DELFIN TAN, Petitioner,

G.R. No. 153820

ANN KARINA TANINGCO, Respondents. October 16, 2009

Present: x------------------------------------------------------------------------------------- x *QUISUMBING, J., CARPIO-MORALES, - versus **NACHURA, BRION, and ABAD, JJ. BRION, J.: Is an annotation made pursuant to Section 4, Rule 74 of the Rules of Court (Rules) on a certificate of title covering real property considered an encumbrance on the property? We resolve this question in the petition for review on certiorarii[1] filed by Delfin Tan (Tan) to assail the decision of the Court of Appeals (CA) in CA-G.R. CV No. 52033ii[2] and the decision of the Regional Trial Court (RTC)iii[3] that commonly declared the forfeiture of his P200,000.00 down payment as proper, pursuant to the terms of his contract with the respondents. THE ANTECEDENTS The facts are not disputed. Spouses Lamberto and Erlinda Benolirao and the Spouses Reynaldo and Norma Taningco were the co-owners of a 689square meter parcel of land (property) located in Tagaytay City and covered by Transfer Certificate of Title (TCT) No. 26423. On October 6, 1992, the co-owners executed a Deed of Conditional Sale over the property in favor of Tan for the price of P1,378,000.00. The deed stated: a) An initial down-payment of TWO HUNDRED (P200,000.00) THOUSAND PESOS, Philippine Currency, upon signing of this contract; then the remaining balance of ONE MILLION ONE HUNDRED SEVENTY EIGHT THOUSAND (P1,178,000.00) PESOS, shall be payable within a period of one hundred fifty (150) days from date hereof without interest; That for any reason, BUYER fails to pay the remaining balance within above mentioned period, the BUYER shall have a grace period of sixty (60) days within which to make the payment, provided that there shall be an interest of 15% per annum on the balance amount due from the SELLERS; DECISION

ERLINDA C. BENOLIRAO, ANDREW C. BENOLIRAO, ROMANO C. BENOLIRAO, DION C. BENOLIRAO, SPS. REYNALDO TANINGCO and NORMA D. BENOLIRAO, EVELYN T. MONREAL, and Promulgated:

b)

c)

That should in case (sic) the BUYER fails to comply with the terms and conditions within the above stated grace period, then the SELLERS shall have the right to forfeit the down payment, and to rescind this conditional sale without need of judicial action; That in case, BUYER have complied with the terms and conditions of this contract, then the SELLERS shall execute and deliver to the BUYER the appropriate Deed of Absolute Sale;

on the property that would prevent the vendors from delivering a clean title to him. Thus, he alleged that he could no longer be required to pay the balance of the purchase price and demanded the return of his down payment. When the vendors refused to refund the down payment, Tan, through counsel, sent another demand letter to the vendors on June 18, 1993. The vendors still refused to heed Tans demand, prompting Tan to file on June 19, 1993 a complaint with the RTC of Pasay City for specific performance against the vendors, including Andrew Benolirao, Romano Benolirao, Dion Benolirao as heirs of Lamberto Benolirao, together with Evelyn Monreal and Ann Karina Taningco (collectively, the respondents). In his complaint, Tan alleged that there was a novation of the Deed of Conditional Sale done without his consent since the annotation on the title created an encumbrance over the property. Tan prayed for the refund of the down payment and the rescission of the contract. On August 9, 1993, Tan amended his Complaint, contending that if the respondents insist on forfeiting the down payment, he would be willing to pay the balance of the purchase price provided there is reformation of the Deed of Conditional Sale. In the meantime, Tan caused the annotation on the title of a notice of lis pendens. On August 21, 1993, the respondents executed a Deed of Absolute Sale over the property in favor of Hector de Guzman (de Guzman) for the price of P689,000.00.

d)

Pursuant to the Deed of Conditional Sale, Tan issued and delivered to the co-owners/vendors Metrobank Check No. 904407 for P200,000.00 as down payment for the property, for which the vendors issued a corresponding receipt. On November 6, 1992, Lamberto Benolirao died intestate. Erlinda Benolirao (his widow and one of the vendors of the property) and her children, as heirs of the deceased, executed an extrajudicial settlement of Lambertos estate on January 20, 1993. On the basis of the extrajudicial settlement, a new certificate of title over the property, TCT No. 27335, was issued on March 26, 1993 in the names of the Spouses Reynaldo and Norma Taningco and Erlinda Benolirao and her children. Pursuant to Section 4, Rule 74 of the Rules, the following annotation was made on TCT No. 27335: x x x any liability to credirots (sic), excluded heirs and other persons having right to the property, for a period of two (2) years, with respect only to the share of Erlinda, Andrew, Romano and Dion, all surnamed Benolirao As stated in the Deed of Conditional Sale, Tan had until March 15, 1993 to pay the balance of the purchase price. By agreement of the parties, this period was extended by two months, so Tan had until May 15, 1993 to pay the balance. Tan failed to pay and asked for another extension, which the vendors again granted. Notwithstanding this second extension, Tan still failed to pay the remaining balance due on May 21, 1993. The vendors thus wrote him a letter demanding payment of the balance of the purchase price within five (5) days from notice; otherwise, they would declare the rescission of the conditional sale and the forfeiture of his down payment based on the terms of the contract. Tan refused to comply with the vendors demand and instead wrote them a letter (dated May 28, 1993) claiming that the annotation on the title, made pursuant to Section 4, Rule 74 of the Rules, constituted an encumbrance

lis pendens on the ground that it was inappropriate since the case that Tan filed
was a personal action which did not involve either title to, or possession of, real property. The RTC issued an order dated October 22, 1993 granting the respondents motion to cancel the lis pendens annotation on the title.

Thereafter, the respondents moved for the cancellation of the notice of

Meanwhile, based on the Deed of Absolute Sale in his favor, de Guzman registered the property and TCT No. 28104 was issued in his name. Tan then filed a motion to carry over the lis pendens annotation to TCT No. 28104 registered in de Guzmans name, but the RTC denied the motion. On September 8, 1995, after due proceedings, the RTC rendered judgment ruling that the respondents forfeiture of Tans down payment was proper in accordance with the terms and conditions of the contract between the parties.iv[4] The RTC ordered Tan to pay the respondents the amount of P30,000.00, plus P1,000.00 per court appearance, as attorneys fees, and to pay the cost of suit.

On appeal, the CA dismissed the petition and affirmed the ruling of the trial court in toto. Hence, the present petition. THE ISSUES

lis pendens annotation on TCT No. 27335. Due to the unauthorized novation of

Tan argues that the CA erred in affirming the RTCs ruling to cancel the

At the onset, we note that Tan raised the following additional assignment of errors in his Memorandum: (a) the CA erred in holding that the petitioner could seek reformation of the Deed of Conditional Sale only if he paid the balance of the purchase price and if the vendors refused to execute the deed of absolute sale; and (b) the CA erred in holding that the petitioner was estopped from asking for the reformation of the contract or for specific performance. The Courts September 27, 2004 Resolution expressly stated that No new issues may be raised by a party in his/its Memorandum. Explaining the reason for this rule, we said that: The raising of additional issues in a memorandum before the Supreme Court is irregular, because said memorandum is supposed to be in support merely of the position taken by the party concerned in his petition, and the raising of new issues amounts to the filing of a petition beyond the reglementary period. The purpose of this rule is to provide all parties to a case a fair opportunity to be heard. No new points of law, theories, issues or arguments may be raised by a party in the Memorandum for the reason that to permit these would be offensive to the basic rules of fair play, justice and due process.v[5] Tan contravened the Courts explicit instructions by raising these additional errors. Hence, we disregard them and focus instead on the issues previously raised in the petition and properly included in the Memorandum.

the agreement, Tan presented before the trial court two alternative remedies in his complaint either the rescission of the contract and the return of the down payment, or the reformation of the contract to adjust the payment period, so that Tan will pay the remaining balance of the purchase price only after the lapse of the required two-year encumbrance on the title. Tan posits that the CA erroneously disregarded the alternative remedy of reformation of contract when it affirmed the removal of the lis pendens annotation on the title. Tan further contends that the CA erred when it recognized the validity of the forfeiture of the down payment in favor of the vendors. While admitting that the Deed of Conditional Sale contained a forfeiture clause, he insists that this clause applies only if the failure to pay the balance of the purchase price was through his own fault or negligence. In the present case, Tan claims that he was justified in refusing to pay the balance price since the vendors would not have been able to comply with their obligation to deliver a clean title covering the property. Lastly, Tan maintains that the CA erred in ordering him to pay the respondents P30,000.00, plus P1,000.00 per court appearance as attorneys fees, since he filed the foregoing action in good faith, believing that he is in the right. The respondents, on the other hand, assert that the petition should be dismissed for raising pure questions of fact, in contravention of the provisions of Rule 45 of the Rules which provides that only questions of law can be raised in petitions for review on certiorari. THE COURTS RULING The petition is granted.

Petition raises question of law

Contrary to the respondents claim, the issue raised in the present petition defined in the opening paragraph of this Decision is a pure question of law. Hence, the petition and the issue it presents are properly cognizable by this Court.

No new issues can be raised in the Memorandum

Lis pendens annotation not proper in personal actions

Section 14, Rule 13 of the Rules enumerates the instances when a notice of lis pendens can be validly annotated on the title to real property:

Sec. 14. Notice of lis pendens. In an action affecting the title or the right of possession of real property, the plaintiff and the defendant, when affirmative relief is claimed in his answer, may record in the office of the registry of deeds of the province in which the property is situated a notice of the pendency of the action. Said notice shall contain the names of the parties and the object of the action or defense, and a description of the property in that province affected thereby. Only from the time of filing such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names. The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be recorded. The litigation subject of the notice of lis pendens must directly involve a specific property which is necessarily affected by the judgment.vi[6] Tans complaint prayed for either the rescission or the reformation of the Deed of Conditional Sale. While the Deed does have real property for its object, we find that Tans complaint is an in personam action, as Tan asked the court to compel the respondents to do something either to rescind the contract and return the down payment, or to reform the contract by extending the period given to pay the remaining balance of the purchase price. Either way, Tan wants to enforce his personal rights against the respondents, not against the property subject of the Deed. As we explained in Domagas v. Jensen:vii[7] The settled rule is that the aim and object of an action determine its character. Whether a proceeding is in rem, or in personam, or quasi in rem for that matter, is determined by its nature and purpose, and by these only. A proceeding in personam is a proceeding to enforce personal rights and obligations brought against the person and is based on the jurisdiction of the person, although it may involve his right to, or the exercise of ownership of, specific property, or seek to

compel him to control or dispose of it in accordance with the mandate of the court. The purpose of a proceeding in personam is to impose, through the judgment of a court, some responsibility or liability directly upon the person of the defendant. Of this character are suits to compel a defendant to specifically perform some act or actions to fasten a pecuniary liability on him. Furthermore, as will be explained in detail below, the contract between the parties was merely a contract to sell where the vendors retained title and ownership to the property until Tan had fully paid the purchase price. Since Tan had no claim of ownership or title to the property yet, he obviously had no right to ask for the annotation of a lis pendens notice on the title of the property.

Contract is a contract to sell

mere

A contract is what the law defines it to be, taking into consideration its essential elements, and not what the contracting parties call it.viii[8] Article 1485 of the Civil Code defines a contract of sale as follows: Art. 1458. By the contract of sale one of the contracting parties obligates himself to transfer the ownership and to deliver a determinate thing, and the other to pay therefor a price certain in money or its equivalent. A contract of sale may be absolute or conditional. The very essence of a contract of sale is the transfer of ownership in exchange for a price paid or promised.ix[9] In contrast, a contract to sell is defined as a bilateral contract whereby the prospective seller, while expressly reserving the ownership of the property despite delivery thereof to the prospective buyer, binds himself to sell the property exclusively to the prospective buyer upon fulfillment of the condition agreed, i.e., full payment of the purchase price.x[10] A contract to sell may not even be considered as a conditional contract of sale where the seller may likewise reserve title to the property subject of the sale until the fulfillment of a suspensive condition, because in a conditional contract of sale, the first element of consent is present, although it is conditioned upon the happening of a contingent event which may or may not occur.xi[11]

In the present case, the true nature of the contract is revealed by paragraph D thereof, which states: x x x d) That in case, BUYER has complied with the terms and conditions of this contract, then the SELLERS shall execute and deliver to the BUYER the appropriate Deed of Absolute Sale; x x x

Jurisprudence has established that where the seller promises to execute a deed of absolute sale upon the completion by the buyer of the payment of the price, the contract is only a contract to sell.xii[12] Thus, while the contract is denominated as a Deed of Conditional Sale, the presence of the above-quoted provision identifies the contract as being a mere contract to sell.

