exercise it loses the power to
 exercise it legally. However, this does not amount to a loss of jurisdiction over the subject matter.
Rather, it means that the court may thereby lose jurisdiction over the person or that the judgment
may thereby be rendered defective for lack of something essential to sustain it. The appearance
of this provision in the procedural law at once raises a strong presumption that it has nothing to
do with the jurisdiction of the court over the subject matter. In plain words, it is just a matter of
method, of convenience to the parties.

Indeed, the jurisdiction over probate proceedings and settlement of estates with approximate value of
over P100,000.00 (outside Metro Manila) or P200,000.00 (in Metro Manila) belongs to the regional trial
courts under B.P. Blg. 129, as amended. The different branches comprising each court in one judicial
region do not possess jurisdictions independent of and incompatible with each other.14

It is noteworthy that, although Rule 73, §1 applies insofar as the venue of the petition for probate of the
will of Dr. De Santos is concerned, it does not bar other branches of the same court from taking
cognizance of the settlement of the estate of the testator after his death. As held in the leading case
of Bacalso v. Ramolote:15

The various branches of the Court of First Instance of Cebu under the Fourteenth Judicial District,
are a coordinate and co-equal courts, and the totality of which is only one Court of First Instance.
The jurisdiction is vested in the court, not in the judges. And when a case is filed in one branch,
jurisdiction over the case does not attach to the branch or judge alone, to the exclusion of the
other branches. Trial may be held or proceedings continue by and before another branch or
judge. It is for this reason that Section 57 of the Judiciary Act expressly grants to the Secretary of
Justice, the administrative right or power to apportion the cases among the different branches,
both for the convenience of the parties and for the coordination of the work by the different
branches of the same court. The apportionment and distribution of cases does not involve a grant
or limitation of jurisdiction, the jurisdiction attaches and continues to be vested in the Court of
First Instance of the province, and the trials may be held by any branch or judge of the court.

Necessarily, therefore, Branch 65 of the RTC of Makati City has jurisdiction over Sp. Proc. No. M-4343.

Second. Petitioner claims the right to intervene in and oppose the petition for issuance of letters
testamentary filed by private respondent. He argues that, as the nearest next of kin and creditor of the
testator, his interest in the matter is material and direct. In ruling that petitioner has no right to intervene in
the proceedings before Branch 65 of RTC-Makati City, the Court of Appeals held:

The private respondent herein is not an heir or legatee under the will of the decedent Arturo de
Santos. Neither is he a compulsory heir of the latter. As the only and nearest collateral relative of
the decedent, he can inherit from the latter only in case of intestacy. Since the decedent has left a
will which has already been probated and disposes of all his properties the private respondent
can inherit only if the said will is annulled. His interest in the decedent's estate is, therefore, not
direct or immediate.

His claim to being a creditor of the estate is a belated one, having been raised for the first time
only in his reply to the opposition to his motion to intervene, and, as far as the records show, not
supported by evidence.

. . . . [T]he opposition must come from one with a direct interest in the estate or the will, and the
private respondent has none. Moreover, the ground cited in the private respondent's opposition,
that the petitioner has deliberately misdeclared the truth worth and value of the estate, is not
relevant to the question of her competency to act as executor. Section 2, Rule 76 of the Rules of
Court requires only an allegation of the probable value and character of the property of the estate.
The true value can be determined later on in the course of the settlement of the estate. 16
Rule 79, §1 provides:

Opposition to issuance of letters testamentary. Simultaneous petition for administration. — Any

person interested in a will may state in writing the grounds why letters testamentary should not
issue to the persons named therein as executors, or any of them, and the court, after hearing
upon notice, shall pass upon the sufficiency of such grounds. A petition may, at the same time, be
filed for letters of administration with the will annexed.

Under this provision, it has been held that an "interested person" is one who would be benefited by the
estate, such as an heir, or one who has a claim against the estate, such as a creditor, and whose interest
is material and direct, not merely incidental or contingent.17

Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot be considered an "heir" of the
testator. It is a fundamental rule of testamentary succession that one who has no compulsory or forced
heirs may dispose of his entire estate by will. Thus, Art. 842 of the Civil Code provides:

One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of
any person having capacity to succeed.

One who has compulsory heirs may dispose of his estate provided he does not contravene the
provisions of this Code with regard to the legitimate of said heirs.

Compulsory heirs are limited to the testator's —

(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;

(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate
children and descendants;

(3) The widow or widower;

(4) Acknowledged natural children, and natural children by legal fiction;

(5) Other illegitimate children referred to in Article 287 of the Civil Code.18

Petitioner, as nephew of the testator, is not a compulsory heir who may have been preterited in the
testator's will.

Nor does he have any right to intervene in the settlement proceedings based on his allegation that he is a
creditor of the deceased. Since the testator instituted or named an executor in his will, it is incumbent
upon the Court to respect the desires of the testator. As we stated in Ozaeta v. Pecson:19

The choice of his executor is a precious prerogative of a testator, a necessary concomitant of his
right to dispose of his property in the manner he wishes. It is natural that the testator should
desire to appoint one of his confidence, one who can be trusted to carry out his wishes in the
disposal of his estate. The curtailment of this right may be considered a curtailment of the right to
dispose.

