Rule 75-79 Cases Special Proceedings

8/9/2019 Rule 75-79 Cases Special Proceedings

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G.R. No. L-56340 June 24, 1983

SPOUSES ALVARO PASTOR, JR. an !A. ELENA A"#AVAL $E PASTOR, petitioners,

vs.

T#E "OURT O% APPEALS, JUAN &. RE&ES, JU$GE O% 'RAN"# (, "OURT O% %(RST (NSTAN"E O% "E'U an

LE)ELL&N 'ARL(TO *UE!A$A, respondents.

Pelaez, Pelaez, & Pelaez Law Office for petitioners.

Ceniza, Rama & Associates for private respondents.

PLANA, J.:

I. FACTS:

This is a case of hereditary succession.

Alvaro Pastor, Sr. (PASTOR, SR., a Spanish su!"ect, died in Ce!u City on #une $, %&'', survived !y his Spanish ife

Sofia )ossio (ho also died on Octo!er *%, %&'', their to le+itiate children Alvaro Pastor, #r. (PASTOR, #R. and Sofia

Pastor de -id+ely (SOFIA, and an ille+itiate child, not natural, !y the nae of eellyn )arlito /ueada /01-A2A

PASTOR, #R. is a Philippine citi3en, havin+ !een naturali3ed in %&4'. SOFIA is a Spanish su!"ect. /01-A2A is a Filipino

!y his other5s citi3enship.

On 6ove!er %4, %&78, /01-A2A filed a petition for the pro!ate and alloance of an alle+ed holo+raphic ill of

PASTOR, SR. ith the Court of First Instance of Ce!u, )ranch I (PRO)AT1 CO0RT, doc9eted as SP 6o. 4%*;R. The

ill contained only one testaentary disposition: a le+acy in favor of /01-A2A consistin+ of 48< of PASTOR, SR.5s

=*< share in the operation !y Atlas Consolidated -inin+ and 2evelopent Corporation (ATAS of soe inin+ clais in

Pina;)arot, Ce!u.

On 6ove!er *%, %&78, the PRO)AT1 CO0RT, upon otion of /01-A2A and after an e> parte hearin+, appointed hispecial adinistrator of the entire estate of PASTOR, SR., hether or not covered or affected !y the holo+raphic ill. ?e

assued office as such on 2ece!er =, %&78 after filin+ a !ond of P $,888.88.

On 2ece!er 7, %&78, /01-A2A as special adinistrator, instituted a+ainst PASTOR, #R. and his ife an action for

reconveyance of alle+ed properties of the estate, hich included the properties su!"ect of the le+acy and hich ere in

the naes of the spouses PASTOR, #R. and his ife, -aria 1lena Achaval de Pastor, ho claied to !e the oners

thereof in their on ri+hts, and not !y inheritance. The action, doc9eted as Civil Case 6o. *7=;R, as filed ith the Court

of First Instance of Ce!u, )ranch I@.

On Fe!ruary *, %&7%, PASTOR, #R. and his sister SOFIA filed their opposition to the petition for pro!ate and the order

appointin+ /01-A2A as special adinistrator.

On 2ece!er $, %&7*, the PRO)AT1 CO0RT issued an order alloin+ the ill to pro!ate. Appealed to the Court of

Appeals in CA;.R. 6o. $*&'%; R, the order as affired in a decision dated -ay &, %&77. On petition for revie, the

Supree Court in .R. 6o. ;=''=$ disissed the petition in a inute resolution dated 6ove!er %, %&77 and reanded

the sae to the PRO)AT1 CO0RT after denyin+ reconsideration on #anuary %%, %&7.

For to years after reand of the case to the PRO)AT1 CO0RT, /01-A2A filed pleadin+ after pleadin+ as9in+ for

payent of his le+acy and sei3ure of the properties su!"ect of said le+acy. PASTOR, #R. and SOFIA opposed these

pleadin+s on the +round of pendency of the reconveyance suit ith another !ranch of the Ce!u Court of First Instance. All

pleadin+s reained unacted upon !y the PRO)AT1 CO0RT.

On -arch $, %&8, the PRO)AT1 CO0RT set the hearin+ on the intrinsic validity of the ill for -arch *$, %&8, !ut upon

o!"ection of PASTOR, #R. and SOFIA on the e +round of pendency of the reconveyance suit, no hearin+ as held on

-arch *$. Instead, the PRO)AT1 CO0RT reBuired the parties to su!it their respective position papers as to ho uch

inheritance /01-A2A as entitled to receive under the i+. Pursuant thereto, PASTOR. #R. and SOFIA su!itted their

-eorandu of authorities dated April %8, hich in effect shoed that deterination of ho uch /01-A2A should

receive as still preature. /01-A2A su!itted his Position paper dated April *8, %&8. ATAS, upon order of the

Court, su!itted a sorn stateent of royalties paid to the Pastor roup of tsn fro #une %&'' (hen Pastor, Sr. died to

Fe!ruary %&8. The stateent revealed that of the inin+ clais !ein+ operated !y ATAS, '8< pertained to the Pastor

roup distri!uted as follos:


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%. A. Pastor, #r. ...................................=8.$ecutory, /01-A2A succeeded in o!tainin+ a Grit of 1>ecution and arnishent on

Septe!er =, %&8, and in servin+ the sae on ATAS on the sae day. 6otified of the Order on Septe!er ', %&8, the

oppositors sou+ht reconsideration thereof on the sae date priarily on the +round that the PRO)AT1 CO0RT +ravely

a!used its discretion hen it resolved the Buestion of onership of the royalties and ordered the payent of /01-A2A5s

le+acy after preaturely passin+ upon the intrinsic validity of the ill. In the eantie, the PRO)AT1 CO0RT ordered

suspension of payent of all royalties due PASTOR, #R. andEor his assi+nees until after resolution of oppositors5 otion

for reconsideration.

)efore the -otion for Reconsideration could !e resolved, hoever, PASTOR, #R., this tie "oined !y his ife -a. 116A

AC?AHA 21 PASTOR, filed ith the Court of Appeals a Petition for certiorari and Prohi!ition ith a prayer for rit of

preliinary in"unction (CA;.R. 6o. SP; %%474;R. They assailed the Order dated Au+ust *8, %&8 and the rit ofe>ecution and +arnishent issued pursuant thereto. The petition as denied on 6ove!er %, %&8 on the +rounds (%

that its filin+ as preature !ecause the -otion for Reconsideration of the Buestioned Order as still pendin+

deterination !y the PRO)AT1 CO0RT and (* that althou+h the rule that a otion for reconsideration is prereBuisite

for an action for certiorari is never an a!solute rule, the Order assailed is le+ally valid.

On 2ece!er &, %&8, PASTOR, #R. and his ife oved for reconsideration of the Court of Appeal5s decision of

6ove!er %, %&8, callin+ the attention of the appellate court to another order of the Pro!ate Court dated 6ove!er %%,

%&8 (i.e., hile their petition for certiorari as pendin+ decision in the appellate court, !y hich the oppositors5 otion for

reconsideration of the Pro!ate Court5s Order of Au+ust *8, %&8 as denied. The 6ove!er %% Order declared that the

Buestions of intrinsic validity of the ill and of onership over the inin+ clais (not the royalties alone had !een finally

ad"udicated !y the final and e>ecutory Order of 2ece!er $, %&7*, as affired !y the Court of Appeals and the Supree

Court, there!y renderin+ oot and acadeic the suit for reconveyance then pendin+ in the Court of First Instance of

Ce!u, )ranch I@. It clarified that only the 44< share of PASTOR, #R. in the royalties (less than 7.$< share hich he had

assi+ned to /01-A2A !efore PASTOR, SR. died as to !e +arnished and that as re+ards PASTOR, SR.5s =*< share,

hat as ordered as "ust the transfer of its possession to the custody of the PRO)AT1 CO0RT throu+h the special

adinistrator. Further, the Order +ranted /01-A2A '< interest on his unpaid le+acy fro Au+ust %&8 until fully paid.D

6onetheless, the Court of Appeals denied reconsideration.

?ence, this Petition for Revie !y certiorari ith prayer for a rit of pre y in"unction, assailin+ the decision of the Court of

Appeals dated 6ove!er %, %&8 as ell as the orders of the Pro!ate Court dated Au+ust *8, %&8, 6ove!er %%, %&8

and 2ece!er %7, %&8, -ed !y petitioners on -arch *', %&%, folloed !y a Suppleental Petition ith 0r+ent Prayer

for Restrainin+ Order.

In April %&%, the Court (First 2ivision issued a rit of preliinary in"unction, the liftin+ of hich as denied in the

Resolution of the sae 2ivision dated Octo!er %, %&*, althou+h the !ond of petitioners as increased fro P$8,888.88

to P%88,888.88.

)eteen 2ece!er *%, %&% and Octo!er %*, %&*, private respondent filed seven successive otions for early

resolution. Five of these otions e>pressly prayed for the resolution of the Buestion as to hether or not the petition

should !e +iven due course.


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On Octo!er %, %&*, the Court (First 2ivision adopted a resolution statin+ that the petition in fact and in effect as

+iven due course hen this case as heard on the erits on Septe!er 7, (should !e Octo!er *%, %&% and concise

eoranda in aplification of their oral ar+uents on the erits of the case ere filed !y the parties pursuant to the

resolution of Octo!er *%, %&% . . . and denied in a resolution dated 2ece!er %4, %&*, private respondent5s Oni!us

otion to set aside resolution dated Octo!er %, %&* and to su!it the atter of due course to the present e!ership

of the 2ivision and to reassi+n the case to another ponente.

0pon -otion for Reconsideration of the Octo!er %, %&* and 2ece!er %4, %&* Resolutions, the Court en !anc

resolved to CO6FIR- the Buestioned resolutions insofar as hey resolved that the petition in fact and in effect had !een+iven due course.

II. ISS01S:

Assailed !y the petitioners in these proceedin+s is the validity of the Order of e>ecution and +arnishent dated Au+ust *8,

%&8 as ell as the Orders su!seBuently issued alle+edly to ipleent the Pro!ate Order of 2ece!er $, %&7*, to it:

the Order of 6ove!er %%, %&8 declarin+ that the Pro!ate Order of %&7* indeed resolved the issues of onership and

intrinsic validity of the ill, and reiteratin+ the Order of 1>ecution dated Au+ust *8, %&8 and the Order of 2ece!er %7,

%&8 reducin+ to P*,*$%,$%'.7= the aount paya!le to /01-A2A representin+ the royalties he should have received

fro the death of PASTOR, SR. in %&'' up to Fe!ruary %&8.

