G.R. No. 124862 December 22, 1998 FE D. vs. COURT OF APPEALS and BLANDINA DANDAN, * respondents. BELLOSILLO, J.

: FE D. QUITA and Arturo T. Padlan, both Filipinos, were married in the Philippines on 18 May 1941. They were not however blessed with children. Somewhere along the way their relationship soured. Eventually Fe sued Arturo for divorce in San Francisco, California, U.S.A. She submitted in the divorce proceedings a private writing dated 19 July 1950 evidencing their agreement to live separately from each other and a settlement of their conjugal properties. On 23 July 1954 she obtained a final judgment of divorce. Three (3) weeks thereafter she married a certain Felix Tupaz in the same locality but their relationship also ended in a divorce. Still in the U.S.A., she married for the third time, to a certain Wernimont. On 16 April 1972 Arturo died. He left no will. On 31 August 1972 Lino Javier Inciong filed a petition with the Regional Trial Court of Quezon City for issuance of letters of administration concerning the estate of Arturo in favor of the Philippine Trust Company. Respondent Blandina Dandan (also referred to as Blandina Padlan), claiming to be the surviving spouse of Arturo Padlan, and Claro, Alexis, Ricardo, Emmanuel, Zenaida and Yolanda, all surnamed Padlan, named in the children of Arturo Padlan opposed the petition and prayed for the appointment instead of Atty. Leonardo Casaba, which was resolved in favor of the latter. Upon motion of the oppositors themselves, Atty. Cabasal was later replaced by Higino Castillon. On 30 April 1973 the oppositors (Blandina and Padlan children) submitted certified photocopies of the 19 July 1950 private writing and the final judgment of divorce between petitioner and Arturo. Later Ruperto T. Padlan, claiming to be the sole surviving brother of the deceased Arturo, intervened. On 7 October 1987 petitioner moved for the immediate declaration of heirs of the decedent and the distribution of his estate. Blandina and her children assigned as one of the errors allegedly committed by the trial court the circumstance that the case was decided without a hearing, in violation of Sec. 1, Rule 90, of the Rules of Court, which provides that if there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases. ISSUE: Should this case be remanded to the lower court for further proceedings? Petitioner insists that there is no need because, first, no legal or factual issue obtains for resolution either as to the heirship of the Padlan children or as to the decedent; and, second, the issue as to who between petitioner and private respondent is the proper hier of the decedent is one of law which can be resolved in the present petition based on establish facts and admissions of the parties. We cannot sustain petitioner. The provision relied upon by respondent court is clear: If there is a controversybefore the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases. Ruling: We agree with petitioner that no dispute exists either as to the right of the six (6) Padlan children to inherit from the decedent because there are proofs that they have been duly acknowledged by him and petitioner herself even recognizes them as heirs of Arturo Padlan; 10 nor as to their respective hereditary shares. But controversy remains as to who is the legitimate surviving spouse of Arturo. The trial court, after the parties other than petitioner failed to appear during the scheduled hearing on 23 October 1987 of the motion for immediate declaration of heirs and distribution of estate, simply issued an order requiring the submission of the records of birth of the Padlan children within ten (10) days from receipt thereof, after which, with or without the documents, the issue on declaration of heirs would be deemed submitted for resolution. We note that in her comment to petitioner's motion private respondent raised, among others, the issue as to whether petitioner was still entitled to inherit from the decedent considering that she had secured a divorce in the U.S.A. and in fact had twice remarried. She also invoked the above quoted procedural rule. 11 To this, petitioner replied that Arturo was a Filipino and as such remained legally married to her in spite of the divorce they obtained.12 Reading between the lines, the implication is that petitioner was no longer a Filipino citizen at the time of her divorce from Arturo. This should have prompted the trial court to conduct a hearing to establish her citizenship. The purpose of a hearing is to ascertain the truth of the matters in issue with the aid of documentary and testimonial evidence as well as the arguments of the parties either supporting or opposing the evidence. Instead, the lower court perfunctorily settled her claim in her favor by merely applying the ruling in Tenchavez v. Escao. Then in private respondent's motion to set aside and/or reconsider the lower court's decision she stressed that the citizenship of petitioner was relevant in the light of the ruling in Van Dorn v. Romillo Jr. 13 that aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. . We deduce that the finding on their citizenship pertained solely to the time of their marriage as the trial court was not supplied with a basis to determine petitioner's citizenship at the time of their divorce. QUITA, petitioner,