A Section 4, Rule 74 annotation is an encumbrance on the property

While Tan admits that he refused to pay the balance of the purchase price, he claims that he had valid reason to do so the sudden appearance of an annotation on the title pursuant to Section 4, Rule 74 of the Rules, which Tan considered an encumbrance on the property. We find Tans argument meritorious. The annotation placed on TCT No. 27335, the new title issued to reflect the extrajudicial partition of Lamberto Benoliraos estate among his heirs, states: x x x any liability to credirots (sic), excluded heirs and other persons having right to the property, for a period of two (2) years, with respect only to the share of Erlinda, Andrew, Romano and Dion, all surnamed Benolirao [Emphasis supplied.] This annotation was placed on the title pursuant to Section 4, Rule 74 of the Rules, which reads: Sec. 4. Liability of distributees and estate. - If it shall appear at any time within two (2) years after the settlement and distribution of an estate in accordance with the provisions of

either of the first two sections of this rule, that an heir or other person has been unduly deprived of his lawful participation in the estate, such heir or such other person may compel the settlement of the estate in the courts in the manner hereinafter provided for the purpose of satisfying such lawful participation. And if within the same time of two (2) years, it shall appear that there are debts outstanding against the estate which have not been paid, or that an heir or other person has been unduly deprived of his lawful participation payable in money, the court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of such debts or lawful participation and order how much and in what manner each distributee shall contribute in the payment thereof, and may issue execution, if circumstances require, against the bond provided in the preceding section or against the real estate belonging to the deceased, or both. Such bond and such real estate shall remain charged with a liability to creditors, heirs, or other persons for the full period of two (2) years after such distribution, notwithstanding any transfers of real estate that may have been made. [Emphasis supplied.] Senator Vicente Francisco discusses this provision in his book The The provision of Section 4, Rule 74 prescribes the procedure to be followed if within two years after an extrajudicial partition or summary distribution is made, an heir or other person appears to have been deprived of his lawful participation in the estate, or some outstanding debts which have not been paid are discovered. When the lawful participation of the heir is not payable in money, because, for instance, he is entitled to a part of the real property that has been partitioned, there can be no other procedure than to cancel the partition so made and make a new division, unless, of course, the heir agrees to be paid the value of his participation with interest. But in case the lawful participation of the heir consists in his share in personal property of money left by the decedent, or in case unpaid debts are discovered within the said period of two years, the procedure is not to cancel the

Revised Rules of Court in the Philippines,xiii[13] where he states:

partition, nor to appoint an administrator to re-assemble the assets, as was allowed under the old Code, but the court, after hearing, shall fix the amount of such debts or lawful participation in proportion to or to the extent of the assets they have respectively received and, if circumstances require, it may issue execution against the real estate belonging to the decedent, or both. The present procedure is more expedient and less expensive in that it dispenses with the appointment of an administrator and does not disturb the possession enjoyed by the distributees.xiv[14] [Emphasis supplied.] An annotation is placed on new certificates of title issued pursuant to the distribution and partition of a decedents real properties to warn third persons on the possible interests of excluded heirs or unpaid creditors in these properties. The annotation, therefore, creates a legal encumbrance or lien on the real property in favor of the excluded heirs or creditors . Where a buyer purchases the real property despite the annotation, he must be ready for the possibility that the title could be subject to the rights of excluded parties. The cancellation of the sale would be the logical consequence where: (a) the annotation clearly appears on the title, warning all would-be buyers; (b) the sale unlawfully interferes with the rights of heirs; and (c) the rightful heirs bring an action to question the transfer within the two-year period provided by law. As we held in Vda. de Francisco v. Carreon:xv[15] And Section 4, Rule 74 xxx expressly authorizes the court to give to every heir his lawful participation in the real estate notwithstanding any transfers of such real estate and to issue execution thereon. All this implies that, when within the amendatory period the realty has been alienated, the court in re-dividing it among the heirs has the authority to direct cancellation of such alienation in the same estate proceedings, whenever it becomes necessary to do so. To require the institution of a separate action for such annulment would run counter to the letter of the above rule and the spirit of these summary settlements. [Emphasis supplied.] Similarly, in Sps. Domingo v. Roces,xvi[16] we said:

The foregoing rule clearly covers transfers of real property to any person, as long as the deprived heir or creditor vindicates his rights within two years from the date of the settlement and distribution of estate. Contrary to petitioners contention, the effects of this provision are not limited to the heirs or original distributees of the estate properties, but shall affect any transferee of the properties. [Emphasis supplied.] Indeed, in David v. Malay,xvii[17] although the title of the property had already been registered in the name of the third party buyers, we cancelled the sale and ordered the reconveyance of the property to the estate of the deceased for proper disposal among his rightful heirs. By the time Tans obligation to pay the balance of the purchase price arose on May 21, 1993 (on account of the extensions granted by the respondents), a new certificate of title covering the property had already been issued on March 26, 1993, which contained the encumbrance on the property; the encumbrance would remain so attached until the expiration of the two-year period. Clearly, at this time, the vendors could no longer compel Tan to pay the balance of the purchase since considering they themselves could not fulfill their obligation to transfer a clean title over the property to Tan.

Contract to sell is not rescinded but terminated

What then happens to the contract? We have held in numerous casesxviii[18] that the remedy of rescission under Article 1191 cannot apply to mere contracts to sell. We explained the reason for this in Santos v. Court of Appeals,xix[19] where we said: [I]n a contract to sell, title remains with the vendor and does not pass on to the vendee until the purchase price is paid in full. Thus, in a contract to sell, the payment of the purchase price is a positive suspensive condition. Failure to pay the price agreed upon is not a mere breach, casual or serious, but a situation that prevents the obligation of the vendor to convey title from acquiring an obligatory force. This is entirely different from the situation in a contract of sale, where non-payment of the price is a negative resolutory condition. The effects in law are not identical. In a

contract of sale, the vendor has lost ownership of the thing sold and cannot recover it, unless the contract of sale is rescinded and set aside. In a contract to sell, however, the vendor remains the owner for as long as the vendee has not complied fully with the condition of paying the purchase price. If the vendor should eject the vendee for failure to meet the condition precedent, he is enforcing the contract and not rescinding it. x x x Article 1592 speaks of non-payment of the purchase price as a resolutory condition. It does not apply to a contract to sell. As to Article 1191, it is subordinated to the provisions of Article 1592 when applied to sales of immovable property. Neither provision is applicable [to a contract to sell]. [Emphasis supplied.] We, therefore, hold that the contract to sell was terminated when the vendors could no longer legally compel Tan to pay the balance of the purchase price as a result of the legal encumbrance which attached to the title of the property. Since Tans refusal to pay was due to the supervening event of a legal encumbrance on the property and not through his own fault or negligence, we find and so hold that the forfeiture of Tans down payment was clearly unwarranted.

subject to the legal interest of 6% per annum computed from May 28, 1993, the date of the first demand letter. Furthermore, after a judgment has become final and executory, the rate of legal interest, whether the obligation was in the form of a loan or forbearance of money or otherwise, shall be 12% per annum from such finality until its satisfaction. Accordingly, the principal obligation of P200,000.00 shall bear 6% interest from the date of first demand or from May 28, 1993. From the date the liability for the principal obligation and attorneys fees has become final and executory, an annual interest of 12% shall be imposed on these obligations until their final satisfaction, this interim period being deemed to be by then an equivalent to a forbearance of credit. WHEREFORE, premises considered, we hereby GRANT the petition and, accordingly, ANNUL and SET ASIDE the May 30, 2002 decision of the Court of Appeals in CA-G.R. CV No. 52033. Another judgment is rendered declaring the Deed of Conditional Sale terminated and ordering the respondents to return the P200,000.00 down payment to petitioner Delfin Tan, subject to legal interest of 6% per annum, computed from May 28, 1993. The respondents are also ordered to pay, jointly and severally, petitioner Delfin Tan the amount of P50,000.00 as and by way of attorneys fees. Once this decision becomes final and executory, respondents are ordered to pay interest at 12% per annum on the principal obligation as well as the attorneys fees, until full payment of these amounts. Costs against the respondents. SO ORDERED.

Award of Attorneys fees

As evident from our previous discussion, Tan had a valid reason for refusing to pay the balance of the purchase price for the property. Consequently, there is no basis for the award of attorneys fees in favor of the respondents. On the other hand, we award attorneys fees in favor of Tan, since he was compelled to litigate due to the respondents refusal to return his down payment despite the fact that they could no longer comply with their obligation under the contract to sell, i.e., to convey a clean title. Given the facts of this case, we find the award of P50,000.00 as attorneys fees proper.

G.R. No. L-26876

December 27, 1969

Monetary award is subject to legal interest

Undoubtedly, Tan made a clear and unequivocal demand on the vendors to return his down payment as early as May 28, 1993. Pursuant to our definitive ruling in Eastern Shipping Lines, Inc. v. Court of Appeals,xx[20] we hold that the vendors should return the P200,000.00 down payment to Tan,

LUCRECIA JEREZ, JULIA JALANDONI, JULIETA JALANDONI, EVA JALANDONI, CARMELO JALANDONI, JOSE JALANDONI and ELISEO JALANDONI, petitioners, vs. HON. EMIGDIO V. NIETES, Judge of the Court of First Instance of Iloilo, LUCILO JALANDONI and VICTORIA JALANDONI DE GORRICETA, respondents.

Tomas Concepcion, Lorenzo F. Miravite and Corazon Miraflor for petitioners. No appearance for respondents.

FERNANDO, J.: This Court has not had previously the opportunity to pass squarely on the question raised in this petition for the review of a resolution of the Court of Appeals sustaining an order of respondent Judge Emigdio V. Nietes of the Court of First Instance of Iloilo, reopening the proceedings in the intestate estate of the late Nicolas Jalandoni, after having approved a project of partition and final accounting, and allowing a plea of intervention filed within the reglementary period by the other respondents, Lucilo Jalandoni and Victoria Jalandoni de Gorriceta, allegedly children of the deceased with an illegitimate status. The petitioners are the widow and the legitimate children of the late Nicolas Jalandoni.1 The Court of Appeals cannot be reversed for recognizing the existence of such a power possessed by the respondent Judge to thus act favorably on a motion to intervene even if submitted at such a stage. That is the answer we give to the main issue thus posed. Our approval of the action taken, however, is not unqualified. For respondent Judge apparently was much too generous in his appraisal of the right of the private respondents to intervene, accepting as established what ought to have been proved. A modification of the appealed resolution is thus called for. The facts are undisputed. Nicolas Jalandoni died on October 3, 1960. Before the end of that month, on October 27, a special proceeding2 for the settlement of his estate was filed before the sala of respondent Judge, petitioner Lucrecia Jerez, his widow, being appointed as administratrix. A project of partition and final accounting was submitted on June 14, 1966, resulting in an order from respondent Judge dated June 15, 1966, approving the same. On June 29, 1966, respondent Lucilo Jalandoni, alleging that he is an acknowledged natural child of the late Nicolas Jalandoni, and respondent Victoria Jalandoni de Gorriceta, alleging that she is an illegitimate daughter, sought to be allowed to intervene on the ground that they were preterited in the project of partition which they would have respondent Judge reject for being contrary to law. Then came on July 80, 1966 an order of respondent Judge allowing intervention and reopening the proceedings to permit the movants, now private respondents, "to present whatever evidence they may have to show their right to participate in the estate of the deceased." After a motion for reconsideration, filed by petitioners, was denied, the matter was elevated to the Court of Appeals on a petition for certiorari and prohibition with preliminary injunction filed on September 3, 1966.

As set forth at the opening of this decision, the Court of Appeals in a resolution of September 21, 1966 denied such petition to annul and set aside the order of respondent Judge. The basis for such resolution, penned by Justice Martin with the concurrence of Justice Rodriguez, Justice Esguerra concurring in the result with a separate opinion, was explained in this wise: ". . . that the determination of a prima facie interest in an estate to justify reopening proceedings for the settlement thereof is primarily addressed to the sound discretion and judgment of the probate court; that, while no supporting documents are appended to the motion to reopen tending to show the personality to intervene, the said motion is nevertheless verified upon oaths of the claimants of interest and the probate court has authority to require the submission of at least a prima facie showing of said interest; that the motion to reopen was filed on June 29, 1966 before the order closing the proceedings of June 15, 1966 had achieved finality and during the reglementary period within which the court still had jurisdiction over the case and retained full power to amend and control its process and orders so as to make them comfortable to law and justice; that, because the closure order aforesaid had not yet become final, the requirements of Rule 38 respecting relief from judgment do not apply and, hence, the failure of the motion to reopen to allege any of the grounds therein stated is not fatal; that the better practice in case of the appearance of alleged preterited heirs is to secure relief by reopening the proceedings by a proper motion within the reglementary period (Ramos, et al. vs. Ortuzar, et al., G.R. No. L-3299, August 20, 1951), it being desirable that all aspects of a controversy be ventilated in the same proceeding and thus avoid multiplicity of suits; . . . ."3 Evidently, an ordinary division of three Justices did not suffice for a decision on such petition for certiorari and prohibition resulting in a creation of a division of five. Two Justices dissented from the aforesaid resolution, the dissenting opinion being penned by Justice Lucero with whom Justice Villamor concurred. The dissent is premised on the following considerations: "We should not let Lucilo Jalandoni (alleged acknowledged natural son) and Victoria Jalandoni de Gorriceta (alleged illegitimate daughter) to come in first and identify themselves later, because the better policy according to jurisprudence (Asinas vs. Court, 51 Phil. 665) is to require them first to produce prima facie evidence of such a civil status before opening the door and letting them in. Under Section 2, Rule 12, Revised, 'a person may, before or during a trial, be permitted by the court, in its discretion, to intervene in an action, if he has legal interest in the matter in litigation.' The possibility of interlopers getting in for a share in the estate cannot be totally discounted specially considering that the present intestate proceedings had been pending for the last six (6) years without a motion to intervene having been filed by the present claimants in spite of the notice of publication and the in rem character of the intestate proceedings. According to their residence

certificate, the claimants are residents of Iloilo City (Rec. 20). The procedure adopted by the lower court is more conducive to prejudice and unnecessary loss of time, effort and expense than the method suggested by jurisprudence of requiring first a prima facie evidence of status before letting them come in to intervene. Hence, the order of July 30, 1966 sought to be nullified under the present petition insofar as it reconsidered the approval of the project of partition and the first accounting is unjustified, as practically putting the cart before the horse instead of the horse before the cart. Moreover, the claims can be asserted in a separate action against the legitimate children to whom the share of the deceased Nicolas Jalandoni was adjudicated."4 Stress is laid in this petition for review in respondent Judge allowing private respondents to intervene after the intestate proceedings were closed. We do not see it that way. We repeat what we said at the outset. The challenged resolution cannot be reversed insofar as it recognized the power of respondent Judge to reopen the proceedings and allow intervention. While it is undeniable that the question presented has not been definitely passed upon before, still an indication of how such an issue should be resolved is to be found in an opinion of Justice Tuason in Ramos v. Ortuzar,5 referred to in the resolution of the Court of Appeals. Thus: "The only instance that we can think of in which a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence. Even then, the better practice to secure relief is reopening of the same case by proper motion within the reglementary period, instead of an independent action the effect of which, if successful, would be, as in the instant case, for another court or judge to throw out a decision or order already final and executed and reshuffle properties long ago distributed and disposed of." The above excerpt commends itself for approval. We do so now and definitely hold that rather than require any party who can allege a grievance that his interest was not recognized in a testate or intestate proceeding to file a separate and independent action, he may within the reglementary period secure the relief that is his due by a reopening of the case even after a project of partition and final accounting had been approved. Such a view finds support in the doctrine of liberality as to pleas for intervention so consistently followed and adhered to by this Court.6 As was emphatically expressed by Justice Makalintal, speaking for this Court, in Balane v. De Guzman:7 "Respondent Judge would have done well to brush aside narrow technicalities in this case, allow the intervention prayed for and thus avoid needless delay in the resolution of the conflicting interests of all the parties."