The Pro!ate Order itself, insofar as it erely alloed the holo+raphic ill in pro!ate, is not Buestioned. )ut petitioners

denounce the Pro!ate Court for havin+ acted !eyond its "urisdiction or ith +rave a!use of discretion hen it issued the

assailed Orders. Their ar+uent runs this ay: )efore the provisions of the holo+raphic in can !e ipleented, the

Buestions of onership of the inin+ properties and the intrinsic validity of the holo+raphic ill ust first !e resolved ith

finality. 6o, contrary to the position ta9en !y the Pro!ate Court in %&8 J i.e., alost ei+ht years after the pro!ate of the

ill in %&7* J the Pro!ate Order did not resolve the to said issues. Therefore, the Pro!ate Order could not have

resolved and actually did not decide /01-A2A5s entitleent to the le+acy. This !ein+ so, the Orders for the payent of

the le+acy in alle+ed ipleentation of the Pro!ate Order of %&7* are unarranted for lac9 of !asis.

Closely related to the fore+oin+ is the issue raised !y /01-A2A The Pro!ate Order of %&7* havin+ !ecoe final and

e>ecutory, ho can its ipleentation (payent of le+acy !e restrainedK Of course, the Buestion assues that

/01-A2A5s entitleent to the le+acy as finally ad"ud+ed in the Pro!ate Order.

On the erits, therefore, the !asic issue is hether the Pro!ate Order of 2ece!er $, %&7* resolved ith finality the

Buestions of onership and intrinsic validity. A ne+ative findin+ ill necessarily render oot and acadeic the other issues

raised !y the parties, such as the "urisdiction of the Pro!ate Court to conclusively resolve title to property, and the

constitutionality and repercussions of a rulin+ that the inin+ properties in dispute, althou+h in the nae of PASTOR, #R.

and his ife, really !elon+ed to the decedent despite the latter5s constitutional disBualification as an alien.

On the procedural aspect, placed in issue is the propriety of certiorari as a eans to assail the validity of the order of

e>ecution and the ipleentin+ rit.

III. 2ISC0SSIO6:

%. Issue of Ownership

(a In a special proceedin+ for the pro!ate of a ill, the issue !y and lar+e is restricted to the e>trinsic validity of the ill,

i.e., hether the testator, !ein+ of sound ind, freely e>ecuted the ill in accordance ith the foralities prescri!ed !y

la. (Rules of Court, Rule 7$, Section % Rule 7', Section &. As a rule, the Buestion of onership is an e>traneous atter

hich the Pro!ate Court cannot resolve ith finality. Thus, for the purpose of deterinin+ hether a certain property

should or should not !e included in the inventory of estate properties, the Pro!ate Court ay pass upon the title thereto,

!ut such deterination is provisional, not conclusive, and is su!"ect to the final decision in a separate action to resolve

title. 4 -oran, Coents on the Rules of Court (%&8 ed., p. =$ Halero Hda. de Rodri+ue3 vs. Court of Appeals, &%

SCRA $=8.D

(! The rule is that e>ecution of a "ud+ent ust confor to that decreed in the dispositive part of the decision.

(Philippine;Aerican Insurance Co. vs. ?onora!le Flores, &7 SCRA %%. ?oever, in case of a!i+uity or uncertainty,

the !ody of the decision ay !e scanned for +uidance in construin+ the "ud+ent. (?eirs of Presto vs. alan+, 7 SCRA

$4= Fa!ular vs. Court of Appeals, %%& SCRA 4*& Ro!les vs. Tiario. %87 Phil. 8&.

The Order sou+ht to !e e>ecuted !y the assailed Order of e>ecution is the Pro!ate Order of 2ece!er $, %&7* hich

alle+edly resolved the Buestion of onership of the disputed inin+ properties. The said Pro!ate Order enuerated the

issues !efore the Pro!ate Court, thus:


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0nista9a!ly, there are three aspects in these proceedin+s: (% the pro!ate of the holo+raphic ill (* the

intestate estate aspect and (4 the adinistration proceedin+s for the purported estate of the decedent in

the Philippines.

In its !road and total perspective the hole proceedin+s are !ein+ ipu+ned !y the oppositors on

"urisdictional +rounds, i.e., that the fact of the decedent5s residence and e>istence of properties in the

Philippines have not !een esta!lished.

Specifically placed in issue ith respect to the pro!ate proceedin+s are: (a hether or not theholo+raphic ill (1>hi!it # has lost its efficacy as the last ill and testaent upon the death of Alvaro

Pastor, Sr. on #une $, %&'', in Ce!u City, Philippines (! Ghether or not the said ill has !een e>ecuted

ith all the foralities reBuired !y la and (c 2id the late presentation of the holo+raphic ill affect the

validity of the saeK

Issues In the Adinistration Proceedin+s are as follos: (% Gas the e>; parte appointent of the

petitioner as special adinistrator valid and properK (* Is there any indispensa!le necessity for the

estate of the decedent to !e placed under adinistrationK (4 Ghether or not petition is Bualified to !e a

special adinistrator of the estate and (= Ghether or not the properties listed in the inventory (su!itted

!y the special adinistrator !ut not approved !y the Pro!ate Court are to !e e>cluded.

Then cae hat purports to !e the dispositive portion:

0pon the fore+oin+ preises, this Court rules on and resolves soe of the pro!les and issues

presented in these proceedin+s, as follos:

(a The Court has acBuired "urisdiction over the pro!ate proceedin+s as it here! allows and approves

the so"called holo#raphic willof testator Alvaro Pastor, Sr., e>ecuted on #uly 4%, %&'% ith respect to its

e>trinsic validity, the sae havin+ !een duly authenticated pursuant to the reBuisites or solenities

prescri!ed !y la. et, therefore, a certificate of its alloance !e prepared !y the )ranch Cler9 of this

Court to !e si+ned !y this Presidin+ #ud+e, and attested !y the seal of the Court, and thereafter attached

to the ill, and the ill and certificate filed and recorded !y the cler9. et attested copies of the ill and of

the certificate of alloance thereof !e sent to Atlas Consolidated -inin+ L 2evelopent Corporation,oodrich )ld+., Ce!u City, and the Re+ister of 2eeds of Ce!u or of Toledo City, as the case ay !e, for

recordin+.

(! There as a delay in the +rantin+ of the letters testaentary or of adinistration for as a atter of

fact, no re+ular e>ecutor andEor adinistrator has !een appointed up to this tie and ; the appointment of

a special administrator was, and still is, $ustified under the circumstances to ta%e possession and char#e

of the estateof the deceased in the Philippines (particularly in Ce!u until the pro!les causin+ the delay

are decided and the re+ular e>ecutor andEor adinistrator appointed.

(c here is a necessit! and propriet! of a special administrator and later on an e'ecutor and(or

administrator in these proceedin#s, in spite of this Court5s declaration that the oppositors are the forced

heirs and the petitioner is erely vested ith the character of a voluntary heir to the e>tent of the !ounty

+iven to hi (under the ill insofar as the same will not pre$udice the le#itimes of the oppositorfor the

folloin+ reasons:

%. To su!it a coplete inventory of the estate of the decedent;testator

Alvaro Pastor, Sr.

*. To adinister and to continue to put to prolific utili3ation of the

properties of the decedent

4. To 9eep and aintain the houses and other structures and !elon+in+

to the estate, since the forced heirs are residin+ in Spain, and preparethe for delivery to the heirs in +ood order after partition and hen

directed !y the Court, !ut only after the payent of estate and

inheritance ta>es

(d )u$ect to the outcome of the suit for reconve!ance of ownership and possession of real and personal

propertiesin Civil Case 6o. *7=;T !efore )ranch I@ of the Court of First Instance of Ce!u,the intestate

estate administration aspect must proceed, unless, hoever, it is dul! proven!y the oppositors that de!ts

of the decedent have already !een paid, that there had !een an e>tra"udicial partition or suary one

!eteen the forced heirs, that the le#ac! to e #iven and delivered to the petitioner does not e'ceed the


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free portion of the estate of the testator, that the respective shares of the forced heirs have !een fairly

apportioned, distri!uted and delivered to the to forced heirs of Alvaro Pastor, Sr., after deductin+ the

property illed to the petitioner, and the estate and inheritance ta>es have already !een paid to the

overnent thru the )ureau of Internal Revenue.

The suita!ility and propriety of alloin+ petitioner to reain as special adinistrator or adinistrator of

the other properties of the estate of the decedent, hich properties are not directly or indirectly affected

!y the provisions of the holo+raphic ill (such as !an9 deposits, land in -actan etc., ill !e resolved in

another order as separate incident, considerin# that this order should have een properl! issued solel! asa resolution on the issue of whether or not to allow and approve the aforestated will. (1phasis supplied.

6ohere in the dispositive portion is there a declaration of onership of specific properties. On the contrary, it is anifest

therein that onership as not resolved. For it confined itself to the Buestion of e>trinsic validity of the in, and the need

for and propriety of appointin+ a special adinistrator. Thus it alloed and approved the holo+raphic in ith respect to

its e>trinsic validity, the sae havin+ !een duly authenticated pursuant to the reBuisites or solenities prescri!ed !y la.

It declared that the intestate estate adinistration aspect ust proceed su!"ect to the outcoe of the suit for

reconveyance of onership and possession of real and personal properties in Civil Case *7=;T !efore )ranch I@ of the

CFI of Ce!u. Parenthetically, althou+h the stateent refers only to the intestate aspect, it defies understandin+ ho

onership !y the estate of soe properties could !e deeed finall! resolvedfor purposes of testateadinistration, !ut

not so for intestatepurposes. Can the estate !e the oner of a property for testate !ut not for intestate purposesKD Then

a+ain, the Pro!ate Order (hile indeed it does not direct the ipleentation of the le+acy conditionally stated that theintestate adinistration aspect ust proceed unless . . . it is proven . . . that the le+acy to !e +iven and delivered to the

petitioner does not e>ceed the free portion of the estate of the testator, hich clearly iplies that the issue of ipairent

of le+itie (an aspect of intrinsic validity as in fact not resolved. Finally, the Pro!ate Order did not rule on the propriety

of alloin+ /01-A2A to reain as special adinistrator of estate properties not covered !y the holo+raphic ill,

considerin+ that this (Pro!ate Order should have !een properly issued solely as a resolution on the issue of hether or

not to allo and approve the aforestated ill.

(c That the Pro!ate Order did not resolve the Buestion of onership of the properties listed in the estate inventory as

appropriate, considerin+ that the issue of onership as the very su!"ect of controversy in the reconveyance suit that as

still pendin+ in )ranch I@ of the Court of First Instance of Ce!u.

(d Ghat, therefore, the Court of Appeals and, in effect, the Supree Court affired en totohen they revieed the

Pro!a!le Order ere only the atters properly ad"ud+ed in the said Order.