We emphasize however that the question to be determined by the trial court should be limited only to the right of petitioner to inherit from Arturo as his surviving spouse. Private respondent's claim to heirship was already resolved by the trial court. She and Arturo were married on 22 April 1947 while the prior marriage of petitioner and Arturo was subsisting thereby resulting in a bigamous marriage considered void from the beginning under Arts. 80 and 83 of the Civil Code. Consequently, she is not a surviving spouse that can inherit from him as this status presupposes a legitimate relationship. 20 G.R. No. L-8409 December 28, 1956

In the Matter of the Intestate of the deceased Andres Eusebio. EUGENIO EUSEBIO, petitioner-appellee, vs. AMANDA EUSEBIO, JUAN EUSEBIO, DELFIN EUSEBIO, VICENTE EUSEBIO, and CARLOS EUSEBIO,oppositors-appellants. Francisco M. Filemon Cajator for appellants. Ramos and Valeriano Silva for appellee.

CONCEPCION, J.: This case instituted on November 16, 1953, when Eugenio Eusebio filed with the Court of First Instance of Rizal, a petition for his appointment as administrator of the estate of his father, Andres Eusebio, who died on November 28, 1952, residing, according to said petition, in the City of Quezon. On December 4, 1953, Amanda, Virginia, Juan, Delfin, Vicente and Carlos, all surnamed Eusebio, objected to said petition, stating that they are illegitimate children of the deceased and that the latter was domiciled in San Fernando, Pampanga, and praying, therefore, that the case be dismissed upon the ground that venue had been improperly filed. By an order, dated March 10, 1954, said court overruled this objection and granted said petition. Hence, the case is before us on appeal taken, from said order, by Amanda Eusebio, and her aforementioned sister and brothers. The appeal hinges on the situs of the residence of Andres Eusebio on November 28, 1952, for Rule 75, section 1, of the Rules of Court, provides: Where estate of deceased persons settled. If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizens or an alien, his will shall be proved, or letters of administration granted, and his estate, 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. It is not disputed that up to, at least, October 29, 1952, Andres Eusebio was, and had always been, domiciled in San Fernando, Pampanga, where he had his home, as well as some other properties. Inasmuch as his heart was in bad condition and his son, Dr. Jesus Eusebio, who treated him, resided at No. 41 P. Florentino St., Quezon City, on October 29, 1952, Andres Eusebio bought a house and lot at 889-A Espaa Extention, in said City (Exhibit 2). While transferring his belongings to this house, soon thereafter, the decedent suffered a stroke (probably heart failure), for which reason Dr. Eusebio took him to his (Dr. Eusebio's) aforementioned residence, where the decedent remained until he was brought to the UST Hospital, in the City of Manila, sometimes before November 26, 1952. On this date, he contracted marriage in articulo mortis with his common law wife, Concepcion Villanueva, in said hospital. Two (2) days later, he died therein of "acute left ventricular failure secondary to hypertensive heart disease", at the age of seventy-four (74) years (Exhibit A). Consequently, he never stayed or even slept in said house at Espaa Extention. Under the circumstances surrounding the case at bar, if Andres Eusebio established another domicile, it must have been one of choice, for which the following conditions are essential, namely: (1) capacity to choose and freedom of choice; (2) physical presence at the place chosen; and (3) intention to stay therein permanently (Minor, Conflict of Laws, pp. 109-110; Googrich, Conflict of Laws, p. 169; Velilla vs. Posadas, 62 Phil., 624; Zuellig vs. Republic of the Philippines, 46 Off. Gaz. Suppl. No. 11, p. 220). Admittedly, the decedent was juridically capable of choosing a domicile and had been in Quezon City several days prior to his demise. Thus, the issue narrows down to whether he intended to stay in that place permanently. There is no direct evidence of such intent. Neither does the decedent appears to have manifested his wish to live indefinitely in said city. Issue: w/n the petition was properly filed with the CFI of Rizal. Ruling: No, the venue was improperly laid.