It is thus understandable why the resolution of the Court of Appeals upholding the power of respondent Judge to reopen the proceedings and allow intervention is not vulnerable to attack. It was within his competence to do so. The question remains, however, whether he did so in the appropriate manner. It is not the existence of the power but the mode of its exercise that is open to question. In that sense, the appealed resolution bears further scrutiny. It is indisputable that after the project of partition and final accounting was submitted by the counsel for petitioner Lucrecia Jerez, as administratrix, on June 14, 1966, respondent Judge approved the same and declared closed and terminated the intestacy the next day, June 15, 1966. Subsequently, on a verified petition by private respondents, filed on June 29, 1966, based on the assertion made that they should have had a share in the estate as illegitimate children but that they were omitted in the aforesaid project of partition, they sought to be allowed to intervene and "to have the project of partition rejected for being contrary to law." Such a pleading, without more, resulted in the questioned order of July 30, 1966, reopening the proceedings and reconsidering the approval of the project of partition and final accounting, to enable the private respondents "to present whatever evidence they may have to show their right to participate in the estate of the deceased." Although the recognition of their right to intervene appeared to be tentative and conditional, it cannot be denied that they were given a standing sufficient to set aside the project of partition. Respondent Judge acted too soon. The verified motion on the part of private respondents did not suffice to call into play the power of respondent Judge to allow intervention. There must be proof beyond allegations in such motion to show the interest of the private movants. In the absence thereof, the action taken by respondent Judge could be considered premature. As was stated by us in an opinion penned by Justice Sanchez: "No one may quibble over the existence of the court's discretion on whether to admit or reject intervention. But such discretion is not unlimited."8 WHEREFORE, the resolution of September 21, 1966 of the Court of Appeals is hereby modified in the sense that respondent Judge, Honorable Emigdio V. Nietes of the Court of First Instance of Iloilo Judicial District, Branch I, or whoever may be acting in his place, is directed to require private respondents Lucilo Jalandoni and Victoria Jalandoni de Gorriceta to present evidence to justify their right to intervene in Special Proceeding No. 1562 re Intestate Estate of Nicolas H. Jalandoni pending before such sala. In the event that they could so justify such a right, the lower court on the basis of such evidence is to proceed conformably to law. Without pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Teehankee and Barredo, JJ., concur.
G.R. No. L-3299 MARTINA RAMOS, ET AL., plaintiffs-appellants, vs. CARIDAD ORTUZAR, ET AL., defendants-appellants.

On September 3, 1937, proceedings for the settlement of Percy A. Hills estate were commenced and Caridad Ortuzar was appointed administratrix. By order of the court, the administratrix on April 2, 1940 submitted an accounting and a project of partition, and both of these having been approved, distribution of the estate was made accordingly and the estate was closed. On March 27, 1947, the declared heirs and distributes (Caridad Ortuzar, her daughter and the deceaseds children by Helen Livingstone) sold six tracts of land left by Hill to Maximo Bustos for P120,000, this being the sale which the trial court would annul. Both parties have appealed, the plaintiffs from the holding that Martina Ramos was not married to Percy A. Hill, and the defendants from the rest of the decision. On Martina Ramos purported marriage to Percy A. Hill, the trial Judge, after reciting in minute detail the evidence for all the parties, reached this conclusion: En el caso que nos ocupa, los demandados no solo han probado con pruebas primarias y directas los sucesivos casamientos de Percy A. Hill con Helen Livingstone (Exh. 14) y con Caridad Ortuzar (Exh. 19) sino con pruebas secundarias e indirectas han probado que Percy A. Hill no se ha casado con Martina Ramos, presentando los Exhs. 25-C, 28, 29, 31-A. El Exh. 14 es el certificado de casamiento de Percy A. Hill con Helen Livingstone; el Exh. 19 es el certificado de casamiento del mismo Percy A. Hill con Caridad Ortuzar; el Exh. 25-C es la deposicion de varios testigos que presenciaron el alegado casamiento de Martina Ramos con Teodoro Tabias; el Exh. 26 es el certificado de bautismo de Hermogenes Tobias como hijo legitimo de legitimo matrimonio de Teodoro Tobias y Martina Ramos; el Exh. 29 es un documento publico otorgado por Martina Ramos donde hizo constar ser casada con Teodoro Tobias; el Exh. 31-A es otro documento publico otorgado, a su vez, por Teodoro Tobias donde hizo constar ser casado con Martina Ramos. Contrapesadas las pruebas de los demandados con las presentadas por los demandantes, sobre si Martina Ramos estuvo casada con Percy A. Hill, en terminos legales, el Juzgado cree que la preponderancia de las pruebas esta al lado de los demandados o que Percy A. Hill no se ha casado con Martina Ramos. Si el engao a ella no tenemos duda moral ni legal, pero esta duda no es barrera legal para que de acuerdo con las pruebas se decida, como decidimos que la preponderancia de las pruebas esta en que Percy A. Hill no se ha casado legalmente con Martina Ramos.

Javier, Espinosa and Javier for plaintiffs and appellants. Ramirez and Ortigas for defendant and appellant Ortuzar y Hill.
, J.: Claiming to be the deceased Percy A. Hills lawful wife and legitimate children, respectively, Martina Ramos and her sons Richard Hill and Marvin Hill brought this action in the Court of First Instance of Nueva Ecija to annul the judicial partition of the deceaseds estate among his children and last wife, and the sale by these of the bulk of the property to their co-defendant Maximo Bustos. After a lengthy trial, in which considerable testimony and documentary evidence were taken, the court found that Martina Ramos had not been married to Percy A. Hill but that Richard Hill and Marvin Hill were Percy A. Hills acknowledged natural children, and that the purchase by Maximo Bustos was mala fide and null and void. The court then alloted undivided portions of the estate, including the lands bought by Maximo Bustos, among the plaintiffs Richard and Marvin Hill and Percy A. Hills children by his first and second wives, and awarded to the plaintiffs damages in the amount of P35,000. These facts may be laid down as uncontroverted. Percy A. Hill, an American and retired officer of the Philippine Constabulary, cohabited with Martina Ramos in Munoz, then a barrio of San Juan de Guimba, province of Nueva Ecija, from 1905 to 1914 and begot with her six children, two of whom are Richard Hill and Marvin Hill and the others died in infancy. He started acquiring lands by purchase or homestead and improving and cultivating them until at the time of his death on July 23, 1937, his holdings were worth over P100,000. In 1914, Percy A. Hill canonically married an American woman by the name of Helen Livingstone and of that union three children were born, all of whom now reside in the United States. Helen Livingstone died in 1992, and in 1924, Hill married Caridad Ortuzar by whom he had one daughter. It is Caridad Ortuzar and all the children had by her and Helen Livingstone who, besides Maximo Bustos, have been made defendants.

This finding rests largely on the veracity of Martina Ramos and her witnesses and could very well be disposed of without any comment beyond that no circumstances of weight have been overlooked by the court, and that no certificate of marriage or entry thereof in the Civil registry has been presented, nor has satisfactory explanation of the absence been offered. Nevertheless, in view of the fact that the alleged marriage is the sole foundation of the plaintiffs action, although the Court departed from that issue, as hereafter will be shown, it will not be amiss to cite additional circumstances which, in our opinion, bear out the appealed decision on this point. Martina Ramos stated in her deposition that after their marriage in 1905, she and Percy A. Hill lived in Munoz, first in a small house and later in a big house; that about November, 1941, her husband broke to her the news that he was going to get a woman helper . . . to assist me in my work; that afterwards he came back with a woman . . . who did not look like a maid at all, and took the newcomer to the Central Agricultural School to live; that later Hill begged her (Martina) to forgive him, and Because of the intervention of some prominent people in the community, she yielded to let the woman stay. But, she added, in order not to see them often she told her husband that she preferred to have a house in front of the big house where to run a big store and continued managing and helping in the supervision of the tenants and the cultivation of the lands in question. The only part of this testimony which has a ring of truth is that which says that a house or store was built for this plaintiff across the street from the big house and that she moved to the new house with her children. Far from sustaining the existence of marriage, this conduct only confirms that Martina Ramos was not Percy A. Hills wife. Common observations and human psychology reject the thoughts that this woman could have consented with complete resignation, let alone proposed herself, that she be banished for good from the conjugal home with her children in order that her husband might live in peace with other women, raise children, and enjoy the home and fortune which, according to her, she had helped build and earn. And no intelligent and responsible man that Percy A. Hill undoubtedly was would likely have been so unmindful of social conventions and so reckless of penal consequences as publicly to marry twice while his first wife was alive, and live with his new wife in plain and constant sight of his former and legitime wife and children. Other circumstances, some of them recited in the appealed decision, tending to refute the basis of Hill and Ramos marriage are that soon after the couple was separated, Ramos and Teodoro Tobias began living together and were still living together when this case was tried. Although they denied that they are legally

married, several persons made depositions to the effect that they had witnessed Tobias and Ramos wedding. As to the documentary evidence, it appears that in a Torrens certificate of title issued in the name of Teodoro Tobias, Martin Ramos was described as Tobias wife; in a mortgage deed executed by Tobias and a deed of sale jointly executed by Martina Ramos and Teodoro Tobias, it was stated that these two were man and wife; and the birth certificates of two of their children state that the latter were their legitimate sons. Again, as heretofore noted, Martina Ramos never entered an appearance, personally or through counsel, in Percy A. Hills intestate proceedings to claim a share in the decedents estate. She came forward claiming to be Hills wife for the first time six years after the partition and adjudication of the estate and after the record of the case had disappeared during or following the confusion brought about by the military operations for liberation. And it is indeed strange that living in Nueva Ecija and making no showing that she could not personally come to court, she gave her evidence by deposition as though ashamed or embarrassed to testify in open court or to face cross-examination. It is no less significant that under date of May 16, 1941, Richard Hill and Marvin Hill brought an action in the Court of First Instance of Manila against the same defendants herein, except Maximo Bustos, alleging that they were Percy A. Hills acknowledged natural children and praying that the court order the collection of inheritance which defendants have received and to redistribute the same to plaintiffs and defendants in their respective portions as provided for by law. This action was docketed as case No. 59405 and summons was served on the defendants. The record of the case was served on the defendants. The record of the case was destroyed along with the courthouse but it seems that the suit was dismissed before it came to trial. Other proofs, direct and circumstantial, tending to show that Percy A. Hill never married Martina Ramos according to law might be mentioned, but those set forth above are believed more than enough to destroy whatever presumption of marriage may have been created and engendered by the cohabitation of the deceased Martina Ramos from 1905 to 1914. But it is said that granting without admitting that Martina Ramos was not legally married with the deceased, Percy A. Hill, she nevertheless was entitled to be deemed as having entered into a lawful partnership with Percy A. Hill and therefore is entitled to at least one-half of the properties in question together with the concomitant fruits of the same.