Only if the appointed executor is incompetent, refuses the trust, or fails to give bond may the court
appoint other persons to administer the estate.20 None of these circumstances is present in this case.
Third. Petitioner contends that private respondent is guilty of forum shopping when she filed the petition
for issuance of letters testamentary (Sp. Proc. No. M-4343) while the probate proceedings (Sp. Proc. No.
M-4223) were still pending. According to petitioner, there is identity of parties, rights asserted, and reliefs
prayed for in the two actions which are founded on the same facts, and a judgment in either will result
in res judicata in the other.

This contention has no merit. As stated earlier, the petition for probate was filed by Dr. De Santos, the
testator, solely for the purpose of authenticating his will. Upon the allowance of his will, the proceedings
were terminated.1âwphi1.nêt

On the other hand, the petition for issuance of letters testamentary was filed by private respondent, as
executor of the estate of Dr. De Santos, for the purpose of securing authority from the Court to administer
the estate and put into effect the will of the testator. The estate settlement proceedings commenced by
the filing of the petition terminates upon the distribution and delivery of the legacies and devises to the
persons named in the will. Clearly, there is no identity between the two petitions, nor was the latter filed
during the pendency of the former. There was, consequently, no forum shopping.

WHEREFORE, the petition is DENIED and the decisions of the Court of Appeals are hereby AFFIRMED.

SO ORDERED.

G.R. No. 160530 November 20, 2007

CYNTHIA V. NITTSCHER, petitioner,

vs.
DR. WERNER KARL JOHANN NITTSCHER (Deceased), ATTY. ROGELIO P. NOGALES and THE
REGIONAL TRIAL COURT OF MAKATI (Branch 59), respondents.

DECISION

QUISUMBING, J.:

For review on certiorari are the Decision1 dated July 31, 2003 and Resolution2 dated October 21, 2003 of
the Court of Appeals in CA-G.R. CV No. 55330, which affirmed the Order3 dated September 29, 1995 of
the Regional Trial Court (RTC), Branch 59, Makati City, in SP Proc. No. M-2330 for the probate of a will.

The facts are as follows.

On January 31, 1990, Dr. Werner Karl Johann Nittscher filed with the RTC of Makati City a petition for the
probate of his holographic will and for the issuance of letters testamentary to herein respondent Atty.
Rogelio P. Nogales.

On September 19, 1991, after hearing and with due notice to the compulsory heirs, the probate court
issued an order allowing the said holographic will, thus:

WHEREFORE, premises considered, the Holographic Will of the petitioner-testator Dr. Werner J.
Nittscher executed pursuant to the provision of the second paragraph of Article 838 of the Civil
Code of the Philippines on January 25, 1990 in Manila, Philippines, and proved in accordance
with the provision of Rule 76 of the Revised Rules of Court is hereby allowed.

SO ORDERED.4
On September 26, 1994, Dr. Nittscher died. Hence, Atty. Nogales filed a petition for letters testamentary
for the administration of the estate of the deceased. Dr. Nittscher’s surviving spouse, herein petitioner
Cynthia V. Nittscher, moved for the dismissal of the said petition. However, the court in its September 29,
1995 Order denied petitioner’s motion to dismiss, and granted respondent’s petition for the issuance of
letters testamentary, to wit:

In view of all the foregoing, the motion to dismiss is DENIED. The petition for the issuance of
Letters Testamentary, being in order, is GRANTED.

Section 4, Rule 78 of the Revised Rules of Court, provides "when a will has been proved and
allowed, the court shall issue letters testamentary thereon to the person named as executor
therein, if he is competent, accepts the trust and gives a bond as required by these rules." In the
case at bar, petitioner Atty. Rogelio P. Nogales of the R.P. Nogales Law Offices has been named
executor under the Holographic Will of Dr. Werner J. Nittscher. As prayed for, let Letters
Testamentary be issued to Atty. Rogelio P. Nogales, the executor named in the Will, without a
bond.

SO ORDERED.5

Petitioner moved for reconsideration, but her motion was denied for lack of merit. On May 9, 1996, Atty.
Nogales was issued letters testamentary and was sworn in as executor.

Petitioner appealed to the Court of Appeals alleging that respondent’s petition for the issuance of letters
testamentary should have been dismissed outright as the RTC had no jurisdiction over the subject matter
and that she was denied due process.

The appellate court dismissed the appeal, thus:

WHEREFORE, the foregoing considered, the appeal is hereby DISMISSED and the assailed
Order is AFFIRMED in toto. The court a quo is ordered to proceed with dispatch in the
proceedings below.

SO ORDERED.6

Petitioner’s motion for reconsideration of the aforequoted decision was denied for lack of merit. Hence,
the present petition anchored on the following grounds:

I.

BOTH THE CA AND THE LOWER COURT ERRED IN NOT DISMISSING OUTRIGHT THE
PETITION FOR LETTERS … TESTAMENTARY FILED BY ATTY. NOGALES WHEN,
OBVIOUSLY, IT WAS FILED IN VIOLATION OF REVISED CIRCULAR NO. 28-91 AND
ADMINISTRATIVE CIRCULAR NO. 04-94 OF THIS HONORABLE COURT.