Appellee, however, asks: "What will happen if this case be dismissed in the Court of First Instance of Quezon City on the ground of lack of jurisdiction or improper venue?" In this connection, it appears that on November 14, 1953, the Clerk of the Court of First Instance of Pampanga received a petition of appellants herein, dated November 4, 1953, for the settlement of the "Intestate Estate of the late Don Andres Eusebio". Attached to said petition was petition for the docketing thereof free charge, pursuant to Rule 3, section 22, of the Rules of Court. The latter petition was granted by an order dated November 16, 1953, which was received by the cashier of said court on November 17, 1953, on which date the case was docketed as Special Proceedings No. 957. On December 14, 1953, Jesus, Eugenio, Amando and Alfonso, all surnamed Eusebio (the children of the decedent by first marriage, including petitioner herein), moved for the dismissal of said proceedings, owing to the pendency of the present case, before the Court of First Instance of Rizal, since November 16, 1953. This motion was granted in an order dated December 21, 1953, relying upon the above Rule 75, section 1, of the Rules of Court, pursuant to which "the court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts." Although said order is now final, it cannot affect the outcome of the case at bar. Said order did not pass upon the question of domicile or residence of the decedent. Moreover, in granting the court first taking cognizance of the case exclusive jurisdiction over the same, said provision of the Rules of Court evidently refers to cases triable before two or more courts with concurrent jurisdiction. It could not possibly have intended to deprive a competent court of the authority vested therein by law, merely because a similar case had been previously filed before a court to which jurisdiction is denied by law, for the same would then be defeated by the will of one of the parties. More specially, said provision refers mainly to non-resident decedents who have properties in several provinces in the Philippines, for the settlement of their respective estates may undertaken before the court of first instance of either one of said provinces, not only because said courts then have concurrent jurisdiction and, hence, the one first taking cognizance of the case shall exclude the other courts but, also, because the statement to this effect in said section 1 of Rule 75 of the Rules of the Court immediately follows the last part of the next preceding sentence, which deals with non-resident decedents, whose estate may settled the court of first instance of any province in which they have properties.lawphil.net In view, however, of the last sentence of said section, providing that: . . . 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 proceedings, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record. if proceedings for the settlement of the estate of a deceased resident are instituted in two or more courts, and the question of venue is raised before the same, the court in which the first case was filed shall have exclusive jurisdiction to decide said issue, and we so held in the case of Taciana Vda. De Borja vs. Tan, L-7792 (July 27, 1955). Should it be decided, in the proceedings before the said court, that venue had been improperly laid, the case pending therein should be dismissed and the corresponding proceedings may, thereafter, be initiated in the proper court. In conclusion, we find that the decedent was, at the time of his death, domiciled in San Fernando, Pampanga; that the Court of First Instance of Rizal had no authority, therefore, to appoint an administrator of the estate of the deceased, the venue having been laid improperly; and that it should, accordingly, have sustained appellants' opposition and dismissed appellee's petition. G.R. No. 146006 February 23, 2004

JOSE C. LEE AND ALMA AGGABAO, in their capacities as President and Corporate Secretary, respectively, of Philippines International Life Insurance Company, and FILIPINO LOAN ASSISTANCE GROUP, petitioners vs. REGIONAL TRIAL COURT OF QUEZON CITY BRANCH 85 presided by JUDGE PEDRO M. AREOLA, BRANCH CLERK OF COURT JANICE Y. ANTERO, DEPUTY SHERIFFS ADENAUER G. RIVERA and PEDRO L. BORJA, all of the Regional Trial Court of Quezon City Branch 85, MA. DIVINA ENDERES claiming to be Special Administratrix, and other persons/ public officers acting for and in their behalf, respondents. DECISION CORONA, J.: This is a petition for review under Rule 45 of the Rules of Court seeking to reverse and set aside the decision 1 of the Court of Appeals, First Division, dated July 26, 2000, in CA G.R. 59736, which dismissed the petition for certiorari filed by petitioners Jose C. Lee and Alma Aggabao (in their capacities as president and secretary, respectively, of Philippine International Life Insurance Company) and Filipino Loan Assistance Group. The antecedent facts follow. Dr. Juvencio P. Ortaez incorporated the Philippine International Life Insurance Company, Inc. on July 6, 1956. At the time of the companys incorporation, Dr. Ortaez owned ninety percent (90%) of the subscribed capital stock.