The evidence falls short of sustaining the contention that Martina Ramos had a hand in the acquisition of the properties in question. What the evidence does show is that it was between 1916 and 1930 when these properties were registered, some in Percy A. Hills name, married to Helen Livingstones name as her paraphernal property bought with her own money. The proceedings for the registration of these properties must have been public, as all such proceedings by law are, and yet no opposition was ever registered against any of the applications. Coming at such a late date when Percy A. Hills and Helen Livingstones lips have been sealed, all this claim of co-ownership in the properties sought to be recovered is both unfair and very highly suspicious. At the very least, Percy A. Hill and Helen Livingstone possessed these properties since 1914 adversely; exclusively, publicly and in the concept of owners, and from this viewpoint whatever right Martina Ramos might have had in the said properties has been lost by prescription. She slept over her alleged right for more than 30 years and woke up only after the properties had been partitioned and distributed by final judgments and changed hands, all of which she knew or could have known with the exercise of reasonable diligence, living as she did all that time in the province where the properties are situated. There existed no fiduciary or any other relation between Hill and Helen Livingstone on the one hand and Martina Ramos on the other which prevented Helen and Livingstones exclusive, continuous and peaceful possession for more than three decades from ripening into title as against this plaintiff. So much for the alleged marriage between Percy A. Hill and Martina Ramos. In appealing from the finding that Richard Hill and Marvin Hill were Percy A. Hills recognized natural children and hence entitled to inherit along with Percy A. Hills legitimate children, the defendants have adduced various legal and procedural objections: (1) That the court had no jurisdiction and should have dismissed the action; (2) that the question of plaintiffs civil status is res adjudicata; (3) that the plaintiffs are in estoppel and guilty of laches; (4) that the plaintiffs action has prescribed; (5) that there were no allegations that Richard Hill and Marvin Hill were Percy A. Hills acknowledged natural children and they could not under the pleadings be so declared. We need only consider some of these assignments of error to dispose of this branch of the case. As to res adjudicata. It has been seen that Percy A Hill died on July 23, 1937, after which, on September 3 of the same year, intestate proceedings for the settlement of his estate (Civil Code No. 7686) were begun. And as also stated,

the record of these proceedings have disappeared from the files of the court. Fortunately, however, the court docket for special proceedings cases, judicial form No. 43, was not lost or destroyed. The entries on pages 204, 205 and 207 of this book, pieced together, reveal these facts: In Percy A. Hills intestate proceedings, Richard and Marvin Hill intervened, or sought to intervene, on the allegation that they were the deceaseds legitimate sons entitled to share in the inheritance. Before intervention was allowed, the Hill brothers were required to establish their right and interest in the estate, and to this end formal hearing was held and testimony, consisting of 18 pages, was taken. After the hearing, the petition to intervene was denied, whereupon the would be intervenors took steps to appeal was disapproved. (Although the reasons for the disapproval is not shown in the entries, extraneous evidence states that the record on appeal was filed out of time.) There being no other matters to attend to the administratrix submitted a final accounting and a project of partition by order of the court, both were in due time approved, the partition was carried out, and the expediente was closed. Supplementing the entries aforesaid are two other documents: Exhibit 3, the project of partition, dated April 30, 1940, approving the partition. The project of partition stated that Percy A. Hill had married twice, included all the properties of which hill died seized, designated as Hills sole heirs all the defendants in the present action, and assigned to them the residue of the estate after all the expenses and obligations were paid. It thus appears beyond doubt that all the facts raised in the present suit were alleged, discussed, and definitely adjudicated in the expediente of Hills intestate . True, Richard Hills and Marvin Hills attempted intervention was premised on the allegation that they were Percy A. Hills legitimate sons. But the question actually litigated and decided in connection with that intervention was broader than the brothers exact filial status; it was whether the intervenors were the deceaseds forced heirs. A proceeding for the declaracion de heredos, as it was correctly denominated in the minutes, it necessarily embraced inquiry into any kind of relationship by reason of which Richard Hill and Marvin Hill might be of right called to succeed to their fathers estate, exclusively or in conjunction with others. It is a clear mistake, contrary to the evidence of record, to say that Richard Hill and Marvin Hill were mere witnesses in the proceeding to determine their civil status. They were the ones who set the court in motion, and they were active parties to the point of attempting to appeal albeit their attempt was frustrated by the tardiness with which the record on appeal was presented. Had they been pronounced as heirs, whether as legitimate or acknowledged natural children,

the order would have bound to other heirs and they, Richard and Marvin Hill, would have received their corresponding shares in the distribution. Repudiation of the decision or order now that they have lost, on the tenuous ground that they were only witnesses, is both unfair and contrary to the principles of orderly procedure, estoppel, laches and prescription and the expressed policy of putting an end at the earliest possible date of litigation, especially probate cases. If we are to assume that Richard hill and Marvin Hill did not formally intervene, still they would be concluded by the result of the proceedings, not only as to their civil status but as the distribution of the estate as well. As this Court has held in Manolo vs. Paredes, 47 Phil. 938, The proceeding for probate in one in rem (40 Cyc., 1265) and the court acquires jurisdiction over all persons interested, through the publication of the notice prescribed by sec. 630 C.P.C.; and any order that may be entered therein is binding against all of them. (See also in re Estate of Johnson, 39 Phil. 156.) A final order of distribution of the estate of a deceased person vests the title to the land of the estate in the distributees. (Santos vs. Roman Catholic Bishop of Nueva Caceres, 45, Phil. 895.) There is no reason why, by analogy, these salutary doctrines should not be apply to intestate proceedings. The only instance that we can think of in which a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence. Even then, the better practice to secure relief is reopening of the same case by proper motion within the reglementary period, instead of an independent action of the effect of which if successful, would be, as in the instant case, for another court or judge to throw out a decision or order already final and executed and reshuffle properties long ago distributed and disposed of. There likewise could be no serious disagreement that the court went out of its way in adjudging that Richard Hill and Marvin Hill were Percy A. Hills acknowledged natural children, when the action was predicated on the position that they were the deceaseds legitimate sons as a necessary consequence of the allegation that their parents had been lawfully married. It is a fundamental principle that judgments must conform to both the pleadings and the proof, and must be in accordance with the theory of action upon which the pleadings were framed and the case was tried. A party can no more succeed upon a case proved but not alleged than upon a case allege but no proved. (Ramirez vs. Orientalist Co. and Fernandez, 38 Phil. 646, 647; Gotamco vs. Chan Leng and Razon, 46 Phil , 550.) The reason for this rules is too readily appreciated to need a restatement. It suffices to say that, in the present case, the defendants were

challenged to disapprove the simple averment that Martina Ramos and Percy A. Hill were lawful husband and wife. The question whether Richard Hill and Marvin were acknowledged natural children as distinguishing from purely illegitimate ones, was foreign to that averment and involved distance, delicate elements that had to be proved in a mode different from the mode known in ordinary practice and followed to satisfy the judges mind. While material variances between allegations and proof may be corrected by amendment so as to bring the former into conformity with the later (Ramirez vs. Orientalist Co. and Fernandez, supra, the plaintiffs neither amended the complaint nor were required to do so. In fact, appealing from the pronouncement that they were only recognized natural children, they now insist vehemently were begotten of lawful wedlock. They are not content with anything less. Even if the plaintiffs had amended their allegations to adapt them to the evidence, amendment in this case would hardly do away with the unfairness of granting them a relief on a theory not put in issue by the pleadings. For one thing, the evidence on which the court based its judgment that Richard Hill and Marvin were recognized natural children, was adduced solely to show the alleged marriage between their parents; the matter of acknowledgment of the plaintiffs by their father was far from the parties minds, and that judgment appears to have been a surprise to the plaintiffs themselves, to Judge from their appeal, as well as to the defendants. There could have been no serious objection to the admission in evidence, as possible indication of the alleged marriage, the fact that Richard and Marvin Hill were Percys children and treated by their father as such. But the defendants had good reason to object, and in all probability they would have objected, if they had been forwarded that the fathers conduct would be used as proof of acknowledgment and not of marriage; at least they would have prepared and introduced evidence to counteract the plaintiffs theory on this score. For sure, the defendants would have set up the statute of limitations, which they now invoke, and this plea would have attained a fair chance of success. There are two forms of acknowledgment -voluntary and compulsory. None of the requirements of Art. 131 of the Spanish Civil Code, which deals with voluntary recognition, have been shown: namely, acknowledgment in a will, or in some other public documents. Although the civil registry of Marvin Hills birth, which states that this plaintiff was Percy A. Hills legitimate child, is in evidence, an acknowledgment in the record of birth is not recognized in this country for the reason that Art. 326, which defines the record of birth mentioned in Art. 131,

had never been put into effect in the Philippines. (Samson vs. Corrales, 48 Phil. 401.) From its context it would seem that the decision is predicated on Article 135, by which the father may be compelled to acknowledge his natural child .. when an indubitable writing of his exists in which he expressly acknowledges his paternity, or when the child is in the uninterrupted possession of the status of a natural child of the defendant father, judged by the conduct of the father himself or that of his family. Supposing the latter to be the rationale of the decision, the action was barred by Percy A. Hills death. By Article 137 action for the acknowledgment of natural child may be commenced only during the lifetime of the posed parents, except when the parents death occurred during the minority of the child, in which case the latter may commence the action within certain period after the attainment of his or her majority. Being of age when their father died, Richard Hill and Marvin Hill do not come within the saving clause. The record is voluminous. The decision occupies 77 pages of the printed record on appeal, and many other proofs, oral and documentary, questions and sub questions have been brought to our attention. With the conclusions already reached, it would be superfluous to extend this decision any further than to remark that, at best none of the evidence and points left out from consideration in this decision would supply the plaintiffs case any leg to stand on. The appealed decision is affirmed in so far as it declares that Percy A. Hill and Martina Ramos were not legally married and reversed as to the rest of the findings and pronouncements with costs against the plaintiffs as appellants and appellees. Paras, C.J., Feria, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur. MARIA ELENA RODRIGUEZ PEDROSA, petitioner, vs. THE HON. COURT OF APPEALS, JOSE, CARMEN, MERCEDES & RAMON, all surnamed RODRIGUEZ, ROSALINA RODRIGUEZ, CHAN LUNG FAI, MATEO TAN TE, TE ENG SUY, LORETA TE, VICTORIO S. DETALIA, JEROME DEIPARINE, PETRONILO S. DETALIA, HUBERT CHIU YULO, PATERIO N. LAO, LORENSITA M. PADILLA, IMMACULATE CONCEPCION COLLEGE AND LILIAN EXPRESS, INC. and TIO TUAN, respondents. DECISION

QUISUMBING, J.: This petition assails the decision of the Court of Appeals dated May 23, 1994 which affirmed the judgment of the Regional Trial Court, Branch 15, of Ozamiz City in Civil Case No. OZ-1397. The facts of this case are as follows: On April 8, 1946, the spouses Miguel Rodriguez and Rosalina J. de Rodriguez initiated proceedings before the CFI of Ozamiz City for the legal adoption of herein petitioner, Maria Elena Rodriguez Pedrosa. On August 1, 1946, the CFI granted the petition and declared petitioner Pedrosa the adopted child of Miguel and Rosalina. On April 29, 1972, Miguel died intestate. Thereafter, petitioner and Rosalina entered into an extrajudicial settlement of Miguels estate, adjudicating between themselves in equal proportion the estate of Miguel. On November 21, 1972, private respondents filed an action to annul the adoption of petitioner before the CFI of Ozamiz City, with petitioner and herein respondent Rosalina as defendants docketed as OZ 349. On August 28, 1974, the CFI denied the petition and upheld the validity of the adoption. Thereafter, the private respondents appealed said decision to the Court of Appeals. On March 11, 1983, while said appeal was pending, the Rodriguezes entered into an extrajudicial settlement with respondent Rosalina for the partition of the estate of Miguel and of another sister, Pilar. Rosalina acted as the representative of the heirs of Miguel Rodriguez. Pilar had no heirs except his brothers and sisters. The Deed of Extrajudicial Settlement and Partition covered fourteen parcels of land covering a total area of 224,883 square meters. These properties were divided among Jose, Carmen, Mercedes, Ramon and the heirs of Miguel, represented solely by Rosalina. The heirs of Miguel were given 226 square meters of parcel 2, and 9,567 square meters and 24,457 square meters of parcels 7 and 9, respectively.xxi[1] The total land area allocated to the heirs of Miguel was 34,250 square meters.

Armed with the Deed of Extrajudicial Settlement and Partition, respondents Rodriguezes were able to secure new Transfer Certificates of Title (TCTs) and were able to transfer some parcels to the other respondents herein.xxii[2] Lots 504-A-6, 504-B-3 and 504-C-4, portions of Parcel 3, designated as Lot 504, were transferred to respondents Chuan Lung Fai,xxiii[3] but not included in the Deed of Settlement and Partition, were transferred to respondent Lilian Express, Inc. and are now registered under TCT No. T-11337. Parcel 6, Lot 560, was subdivided among Ramon, Jose, Carmen and Mercedes and was designated as Lots 560-A, 560-B, 560-C, 560-D and 560-E. Lot 560-A covering 500 square meters was transferred to respondent Victorino Detallxxiv[4] and was subsequently transferred to Jerome Deiparine who registered it under his name under TCT No. T-10706. Lot 560-B with 500 square meters was transferred to respondent Petronilo Detallaxxv[5] and was later transferred to respondent Hubert Chiu Yulo who registered it under his name under TCT No. T-11305. Lot 560-C was transferred and registered under the name of respondent Paterio Lao with TCT No. T-10206. Lot 560-D was sold to and subsequently registered in the name of Lorensita M. Padilla under TCT No. T-10207. The remaining portion, Lot 560-E consisting of 43,608 square meters was bought by respondent Immaculate Concepcion College and was registered in its name under TCT No. T10208.xxvi[6] On June 19, 1986, the parties in the appeal which sought to annul the adoption of petitioner Pedrosa filed a joint Motion to Dismiss. On June 25, 1986, the Court of Appeals dismissed the appeal but upheld the validity of the adoption of petitioner. Thereafter, petitioner sent her daughter, Loreto Jocelyn, to claim their share of the properties from the Rodriguezes. The latter refused saying that Maria Elena and Loreto were not heirs since they were not their blood relatives. Petitioner, then, filed a complaint to annul the 1983 partition. The said complaint was filed on January 28, 1987. Said complaint was later amended on March 25, 1987 to include the allegation that earnest efforts toward a compromise were made between the plaintiffs and the defendants, but the same failed. xxvii[7] The Regional Trial Court dismissed the complaint. Petitioner appealed to the Court of Appeals. The appellate court affirmed the decision of the trial court. Its ruling was premised on the following grounds:xxviii[8]

1) that the participation of Rosalina has already estopped her from questioning the validity of the partition, and since she is already estopped, it naturally follows that Maria Elena, her successor-in-interest, is likewise estopped, applying Article 1439 of the Civil Code; 2) that the appeal of Maria Elena and her claim that the partition is null and void is weakened by her inconsistent claim that the partition would have been alright had she been given a more equitable share; 3) the action is essentially an action for rescission and had been filed late considering that it was filed beyond the 4 year period provided for in Article 1100 of the Civil Code;xxix[9] 4) that fraud and/or bad faith was never established.