II.

THE CA ERRED IN NOT DECLARING THAT THE LOWER COURT [HAS] NO JURISDICTION
OVER THE SUBJECT MATTER OF THE PRESENT SUIT.

III.
 THE CA ERRED IN CONCLUDING THAT SUMMONS WERE PROPERLY ISSUED TO THE
PARTIES AND ALL PERSONS INTERESTED IN THE PROBATE OF THE HOLOGRAPHIC
WILL OF DR. NITTSCHER.

IV.

THE CA ERRED IN CONCLUDING THAT THE PETITIONER WAS NOT DEPRIVED OF DUE
PROCESS OF LAW BY THE LOWER COURT.7

Petitioner contends that respondent’s petition for the issuance of letters testamentary lacked a
certification against forum-shopping. She adds that the RTC has no jurisdiction over the subject matter of
this case because Dr. Nittscher was allegedly not a resident of the Philippines; neither did he leave real
properties in the country. Petitioner claims that the properties listed for disposition in her husband’s will
actually belong to her. She insists she was denied due process of law because she did not receive by
personal service the notices of the proceedings.

Respondent Atty. Nogales, however, counters that Dr. Nittscher did reside and own real properties in Las
Piñas, Metro Manila. He stresses that petitioner was duly notified of the probate proceedings.
Respondent points out that petitioner even appeared in court to oppose the petition for the issuance of
letters testamentary and that she also filed a motion to dismiss the said petition. Respondent maintains
that the petition for the issuance of letters testamentary need not contain a certification against forum-
shopping as it is merely a continuation of the original proceeding for the probate of the will.

We resolve to deny the petition.

As to the first issue, Revised Circular No. 28-918 and Administrative Circular No. 04-949 of the Court
require a certification against forum-shopping for all initiatory pleadings filed in court. However, in this
case, the petition for the issuance of letters testamentary is not an initiatory pleading, but a mere
continuation of the original petition for the probate of Dr. Nittscher’s will. Hence, respondent’s failure to
include a certification against forum-shopping in his petition for the issuance of letters testamentary is not
a ground for outright dismissal of the said petition.

Anent the second issue, Section 1, Rule 73 of the Rules of Court provides:

SECTION 1. Where estate of deceased persons settled. – If the decedent is an inhabitant of

the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved,
or letters of administration granted, and his estate settled, in the Court of First Instance
(now Regional Trial Court) in the province in which he resides at the time of his death, and
if he is an inhabitant of a foreign country, the Court of First Instance (now Regional Trial Court) of
any province in which he had estate. … (Emphasis supplied.)

In this case, the RTC and the Court of Appeals are one in their finding that Dr. Nittscher was a resident of
Las Piñas, Metro Manila at the time of his death. Such factual finding, which we find supported by
evidence on record, should no longer be disturbed. Time and again we have said that reviews on
certiorari are limited to errors of law. Unless there is a showing that the findings of the lower court are
totally devoid of support or are glaringly erroneous, this Court will not analyze or weigh evidence all over
again.10

Hence, applying the aforequoted rule, Dr. Nittscher correctly filed in the RTC of Makati City, which then
covered Las Piñas, Metro Manila, the petition for the probate of his will and for the issuance of letters
testamentary to respondent.
Regarding the third and fourth issues, we note that Dr. Nittscher asked for the allowance of his own will.
In this connection, Section 4, Rule 76 of the Rules of Court states:

SEC. 4. Heirs, devisees, legatees, and executors to be notified by mail or personally. – …

If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory
heirs.

In this case, records show that petitioner, with whom Dr. Nittscher had no child, and Dr. Nittscher’s
children from his previous marriage were all duly notified, by registered mail, of the probate proceedings.
Petitioner even appeared in court to oppose respondent’s petition for the issuance of letters testamentary
and she also filed a motion to dismiss the said petition. She likewise filed a motion for reconsideration of
the issuance of the letters testamentary and of the denial of her motion to dismiss. We are convinced
petitioner was accorded every opportunity to defend her cause. Therefore, petitioner’s allegation that she
was denied due process in the probate proceedings is without basis.

As a final word, petitioner should realize that the allowance of her husband’s will is conclusive only as to
its due execution.11 The authority of the probate court is limited to ascertaining whether the testator, being
of sound mind, freely executed the will in accordance with the formalities prescribed by law. 12 Thus,
petitioner’s claim of title to the properties forming part of her husband’s estate should be settled in an
ordinary action before the regular courts.

WHEREFORE, the petition is DENIED for lack of merit. The assailed Decision dated July 31, 2003 and
Resolution dated October 21, 2003 of the Court of Appeals in CA-G.R. CV No. 55330, which affirmed the
Order dated September 29, 1995 of the Regional Trial Court, Branch 59, Makati City, in SP Proc. No. M-
2330 are AFFIRMED.

No pronouncement as to costs.

SO ORDERED.