On July 21, 1980, Dr. Ortaez died. He left behind a wife (Juliana Salgado Ortaez), three legitimate children (Rafael, Jose and Antonio Ortaez) and five illegitimate children by Ligaya Novicio (herein private respondent Ma. Divina Ortaez-Enderes and her siblings Jose, Romeo, Enrico Manuel and Cesar, all surnamed Ortaez).2 On September 24, 1980, Rafael Ortaez filed before the Court of First Instance of Rizal, Quezon City Branch (now Regional Trial Court of Quezon City) a petition for letters of administration of the intestate estate of Dr. Ortaez, docketed as SP Proc. Q-30884 (which petition to date remains pending at Branch 85 thereof). Private respondent Ma. Divina Ortaez-Enderes and her siblings filed an opposition to the petition for letters of administration and, in a subsequent urgent motion, prayed that the intestate court appoint a special administrator. On October 30, 1991, Special Administrator Jose Ortaez, acting in his personal capacity and claiming that he owned the remaining 1,0115 Philinterlife shares of stocks as his inheritance share in the estate, sold said shares with right to repurchase also in favor of herein petitioner FLAG, represented by its president, herein petitioner Jose C. Lee. After one year, petitioner FLAG consolidated in its name the ownership of the Philinterlife shares of stock when Jose Ortaez failed to repurchase the same. Under the Godoy case, supra, it was held in substance that a sale of a property of the estate without an Order of the probate court is void and passes no title to the purchaser. Since the sales in question were entered into by Juliana S. Ortaez and Jose S. Ortaez in their personal capacity without prior approval of the Court, the same is not binding upon the Estate. Issue: We are not dealing here with the issue of inclusion or exclusion of properties in the inventory of the estate because there is no question that, from the very start, the Philinterlife shares of stock were owned by the decedent, Dr. Juvencio Ortaez. Rather, we are concerned here with the effect of the sale made by the decedents heirs, Juliana Ortaez and Jose Ortaez, without the required approval of the intestate court. This being so, the contention of petitioners that the determination of the intestate court was merely provisional and should have been threshed out in a separate proceeding is incorrect. Ruling: The petitioners Jose Lee and Alma Aggabao next contend that the writ of execution should not be executed against them because they were not notified, nor they were aware, of the proceedings nullifying the sale of the shares of stock. We are not persuaded. The title of the purchaser like herein petitioner FLAG can be struck down by the intestate court after a clear showing of the nullity of the alienation. This is the logical consequence of our ruling in Godoyand in several subsequent cases.26 The sale of any property of the estate by an administrator or prospective heir without order of the probate or intestate court is void and passes no title to the purchaser. Thus, in Juan Lao et al. vs. Hon. Melencio Geneto, G.R. No. 56451, June 19, 1985, we ordered the probate court to cancel the transfer certificate of title issued to the vendees at the instance of the administrator after finding that the sale of real property under probate proceedings was made without the prior approval of the court. The dispositive portion of our decision read: IN VIEW OF THE FOREGOING CONSIDERATIONS, the assailed Order dated February 18, 1981 of the respondent Judge approving the questioned Amicable Settlement is declared NULL and VOID and hereby SET ASIDE. Consequently, the sale in favor of Sotero Dioniosio III and by the latter to William Go is likewise declared NULL and VOID. The Transfer Certificate of Title issued to the latter is hereby ordered cancelled. It goes without saying that the increase in Philinterlifes authorized capital stock, approved on the vote of petitioners non-existent shareholdings and obviously calculated to make it difficult for Dr. Ortaezs estate to reassume its controlling interest in Philinterlife, was likewise void ab initio. G.R. No. L-54919 May 30, 1984 POLLY CAYETANO, petitioner, vs. HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of Branch XXXVIII, Court of First Instance of Manila and NENITA CAMPOS PAGUIA, respondents. Ermelo P. Guzman for petitioner. Armando Z. Gonzales for private respondent.