Petitioner filed a Motion for Reconsideration, which was denied by the Court of Appeals in a Resolution dated December 20, 1994.xxx[10] Hence, this petition wherein the petitioner asserts that the following errors were allegedly committed by the Court of Appeals in I. FINDING THAT THE EXTRAJUDICIAL SETTLEMENT AND PARTITION ENTERED INTO BY DEFENDANT JUREDINI AND DEFENDANTS-APPELLANTS RODRIGUEZES WAS VALID AND BINDING UPON THE PLAINTIFF-APPELLANT WHO DID NOT PARTICIPATE IN SAID TRANSACTION II. CONCLUDING THAT THE CLAIM OF PLAINTIFF-APPELLANT HAVE ALREADY PRESCRIBED TWO (2) YEARS AFTER PUBLICATION OF THE EXTRAJUDICIAL SETTLEMENT AND PARTITION IN THE NEWSPAPER OF GENERAL CIRCULATION III. ...CONCLUDING THAT THE CLAIM OF PLAINTIFF-APPELLANT IS BARRED OR ESTOPPED IN FILING THIS CASE (sic) IN VIEW OF THE DISMISSAL OF THE APPEAL IN CIVIL CASE NO. OZ 349 INTERPOSED BY HEREIN DEFENDANTSAPPELLEES WHO WERE THEN PLAINTIFFS-APPELLANTS IN AC[C]-G.R. NO. SP00208 IV. SUSTAINING THE DEFENDANT-APPELLEES CLAIM THAT AS THEY HAVE NOT AS YET RECOGNIZED PLAINTIFF-APPELLANT AS AN ADOPTED DAUGHTER

OF MIGUEL RODRIGUEZ IT WAS NOT NECESSARY FOR THEM TO HAVE HER PARTICIPATE IN THE EXTRAJUDICIAL SETTLEMENT, EXHIBITS S AND I V. CONCLUDING THAT THE PLAINTIFF-APPELLANT HAD NOT CONCLUSIVELY SHOWN THAT MIGUEL RODRIGUEZ WAS A CO-OWNER OF THE LANDS SOLD AND HENCE IT FOLLOWS THAT SHE HAS NO RIGHT OF REDEMPTION OF THOSE LANDS VI. FINDING THAT PORTION OF LOTS NOS. 504 AND 560 SOLD TO THE OTHER DEFENDANTSAPPELLEES WERE CLEAN AND FREE FROM ENCUMBRANCES OR ANY FLAWS HENCE WERE VALID VII. FINDING THAT THE PLANTIFFAPPELLANT NEVER APPEARED IN COURT TO TESTIFY OR REBUT THE ASSERTIONS OF THE DEFENDANTSAPPELLANTS THAT THERE WAS A VALID PARTITION VIII. AWARDING PLAINTIFFAPPELLANT DAMAGES FOR THE INCOME OF HER SHARE IN THE PROPERTIES IN QUESTIONxxxi[11] In sum, the issues to be resolved in our view are (1) whether or not the complaint for annulment of the Deed of Extrajudicial Settlement and Partition had already prescribed; (2) whether or not said deed is valid; and (3) whether or not the petitioner is entitled to recover the lots which had already been transferred to the respondent buyers. Petitioner argues that the complaint for annulment of the extrajudicial partition has not yet prescribed since the prescriptive period which should be applied is four years following the case of Beltran vs. Ayson, 4 SCRA 69 (1962). She also avers that Sec. 4, Rule 74 which provides for a two-year prescriptive period needs two requirements. One, the party assailing the partition must have been given notice, and two, the party assailing the partition must have participated therein. Petitioner insists these requirements are not present in her case,xxxii[12] since she did not participate in the Deed of Extrajudicial Settlement and Partition. She cites Villaluz vs. Neme, 7 SCRA 27, 30 (1963), where we held that a deed of extrajudicial partition executed without including some of the heirs, who had no knowledge and consent to the same, is fraudulent. She asserts that she is an adoptive daughter and thus an heir of Miguel.xxxiii[13] Petitioner also contends that the respondent buyers were buyers in bad faith since they failed to exercise the necessary due diligence required before

purchasing the lots in question.xxxiv[14] In the alternative, petitioner wants to redeem the said lots as a co-owner of respondent Rodriguezes under the provisions of Article 1620 of the New Civil Code.xxxv[15] Lastly, petitioner asserts that she will suffer lesion if the partition would be allowed. She asks for the rescission of the said partitioning under Articles 165175 of the Civil Code.xxxvi[16] Respondents, in response, claim that the action of petitioner had already prescribed. In addition, they argue that petitioner, Maria Elena, and Rosalina already have their shares in the estate of Miguel Rodriguez reflected in the compromise agreement they entered into with the respondent Rodriguezes in AC- G.R. SP 00208. Finally, respondents aver that the non-participation of Maria Elena in the extrajudicial partition was understandable since her status as an adopted child was then under litigation. In any case, they assert that the shares of Miguels heirs were adequately protected in the said partition.xxxvii[17] Section 4, Rule 74xxxviii[18] provides for a two year prescriptive period (1) to persons who have participated or taken part or had notice of the extrajudicial partition, and in addition (2) when the provisions of Section 1xxxix[19] of Rule 74 have been strictly complied with, i.e., that all the persons or heirs of the decedent have taken part in the extrajudicial settlement or are represented by themselves or through guardians.xl[20] Petitioner, as the records confirm, did not participate in the extrajudicial partition. Patently then, the two-year prescriptive period is not applicable in her case. The applicable prescriptive period here is four (4) years as provided in Gerona vs. De Guzman, 11 SCRA 153 (1964), which held that: [The action to annul] a deed of extrajudicial settlement upon the ground of fraud...may be filed within four years from the discovery of the fraud. Such discovery is deemed to have taken place when said instrument was filed with the Register of Deeds and new certificates of title were issued in the name of respondents exclusively.xli[21] Considering that the complaint of the petitioner was filed on January 28, 1987, or three years and ten months after the questioned extrajudicial settlement dated March 11, 1983, was executed, we hold that her action against the respondents on the basis of fraud has not yet prescribed.

Section 1 of Rule 74 of the Rules of Court is the applicable rule on publication of extrajudicial settlement. It states: The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the next succeeding section; but no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof.xlii[22] Under said provision, without the participation of all persons involved in the proceedings, the extrajudicial settlement cannot be binding on said persons. The rule contemplates a notice which must be sent out or issued before the Deed of Settlement and/or Partition is agreed upon, i.e., a notice calling all interested parties to participate in the said deed of extrajudicial settlement and partition, not after, which was when publication was done in the instant case. Following Rule 74 and the ruling in Beltran vs. Ayson, since Maria Elena did not participate in the said partition, the settlement is not binding on her. The provision of Section 4, Rule 74 will also not apply when the deed of extrajudicial partition is sought to be annulled on the ground of fraud. A deed of extrajudicial partition executed without including some of the heirs, who had no knowledge of and consent to the same, is fraudulent and vicious.xliii[23] Maria Elena is an heir of Miguel together with her adopting mother, Rosalina. Being the lone descendant of Miguel, she excludes the collateral relatives of Miguel from participating in his estate, following the provisions of Article 1003 of the Civil Code.xliv[24] The private respondent Rodriguezes cannot claim that they were not aware of Maria Elenas adoption since they even filed an action to annul the decree of adoption. Neither can they claim that their actions were valid since the adoption of Maria Elena was still being questioned at the time they executed the deed of partition. The complaint seeking to annul the adoption was filed only twenty six (26) years after the decree of adoption, patently a much delayed response to prevent Maria Elena from inheriting from her adoptive parents. The decree of adoption was valid and existing. With this factual setting, it is patent that private respondents executed the deed of partition in bad faith with intent to defraud Maria Elena. In the case of Segura vs. Segura, the Court held: This section [referring to section 4, Rule 74] provides in gist that a person who has been deprived of his lawful participation in the estate of the decedent, whether as heir or as creditor, must assert his claim within two years after the extrajudicial or summary settlement of such estate under Sections 1 and 2

respectively of the same Rule 74. Thereafter, he will be precluded from doing so as the right will have prescribed. It is clear that Section 1 of Rule 74 does not apply to the partition in question which was null and void as far as the plaintiffs were concerned. The rule covers only valid partitions. The partition in the present case was invalid because it excluded six of the nine heirs who were entitled to equal shares in the partitioned property. Under the rule, no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof. As the partition was a total nullity and did not affect the excluded heirs, it was not correct for the trial court to hold that their right to challenge the partition had prescribed after two years from its execution in 1941.xlv[25] To say that Maria Elena was represented by Rosalina in the partitioning is imprecise. Maria Elena, the adopted child, was no longer a minor at the time Miguel died. Rosalina, only represented her own interests and not those of Maria Elena. Since Miguel predeceased Pilar, a sister, his estate automatically vested to his child and widow, in equal shares. Respondent Rodriguezes interests did not include Miguels estate but only Pilars estate. Could petitioner still redeem the properties from buyers? Given the circumstances in this case, we are constrained to hold that this is not the proper forum to decide this issue. The properties sought to be recovered by the petitioner are now all registered under the name of third parties. Well settled is the doctrine that a Torrens Title cannot be collaterally attacked. The validity of the title can only be raised in an action expressly instituted for such purpose.xlvi[26] Petitioner asks for the award of damages. No receipts, agreements or any other documentary evidence was presented to justify such claim for damages. Actual damages, to be recoverable, must be proved with a reasonable degree of certainty. Courts cannot simply rely on speculation, conjecture or guesswork in determining the fact and amount of damages.xlvii[27] The same is true for moral damages. These cannot be awarded in the absence of any factual basis.xlviii[28] The unsubstantiated testimony of Loreto Jocelyn Pedrosa is hearsay and has no probative value. It is settled in jurisprudence that damages may not be awarded on the basis of hearsay evidence.xlix[29] Nonetheless, the failure of the petitioner to substantiate her claims for damages does not mean that she will be totally deprived of any damages. Under the law, nominal damages are awarded, so that a plaintiffs right, which has been invaded or violated by defendants may be vindicated and recognized.l[30]

Considering that (1) technically, petitioner sustained injury but which, unfortunately, was not adequately and properly proved, (2) petitioner was unlawfully deprived of her legal participation in the partition of the estate of Miguel, her adoptive father, (3) respondents had transferred portions of the properties involved to third parties, and (4) this case has dragged on for more than a decade, we find it reasonable to grant in petitioners favor nominal damages in recognition of the existence of a technical injury.li[31] The amount to be awarded as such damages should at least commensurate to the injury sustained by the petitioner considering the concept and purpose of said damages.lii[32] Such award is given in view of the peculiar circumstances cited and the special reasons extant in this case.liii[33] Thus, the grant of ONE HUNDRED THOUSAND (P100,000.00) PESOS to petitioner as damages is proper in view of the technical injury she has suffered. WHEREFORE, the petition is GRANTED. The assailed decision of the Court of Appeals is hereby REVERSED and SET ASIDE. The Deed of Extrajudicial Settlement and Partition executed by private respondents on March 11, 1983 is declared invalid. The amount of P100,000.00 is hereby awarded to petitioner as damages to be paid by private respondents, who are also ordered to pay the costs. SO ORDERED. Bellosillo (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur. G.R. No. L-51291 May 29, 1984 FRANCISCO CUIZON, ROSITA CUIZON, PURIFICATION C. GUIDO married to TEODORO GUIDO, and JUAN ARCHE, petitioners, vs. HON. JOSE R. RAMOLETE, Presiding Judge of the Court of First Instance of Cebu, Branch III, DOMINGO L. ANTIGUA and SEGUNDO ZAMBO, respondents.

GUTIERREZ, JR., J.: The sole issue in this petition for certiorari is whether or not a probate court has jurisdiction over parcels of land already covered by a Transfer Certificate of Title issued in favor of owners who are not parties to the intestate proceedings if the said parcels have been included in the inventory of properties of the estate prepared by the administrator. For a clearer understanding of the present case, the background facts may be appreciated. As far back as 1961, Marciano Cuizon applied for the registration of several parcels of land located at Opao, Mandaue City then covered by certificates of Tax Declaration in Land Registration Case No. N-179. In 1970, he distributed his property between his two children, Rufina and Irene. Part of the property given to Irene consisted largely of salt beds which eventually became the subject of this controversy. On December 29, 1971, Irene Cuizon executed a Deed of Sale with Reservation of Usufruct involving the said salt beds in favor of the petitioners Francisco, Rosita and Purificacion, all surnamed Cuizon. At that time, Francisco and Rosita were minors and assisted by their mother, Rufina, only sister of Irene. However, the sale was not registered because the petitioners felt it was unnecessary due to the lifetime usufructuary rights of Irene. Although the decision in L.R. Case No. N-179 was rendered way back in 1962, the decree of registration No. N-161246 and the corresponding Original Certificate of Title No. 0171 was issued only in 1976 in the name of Marciano Cuizon. In that same year, Transfer Certificate of Title No. 10477 covering the property in question was issued by the Register of Deeds to Irene Cuizon. The latter died in 1978. In the extrajudicial settlement of the estate, her alleged half sister and sole heir Rufina adjudicated to herself all the property of the decedent including the property in question. After the notice of the extrajudicial settlement was duly published in a newspaper of general circulation, Rufina thereafter, executed a deed of Confirmation of Sale wherein she confirmed and ratified the deed of sale of December 29, 1971 executed by the late Irene and renounced and waived whatever rights, interest, and participation she may have in the property in question in favor of the petitioners. The deed was duly registered with the Registry of Deeds and annotated at the back of TCT No. 10477. Subsequently, TCT No. 12665 was issued in favor of the petitioners. On September 28, 1978, a petition for letters of administrator was filed before the Court of First Instance of Cebu (Sp. Proc. No. 3864-R) by respondent

Eliseo C. Alinsug for petitioners. Loreto M. Pono for respondents Domingo Antigua and Segundo Zambo.