(e In an attept to "ustify the issuance of the Order of e>ecution dated Au+ust *8, %&8, the Pro!ate Court in its Order of

6ove!er %%, %&8 e>plained that the !asis for its conclusion that the Buestion of onership had !een forally resolved

!y the Pro!ate Order of %&7* are the findin+s in the latter Order that (% durin+ the lifetie of the decedent, he as

receivin+ royalties fro ATAS (* he had resided in the Philippines since pre;ar days and as en+a+ed in the ine

prospectin+ !usiness since %&47 particularly in the City of Toledo and (4 PASTOR, #R. as only actin+ as duy for his

father !ecause the latter as a Spaniard.

)ased on the preises laid, the conclusion is o!viously far;fetched.

(f It as, therefore, error for the assailed ipleentin+ Orders to conclude that the Pro!ate Order ad"ud+ed ith finality

the Buestion of onership of the inin+ properties and royalties, and that, preised on this conclusion, the dispositive

portion of the said Pro!ate Order directed the special adinistrator to pay the le+acy in dispute.

*. Issue of Intrinsic *alidit! of the +olo#raphic ill;

(a Ghen PASTOR, SR. died in %&'', he as survived !y his ife, aside fro his to le+itiate children and one

ille+itiate son. There is therefore a need to liBuidate the con"u+al partnership and set apart the share of PASTOR, SR.5s

ife in the con"u+al partnership preparatory to the adinistration and liBuidation of the estate of PASTOR, SR. hich ill

include, aon+ others, the deterination of the e>tent of the statutory usufructuary ri+ht of his ife until her death. +Ghen

the disputed Pro!ate order as issued on 2ece!er $, %&7*, there had !een no liBuidation of the counity propertiesof PASTOR, SR. and his ife.

(! So, also, as of the sae date, there had !een no prior definitive deterination of the assets of the estate of PASTOR,

SR. There as an inventory of his properties presua!ly prepared !y the special adinistrator, !ut it does not appear that

it as ever the su!"ect of a hearin+ or that it as "udicially approved. The reconveyance or recovery of properties alle+edly

oned !ut not in the nae of PASTOR, SR. as still !ein+ liti+ated in another court.

(c There as no appropriate deterination, uch less payent, of the de!ts of the decedent and his estate. Indeed, it

as only in the Pro!ate Order of 2ece!er $, %&7* here the Pro!ate Court ordered that;


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... a notice !e issued and pu!lished pursuant to the provisions of Rule ' of the Rules of Court, reBuirin+

all persons havin+ oney clais a+ainst the decedent to file the in the office of the )ranch Cler9 of this

Court.

(d 6or had the estate ta> !een deterined and paid, or at least provided for, as of 2ece!er $, %&7*.

(e The net assets of the estate not havin+ !een deterined, the le+itie of the forced heirs in concrete fi+ures could not

!e ascertained.

(f All the fore+oin+ deficiencies considered, it as not possi!le to deterine hether the le+acy of /01-A2A ; a fi>ed

share in a specific property rather than an aliBuot part of the entire net estate of the deceased ; ould produce an

ipairent of the le+itie of the copulsory heirs.

(+ Finally, there actually as no deterination of the intrinsic validity of the ill in other respects. It as o!viously for this

reason that as late as -arch $, %&8 ; ore than 7 years after the Pro!ate Order as issued the Pro!ate Court scheduled

on -arch *$, %&8 a hearin+ on the intrinsicvalidity of the ill.

4. Propriet! of certiorari

Private respondent challen+es the propriety of certiorari as a eans to assail the validity of the disputed Order of

e>ecution. ?e contends that the error, if any, is one of "ud+ent, not "urisdiction, and properly correcti!le only !y appeal,

not certiorari.

0nder the circustances of the case at !ar, the challen+e ust !e re"ected. rave a!use of discretion aountin+ to lac9

of "urisdiction is uch too evident in the actuations of the pro!ate court to !e overloo9ed or condoned.

(a Githout a final, authoritative ad"udication of the issue as to hat properties copose the estate of PASTOR, SR. in the

face of conflictin+ clais ade !y heirs and a non;heir (-A. 116A AC?AHA 21 PASTOR involvin+ properties not in

the nae of the decedent, and in the a!sence of a resolution on the intrinsic validity of the ill here in Buestion, there as

no !asis for the Pro!ate Court to hold in its Pro!ate Order of %&7*, hich it did not, that private respondent is entitled to

the payent of the Buestioned le+acy. Therefore, the Order of 1>ecution of Au+ust *8, %&8 and the su!seBuent

ipleentin+ orders for the payent of /01-A2A5s le+acy, in alle+ed ipleentation of the dispositive part of thePro!ate Order of 2ece!er $, %&7*, ust fall for lac9 of !asis.

(! The ordered payent of le+acy ould !e violative of the rule reBuirin+ prior liBuidation of the estate of the deceased,

i.e., the deterination of the assets of the estate and payent of all de!ts and e>penses, !efore apportionent and

distri!ution of the residue aon+ the heirs and le+atees. ()ernardo vs. Court of Appeals, 7 SCRA 4'7.

(c 6either has the estate ta> !een paid on the estate of PASTOR, SR. Payent therefore of the le+acy to /01-A2A

ould collide ith the provision of the 6ational Internal Revenue Code reBuirin+ payent of estate ta> !efore delivery to

any !eneficiary of his distri!utive share of the estate (Section %87 cD

(d The assailed order of e>ecution as unauthori3ed, havin+ !een issued purportedly under Rule , Section ' of the

Rules of Court hich reads:

Sec. '. Court to fi> contri!utive shares here devisees, le+atees, or heirs have !een in possession. J

Ghere devisees, le#atees, or heirs have entered into possession of portions of the estate !efore

the detsand e>penses have !een settled and paid and have !ecoe lia!le to contri!ute for the payent

of such de!ts and e>penses, the court havin+ "urisdiction of the estate ay, !y order for that purpose,

after hearin+, settle the aount of their several lia!ilities, and order ho uch and in hat anner each

person shall contri!ute, and ay issue e>ecution as circustances reBuire.

The a!ove provision clearly authori3es e>ecution to enforce payent of dets

of estate. A le+acy is not a de!t of the

estate indeed, le+atees are aon+ those a+ainst ho e>ecution is authori3ed to !e issued.

... there is erit in the petitioners5 contention that the pro!ate court +enerally cannot issue a rit of

e>ecution. It is not supposed to issue a rit of e>ecution !ecause its orders usually refer to the

ad"udication of clais a+ainst the estate hich the e>ecutor or adinistrator ay satisfy ithout the

necessity of resortin+ to a rit of e>ecution. The pro!ate court, as such, does not render any "ud+ent

enforcea!le !y e>ecution.

The circustances that the Rules of Court e>pressly specifies that the pro!ate court ay issue e>ecution

(a to satisfy (de!ts of the estate out of the contri!utive shares of devisees, le+atees and heirs in

possession of the decedent5s assets (Sec. '. Rule , (! to enforce payent of the e>penses of partition


7/131

(Sec. 4, Rule &8, and (c to satisfy the costs hen a person is cited for e>aination in pro!ate

proceedin+s (Sec. %4, Rule %=* ay ean, under the rule of inclusion unius est e>clusion alterius, that

those are the only instances hen it can issue a rit of e>ecution. (Hda. de Halera vs. Ofilada, $& SCRA

&', %8.

(d It is ithin a court5s copetence to order the e>ecution of a final "ud+ent !ut to order the e>ecution of a final order

(hich is not even eant to !e e>ecuted !y readin+ into it ters that are not there and in utter disre+ard of e>istin+ rules

and la, is anifest +rave a!use of discretion tantaount to lac9 of "urisdiction. ConseBuently, the rule that certiorari ay

not !e invo9ed to defeat the ri+ht of a prevailin+ party to the e>ecution of a valid and final "ud+ent, is inapplica!le. Forhen an order of e>ecution is issued ith +rave a!use of discretion or is at variance ith the "ud+ent sou+ht to !e

enforced (PHTA vs. ?onora!le on3ales, &* SCRA %7*, certiorari ill lie to a!ate the order of e>ecution.

(e Aside fro the propriety of resortin+ to certiorari to assail an order of e>ecution hich varies the ters of the "ud+ent

sou+ht to !e e>ecuted or does not f ind support in the dispositive part of the latter, there are circustances in the instant

case hich "ustify the reedy applied for.

Petitioner -A. 116A AC?AHA 21 PASTOR, ife of PASTOR, #R., is the holder in her on ri+ht of three inin+ clais

hich are one of the o!"ects of conflictin+ clais of onership. She is not an heir of PASTOR, SR. and as not a party to

the pro!ate proceedin+s. Therefore, she could not appeal fro the Order of e>ecution issued !y the Pro!ate Court. On

the other hand, after the issuance of the e>ecution order, the ur+ency of the relief she and her co;petitioner hus!and see9

in the petition for certiorari states a+ainst reBuirin+ her to +o throu+h the cu!ersoe procedure of as9in+ for leave to

intervene in the pro!ate proceedin+s to ena!le her, if leave is +ranted, to appeal fro the challen+ed order of e>ecution

hich has ordered the immediatetransfer andEor +arnishent of the royalties derived fro ineral properties of hich

she is the duly re+istered oner andEor +rantee to+ether ith her hus!and. She could not have intervened !efore the

issuance of the assailed orders !ecause she had no valid +round to intervene. The atter of onership over the

properties su!"ect of the e>ecution as then still !ein+ liti+ated in another court in a reconveyance suit filed !y the special

adinistrator of the estate of PASTOR, SR.

i9eise, at the tie petitioner PASTOR, #R. -ed the petition for certiorari ith the Court of Appeals, appeal as not

availa!le to hi since his otion for reconsideration of the e>ecution order as still pendin+ resolution !y the Pro!ate

Court. )ut in the face of actual +arnishent of their a"or source of incoe, petitioners could no lon+er ait for the

resolution of their otion for reconsideration. They needed propt relief fro the in"urious effects of the e>ecution order.0nder the circustances, recourse to certiorari as the feasi!le reedy.

G?1R1FOR1, the decision of the Court of Appeals in CA .R. 6o. SP;%%474;R is reversed. The Order of e>ecution

issued !y the pro!ate Court dated Au+ust *8, %&8, as ell as all the Orders issued su!seBuent thereto in alle+ed

ipleentation of the Pro!ate Order dated 2ece!er $, %&7*, particularly the Orders dated 6ove!er %%, %&8 and

2ece!er %7, %&8, are here!y set aside and this case is reanded to the appropriate Re+ional Trial Court for proper

proceedin+s, su!"ect to the "ud+ent to !e rendered in Civil Case 6o. *7=;R.