GUTIERREZ, JR., J.:

This is a petition for review on certiorari, seeking to annul the order of the respondent judge of the Court of First Instance of Manila, Branch XXXVIII, which admitted to and allowed the probate of the last will and testament of Adoracion C. Campos, after an ex-parte presentation of evidence by herein private respondent. On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes Campos and her sisters, private respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes Campos was the only compulsory heir, he executed an Affidavit of Adjudication under Rule 74, Section I of the Rules of Court whereby he adjudicated unto himself the ownership of the entire estate of the deceased Adoracion Campos. Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate of a will of the deceased, Adoracion Campos, which was allegedly executed in the United States and for her appointment as administratrix of the estate of the deceased testatrix. In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death and was a permanent resident of 4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in Manila on January 31, 1977 while temporarily residing with her sister at 2167 Leveriza, Malate, Manila; that during her lifetime, the testatrix made her last wig and testament on July 10, 1975, according to the laws of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New Jersey as executor; that after the testatrix death, her last will and testament was presented, probated, allowed, and registered with the Registry of Wins at the County of Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who was appointed after Dr. Barzaga had declined and waived his appointment as executor in favor of the former, is also a resident of Philadelphia, U.S.A., and that therefore, there is an urgent need for the appointment of an administratrix to administer and eventually distribute the properties of the estate located in the Philippines. On January 11, 1978, an opposition to the reprobate of the will was filed by herein petitioner alleging among other things, that he has every reason to believe that the will in question is a forgery; that the intrinsic provisions of the will are null and void. Meanwhile, on June 6,1982, petitioner Hermogenes Campos died and left a will, which, incidentally has been questioned by the respondent, his children and forced heirs as, on its face, patently null and void, and a fabrication, appointing Polly Cayetano as the executrix of his last will and testament. Cayetano, therefore, filed a motion to substitute herself as petitioner in the instant case which was granted by the court on September 13, 1982. Issue: Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid of merit. Under Rule 73, Section 1, of the Rules of Court, it is provided that: Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid of merit. Under Rule 73, Section 1, of the Rules of Court, it is provided that: Ruling: Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the Court of First Instance of Manila where she had an estate since it was alleged and proven that Adoracion at the time of her death was a citizen and permanent resident of Pennsylvania, United States of America and not a "usual resident of Cavite" as alleged by the petitioner. Moreover, petitioner is now estopped from questioning the jurisdiction of the probate court in the petition for relief. It is a settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief, against his opponent and after failing to obtain such relief, repudiate or question that same jurisdiction. (See Saulog Transit, Inc. vs. Hon. Manuel Lazaro, et al., G. R. No. 63 284, April 4, 1984). WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of merit. G.R. No. L-23372 June 14, 1967

IN RE: INTESTATE ESTATE OF THE LATE PIO DURAN. CIPRIANO DURAN and MIGUEL DURAN, petitioners-appellants, vs. JOSEFINA B. DURAN, movant-oppositor and appellee. BENGZON J.P, J.: Pio Duran died without testament on February 28, 1961 in Guinobatan Albay. Among his alleged heirs are Josefina Duran, as surviving spouse; several brothers and sisters; nephews and nieces. Subsequent to his death, on June 2, 1962, Cipriano Duran, one of the surviving brothers, executed a public instrument assigning and renouncing his hereditary rights to the decedent's estate in favor of Josefina Duran, for the consideration of P2,500.00. A year later, on June 8, 1963, Cipriano Duran filed in the Court of First Instance of Albay a petition for intestate proceedings to settle Pio Duran's estate. Against said petition, Josefina Duran filed on August 9, 1963 an opposition, praying for its dismissal upon the ground that the petitioner is not an "interested person" in the estate, in view of the deed of transfer and renunciation the estate, in view of afore-stated, attaching a copy of the same; in the alternative, she asked to be appointed administratrix.