Domingo Antigua, allegedly selected by the heirs of Irene numbering seventeen (17) in all to act as administrator of the estate of the decedent. The petition was granted. Respondent Antigua as administrator filed an inventory of the estate of Irene. He included in the inventory the property in question which was being administered by Juan Arche, one of the petitioners. On June 27, 1979, respondent Antigua filed a motion asking the court for authority to sell the salt from the property and praying that petitioner Arche be ordered to deliver the salt to the administrator. The motion was granted and respondent court issued the following order: The administrator, thru this motion, informs the Court that the estate owns some beds and fish pond located in Opao, Mandaue City that these salt beds are producing salt which are now in the warehouse in Mandaue City, under the custody of Juan Arche that the value of the salt in the warehouse is estimated to be worth P5,000.00 are beginning to melt and, unless they are sold as soon as possible, they may depreciate in value. It is likewise prayed in this motion that Juan Arche be ordered to deliver the salt in question to the administrator such other products of the land now in his (Juan Arche) possession. xxx xxx xxx Let this motion be, as it is hereby GRANTED. The administrator is hereby authorized to sell the salt now in the custody of Juan Arche and the latter (Juan Arche) is hereby ordered to deliver the salt in question to the administrator in order to effect the sale thereof and he is likewise directed to deliver such other products of the land to the administrator. Subsequently, on three different occasions, respondent Segundo Zambo with the aid of several men, sought to enforce the order of the respondent court, compelling the petitioners to come to us on certiorari. On September 14, 1979, we issued a restraining order enjoining the respondents from enforcing the above order of the respondent court and from further interfering with the petitioners in their peaceful possession and cultivation of the property in question. The thrust of the petitioners' argument is that the respondent court, as a court handling only the intestate proceedings, had neither the authority to adjudicate

controverted rights nor to divest them of their possession and ownership of the property in question and hand over the same to the administrator. Petitioners further contend that the proper remedy of the respondent administrator is to file a separate civil action to recover the same. On the other hand, the respondent administrator banked on the failure of the petitioners to first apply for relief in the court of origin before filing the present petition. According to him this was a fatal defect. In addition, the administrator stated that the deed of sale of December 29, 1971 lost its efficacy upon the rendition of judgment and issuance of the decree in favor of Irene Cuizon. It is a well-settled rule that a probate court or one in charge of proceedings whether testate or intestate cannot adjudicate or determine title to properties claimed to be a part of the estate and which are equally (claimed to belong to outside parties. All that the said court could do as regards said properties is to determine whether they should or should not be included in the inventory or list of properties to be administered by the administrator. If there is no dispute, well and good; but if there is, then the parties, the administrator, and the opposing parties have to resort to an ordinary action for a final determination of the conflicting claims of title because the probate court cannot do so (Mallari v. Mallari, 92 Phil. 694; Baquial v. Amihan, 92 Phil. 501). Similarly, in Valero Vda. de Rodriguez vs. CA., (91 SCRA 540) we held that for the purpose of determining whether a certain property should or should not be included in the inventory the probate court may pass upon the title thereto but such determination is not conclusive and is subject to the final decision in a separate a petition regarding ownership which may be instituted by the parties (3 Moran's Comments on the Rules of Court, 1970 Edition, pages 448-9 and 473: Lachenal v. Salas, L-42257, June 14, 1976, 71 SCRA 262, 266). In the instant case, the property involved is not only claimed by outside parties but it, was sold seven years before the death of the decedent and is duly titled in the name of the vendees who are not party to the proceedings. In Bolisay vs. Alcid, (85 SCRA 213), this Court was confronted with a similar situation. The petitioners therein sought to annul the order of the respondent court in a special proceeding which in effect ruled that notwithstanding that the subject property was duly titled in the name of petitioners, the administratrix of the intestate estate involved in said proceeding had the right to collect the rentals of said property over the objection of the titled owners just because it was included in the inventory of said estate and there was an ordinary action in the regular court over the ownership thereof and the estate was one of the parties therein. This

Court viewed the petition as one seeking for a prima facie determination and not a final resolution of the claim of ownership. We held that: ... Considering that as aforestated the said property is titled under the Torrens System in the names of the petitioners, it does appear strange, in the light of the probate court's own ruling that it has no jurisdiction to pass on the issue of ownership, that the same court deemed the same as part of the estate under administration just because the administratrix, alleges it is still owned by the estate and has in fact listed it in the inventory submitted by her to the court. It does not matter that respondent - administratrix has evidence purporting to support her claim of ownership, for, on the other hand, petitioners have a Torrens title in their favor, which under the law is endowed with incontestability until after it has been set aside in the manner indicated in the law itself, which, of course, does not include, bringing up the matter as a mere incident in special proceedings for the settlement of the estate of deceased persons. In other words, in Our considered view, the mere inclusion in the inventory submitted by the administrator of the estate of a deceased person of a given property does not of itself deprive the probate court of authority to inquire into the property of such inclusion in case an heir or a third party claims adverse title thereto. To hold otherwise would render inutile the power of that court to make a prima facie determination of the issue of ownership recognized in the above quoted precedents. The correct rule is that the probate court should resolve the issue before it provisionally, as basis for its inclusion in or exclusion from the inventory. It does not even matter that the issue is raised after approval of the inventory because "apparently, it is not necessary that the inventory and appraisal be approved by the Court." (Francisco on the Rules of Court Vol. V-B, p. 99, citing Siy Chong Keng vs. Collector of Internal Revenue, 60 Phil. 494) In regard to such incident of inclusion or exclusion, We hold that if a property covered by Torrens Title is involved, the presumptive conclusiveness of such title should be given due

weight, and in the absence of strong compelling evidence to the contrary, the holder thereof should be considered as the owner of the property in controversy until his title is nullified or modified in an appropriate ordinary action, particularly, when as in the case at bar, possession of the property itself is in the persons named in the title. Having been apprised of the fact that the property in question was in the possession of third parties and more important, covered by a transfer certificate of title issued in the name of such third parties, the respondent court should have denied the motion of the respondent administrator and excluded the property in question from the inventory of the property of the estate. It had no authority to deprive such third persons of their possession and ownership of the property. Respondent court was clearly without jurisdiction to issue the order of June 27, 1979. Thus, it was unnecessary for the petitioners to first apply for relief with the intestate court. Even assuming the truth of the private respondents' allegations that the sale of December 29, 1971 was effected under suspicious circumstances and tainted with fraud and that the right of Rufina as alleged half-sister and sole heir of Irene remains open to question, these issues may only be threshed out in a separate civil action filed by the respondent administrator against the petitioners and not in the intestate proceedings. WHEREFORE, the petition for certiorari is GRANTED and the respondent court's order dated June 27, 1979 is hereby set aside and declared void as issued in excess of its jurisdiction. Our restraining order enjoining the enforcement of the June 27, 1979 order and the respondents from further interfering, through the intestate proceedings, in the peaceful possession and cultivation of the land in question by the petitioners is hereby made PERMANENT. SO ORDERED.

Teehankee, (Chairman), Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.

IN THE MATTER OF THE INTESTATE ESTATE OF DECEASED ISMAEL REYES, THE HEIRS OF OSCAR R. REYES, petitioners, vs. CESAR R. REYES, respondent. DECISION

GONZAGA-REYES, J.: In this petition for review on certiorari, petitioners seek to annul the decision of the respondent Court of Appeals in CA-G.R. CV No. 46761liv[1] which affirmed the Orderlv[2] dated January 26, 1994 of the Regional Trial Court, Branch 96, Quezon City, in Special Proceeding No. 89-2519, a petition for issuance of letters of administration, and the resolution dated July 28, 1999 denying their motion for reconsideration.lvi[3] Spouses Ismael Reyes and Felisa Revita Reyes are the registered owners of parcels of land situated in Arayat Street, Cubao, Quezon City covered by Transfer Certificates of Title Nos. 4983 and 3598 (39303). The spouses have seven children, namely: Oscar, Araceli, Herminia, Aurora, Emmanuel, Cesar and Rodrigo, all surnamed Reyes. On April 18, 1973, Ismael Reyes died intestate. Prior to his death, Ismael Reyes was notified by the Bureau of Internal Revenue (BIR) of his income tax deficiency which arose out of his sale of a parcel land located in Tandang Sora, Quezon City. For failure to settle his tax liability, the amount increased to about P172,724.40 and since no payment was made by the heirs of deceased Ismael Reyes, the property covered by TCT No. 4983 was leviedlvii[4] sold and eventually forfeited by the Bureau of Internal Revenue in favor of the government.lviii[5] Sometime in 1976, petitioners predecessor Oscar Reyes availed of the BIRs tax amnesty and he was able to redeem the property covered by TCT No. 4983lix[6] upon payment of the reduced tax liability in the amount of about P18,000.lx[7] On May 18, 1982, the Office of the City Treasurer of Quezon City sent a notice to Felisa Revita Reyes informing her that the Arayat properties will be sold at public auction on August 25, 1982 for her failure to settle the real estate tax delinquency from 1974-1981.lxi[8] On December 15, 1986, petitioners predecessor Oscar Reyes entered into an amnesty compromise agreement with the City Treasurer and settled the accounts of Felisa R. Reyes.lxii[9] On May 10, 1989, private respondent Cesar Reyes, brother of Oscar Reyes, filed a petition for issuance of letters of administration with the Regional Trial Court of Quezon City praying for his appointment as administrator of the estate of the deceased Ismael Reyes which estate included 50% of the Arayat properties

covered by TCT Nos. 4983 and 3598.lxiii[10] Oscar Reyes filed his conditional opposition thereto on the ground that the Arayat properties do not form part of the estate of the deceased as he (Oscar) had acquired the properties by redemption and or purchase.lxiv[11] The probate court subsequently issued letters of administration in favor of Cesar Reyes where the latter was ordered to submit a true and complete inventory of properties pertaining to the estate of the deceased and the special powers of attorney executed by the other heirs who reside in the USA and that of Aurora Reyes-Dayot conforming to his appointment as administrator.lxv[12] Cesar Reyes filed an inventory of real and personal properties of the deceased which included the Arayat properties with a total area of 1,009 sq. meters.lxvi[13] On the other hand, Oscar Reyes filed his objection to the inventory reiterating that the Arayat properties had been forfeited in favor of the government and he was the one who subsequently redeemed the same from the BIR using his own funds.lxvii[14] A hearing on the inventory was scheduled where administrator Cesar Reyes was required to present evidence to establish that the properties belong to the estate of Ismael Reyes and the oppositor to adduce evidence in support of his objection to the inclusion of certain properties in the inventory.lxviii[15] After hearing the parties respective arguments, the probate court issued its Order dated January 26, 1994, the dispositive portion of which reads:lxix[16] WHEREFORE, pursuant to the foregoing findings, the Court hereby modifies the inventory submitted by the administrator and declares to belong to the estate of the late Ismael Reyes the following properties, to wit: 1. One half (1/2) of the agricultural land located in Montalban, Rizal containing an area of 31,054 square meters, covered by TCT 72730 with an approximate value of P405,270.00; 2. One half (1/2) of two (2) adjoining residential lots located on Arayat Street, Cubao, Quezon City, with total area of 1,009 square meters, more or less, covered by TCTs No. 4983 AND 3598 (39303), with an approximate value of P3,027,000.00; but this determination is provisional in character and shall be without prejudice to the outcome of any action to be brought hereafter in the proper Court on the issue of ownership of the properties; and, 3. The building constructed by and leased to Sonny Bernardo and all its rental income from the inception of the lease, whether such income be in the possession of oppositor, in which case he is hereby directed to account therefor,

or if such income be still unpaid by Bernardo, in which case the administrator should move to collect the same. Consistent with the foregoing things, either of the administrator oppositor, or heir Felisa R. Reyes, in her personal capacity as apparent co-owner of the Arayat Street properties, may commence the necessary proper action for settling the issue of ownership of such properties in the Regional Trial Court in Quezon City and to inform the Court of the commencement thereof by any of them as soon as possible. The administrator is hereby directed to verify and check carefully on whether other properties, particularly the real properties allegedly situated in Montalban, Rizal; in Marikina, Metro Manila (near Boys Town); and in Bulacan, otherwise referred to as the Hi-Cement property truly pertained to the estate; to determine their present condition and the status of their ownership; and to render a report thereon in writing within thirty (30) days from receipt of this Order. The motion demanding for accounting to be done by oppositor Oscar Reyes is hereby denied for being unwarranted, except whatever incomes he might have received from Sonny Bernardo, which he is hereby directed to turn over to the administrator within thirty (30) days from finality of this Order. A motion for reconsideration was filed by Oscar Reyes which was denied in an Order dated May 30, 1994.lxx[17] He then filed his appeal with the respondent Court of Appeals. While the appeal was pending, Oscar died and he was substituted by his heirs, herein petitioners. On May 6, 1999, the respondent Court issued its assailed decision which affirmed the probate courts order. It ruled that the probate courts order categorically stated that the inclusion of the subject properties in the inventory of the estate of the deceased Ismael Reyes is provisional in character and shall be without prejudice to the outcome of any action to be brought hereafter in the proper court on the issue of ownership of the properties; that the provisional character of the inclusion of the contested properties in the inventory as stressed in the order is within the jurisdiction of intestate court. It further stated that although the general rule that question of title to property cannot be passed upon in the probate court admits of exceptions, i.e. if the claimant and all other parties having legal interest in the property consent, expressly or impliedly, to the submission of the question to the probate court for adjudication, such has no application in the instant case since petitioner-appellee and oppositor-appellant are not the only parties with legal interest in the subject property as they are not