SO OR21R12.

eehan%ee -Chairman, /elencio"+errera *as0uez and Relova 11., concur.

2utierrez, 1., too% no part.

%oonoe

M 0nder the Civil Code, Art. %', intestate and testaentary successions of an alien are re+ulated !y his

national la ith respect to the order of succession and to the aount of successional ri+hts and to the

intrinsic validity of testaentary provisions. The Civil Code of Spain Art. 4=, provides for the

usufructuary ri+ht of the survivin+ spouse ith respect to a portion of the decedent5s estate hile Art.

%4&* provides for con"u+al partnership. 0nder the Rules of Court, Rule 74, Section *: Ghen the arria+eis dissolved !y the death of the hus!and or ife, the counity property shall !e inventoried,

adinistered and liBuidated, and the de!ts thereof paid, in the testate or intestate proceedin+s of the

deceased spouse. If !oth spouses have died, the con"u+al partnership shall !e liBuidated in the testate or

intestate proceedin+s of either.


8/131

G.R. No. L-3924 June 2, 195

(n /e !ae o /e Peon o Aoe /e ) o Leoeaa Juan. %EL(7 'ALANA&, JR., petitioner,

vs.

#ON. ANTON(O !. !ART(NE, Jue o /e "ou o % (nane o $aao, 'an/ V(: AVEL(NA '.

ANTON(O an $EL(A '. LANA'AN, respondents.

Roerto /. )arenas for petitioner.

1ose 3. 2u!o for private respondents.

A*U(NO, J.:

Feli> )alanay, #r. appealed !y certiorarifro the order of the Court of First Instance of 2avao dated Fe!ruary *,

%&7=, declarin+ ille+al and void the ill of his other, eode+aria #ulian, convertin+ the testate proceedin+ into an

intestate proceedin+ and orderin+ the issuance of the correspondin+ notice to creditors (Special Case 6o. %8.

The antecedents of the appeal are as follos:


9/131

eode+aria #ulian, a native of Sta. -aria, Ilocos Sur, died on Fe!ruary %*, %&74 in 2avao City at the a+e of si>ty;

seven. She as survived !y her hus!and, Feli> )alanay, Sr., and !y their si> le+itiate children naed Feli>

)alanay, #r., Avelina ). Antonio, )eatri3 ). Solao, Carolina ). -an+uio!, 2elia ). ana!an and 1ilia ).

Pa!aonon.

Feli> #. )alanay, #r. filed in the loer court a petition dated Fe!ruary *7, %&74 for the pro!ate of his other5s notarial

ill dated Septe!er $, %&78 hich is ritten in 1n+lish. In that ill eode+aria #ulian declared (a that she as the

oner of the southern half of nine con"u+al lots (par. II (! that she as the a!solute oner of to parcels of land

hich she inherited fro her father (par. III, and (c that it as her desire that her properties should not !e dividedaon+ her heirs durin+ her hus!and5s lifetie and that their le+ities should !e satisfied out of the fruits of her

properties (Par. IH.

Then, in para+raph H of the ill she stated that after her hus!and5s death (he as ei+hty;to years old in %&74 her

paraphernal lands and all the con"u+al lands (hich she descri!ed as y properties should !e divided and

distri!uted in the anner set forth in that part of her ill. She devised and partitioned the con"u+al lands as if they

ere all oned !y her. She disposed of in the ill her hus!and5s one half share of the con"u+al assets.+

Feli> )alanay, Sr. and Avelina ). Antonio opposed the pro!ate of the ill on the +rounds of lac9 of testaentary

capacity, undue influence, preterition of the hus!and and alle+ed iproper partition of the con"u+al estate. The

oppositors claied that Feli> )alanay, #r. should collate certain properties hich he had received fro the testatri>.

Feli> )alanay, #r., in his reply to the opposition, attached thereto an affidavit of Feli> )alanay, Sr. dated April %,

%&74 herein he ithdre his opposition to the pro!ate of the ill and affired that he as interested in its pro!ate.

On the sae date Feli> )alanay, Sr. si+ned an instruent captioned Conforation (sic of 2ivision and

Renunciation of ?ereditary Ri+hts herein he anifested that out of respect for his ife5s ill he aived and

renounced5 his hereditary ri+hts in her estate in favor of their si> children. In that sae instruent he confired the

a+reeent, hich he and his ife had perfected !efore her death, that their con"u+al properties ould !e partitioned

in the anner indicated in her ill.

Avelina ). Antonio, an oppositor, in her re"oinder contended that the affidavit and conforation of Feli> )alanay, Sr.

ere void. The loer court in its order of #une %, %&74 denied the opposition and reset for hearin+ the pro!ate ofthe ill. It +ave effect to the affidavit and confority of Feli> )alanay, Sr. In an order dated Au+ust *, %&74 it

appointed its !ranch cler9 of court as special adinistrator of the decedent5s estate.

-rs. Antonio oved for the reconsideration of the loer court5s order of #une %, %&74 on the +rounds (a that the

testatri> ille+ally claied that she as the oner of the southern half of the con"u+al lots and (! that she could not

partition the con"u+al estate !y allocatin+ portions of the nine lots to her children. Feli> )alanay, #r., throu+h his

counsel, ?erene+ildo Ca!reros, opposed that otion. The loer court denied it in its order of Octo!er %$, %&74.

In the eanhile, another layer appeared in the case. 2avid O. -ontaNa, Sr., claiin+ to !e the layer of

petitioner Feli> )alanay, #r. (his counsel of record as Atty. Ca!reros, filed a otion dated Septe!er *$, %&74 for

leave of court to ithdra pro!ate of alle+ed ill of eode+aria #ulian and reBuestin+ authority to proceed !yintestate estate proceedin+. In that otion -ontaNa claied to !e the layer not only of the petitioner !ut also of

Feli> )alanay, Sr., )eatri3 ). Solao, Carolina ). -an+uio! and 1ilia ). Pa!aonon.

-ontaNa in his otion assailed the provision of the ill hich partitioned the con"u+al assets or alle+edly effected a

coproise of future le+ities. ?e prayed that the pro!ate of the ill !e ithdran and that the proceedin+ !e

converted into an intestate proceedin+. In another otion of the sae date he as9ed that the correspondin+ notice

to creditors !e issued.

Avelina ). Antonio and 2elia ). ana!an, throu+h Atty. #ose ). uyo, in their coents dated Octo!er %$, %&74

anifested their confority ith the otion for the issuance of a notice to creditors. They prayed that the ill !e

declared void for !ein+ contrary to la and that an intestacy !e declared.

The loer court, actin+ on the otions of Atty. -ontaNa, assued that the issuance of a notice to creditors as in

order since the parties had a+reed on that point. It adopted the vie of Attys. -ontaNa and uyo that the ill as

void. So, in its order of Fe!ruary *, %&7= it disissed the petition for the pro!ate, converted the testate proceedin+

into an intestate proceedin+, ordered the issuance of a notice to creditors and set the intestate proceedin+ for

hearin+ on April % and *, %&7=. The loer court did not a!ro+ate its prior orders of #une % and Octo!er %$, %&74.

The notice to creditors as issued on April %, %&7= and pu!lished on -ay *, & and %' in the 2avao Star in spite of

petitioner5s otion of April %7, %&7= that its pu!lication !e held in a!eyance.


10/131

Feli> )alanay, #r., throu+h a ne counsel, Ro!erto -. Sarenas, in a verified otion dated April %$, %&7=, as9ed for

the reconsideration of the loer court5s order of Fe!ruary *, %&7= on the +round that Atty. -ontaNa had no

authority to ithdra the petition for the alloance of the ill. Attached to the otion as a copy of a letter dated

-arch *7, %&7= addressed to Atty. -ontaNa and si+ned !y Feli> )alanay, #r., )eatri3 H. Solao, Carolina ).

-an+uio! and 1ilia ). Pa!aonon, herein they terinated -ontaNa5s services and infored hi that his

ithdraal of the petition for the pro!ate of the ill as ithout their consent and as contrary to their repeated

reinder to hi that their other5s ill as very sacred to the.

Avelina ). Antonio and 2elia ). ana!an opposed the otion for reconsideration. The loer court denied the otionin its order of #une *&, %&7=. It clarified that it declared the ill void on the !asis of its on independent assessent

of its provisions and not !ecause of Atty. -ontaNa5s ar+uents.

The !asic issue is hether the pro!ate court erred in passin+ upon the intrinsic validity of the ill, !efore rulin+ on

its alloance or foral validity, and in declarin+ it void.

Ge are of the opinion that in vie of certain unusual provisions of the ill, hich are of du!ious le+ality, and

!ecause of the otion to ithdra the petition for pro!ate (hich the loer court assued to have !een filed ith

the petitioner5s authori3ation, the trial court acted correctly in passin+ upon the ill5s intrinsic validity even !efore its

foral validity had !een esta!lished. The pro!ate of a ill i+ht !ecoe an idle cereony if on its face it appears to

!e intrinsically void. Ghere practical considerations deand that the intrinsic validity of the ill !e passed upon,even !efore it is pro!ated, the court should eet the issue (6u+uid vs. 6u+uid, '= O.. %$*7, %7 SCRA ==&.

Copare ith Suilan+ vs. Raa+osa, ;*4%4$, 2ece!er *', %&'7, *% SCRA %4'& Cacho vs. 0dan, ;%&&&',

April 48, %&'$, %4 SCRA '&4.45wph64.78t

)ut the pro!ate court erred in declarin+, in its order of Fe!ruary *, %&7= that the ill as void and in convertin+ the

testate proceedin+ into an intestate proceedin+ notithstandin+ the fact that in its order of #une %, %&74 , it +ave

effect to the survivin+ hus!and5s confority to the ill and to his renunciation of his hereditary ri+hts hich

presua!ly included his one;half share of the con"u+al estate.

The rule is that the invalidity of one of several dispositions contained in a ill does not result in the invalidity of the

other dispositions, unless it is to !e presued that the testator ould not have ade such other dispositions if thefirst invalid disposition had not !een ade (Art. 7&*, Civil Code. Ghere soe of the provisions of a ill are valid

and others invalid, the valid parts ill !e upheld if they can !e separated fro the invalid ithout defeatin+ the

intention of the testator or interferin+ ith the +eneral testaentary schee, or doin+ in"ustice to the !eneficiaries

(&$ C.#.S. 74.

The stateent of the testatri> that she oned the southern half of the con"u+al lands is contrary to la !ecause,

althou+h she as a cooner thereof, her share as inchoate andproindiviso (Art. %=4, Civil Code -adri+al and

Paterno vs. Rafferty and Concepcion, 4 Phil. =%=. )ut That ille+al declaration does not nullify the entire ill. It ay

!e disre+arded.