Replying to this, Cipriano alleged, on September 11, 1963, alleged in his opposition to the motion to dismiss, that Josefina Duran was not the decedent's wife. Anent the deed of assignment, he contended that the same was procured thru fraud, with gross inadequacy of price and vitiated by lesion. Still later, another brother of the decedent, Miguel Duran, filed on September 14, 1963, a petition to be joined as co-petitioner of Cipriano. Josefina Duran moved to strike out said petition as an improper attempt to intervene in the case. U Against said petition, Josefina Duran filed on August 9, 1963 an opposition, praying for its dismissal upon the ground that the petitioner is not an "interested person" in the estate, in view of the deed of transfer and renunciation the estate, in view of afore-stated, attaching a copy of the same; in the alternative, she asked to be appointed administratrix. Replying to this, Cipriano alleged, on September 11, 1963, alleged in his opposition to the motion to dismiss, that Josefina Duran was not the decedent's wife. Anent the deed of assignment, he contended that the same was procured thru fraud, with gross inadequacy of price and vitiated by lesion. Still later, another brother of the decedent, Miguel Duran, filed on September 14, 1963, a petition to be joined as co-petitioner of Cipriano. Josefina Duran moved to strike out said petition as an improper attempt to intervene in the case. ISSUE: The Rules of Court provides that a petition for administration and settlement of an estate must be filed by an "interested person" (See. 2, Rule 79). Appellants contend that the deed of assignment executed by Cipriano did not operate to render him a person without interest in the estate. Relying on In re Irene Santos, L-11848, May 31, 1962, they argue that an assignment by one heir of his share in the estate to a co-heir amounts to a partition needing approval by the settlement court to be effective; and that the assigning heir does not lose his status as a person interested in the estate, even after said assignment is approved by the court. RULING: The situation in the Santos case involves an assignment between co-heirs pendente lite, during the course of settlement proceedings, properly and validly commenced. At the time of said assignment, therefore, the settlement court had already acquired jurisdiction over the properties of estate. As a result, any assignment regarding the same had to be approved by said court. And since the approval the court is not deemed final until the estate is closed the assigning heir remains an interested person in proceedings even after said approval, which can be vacated is given. In the present case, however, the assignment took place when no settlement proceedings was pending. The properties subject matter of the assignment were not under the jurisdiction of a settlement court. Allowing that the assignment must be deemed a partition as between the assignor and assignee, the same does not need court approval to be effective as between the parties. An extrajudicial partition is valid as between the participants even if the requisites of Sec. 1, Rule 74 for extrajudicial partition are not followed, since said requisites are for purposes of binding creditors and non-participating heirs only (Hernandez v. Andal, 78 Phil. 196). Should it be contended that said partition was attended with fraud, lesion or inadequacy of price, the remedy is to rescind or to annul the same in an action for that purpose. since there was really no settlement proceedings in the first place, the petition to intervene must be denied. G.R. Nos. L-3087 and L-3088 July 31, 1954 JOSE the B. SUNTAY. deceased SILVINO SUNTAY, petitioner-appellant, B. SUNTAY,

In re: Testate Estate of the deceased vs. In re: Intestate Estate of FEDERICO C. SUNTAY, administrator-appellee. Claro M. Sison and Aruego for appellee. PADILLA, J.:

JOSE

Recto

for

appellant.

This is an appeal from a decree of the Court of First Instance of Bulacan disallowing the alleged will and testament executed in Manila on November 1929, and the alleged last will and testament executed in Kulangsu, Amoy, China, on 4 January 1931, by Jose B. Suntay. The value of the estate left by the deceased is more than P50,000. On 14 May 1934 Jose B. Suntay, a Filipino citizen and resident of the Philippines, died in the city of Amoy, Fookien province, Republic of China, leaving real and personal properties in the Philippines and a house in Amoy, Fookien province, China, and children by the first marriage had with the late Manuela T. Cruz namely, Apolonio, Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano, and Jose, Jr. and a child named Silvino by the second marriage had with Maria Natividad Lim Billian who survived him. Intestate proceedings were instituted in the Court of First Instance of Bulacan (special proceedings No. 4892) and after hearing letters of administration were issued to Apolonio Suntay. After the latter's death Federico C. Suntay was appointed administrator of the estate. On 15 October 1934 the surviving widow filed a petition in the Court of First Instance of Bulacan for the probate of a last will and testament claimed to have