the only heirs of the decedent; that it was never shown that all parties interested in the subject property or all the heirs of the decedent consented to the submission of the question of ownership to the intestate court. Petitioners filed their motion for reconsideration which was denied in a resolution dated July 28, 1999. Hence this petition for review on certiorari alleging that the respondent Court erred (1) in ruling that the court a quo correctly included one half (1/2) of the Arayat properties covered by TCT Nos. 4983 and 3598 (39303) in the inventory of the estate of the deceased Ismael Reyes (2) in upholding that the court a quo has no jurisdiction to determine the issue of ownership. Petitioners argue that a probate courts jurisdiction is not limited to the determination of who the heirs are and what shares are due them as regards the estate of a deceased person since the probate court has the power and competence to determine whether a property should be excluded from the inventory of the estate or not, thus the Court a quo committed a reversible error when it included the Arayat properties in the inventory of the estate of Ismael Reyes despite the overwhelming evidence presented by petitioner-oppositor Oscar Reyes proving his claim of ownership. Petitioners contend that their claim of ownership over the Arayat properties as testified to by their predecessor Oscar Reyes was based on two (2) grounds, to wit (1) his redemption of the Arayat properties and (2) the abandonment of the properties by his co-heirs; that his act of redeeming the properties from the BIR in 1976 and therefter from the City Treasurer of Quezon City using his own funds have the effect of vesting ownership to him. Petitioners claim that private respondent is already barred from claiming the Arayat properties since he only filed this petition 16 years after the death of Ismael Reyes and after the prices of the real properties in Cubao have already escalated tremendously. We find no merit in this argument. The jurisdiction of the probate court merely relates to matters having to do with the settlement of the estate and the probate of wills of deceased persons, and the appointment and removal of administrators, executors, guardians and trustees.lxxi[18] The question of ownership is as a rule, an extraneous matter which the Probate Court cannot resolve with finality.lxxii[19] Thus, for the purpose of determining whether a certain property should or should not be included in the inventory of estate proceeding, the probate court may pass upon the title thereto, but such determination is provisional, not conclusive, and is subject to the final decision in a separate action to resolve title.lxxiii[20]

We find that the respondent Court did not err in affirming the provisional inclusion of the subject properties to the estate of the deceased Ismael Reyes without prejudice to the outcome of any action to be brought thereafter in the proper court on the issue of ownership considering that the subject properties are still titled under the torrens system in the names of spouses Ismael and Felisa Revita Reyes which under the law is endowed with incontestability until after it has been set aside in the manner indicated in the law.lxxiv[21] The declaration of the provisional character of the inclusion of the subject properties in the inventory as stressed in the order is within the jurisdiction of the Probate Court. Petitioners next claim that as an exception to the rule that the probate court is of limited jurisdiction, the court has jurisdiction to resolve the issue of ownership when the parties interested are all heirs of the deceased and they submitted the question of title to the property, without prejudice to third persons. Petitioners allege that the parties before the probate court were all the heirs of deceased Ismael Reyes and they were allowed to present evidence proving ownership over the subject properties, thus private respondent cannot argue that he did not in any way consent to the submission of the issue of ownership to the probate court as the records of this case is replete with evidence that he presented evidence in an attempt to prove ownership of the subject properties. We are not persuaded. Settled is the rule that the Regional Trial Court acting as a probate court exercises but limited jurisdiction, thus it has no power to take cognizance of and determine the issue of title to property claimed by a third person adversely to the decedent, unless the claimant and all other parties having legal interest in the property consent, expressly or impliedly, to the submission of the question to the Probate Court for adjudgment, or the interests of third persons are not thereby prejudiced.lxxv[22] The facts obtaining in this case, however, do not call for the application of the exception to the rule. It bears stress that the purpose why the probate court allowed the introduction of evidence on ownership was for the sole purpose of determining whether the subject properties should be included in the inventory which is within the probate courts competence. Thus, when private respondent Cesar Reyes was appointed as administrator of the properties in the courts Order dated July 26, 1989, he was ordered to submit a true inventory and appraisal of the real and personal properties of the estate which may come into his possession or knowledge which private respondent complied with. However,

petitioner Oscar Reyes submitted his objection to the inventory on the ground that it included the subject properties which had been forfeited in favor of the government on April 21, 1975 and which he subsequently redeemed on August 19, 1976. The Court resolved the opposition as follows: At the hearing today of the pending incidents, it was agreed that the said incidents could not be resolved without introduction of evidence. Accordingly, the hearing on the inventory of real and personal properties is hereby set on April 24, 1990 at 10:00 A.M. at which date and time the petitioner/administrator shall be required to present evidence to establish that the properties stated in the inventory belong to the estate of Ismael Reyes. The oppositor shall thereafter adduce his evidence in support of his objection to the inclusion of certain properties of the estates in the inventory. Notably, the Probate Court stated, from the start of the hearing, that the hearing was for the merits of accounting and inventory, thus it had jurisdiction to hear the opposition of Oscar Reyes to the inventory as well as the respective evidence of the parties to determine for purposes of inventory alone if they should be included therein or excluded therefrom. In fact, the probate court in its Order stated that for resolution is the matter of the inventory of the estate, mainly to consider what properties should be included in the inventory and what should not be included. There was nothing on record that both parties submitted the issue of ownership for its final resolution. Thus the respondent Court did not err in ruling that the trial court has no jurisdiction to pass upon the issue of ownership conclusively. In fact, the probate court, aware of its limited jurisdiction declared that its determination of the ownership was merely provisional and suggested that either the administrator or the widow Felisa Reyes may commence the proper action in the Regional Trial Court. Moreover, the court admitted that it was not competent to pass upon the ownership of the subject properties, thus: Although the testimony of the oppositor should have greater persuasive value than that of the petitioner/administrator, mainly because it agrees closely with the recitals of facts found in the several public documents submitted as evidence in this case and is corroborated to the greatest extent by the fact that the properties were, indeed, abandoned in his possession since 1975 until the present, his alleged ownership of the Arayat Street properties cannot still be sustained in a manner which would warrant their exclusion from the administrators inventory.

To begin with, there are portions in the records which show that the oppositor himself was somehow uncertain about his rights on the properties and the basis therefor. During his cross-examination (tsn, Oct. 4, 1991), he gave the following statements: xx (Atty. Habitan) Q: And if we will add the other taxes you have paid, (you) are now claiming to be the owner of the Arayat property because you have paid all these taxes? The amounts I have paid and all the expenses I have and if I had not paid all these amounts the property in question would have been lost, A: sir. xx xx

on other conditions which are the following: number one, there was a

levy by the BIR on the property, it was forfeited due to delinquency of real estate taxes; number two, for abandonment, when my mother, brother(s) and sisters left the property, they told me it is my problem and I should take care of it. Number three, the disposition, my mother, my brothers and sisters sold the property of my father, the Hi-Cement and the property in Visayas Street without giving my share. And another thing I have to sell my own property, my own assets so that I can redeem from the BIR the Arayat property and which I did with my personal funds, and number five, nobody helped me in my problems regarding those properties, I was alone and so I felt that the property in Arayat is mine. xx (tsn, Sept. 18, 1992, pp. 2-3) Notwithstanding his clarifying statements on redirect examination, the impression of the Court on the issue is not entirely favorable to him. Apart from the absence of a specific document of transfer, the circumstances and factors he gave may not suffice in and by themselves to convey or transfer title, for, at best, they may only be the basis of such transfer. They may be considered as proof of the intention to dispose in his favor or as evidence of a set off among the heirs, which seems to be what he has in mind. There might also be substance in his assertions about the abandonment in his favor, which, if raised in the proper action, could constitute either prescription or laches. It is hardly needed to stress, therefore, that more than these are required to predicate the exclusion of the properties from the inventory. Another obtrusive reality stands out to invite notice: the BIR levy was only made on the property covered in TCT 4983 and did not include the property covered in TCT 3598 (39303). This somehow detracts from the logic of the oppositors assertion of ownership of the entire Arayat Street properties; even if his assertion is valid and true, it can encompass, at most, only the property subject of the BIRs levy and declaration of forfeiture (i.e., TCT 4983), not the property covered by TCT 3598 (39303). These pronouncements should not by any means diminish or deprive the oppositor of whatever rights or properties he believes or considers to be rightfully his. Although the circumstances and factors he has given to the Court herein may have legal consequences that could have defeated opposing-claims and rendered oppositors claim on the properties unassailable, this Courts xx xx

Q: So, in effect, you are now claiming ownership over the property, I want a categorical answer, Mr. Witness? A: If I am going to sum up all these expenses, my share in the Hi-Cement property, my share in the Bulacan property, the amount of the property in Cubao is small and also all my sufferings because of the property in Cubao, this cannot be paid in terms of money, sir. (tsn, Oct. 4, 1991, pp. 10-12) On re-direct examination (tsn, Sept. 18, 1992), he clarified his statements as follows: xx (Atty, Javellana) Q: Mr. Reyes, on cross-examination, you were asked by the petitioners counsel whether because you had paid the BIR P17,872.44 you are now claiming to be the owner of the property in Arayat Street to which you answered no, will you explain your answer? A: When I paid almost P18,000.00, it does not mean that I claim the property already; on the contrary, I have my own reasons to claim it now xx xx

competence to adjudicate thus in this proceedings is clearly non-existent. In Baybayan vs. Aquino (149 SCRA 186), it was held that the question of ownership of a property alleged to be part of the estate must be submitted to the Regional Trial Court in the exercise of its general jurisdiction. This ruling then, cannot be a final adjudication on the present and existing legal ownership of the properties. Whatever is declared herein ought not to preclude oppositor from prosecuting an ordinary action for the purpose of having his claims or rights established over the properties. If he still cares hereafter to prosecute such claim of ownership adversely to the estate and the apparent coowner, his mother Felisa. As stated in Valera, et al. vs. Judge Inserto, et al. (149 SCRA 533), this Court, acting as a probate court, exercises but limited jurisdiction; accordingly, its determination that property should be included in the inventory or not is within its probate jurisdiction, but such determination is only provisional in character, not conclusive, and is subject to the final decision in a separate action that may be instituted by the parties. xx xx xx

SO ORDERED. Melo, (Chairman), Vitug, and Panganiban, JJ., concur. G.R. No. L-27650 December 24, 1927 Intestate estate of the late Florencia Diez. SEGUNDO DIEZ, petitionerappellee, vs. TOMAS SERRA for himself, and as guardian of the minors Mercedes, Trinidad, Jose, Marcelino, Adriano and Felix Serra, opponent-appellant.

Arroyo and Evangelista for appellant. Hilado and Hilado for appellee.

VILLAMOR, J.: The aforecited findings clarify that there were several reasons for having the issue of ownership ventilated elsewhere. Apart from the fact that only one-half of the two lots known as the Arayat property (i.e., the half that could pertain to the estate) could be settled herein, there was the realization that the evidence adduced so far (including that bearing on the oppositors basis for excluding from the estate the property) was inadequate or otherwise inconclusive. A practical way of looking at the problem is that this Court, sitting herein as an intestate court, does not consider itself competent to rule on the ownership of the entire Arayat property. Finally, anent private respondents allegation that the instant petition was filed one day late, hence should be dismissed, we find the same to be devoid of merit. Petitioners received copy of the decision denying their motion for reconsideration on August 13, 1999, thus they have until August 28, 1999 within which to file petition for review. Petitioners filed their motion for extension on August 27, 1999 praying for 30 days extension from August 28, 1999 or until September 27, 1999 to file their petition which this Court granted. Petitioners filed their petition on September 27, 1999, which is within the period given by the Court. WHEREFORE, premises considered, the petition for review is DENIED. On September 12, 1923, Segundo Diez applied to the Court of First Instance of Occidental Negros for letters of administration of the estate of the deceased Florencia Diez alleging that he is a brother of the said Florencia Diez, who died on August 21, 1921 in the municipality of Cadiz, Province of Occidental Negros, in which municipality she resided at the time of her death; that the deceased at the time of her death was a widow and left no will; that the deceased left realty consisting in a share of one-third of lots Nos. 465 and 490 of Cadiz cadastral case No. 25, more specifically described in the certificates of the office of the register of deeds of that province; that the deceased left seven children, as follows: Years old Tomas Serra y Diez .............................. Mercedes Serra y Diez ........................... Trinidad Serra y Diez ........................... Jose Serra y Diez ............................... Marcelino Serra y Diez .......................... Adriano Serra y Diez ............................ 21 18 16 14 17 10

Felix Serra y Diez ..............................