The provision of the ill that the properties of the testatri> should not !e divided aon+ her heirs durin+ herhus!and5s lifetie !ut should !e 9ept intact and that the le+ities should !e paid in cash is contrary to article %88

of the Civil Code hich reads:

ART. %88. Should a person a9e a partition of his estate !y an actinter vivos, or !y ill, such

partition shall !e respected, insofar as it does not pre"udice the le+itie of the copulsory heirs.

A parent ho, in the interest of his or her faily, to 9eep any a+ricultural, industrial, or anufacturin+

enterprise intact, ay avail hiself of the ri+ht +ranted hi in this article, !y orderin+ that the

le+itie of the other children to ho the property is not assi+ned !e paid in cash. (%8$'a

The testatri> in her ill ade a partition of the entire con"u+al estate aon+ her si> children (her hus!and hadrenounced his hereditary ri+hts and his one;half con"u+al share. She did not assi+n the hole estate to one or ore

children as envisa+ed in article %88. ?ence, she had no ri+ht to reBuire that the le+ities !e paid in cash. On the

other hand, her estate ay reain undivided only for a period of tenty years. So, the provision that the estate

should not !e divided durin+ her hus!and5s lifetie ould at ost !e effective only for tenty years fro the date of

her death unless there are copellin+ reasons for terinatin+ the coonership (Art. %84, Civil Code.

Feli> )alanay, Sr. could validly renounce his hereditary ri+hts and his one;half share of the con"u+al partnership

(Arts. %7&%D and %8=%, Civil Code !ut insofar as said renunciation parta9es of a donation of his hereditary ri+hts

and his one;half share in the con"u+al estate (Art. %8'8%D Civil Code, it should !e su!"ect to the liitations


11/131

prescri!ed in articles 7$8 and 7$* of the Civil Code. A portion of the estate should !e ad"udicated to the idoer for

his support and aintenance. Or at least his le+itie should !e respected.

Su!"ect to the fore+oin+ o!servations and the rules on collation, the ill is intrinsically valid and the partition therein

ay !e +iven effect if it does not pre"udice the creditors and ipair the le+ities. The distri!ution and partition ould

!ecoe effective upon the death of Feli> )alanay, Sr. In the eantie, the net incoe should !e eBuita!ly divided

aon+ the children and the survivin+ spouse.

It should !e stressed that !y reason of the survivin+ hus!and5s confority to his ife5s ill and his renunciation ofhis hereditary ri+hts, his one;half con"u+al share !ecae a part of his deceased ife5s estate. ?is confority had

the effect of validatin+ the partition ade in para+raph H of the ill ithout pre"udice, of course, to the ri+hts of the

creditors and the le+ities of the copulsory heirs.

Article 7&4 of the Civil Code provides that property acBuired after the a9in+ of a ill shall only pass there!y, as if

the testator had it at the tie of a9in+ the ill, should it e>pressly appear !y the ill that such as his intention.

0nder article &48 of the Civil Code the le+acy or devise of a thin+ !elon+in+ to another person is void, if the testator

erroneously !elieved that the thin+ pertained to hi. )ut if the thin+ !eBueathed, thou+h not !elon+in+ to the

testator hen he ade the ill, afterards !ecoes his, !y hatever title, the disposition shall ta9e effect.

In the instant case there is no dou!t that the testatri> and her hus!and intended to partition the con"u+al estate inthe anner set forth in para+raph H of her ill. It is true that she could dispose of !y ill only her half of the con"u+al

estate (Art. %78, Civil Code !ut since the hus!and, after the dissolution of the con"u+al partnership, had assented to

her testaentary partition of the con"u+al estate, such partition has !ecoe valid, assuin+ that the ill ay !e

pro!ated.

The instant case is different fro the 9u#uid case, supra, here the testatri> instituted as heir her sister and

preterited her parents. ?er ill as intrinsically void !ecause it preterited her copulsory heirs in the direct line.

Article $= of the Civil Code provides that the preterition or oission of one, soe, or all of the copulsory heirs in

the directline, hether livin+ at the tie of the e>ecution of the ill or !orn after the death of the testator, shall annul

the institution of heir !ut the devises and le+acies, shall !e valid insofar as they are not inofficious. Since the

preterition of the parents annulled the institution of the sister of the testatri> and there ere no le+acies and devises,total intestacy resulted (.Art. &'8*D, Civil Code. 45wph64.78t

In the instant case, the preterited heir as the survivin+ spouse. ?is preterition did not produce intestacy. -oreover,

he si+nified his confority to his ife5s ill and renounced his hereditary ri+hts. .

It results that the loer court erred in not proceedin+ ith the pro!ate of the ill as conteplated in its uncancelled

order of #une %, %&74. Save in an e>tree case here the ill on its face is intrinsically void, it is the pro!ate

court5s duty to pass first upon the foral validity of the ill. enerally, the pro!ate of the ill is andatory (Art. 4,

Civil Code uevara vs. uevara, 7= Phil. =7& and & Phil. *=& Fernande3 vs. 2ia+i!a, ;*4'4, Octo!er %*,

%&'7, *% SCRA =*.

As aptly stated !y -r. #ustice )arredo, the very e>istence of a purported testaent is in itselfprima facie proof that

the supposed testator has illed that his estate should !e distri!uted in the anner therein provided, and it is

incu!ent upon the state that, if le+ally tena!le, such desire !e +iven effect independent of the attitude of the

parties affected there!y (Resolution, Hda. de Precilla vs. 6arciso, ;*7*88, Au+ust %, %&7*, =' SCRA $4, $'$.

To +ive effect to the intention and ishes of the testatri> is the first and principal la in the atter of testaents

(2i3on;Rivera vs. 2i3on, ;*=$'%, #une 48, %&78, 44 SCRA $$=, $'%. Testacy is prefera!le to intestacy. An

interpretation that ill render a testaentary disposition operative ta9es precedence over a construction that ill

nullify a provision of the ill (Arts. 7 and 7&%, Civil Code.

Testacy is favored. 2ou!ts are resolved in favor of testacy especially here the ill evinces an intention on the partof the testator to dispose of practically his hole estate. So copellin+ is the principle that intestacy should !e

avoided and that the ishes of the testator should prevail that soeties the lan+ua+e of the ill can !e varied for

the purpose of +ivin+ it effect (Austria vs. Reyes, ;*487&, Fe!ruary *7, %&78, 4% SCRA 7$=, 7'*.

As far as is le+ally possi!le, the e>pressed desire of the testator ust !e folloed and the dispositions of the

properties in his ill should !e upheld (1storBue vs. 1storBue, ;%&$74, #une 48, %&78, 44 SCRA $=8, $='.

The la has a tender re+ard for the ishes of the testator as e>pressed in his ill !ecause any disposition therein is

!etter than that hich the la can a9e (Castro vs. )ustos, ;*$&%4, Fe!ruary *, %&'&, *7 SCRA 4*7, 4=%.


12/131

To other errors of the loer court ay !e noticed. It erred in issuin+ a notice to creditors althou+h no e>ecutor or

re+ular adinistrator has !een appointed. The record reveals that it appointed a special adinistrator. A notice to

creditors is not in order if only a special adinistrator has !een appointed. Section %, Rule ' of the Rules of Court,

in providin+ that iediately after +rantin+ letters of testaentary or of adinistration, the court shall issue a notice

reBuirin+ all persons havin+ oney clais a+ainst the decedent to file the in the office of the cler9 of said court

clearly conteplates the appointent of an e>ecutor or re+ular adinistrator and not that of a special adinistrator.

It is the e>ecutor or re+ular adinistrator ho is supposed to oppose the clais a+ainst the estate and to pay such

clais hen duly alloed (See. %8, Rule ' and sec. %, Rule , Rules of Court.

Ge also ta9e this occasion to point out that the pro!ate court5s appointent of its !ranch cler9 of court as special

adinistrator (p. 48, Rollo is not a salutary practice !ecause it i+ht en+ender the suspicion that the pro!ate #ud+e

and his cler9 of court are in cahoots in il9in+ the decedent5s estate. Should the !ranch cler9 of court coit any

a!use or devastavit in the course of his adinistration, the pro!ate #ud+e i+ht find it difficult to hold hi to a strict

accounta!ility. A court eployee should devote his official tie to his official duties and should not have as a sideline

the adinistration of a decedent5s estate.

G?1R1FOR1, the loer court5s orders of Fe!ruary *, and #une *&, %&7= are set aside and its order of #une %,

%&74, settin+ for hearin+ the petition for pro!ate, is affired. The loer court is directed to conduct further

proceedin+s in Special Case 6o. %8 in consonance ith this opinion. Costs, a+ainst the private respondents.

SO OR21R12.

:ernando -Chairman, 3arredo, Antonio and Concepcion, 1r., 11., concur.

%oonoe

M The pertinent provisions of the ill are as follos:

II. That I a the a!solute oner of the southern half of the folloin+ con"u+al properties hich I

acBuired durin+ y arried life ith y hus!and, Feli> )alanay, Sr., naely: (?ere follos an

enueration of nine lots. 45wph64.78t

III. I a the a!solute oner of the folloin+ paraphernal properties hich I inherited fro y

deceased father, Cecilio #ulian, naely: (?ere follos a description of to lots.

IH. It is y desire and I direct that in the interest of y faily, y properties shall not !e divided

aon+ y heirs durin+ the lifetie of y hus!and, Feli> )alanay, Sr. !ut should !e 9ept intact. The

respective le+ities of y hus!and and y children should !e paid in cash out of the proceeds of

sale of the produce and rents derived fro said properties.

H. After the death of y hus!and, Feli> )alanay, Sr., y properties shall !e divided and distri!uted

in the anner as follos: (?ere follos a partition of the nine con"u+al lots and the to paraphernal

lots. The testatri> divided aon+ her si> children not only her to paraphernal lots, one of hich she

devised to 1ilia Pa!aonon and the other lot to Feli> )alanay, #r., !ut also the nine con"u+al lots.

She did not restrict the partition to her one;half con"u+al share !ut included her hus!and5s one;half

share..


13/131

G.R. No. L-23638 Oo;e 12, 196

$(ON(S(O %ERNAN$E, EUSE'(O RE&ES an LU(SA RE&ES,petitioners,vs.(S!AELA $(!AG('A,respondent.

;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;

G.R. No. L-23662 Oo;e 12, 196

!AR(ANO RE&ES, "ESAR RE&ES, LEONOR RE&ES an PA"(EN"(A RE&ES,petitioners,vs.(S!AELA $(!AG('A,respondent.