been executed and signed in the Philippines on November 1929 by the late Jose B. Suntay. This petition was denied because of the loss of said will after the filing of the petition and before the hearing thereof and of the insufficiency of the evidence to establish the loss of the said will. An appeal was taken from said order denying the probate of the will and this Court held the evidence before the probate court sufficient to prove the loss of the will and remanded the case to the Court of First Instance of Bulacan for the further proceedings (63 Phil., 793). In spite of the fact that a commission from the probate court was issued on 24 April 1937 for the taking of the deposition of Go Toh, an attesting witness to the will, on 7 February 1938 the probate court denied a motion for continuance of the hearing sent by cablegram from China by the surviving widow and dismissed the petition. In the meantime the Pacific War supervened. After liberation, claiming that he had found among the files, records and documents of his late father a will and testament in Chinese characters executed and signed by the deceased on 4 January 1931 and that the same was filed, recorded and probated in the Amoy district court, Province of Fookien, China, Silvino Suntay filed a petition in the intestate proceedings praying for the probate of the will executed in the Philippines on November 1929 (Exhibit B) or of the will executed in Amoy, Fookien, China, on 4 January 1931 (Exhibit N). Issue: (1) W/N thw lost will can be probated; (2) W/N a will probated in China can be acknowledged in the Philippines. Ruling: (1) NO. As to the lost will, section 6, Rule 77, provides: No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and the will is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded. (2) As to the will claimed to have been executed on 4 January 1931 in Amoy, China, the law on the point in Rule 78. Section 1 of the rule provides: Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines. Section 2 provides: When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition for allowance in the Philippines, by the executor or other person interested, in the court having jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be given as in case of an original will presented for allowance. Section 3 provides: If it appears at the hearing that the will should be allowed in the Philippines, the court shall so allow it, and a certificate of its allowance, signed by the Judge, and attested by the seal of the courts, to which shall be attached a copy of the will, shall be filed and recorded by the clerk, and the will shall have the same effect as if originally proved and allowed in such court. The fact that the municipal district court of Amoy, China, is a probate court must be proved. The law of China on procedure in the probate or allowance of wills must also be proved. The legal requirements for the execution of a valid will in China in 1931 should also be established by competent evidence. There is no proof on these points. The unverified answers to the questions propounded by counsel for the appellant to the Consul General of the Republic of China set forth in Exhibits R-1 and R-2, objected to by counsel for the appellee, are inadmissible, because apart from the fact that the office of Consul General does not qualify and make the person who holds it an expert on the Chinese law on procedure in probate matters, if the same be admitted, the adverse party would be deprived of his right to confront and cross-examine the witness. Consuls are appointed to attend to trade matters. Moreover, it appears that all the proceedings had in the municipal district court of Amoy were for the purpose of taking the testimony of two attesting witnesses to the will and that the order of the municipal district court of Amoy does not purport to probate the will. In the absence of proof that the municipal district court of Amoy is a probate court and on the Chinese law of procedure in probate matters, it may be presumed that the proceedings in the matter of probating or allowing a will in the Chinese courts are the a deposition or to a perpetuation of testimony, and even if it were so it does not measure same as those provided for in our laws on the subject. It is a proceedings in rem and for the validity of such proceedings personal notice or by publication or both to all interested parties must be made. The interested parties in the case were known to reside in the Philippines. The evidence shows that no such notice was received by the interested parties residing in the Philippines (pp. 474, 476, 481, 503-4, t. s. n., hearing of 24 February 1948). The proceedings had in the municipal district court of Amoy, China, may be likened toe or come up to the standard of such proceedings in the Philippines for lack of notice to all interested parties and the proceedings were held at the back of such interested parties. In view thereof, the will and the alleged probate thereof cannot be said to have been done in accordance with the accepted basic and fundamental concepts and principles followed in the probate and allowance of wills. Consequently, the authenticated transcript of proceedings held in the municipal district court of Amoy, China, cannot be deemed and accepted as proceedings leading to the probate or allowance of a will and, therefore, the will referred to therein cannot be allowed, filed and recorded by a competent court of this country. G.R. No. L-44702 July 30, 1979

FACUNDO A. DALISAY, Judicial Administrator of the Intestate Estate of the late AMADO B. DALISAY,petitioner, vs. THE HON. FRANCISCO Z . CONSOLACION, Presiding Judge of the Court of First Instance of Davao, Branch II, and ANICETO S. DALISAY, respondents. Primo O. Orellan for petitioner. Jose M. Kimpo for private respondent.

BARREDO, J.:1wph1.t Petition for certiorari and prohibition impugning the order of respondent court of August 16,1976 removing petitioner as judicial administrator in Special Proceeding No. 1986, Court of First Instance of Davao Branch II, the Instestate Estate of Amado Dalisay y Bangoy, and the order denying reconsideration thereof. According to the allegation of the petition filed below, Amado Dalisay y Bangoy died on September 1, 1975 in Davao City; he was a bachelor without descendants or ascendants, whether legitimate or otherwise apparently, without any forced heir; he left personal and real properties worth about One Million (P1,000,000) Pesos; and he died intestate. The petition prayed for the issuance of letters of administration to the Clerk of Court Atty. Eriberto A. Unson. After due notice and hearing, respondent judge selected and appointed petitioner from among several nominees of the parties, as the judicial administrator of the estate. Aniceto S. Dalisay, herein private respondent, claiming to be the nearest of kin of the deceased, moved for reconsideration, but His Honor denied said motion holding inter alia that:t.hqw ... upon its finding that, of all the would be administrators herein recommended, Facundo Dalisay appears to be the most qualified and suitable in that he not only enjoyed the confidence of the decedent, Petitioner asked for reconsideration of the foregoing order, explaining that he had already paid the amount in question but since he "was precluded from testifying" thereon under the prohibition against testimony of survivors, he proposed that he be allowed to pay the same in monthly installments of P500.00. To this motion, respondent countered with a motion asking that petitioner "be removed or allowed to resign" because his failure to pay "may be considered as evidence of abuse of trust and confidence." , private respondent prays that he "be allowed to file a motion with the probate court for removal of Facundo A. Dalisay as administrator on ground of : Under Section 1, Rule 85, Rules of Court, the administrator is accountable for the. income of the estate. Facundo A. Dalisay failed to collect P21,755.03 from five (5) tenants from Coronon, Sta. Cruz, Davao del Sur, representing the shares of the estate from copra; P8,917.11 from two (2) lessees from Panabo, Davao del Norte, and Barrio Lasang Licanan, Davao City, representing the share of the estate from ramie, and P33,600.00 from two (2) lessees at Binatan, Digos, Davao del Sur, and Sirawan, Sta. Cruz, Davao del Sur, representing unpaid rentals from 35-1/2 hectares of agricultural lands as shown in his annual accounts from March 16, 1977 to March 15, 1978, and March 16, 1978 to March 15, 1979 submitted to the Probate Court. Issue: W/N Dalisay is qualified to be the administrator of the estate. RULING: The Court is of the considered view that if the foregoing allegations are sufficiently substantiated, after appropriate proceedings, the removal of petitioner would be legally justified. Therefore, rather than insist on the ground relied upon by His Honor in his order under review, which to Us appears to be quite flimsy, considering that the mere fact that an administrator happens to owe money to the decedent is not in itself a ground for his removal, and in tills case the evidence does not seem indubitable that petitioner's claim of payment was made in bad faith or in an obvious attempt to defraud the estate, it would be fairer for all concerned for respondents to proceed against petitioner on the basis of the above-quoted charges against him. in this connection, it is to be noted that in the considerations of His Honor's order of June 14, 1976 herein above earlier quoted, it is not definite that petitioner's explanation was malicious and inherently unfounded. In any event, the petitioner has not refused to pay; he only asked for some liberality so he could pay in installments. Surely, such proposal could not have converted him into a debtor in bad faith. The point of integrity raised by respondent court appears a little harsh. Otherwise stated, We find the ground for which petitioner has been removed to be rather precipitate. From which, it results that the orders herein assailed constitute grave abuse of discretion and should be set aside.