1ose ;. *illena for petitioners.Antonio 3arredo and ecuted on Octo!er**, %&48, and anne>ed to the petition. The ill instituted the petitioner as the sole heir of the estate of the deceased.The petition as set for hearin+, and in due tie, 2ionisio Fernande3, 1use!io Reyes and uisa Reyes and oneonth later, -ariano, Cesar, eonor and Paciencia, all surnaed Reyes, all claiin+ to !e heirs intestate of thedecedent, filed oppositions to the pro!ate as9ed. rounds advanced for the opposition ere for+ery, vices ofconsent of the testatri>, estoppel !y laches of the proponent and revocation of the ill !y to deeds of conveyance

of the a"or portion of the estate ade !y the testatri> in favor of the proponent in %&=4 and %&==, !ut hichconveyances ere finally set aside !y this Supree Court in a decision proul+ated on Au+ust 4, %&$=, in cases.R. 6os. ;$'% and ;$'*8 (unpu!lished.

After trial on the forulated issues, the Court of First Instance, !y decision of #une *8, %&$, found that the ill as+enuine and properly e>ecuted !ut deferred resolution on the Buestions of estoppel and revocation until such tiehen e shall pass upon the intrinsic validity of the provisions of the ill or hen the Buestion of ad"udication of theproperties is opportunely presented.

Oppositors Fernande3 and Reyes petitioned for reconsideration, andEor ne trial, insistin+ that the issues ofestoppel and revocation !e considered and resolved hereupon, on #uly *7, %&$&, the Court overruled the claithat proponent as in estoppel to as9 for the pro!ate of the ill, !ut reservin+ unto the parties the ri+ht to raise the

issue of iplied revocation at the opportune tie.

On #anuary %%, %&'8, the Court of First Instance appointed Ricardo Cru3 as adinistrator for the sole purpose ofsu!ittin+ an inventory of the estate, and this as done on Fe!ruary &, %&'8.

On Fe!ruary *7, %&'*, after receivin+ further evidence on the issue hether the e>ecution !y the testatri> of deedsof sale of the lar+er portion of her estate in favor of the testaentary heir, ade in %&=4 and %&==, su!seBuent tothe e>ecution of her %&48 testaent, had revo9ed the latter under Article &$7(* of the %&$8 Civil Code (Art. '& ofthe Civil Code of %&, the trial Court resolved a+ainst the oppositors and held the ill of the late )enedicta de losReyes unaffected and unrevo9ed !y the deeds of sale. Ghereupon, the oppositors elevated the case to the Courtof Appeals.

The appellate Court held that the decree of #une *8, %&$, adittin+ the ill to pro!ate, had !ecoe final for lac9 ofopportune appeal that the sae as appeala!le independently of the issue of iplied revocation that contrary tothe clai of oppositors;appellants, there had !een no le+al revocation !y the e>ecution of the %&=4 and %&== deedsof sale, !ecause the latter had !een ade in favor of the le+atee herself, and affired the decision of the Court ofFirst Instance.

Oppositors then appealed to this Court.

In this instance, !oth sets of oppositors;appellants pose three ain issues: (a hether or not the decree of theCourt of First Instance alloin+ the ill to pro!ate had !ecoe final for lac9 of appeal (! hether or not the orderof the Court of ori+in dated #uly *7, %&$&, overrulin+ the estoppel invo9ed !y oppositors;appellants had li9eise


14/131

!ecoe final and (c hether or not the %&48 ill of )enedicta de los Reyes had !een ipliedly revo9ed !y here>ecution of deeds of conveyance in favor of the proponent on -arch *', %&=4 and April 4, %&==.

As to the first point, oppositors;appellants contend that the order alloin+ the ill to pro!ate should !e consideredinterlocutory, !ecause it fails to resolve the issues of estoppel and revocation propounded in their opposition. Gea+ree ith the Court of Appeals that the appellant5s stand is untena!le. It is eleentary that a pro!ate decree finallyand definitively settles all Buestions concernin+ capacity of the testator and the proper e>ecution and itnessin+ ofhis last ill and testaent, irrespective of hether its provisions are valid and enforcea!le or otherise. (-ontaNanovs. Suesa, %= Phil. '7' -ercado vs. Santos, '' Phil. *%$ Trillana vs. Crisostoo, & Phil. 7%8. As such, the

pro!ate order is final and appeala!le and it is so reco+ni3ed !y e>press provisions of Section % of Rule %8&, thatspecifically prescri!es that any interested person ay appeal in special proceedin+s fro an order or "ud+ent . . .here such order or "ud+ent: (a allos or disallos a ill.

Appellants ar+ue that they ere entitled to aait the trial Court5s resolution on the other +rounds of their opposition!efore ta9in+ an appeal, as otherise there ould !e a ultiplicity of recourses to the hi+her Courts. This contentionis ithout ei+ht, since Rule %8&, section %, e>pressly enuerates si> different instances hen appeal ay !eta9en in special proceedin+s.

There !ein+ no controversy that the pro!ate decree of the Court !elo as not appealed on tie, the sae had!ecoe final and conclusive. ?ence, the appellate courts ay no lon+er revo9e said decree nor revie theevidence upon hich it is ade to rest. Thus, the appeal !elatedly lod+ed a+ainst the decree as correctly

disissed.

The alle+ed revocation iplied fro the e>ecution of the deeds of conveyance in favor of the testaentary heir isplainly irrelevant to and separate fro the Buestion of hether the testaent as duly e>ecuted. For one, if the illis not entitled to pro!ate, or its pro!ate is denied, all Buestions of revocation !ecoe superfluous in la, there is nosuch ill and hence there ould !e nothin+ to revo9e. Then, a+ain, the revocation invo9ed !y the oppositors;appellants is not an e>press one, !ut erely iplied fro su!seBuent acts of the testatri> alle+edly evidencin+ ana!andonent of the ori+inal intention to !eBueath or devise the properties concerned. As such, the revocationould not affect the ill itself, !ut erely the particular devise or le+acy. Only the totaland asoluterevocation canpreclude pro!ate of the revo9ed testaent (Trillana vs. Crisostoo, supra..

As to the issue of estoppel, e have already ruled in uevara vs. uevara, & Phil. *=&, that the presentation andpro!ate of a ill are reBuireents of pu!lic policy, !ein+ priarily desi+ned to protect the testator5s, e>pressedishes, hich are entitled to respect as a conseBuence of the decedent5s onership and ri+ht of disposition ithinle+al liits. 1vidence of it is the dut!iposed on a custodian of a ill to deliver the sae to the Court, and the fineand iprisonent prescri!ed for its violation (Revised Rule 7$. It ould !e a non se0uiturto allo pu!lic policy to!e evaded on the prete>t of estoppel. Ghether or not the order overrulin+ the alle+ation of estoppel is stillappeala!le or not, the defense is patently uneritorious and the Court of Appeals correctly so ruled.

The last issue, that of revocation, is predicated on para+raph * of Article &$7 of the Civil Code of %&$8 (Art. '& ofthe Code of %&, hich recites:

Art. &$7. The le+acy or devise shall !e ithout effect:

(% . . . .

(* If the testator !y any title or for any cause alienates the thin+ !eBueathed or any part thereof, it !ein+understood that in the latter case the le+acy or devise shall !e ithout effect only ith respect to the partthus alienated. If after the alienation the thin+ should a+ain !elon+ to the testator, even if it !e !y reason ofnullity of the contract, the le+acy or devise shall not thereafter !e valid, unless the reacBuisition shall have!een effected !y virtue of the e>ercise of the ri+ht of repurchase

>>> >>> >>>

It is ell to note that, unli9e in the French and Italian Codes, the !asis of the Buoted provision is a presued chan+eof intention on the part of the testator. As pointed out !y -anresa in his Coentaries on Article '& of the CivilCode (Hol. ', 7th 1d., p. 7=4 J

1ste caso se funda en la presunta voluntad del testador. Si este, despues de le+ar, se desprende de la cosapor titulo lucrativo u oneroso, hace desaparecer su derecho so!ra ella, dando lu+ar a la presuncion de Bueha ca!iado de voluntad, y no Buiere Bue el le+ado se cupla. -as para Bue pueda presuirse esavoluntad, es necesario Bue edien actos del testador Bue la indiBuen. Si la perdida del derecho so!re lacosa ha sido independiente de la voluntad del testador, el le+ado podraBuedar sin efecto, as no en virtuddel nuero * del articulo '&, Bue e>i+e siepre actos voluntarios de ena"enacion por parte del isotestador.

As o!served !y the Court of Appeals, the e>istence of any such chan+e or departure fro the ori+inal intent of thetestatri>, e>pressed in her %&48 testaent, is rendered dou!tful !y the circustance that the su!seBuent alienations


15/131

in %&=4 and %&== ere e>ecuted in favor of the le+atee herself, appellee 2ia+i!a. In fact, as found !y the Court ofAppeals in its decision annullin+ these conveyances (affired in that point !y this Supree Court in Re!es vs.Court of Appeals and ;ima#ia, ;$'% and ;$'*8, proul+ated on #uly 4%, %&$=, no consideration hateveras paid !y respondent 2ia+i!a on account of the transfers, there!y renderin+ it even ore dou!tful hether inconveyin+ the property to her le+atee, the testatri> erely intended to coply in advance ith hat she hadordained in her testaent, rather than an alteration or departure therefro.%Revocation !ein+ an e>ception, e!elieve, ith the Courts !elo, that in the circustances of the particular case, Article &$7 of the Civil Code of thePhilippines, does not apply to the case at !ar.

6ot only that, !ut even if it ere applica!le, the annulent of the conveyances ould not necessarily result in therevocation of the le+acies, if e !ear in ind that the findin+s ade in the decision decreein+ the annulent of thesu!seBuent %&=4 and %&== deeds of sale ere also that

it as the oral influence, ori+inatin+ fro their confidential relationship, hich as the only cause for thee>ecution of 1>hs. A and ) (the %&=4 and %&== conveyances. (2ecision, ;$'% and ;$'*8.

If the annulent as due to undue influence, as the Buoted passa+e iplies, then the transferor as not e>pressin+her on free ill and intent in a9in+ the conveyances. ?ence, it can not !e concluded, either, that suchconveyances esta!lished a decision on her part to a!andon the ori+inal le+acy.

True it is that the le+al provision Buoted prescri!es that the recovery of the alienated property even if it !e !y

reason of the nullity of the contract does not revive the le+acy !ut as pointed out !y Scaevola (Codi+o Civil, Hol.@H, =th 1d., pp. 4*=;4*$ the nullity of the contract can not !e ta9en in an a!solute sense.*Certainly, it could not!e aintained, for e>aple, that if a testator5s su!seBuent alienation ere avoided !ecause the testator asentally deran+ed at the tie, the revocatory effect ordained !y the article should still ensue. And the sae thin+could !e said if the alienation (posterior to the ill ere avoided on account of physical or ental duress. et, analienation throu+h undue influence in no ay differs fro one ade throu+h violence or intiidation. In either case,the transferor is not e>pressin+ his real intent, 4and it can not !e held that there as in fact an alienation that couldproduce a revocation of the anterior !eBuest.

In vie of the fore+oin+ considerations, the appealed decision of the Court of Appeals is here!y affired. Costsa+ainst appellants Reyes and Fernande3. So ordered.

;izon, /a%alintal, =aldivar, )anchez, Castro, An#eles and :ernando, 11.,concur.Concepcion, C.1. and 3en#zon, 1.P., 1.,are on leave, too9 no part.

%oonoe

%Scaevola (Codi+o Civil, Hol. @H, =th 1d., p. 47 aptly rear9s:

Cuando el testador, a sa!iendas de la disposicion contenida en su ultia voluntad, ena"ena al le+atario lacosa le+ada, si !ien esta sale del poder de aBuel, va a parar al del le+atario, acto Bue no puede

interpretarse coo udan3a del a voluntad, puesto Bue transits la cosa a la persona a la Bue desea!afavoreer con ella. Por esta circunstancia y por la de no revocar el le+ado, as !ien parece Bue persiste ensu intencion de !eneficiar al le+atario, ya Bue no con la propia cosa, con el derecho Bue le concede el art.7. Si al donar el testador al futuro le+atario la cosa Bue le de"a!a en el testaento, indica solo unareali3acion anticipada de la ultia voluntad, el venderia sin dero+ar la disposicion delle+ado parece indicaeta!ien Bue no ha ha!ido idea odificadora de la intencion, sino Bue porsi+ue en la de favorecer alinstituido, y ya Bue no es posi!le conse+uirlo con la cosa isa,se ipone el verificarlo en la aneradeterinada por el articulo, o sea ediante la entre+a del precio.

*2eciaos anteriorente Bue necesita!a al+una e>plicacion la frase del nu. *8.o del art. '&, aunBuesea por la nulidad del contrato, para no apartarla de sus verdaderos y prudentes liites. iteralenteentendida, autori3aria el Bue fuese revocado un le+ado por ena"enacion Bue hu!iese reali3ado el testadorcon vicio en el consentiiento. 2ice con ra3on el"urisconsulto frances 2eante, Buese lle+aria a

consecuencias contrariasa los principios as eleentales del 2erecho y de la ra3on si, e>a+erandodichadoctrina, se diese efecto revocatorio a una ena"enacion nulapor vicio de consentiiento. Coo unavoluntad ipotente para transferirla propiedad podria tener la fuer3a de revocar un le+adoK Si laena"enacionlleva el vicio de violencia o de error, sera posi!le arti!uir al+un efectoa acto see"anteK 1slo+ico deducir entonces Bue el testador se arrepintio, coo dicen las partidas del otor+aento de laandaK (Scaevola, op. cit.

4Cf. Torres vs. ope3, = Phil. 77* Coso vs. 2e3a, =* Phil.


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G.R. No. L-2442 Oo;e 26, 193

ROSA "A&ETANO "UEN"O, petitioners,

vs.

T#E #ONORA'LE "OURT O% APPEALS, T#(R$ $(V(S(ON, !ANUEL "UEN"O, LOUR$ES "UEN"O,

"ON"EP"(ON "UEN"O !ANGUERRA, "AR!EN "UEN"O, "ONSUELO "UEN"O RE&ES, an TERES(TA

"UEN"O GONALE, respondents.

Amrosio Padilla Law Office for petitioner.

1alandoni and 1amir for respondents.

TEE#AN? :eruar! 4@BSenator -ariano #esus Cuenco died at the -anila 2octors5 ?ospital, -anila. ?e as survived

!y his ido, the herein petitioner, and their to (* inor sons, -ariano #esus, #r. and #esus Salvador, !oth

surnaed Cuenco, all residin+ at '& Pi y -ar+al St., Sta. -esa ?ei+hts, /ue3on City, and !y his children of the first

arria+e, respondents herein, naely, -anuel Cuenco, ourdes Cuenco, Concepcion Cuenco -an+uera, Caren

Cuenco, Consuelo Cuenco Reyes and Teresita Cuenco on3ales, all of le+al a+e and residin+ in Ce!u.

On ? /arch 4@B, (the &th day after the death of the late Senator1respondent ourdes Cuenco filed a Petition for

etters of Adinistration ith the court of first instance of Ce!u (Sp. Proc. 6o. *=44;R, alle+in+ aon+ other thin+s, that

the late senator died intestatein -anila on *$ Fe!ruary %&'= that he as a resident of Ce!u at the tie of his death and

that he left real and personal properties in Ce!u and /ue3on City. On the sae date, the Ce!u court issued an order

settin+ the petition for hearin+ on %8 April %&'=, directin+ that due notice !e +iven to all the heirs and interested persons,

and orderin+ the reBuisite pu!lication thereof at A PR16SA, a nespaper of +eneral circulation in the City and Province

of Ce!u.

The aforesaid order, hoever, as later suspended and cancelled and a ne and odified one released on %4

-arch %&'=, in vie of the fact that the petition as to !e heard at )ranch II instead of )ranch I of the said Ce!u

court. On the sae date, a third order as further issued statin+ that respondent ourdes Cuenco5s petition for the

appointent of a special adinistrator dated = -arch %&'= as not yet ready for the consideration of the said court,

+ivin+ as reasons the folloin+:

It ill !eprematurefor this Court to act thereon, it not havin+ yet re+ularly acBuired "urisdiction to try

this proceedin+, the reBuisite pu!lication of the notice of hearin+ not yet havin+ !een coplied ith.

-oreover, copies of the petition have not !een served on all of the heirs specified in the !asic

petition for the issuance of letters of adinistration. 2

In the eantie, or specifically on 4> /arch 4@B, (a ee9 after the filin+ of the Ce!u petition herein petitioner

Rosa Cayetano Cuenco filed a petition ith the court of first instance of Ri3al (/ue3on City for theproateof the

deceased5s last will and testamentand for the issuance of letters testamentar!in her favor, as the survivin+ ido

and e>ecutri> in the said last ill and testaent. The said proceedin+ as doc9eted as Special Proceedin+ 6o. /;

7&.

?avin+ learned of the intestate proceedin+ in the Ce!u court, petitioner Rosa Cayetano Cuenco filed in said Ce!u

court an Opposition and -otion to 2isiss, dated D /arch 4@B, as ell as an Opposition to Petition for

Appointent of Special Adinistrator, dated April %&'=. On 4D April 4@B, the Ce!u court issued an order holdin+

in a!eyance its resolution on petitioner5s otion to disiss until after the Court of First Instance of /ue3on City


17/131

shall have acted on the petition forproateof that docuent purportin+ to !e the last ill and testaent of the

deceased 2on -ariano #esus Cuenco. 3Such order of the Ce!u court deferrin+ to theproateproceedin+s in the

/ue3on City court as neither e>cepted to nor sou+ht !y respondents to !e reconsidered or set aside !y the Ce!u court

nor did they challen+e the sae !y certiorarior prohi!ition proceedin+s in the appellate courts.

Instead, respondents filed in the /ue3on City court an Opposition and -otion to 2isiss, dated 4D April

4@B,opposin# proateof the ill and assailin+ the "urisdiction of the said /ue3on City court to entertain petitioner5s

petition for pro!ate and for appointent as e>ecutri> in Sp. Proc. 6o. /;7& in vie of the alle+ed e>clusive

"urisdiction vested !y her petition in the Ce!u court in Sp. Proc. 6o. *=44;R. Said respondent prayed that Sp. Proc.6o. /;7& !e disissed for lac% of $urisdictionandEor improper venue.

In its order of 44 April 4@B, the /ue3on City court denied the otion to disiss, +ivin+ as a principal reason the

precedence of pro!ate proceedin+ over an intestate proceedin+. 4The said court further found in said order that

theresidenceof the late senator at the tie of his death as at 6o. '& Pi y -ar+al, Sta. -esa ?ei+hts, Euezon Cit!

. The

pertinent portion of said order follos:

On the Buestion of residence of the decedent, para+raph $ of the opposition and otion to disiss

reads as follos: that since the decedent 2on -ariano #esus Cuenco as a resident of the City of

Ce!u at the tie of his death, the aforesaid petition filed !y Rosa Cayetano Cuenco on %* -arch

%&'= as not filed ith the proper Court (ron+ venue in vie of the provisions of Section % of Rule74 of the 6e Rules of Court .... Fro the aforeBuoted alle+ation, the Court is ade to understand

that the oppositors do not ean to say that the decedent !ein+ a resident of Ce!u City hen he

died, the intestate proceedin+s in Ce!u City should prevail over the pro!ate proceedin+s in /ue3on

City, !ecause as stated a!ove the pro!ate of the ill should ta9e precedence, !ut that the pro!ate

proceedin+s should !e filed in the Ce!u City Court of First Instance. If the last proposition is the

desire of the oppositors as understood !y this Court, that could not also !e entertained as proper

!ecause para+raph % of the petition for the pro!ate of the ill indicates that ;on /ariano 1esus

Cuenco at the time of his death was a resident of Euezon Cit! at @ Pi ! /ar#al. Anne> A (ast Gill

and Testaent of -ariano #esus Cuenco of the petition for pro!ate of the ill shos that the

decedent at the tie hen he e>ecuted his ast Gill clearly stated that he is a resident of '& Pi y

-ar+al, Sta. -esa ?ei+hts, /ue3on City, and also of the City of Ce!u. ?e ade the forer as hisfirst choice and the latter as his second choice of residence. If a party has to residences, the one

ill !e deeed or presued to his doicile hich he hiself selects or considers to !e his hoe or

hich appears to !e the center of his affairs. The petitioner, in thus filin+ the instant petition !efore

this Court, follos the first choice of residence of the decedent and once this court acBuires

"urisdiction of the pro!ate proceedin+ it is to the e>clusion of all others.5

Respondent ourdes Cuenco5s otion for reconsideration of the /ue3on City court5s said order of %% April %&'=

assertin+ its e>clusive "urisdiction over the pro!ate proceedin+ as deferred to !y the Ce!u court as deniedon >F

April 4@Band a second otion for reconsideration dated >D /a! 4@Bas li9eise denied.

On 44 /a! 4@B, pursuant to its earlier order of %% April %&'=, the hearin+ for pro!ate of the last ill of the decedentas called three ties at half;hour intervals, !ut notithstandin+ due notification none of the oppositors appeared

and the /ue3on City court proceeded at &:88 a.. ith the hearin+ in their a!sence.

As per the order issued !y it su!seBuently on %$ -ay %&'=, the /ue3on City court noted that respondents;

oppositors had opposed pro!ate under their opposition and otion to disiss on the folloin+ +rounds:

(a That the ill as not e>ecuted and attested as reBuired !y la

(! That the ill as procured !y undue and iproper pressure and influence on the part of the

!eneficiary or soe other persons for his !enefit

(c That the testator5s si+nature as procured !y fraud andEor that the testator acted !y ista9e and

did not intend that the instruent he si+ned should !e his ill at the tie he affi>ed his si+nature

thereto.6

The /ue3on City court further noted that the reBuisite pu!lication of the notice of the hearin+ had !een duly

coplied ith and that all the heirs had !een duly notified of the hearin+, and after receivin+ the testiony of the

three instruental itnesses to the decedent5s last ill, naely Atty. Florencio Al!ino, 2r. uillero A. Picache and

2r. #ose P. O"eda, and of the notary pu!lic, Atty. )raulio A. Arriola, #r., ho ratified the said last ill, and the

docuentary evidence (such as the decedent5s residence certificates, incoe ta> return, diploatic passport, deed


18/131

of donation all indicatin+ that the decedent as a resident of '& Pi y -ar+al St., /ue3on City, as also affired !y

hi in his last ill, the /ue3on City court in its said order

of 4? /a! 4@B admitted to proatethe late senator5s last

ill and testaent as havin+ !een freely and voluntarily e>ecuted !y the testator and ith all foralities of the

la and appointed petitioner;ido as e>ecutri> of his estate ithout !ond folloin+ the desire of the testator in

his ill as pro!ated.

Instead of appealin+ fro the /ue3on City court5s said order admittin# the will to proateand nain+ petitioner;

ido as e>ecutri> thereof, respondents filed a special civil action of certiorariand prohi!ition ith preliinary

in"unction ith respondent Court of Appeals (doc9eted as case CA;.R. 6o. 4=%8=;R to !ar the Ri3al court froproceedin+ ith case 6o. /;7&.

On *% 6ove!er %&'=, the Court of Appeals rendered a decision in favor of respondents (petitioners therein and

a+ainst the herein petitioner, holdin+ that:

Section %, Rule 74, hich fi>es the venue in proceedin+s for the settleent of the estate of a

deceased person, covers othtestate and intestate proceedin+s. Sp. Proc. *=44;R of the Ce!u CFI

havin+ !een filed ahead, it is that court hose "urisdiction as first invo9ed and hich first attached.

It is that court hich can properly and e>clusively pass upon the factual issues of (% hether the

decedent left or did not leave a valid ill, and (* hether or not the decedent as a resident of

Ce!u at the tie of his death.

Considerin+ therefore that the first proceedin+ as instituted in the Ce!u CFI (Special Proceedin+

*=44;R, it follos that the said court ust e>ercise "urisdiction to the e>clusion of the Ri3al CFI, in

hich the petition for pro!ate as filed !y the respondent Rosa Cayetano Cuenco (Special

Proceedin+ /;7&. The said respondent should assert her ri+hts ithin the fraeor9 of the

proceedin+ in the Ce!u CFI, instead of invo9in+ the "urisdiction of another court.

The respondents try to a9e capital of the fact that on -arch %4, %&'=, #ud+e Aador oe3 of the

Ce!u CFI, actin+ in Sp. Proc. *=44;R, stated that the petition for appointent of special

adinistrator as not yet ready for the consideration of the Court today. It ould !e preature for

this Court to act thereon, it not havin+ yet re+ularly acBuired "urisdiction to try this proceedin+ ... . Itis sufficient to state in this connection that the said "ud+e as certainly not referrin+ to the court5s

"urisdiction over the res, not to "urisdiction itself hich is acBuired fro the oent a petition is filed,

!ut only to thee'erciseof "urisdiction in relation to the sta+e of the proceedin+s. At all events,

"urisdiction is conferred and deterined !y la and does not depend on the pronounceents of a

trial "ud+e.

The dispositive part of respondent appellate court5s "ud+ent provided as follos:

ACCOR2I6, the rit of prohi!ition ill issue, coandin+ and directin+ the respondent Court of

First Instance of Ri3al, )ranch I@, /ue3on City, and the respondent #ud+e 2aaso ). Ten+co to

refrain perpetually fro proceedin+ and ta9in+ any action in Special Proceedin+ /;7& pendin+!efore the said respondent court. All orders heretofore issued and actions heretofore ta9en !y said

respondent court and respondent #ud+e, therein and connected thereith, are here!y annulled. The

rit of in"unction heretofore issued is here!y ade peranent. 6o pronounceent as to costs.

Petitioner5s otion for reconsideration as denied in a resolution of respondent Court of Appeals, dated #uly %&'$

hence the herein petition for revie on certiorari.

The principal and decisive issue at !ar is, theretofore, hether the appellate court erred in la in issuin+ the rit of

prohi!ition a+ainst the /ue3on City court orderin+ it to refrain perpetually fro proceedin+ ith

the testateproceedin+s and annullin+ and settin+ aside all its orders and actions, particularly its adission to

pro!ate of the decedent5s last ill and testaent and appointin+ petitioner;ido as e>ecutri> thereof ithout !ondin copliance ith the testator5s e>press ish in his testaent. This issue is tied up ith the issue su!itted to the

appellate court, to it, hether the /ue3on City court acted ithout "urisdiction or ith +rave a!use of discretion in

ta9in+ co+ni3ance and assuin+ e>clusive "urisdiction over the pro!ate proceedin+s filed ith it, in pursuance of the

Ce!u court5s order of %8 April %&'= e>pressly consentin#in deference to the precedence of pro!ate over intestate

proceedin+s that it (the /ue3on City court should firstact on the petition for pro!ate of the docuent purportin+ to

!e the last ill and testaent of the deceased 2on -ariano #esus Cuenco ; hich order of the Ce!u court

respondents never Buestioned nor challen+ed !y prohi!ition or certiorariproceedin+s and thus ena!led the /ue3on

City court to proceed ithout any ipedient or o!struction, once it denied respondent ourdes Cuenco5s otion to


19/131

disiss the pro!ate proceedin+ for alle+ed lac9 of "urisdiction or iproper venue, toproceed with the hearin#of the

petition and to admitthe will to proateupon havin+ !een satisfied as to its due e>ecution and authenticity.

The Court finds under the a!ove;cited facts that the appellate court erred in la in issuin+ the rit of prohi!ition

a+ainst the /ue3on City court fro proceedin+ ith the testate proceedin+s and annullin+ and settin+ aside all its

orders and actions, particularly its adission to pro!ate of the deceased5s last ill and testaent and appointin+

petitioner;ido as e>ecutri> thereof ithout !ond pursuant to the deceased testator5s e>press ish, for the

folloin+ considerations: J

%. The #udiciary Actconcededly confers ori+inal$urisdictionupon all Courts of First Instance over all atter of pro!ate,

!oth of testate and intestate estates. On the other hand, Rule 74, section of the Rules of Court lays don the rule of

venue, as the very caption of the Rule indicates, and in order to prevent conflict aon+ the different courts hich

otherise ay properly assue "urisdiction fro doin+ so, the Rule specifies that the court first ta%in# co#nizance of the

settlement of the estateof a decedent, shall e'ercise $urisdiction to the e'clusion of all other courts. The cited Rule

provides:

Section %. here estate of deceased persons settled. If the decedent is an inha!itant of the

Philippines at the tie of his death, hether a citi3en or an alien, his will shall e proved, or letters of

administration #ranted, and his estate settled, in the Court of :irst Instance in the Province in which

he resides at the time of his death, and if he is an inha!itant of a forei+n country, the Court of FirstInstance of the province in hich he had estate. The court first ta%in# co#nizanceof the settlement

of the estateof a decedent, shall e'ercise $urisdictionto the e'clusionof all other courts.

The$urisdiction assumed!y a court, so far as it depends on theplace of residence, of the decedent,

or of the location of his estate, shall not !e contested in a suit or proceedin+, e'cept in an

appealfro that court, in the ori#inal case, or hen the want of $urisdiction appearson the record.

(Rule 748

It is eBually conceded that the residenceof the deceased or the location of his estate is notan eleent of

"urisdiction over the su!"ect atter !ut erely of venue. This as lucidly stated !y the late Chief #ustice -oran in)!

Oa vs. Co +o9as follos:

Ge are not unaare of e>istin+ decisions to the effect that in pro!ate cases the place of residence of

the deceased is re+arded as a Buestion of "urisdiction over the su!"ect;atter. )ut e decline to

follo this vie !ecause of its ischievous conseBuences. For instance, a pro!ate case has !een

su!itted in +ood faith to the Court of First Instance of a province here the deceased had not

resided. All the parties, hoever, includin+ all the creditors, have su!itted theselves to the

"urisdiction of the court and the case is therein copletely finished e>cept for a clai of a creditor

ho also voluntarily filed it ith said court !ut on appeal fro an adverse decision raises for the first

tie in this Court the Buestion of "urisdiction of the trial court for lac9 of residence of the deceased in

the province. If e consider such Buestion of residence as one affectin+ the "urisdiction of the trial

court over the su!"ect;atter, the effect shall !e that the whole proceedin#sincludin+ all

decisionson the different incidents hich have arisen in court ill have to !e annulledand the samecaseill have to !e commenced anew!efore another

court of the same ran%in another province.

That this is ofmischievous effectin theprompt administration of $usticeis too o!vious to reBuire

coent. (Cf. Tanunchuan vs. 2y )uncio L Co., .R. 6o. =*8', 2ece!er 4%, %&=* Furtherore,

section '88 of Act 6o. %&8, 10providin+ that the estate of a deceased person shall !e settled in the

province here he had last resided, could nothave !een intended as definin+ the "urisdiction of the

pro!ate court over the su!"ect;atter, !ecause such le+al provision is contained in a la of procedure

dealin+ erely ith procedural atters, and, as e have said tie and a+ain, procedure is one thin+ and

"urisdiction over the su!"ect atter is another. (Attorney;eneral vs. -anila Railroad Copany, *8 Phil.

$*4. The la of "urisdiction J Act 6o. %4', 11Section $', 6o. $ J confers upon Courts of First Instance

"urisdiction over all pro!ate cases independently of the place of residence of the deceased. Since,

hoever, there are any courts of First Instance in the Philippines, the a of

Rule 75-79 Cases Special Proceedings

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