(e) in permitting the North Negros Sugar Co., Inc., to intervene in the matter of the questioning of the court's jurisdiction. The legal questions raised by this appeal relate to the jurisdiction of the court that granted the letters of administration of the estate of the deceased Florencia Diez , and to the challenge of such jurisdiction. Section 600 of the Code of Civil Procedure provides: SEC. 600. Where resident's estate settled. If and inhabitant of the Philippine Islands dies, whether a citizen or alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resided at the time of his death. According to the allegations of the application for letters of administration, the deceased Florencia Diez lived at Cadiz, Occidental Negros at the time of her death; it is therefore clear that the court a quo had jurisdiction to grant the letters of administration applied for. In order to render valid a grant of letters of administration the view is generally accepted that certain jurisdiction facts must exist. These facts are that the person on whose estate the letters are being granted is in fact dead, and that at the time of death he was a resident of the county wherein letters are being granted, or if not a resident that he left assets in such county. It has been said that the fact of the death of the intestate and of his residence within the county are foundation facts upon which all the subsequent proceedings in the administration of the estate rest, and that if the intestate was not an inhabitant of the state at the time of his death, and left no assets in the state, and none came into it afterwards, no jurisdiction is conferred on the court to grant letters of administration in any county. A probate court has jurisdiction to grant administration of the estate of a person who at the time of his decease was an inhabitant or resident in the county, without proof that he left an estate to be administered within the count. (11 R. C. L., par. 81.) Section 603 of the Code of Civil Procedure provides that the jurisdiction assumed by a Court of First Instance for the settlement of an estate, so far as it depends on the place of residence of a person, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from the that court, in the original case, or when the lack of jurisdiction appears in the record. In the present case the lack of jurisdiction did not appear in the record at the time

That the deceased Florencia Diez's share in the above-mentioned lots is assessed at P22,970. On September 15, 1923, the court granted the application, ordering the appointment of Segundo Diez as administrator, upon his filing a bond in the sum of P5,000. The said bond was filed, and on may 7, 1924, Segundo Diez was appointed administrator. On October 7, 1924, he presented an inventory of the property under his administration. From then on the administration functioned until July 31, 1926, when Tomas Serra fro himself and as guardian of his six minor brothers and sisters, the children of the deceased Florencia Diez, put in a special appearance, contesting that court's authority to take cognizance of this intestate estate, on the ground that the deceased Florencia Diez resided in the municipality of San Joaquin, Province of Iloilo, at the time of her death, as evidenced by the death certificate, Exhibit A. The North Negros Sugar Co., Inc., filed an intervention in this case, as creditor of the intestate estate for a mortgage loan granted to the administrator, with the authorization of the court, maintaining the validity of these proceedings, and asking for the dismissal of the special appearance of Tomas Serra et al. The court denied the petition of the special appearance.lawphi1.net Tomas Serra, et al. appealed from this decision and their counsel in this instance assigns the following errors as committed by the court below: (a) In finding itself competent and with jurisdiction to take cognizance of and act in this proceeding for the settlement of the intestate estate of the deceased Florencia Diez; (b) in not holding that the proceedings had herein are absolutely void ab initio because no evidence has been heard or introduced anent the facts alleged in the application, and particularly anent those concerning its own jurisdiction to take cognizance of this case; (c) in finding that the question set up by the herein petitioners as to the court's jurisdiction is untimely and lacks the legal requisites for that purpose; (d) in holding that the herein appellants are now estopped from questioning the regularity and validity of its proceedings in this intestacy;

when the court a quo that appointed the administrator found itself competent, and no appeal was taken from the order decreeing said appointment. This administration has functioned for two years, and the appellants after that period have appeared in this case, too late to avail themselves of the benefits offered by section 113 of the Code of Civil Procedure, and it would seem that the only remedy left to them is to ask for the reopening of the proceedings in the lower court that assumed jurisdiction. Without further need to discuss the points raised by the appellants, the decision appealed from should be, as it is hereby, affirmed, without special pronouncement as to costs. So ordered.

vs. ENGRACIA MANAHAN, opponent-appellant. J. Fernando Rodrigo for appellant. Heraclio H. del Pilar for appellee. IMPERIAL, J.: This is an appeal taken by the appellant herein, Engracia Manahan, from the order of the Court of the First Instance of Bulacan dated July 1, 1932, in the matter of the will of the deceased Donata Manahan, special proceedings No. 4162, denying her motion for reconsideration and new trial filed on May 11, 1932. The fact in the case are as follows: On August 29, 1930, Tiburcia Manahan instituted special proceedings No. 4162, for the probate of the will of the deceased Donata Manahan, who died in Bulacan, Province of Bulacan, on August 3, 1930. The petitioner herein, niece of the testatrix, was named the executrix in said will. The court set the date for the hearing and the necessary notice required by law was accordingly published. On the day of the hearing of the petition, no opposition thereto was filed and, after the evidence was presented, the court entered the decree admitting the will to probate as prayed for. The will was probated on September 22, 1930. The trial court appointed the herein petitioner executrix with a bond of P1,000, and likewise appointed the committed on claims and appraisal, whereupon the testamentary proceedings followed the usual course. One year and seven months later, that is, on My 11, 1932, to be exact, the appellant herein filed a motion for reconsideration and a new trial, praying that the order admitting the will to probate be vacated and the authenticated will declared null and void ab initio. The appellee herein, naturally filed her opposition to the petition and, after the corresponding hearing thereof, the trial court erred its over of denial on July 1, 1932. Engracia Manahan, under the pretext of appealing from this last order, likewise appealed from the judgment admitting the will to probate. In this instance, the appellant assigns seven (7) alleged errors as committed by the trial court. Instead of discussing them one by one, we believe that, essentially, her claim narrows down to the following: (1) That she was an

Avancea, C.J., Street, Malcolm, Ostrand, Johns and Villa-Real, JJ., concur.
September 22, 1933 G.R. No. 38050 In the matter of the will of Donata Manahan. TIBURCIA MANAHAN, petitioner-appellee, vs. ENGRACIA MANAHAN, opponent-appellant.

J. Fernando Rodrigo for appellant. Heraclio H. del Pilar for appellee.

Imperial, J.: DONATA MANAHAN. TIBURCIA MANAHAN vs. ENGRACIA MANAHAN Republic of the PhilippinesSUPREME COURTManila EN BANC G.R. No. 38050 September 22, 1933 In the matter of the will of Donata Manahan. TIBURCIA MANAHAN, petitionerappellee,

interested party in the testamentary proceedings and, as such, was entitled to and should have been notified of the probate of the will; (2) that the court, in its order of September 22, 1930, did not really probate the will but limited itself to decreeing its authentication; and (3) that the will is null and void ab initio on the ground that the external formalities prescribed by the Code of Civil Procedure have not been complied with in the execution thereof. The appellants first contention is obviously unfounded and untenable. She was not entitled to notification of the probate of the will and neither had she the right to expect it, inasmuch as she was not an interested party, not having filed an opposition to the petition for the probate thereof. Her allegation that she had the status of an heir, being the deceaseds sister, did not confer on her the right to be notified on the ground that the testatrix died leaving a will in which the appellant has not been instituted heir. Furthermore, not being a forced heir, she did not acquire any successional right. The second contention is puerile. The court really decreed the authentication and probate of the will in question, which is the only pronouncement required of the trial court by the law in order that the will may be considered valid and duly executed in accordance with the law. In the phraseology of the procedural law, there is no essential difference between the authentication of a will and the probate thereof. The words authentication and probate are synonymous in this case. All the law requires is that the competent court declared that in the execution of the will the essential external formalities have been complied with and that, in view thereof, the document, as a will, is valid and effective in the eyes of the law. The last contention of the appellant may be refuted merely by stating that, once a will has been authenticated and admitted to probate, questions relative to the validity thereof can no more be raised on appeal. The decree of probate is conclusive with respect to the due execution thereof and it cannot impugned on any of the grounds authorized by law, except that of fraud, in any separate or independent action or proceedings (sec. 625, Code of Civil Procedure; Castaeda vs. Alemany, 3 Phil. 426; Pimentel vs. Palanca, 5 Phil. 436; Sahagun vs. De Gorostiza, 7 Phil. 347; Limjuco vs. Ganara, 11 Phil. 393; Montaano vs. Suesa, 14 Phil. 676; In re Estate of Johnson, 39 Phil. 156; Riera vs. Palmaroli, 40 Phil. 105; Austria vs. Ventenilla, 21 Phil. 180; Ramirez vs. Gmur, 42 Phil. 855; and Chiong Joc-Soy vs. Vao, 8 Phil. 119). But there is another reason which prevents the appellant herein from successfully maintaining the present action and it is that inasmuch as the

proceedings followed in a testamentary case are in rem, the trial courts decree admitting the will to probate was effective and conclusive against her, in accordance with the provisions of section 306 of the said Code of Civil Procedure which reads as follows: SEC. 306. EFFECT OF JUDGMENT. . . . . 1. In case of a judgment or order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or relation of a particular person the judgment or order is conclusive upon the title of the thing, the will or administration, or the condition or relation of the person: Provided, That the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate; . . . . On the other hand, we are at a loss to understand how it was possible for the herein appellant to appeal from the order of the trial court denying her motion for reconsideration and a new trial, which is interlocutory in character. In view of this erroneous interpretation, she succeeded in appealing indirectly from the order admitting the will to probate which was entered one year and seven months ago. Before closing, we wish to state that it is not timely to discuss herein the validity and sufficiency of the execution of the will in question. As we have already said, this question can no more be raised in this case on appeal. After due hearing, the court found that the will in question was valid and effective and the order admitting it to probate, thus promulgated, should be accepted and respected by all. The probate of the will in question now constitutes res judicata. Wherefore, the appeal taken herein is hereby dismissed, with costs against the appellant. So ordered. Avancea, C.J., Malcolm, Villa-Real, and Hull, JJ., concur. G.R. No. L-12190 August 30, 1958

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN, petitioner-appellant, vs. ILDEFONSO YAP, oppositor-appellee.

Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant. Arturo M. Tolentino for appellee.
BENGZON, J.: On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila. On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first instance with a petition for the probate of a holographic will allegedly executed by the deceased, substantially in these words: Nobyembre 5, 1951.

(Lagda) Felicidad E. Alto-Yap.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed any testament during her lifetime. After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge,1 refused to probate the alleged will. A seventy-page motion for reconsideration failed. Hence this appeal. The will itself was not presented. Petitioner tried to establish its contents and due execution by the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as follows: Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente Esguerra, her desire to make a will. She confided however that it would be useless if her husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar examinations. The latter replied it could be done without any witness, provided the document was entirely in her handwriting, signed and dated by her. Vicente Esguerra lost no time in transmitting the information, and on the strength of it, in the morning of November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated a holographic will substantially of the tenor above transcribed, in the presence of her niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to read the will in the presence of Felina Esguerra, who again read it. Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece. To these she showed the will, again in the presence of Felina Esguerra, who read it for the third time. When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours later, Ildefonso Yap, her husband, asked Felina for the purse: and being afraid of him by reason of his well-known violent temper, she delivered it to him. Thereafter, in the same day, Ildefonso Yap returned the purse to Felina, only to demand it the next day shortly before the

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamag-anakang sumusunod: Vicente Esguerra, Sr. ............................................. Fausto E. Gan ......................................................... Rosario E. Gan ......................................................... Filomena Alto .......................................................... Beatriz Alto .............................................................. 5 Bahagi 2 Bahagi 2 Bahagi 1 Bahagi 1 Bahagi

At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking ipinamamana sa aking asawang si Idelfonso D. Yap sa kondisyong siya'y magpapagawa ng isang Health Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad Esguerra-Alto. At kung ito ay may kakulangan man ay bahala na ang aking asawa ang magpuno upang matupad ang aking kagustuhan.

death of Felicidad. Again, Felina handed it to him but not before she had taken the purse to the toilet, opened it and read the will for the last time.2 From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart disease for several years before her death; that she had been treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed to the United States wherein for several weeks she was treated for the disease; that thereafter she felt well and after visiting interesting places, the couple returned to this country in August 1950. However, her ailment recurred, she suffered several attacks, the most serious of which happened in the early morning of the first Monday of November 1951 (Nov. 5). The whole household was surprised and alarmed, even the teachers of the Harvardian Colleges occupying the lower floors and of by the Yap spouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient hardly breathing, lying in bed, her head held high by her husband. Injections and oxygen were administered. Following the doctor's advice the patient stayed in bed, and did nothing the whole day, her husband and her personal attendant, Mrs. Bantique, constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yap made no will, and could have made no will on that day. The trial judge refused to credit the petitioner's evidence for several reasons, the most important of which were these: (a) if according to his evidence, the decedent wanted to keep her will a secret, so that her husband would not know it, it is strange she executed it in the presence of Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the absence of a showing that Felina was a confidant of the decedent it is hard to believe that the latter would have allowed the former to see and read the will several times; (c) it is improbable that the decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she precisely wanted its contents to remain a secret during her lifetime; (d) it is also improbable that her purpose being to conceal the will from her husband she would carry it around, even to the hospital, in her purse which could for one reason or another be opened by her husband; (e) if it is true that the husband demanded the purse from Felina in the U.S.T. Hospital and that the will was there, it is hard to believe that he returned it without destroying the will, the theory of the petitioner being precisely that the will was executed behind his back for fear he will destroy it. In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that Felicidad did not and could not have executed such holographic will.

In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and of his witnesses in a vigorous effort to discredit them. It appears that the same arguments, or most of them, were presented in the motion to reconsider; but they failed to induce the court a quo to change its mind. The oppositor's brief, on the other hand, aptly answers the criticisms. We deem it unnecessary to go over the same matters, because in our opinion the case should be decided not on the weakness of the opposition but on the strength of the evidence of the petitioner, who has the burden of proof. The Spanish Civil Code permitted the execution of holographic wills along with other forms. The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby repealing the other forms, including holographic wills. The New Civil Code effective in 1950 revived holographic wills in its arts. 810814. "A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form and may be made in or out of the Philippines, and need not be witnessed." This is indeed a radical departure from the form and solemnities provided for wills under Act 190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and three credible witnesses in each and every page; such witnesses to attest to the number of sheets used and to the fact that the testator signed in their presence and that they signed in the presence of the testator and of each other. The object of such requirements it has been said, is to close the door against bad faith and fraud, to prevent substitution of wills, to guarantee their truth and authencity (Abangan vs. Abangan, 40 Phil., 476) and to avoid those who have no right to succeed the testator would succeed him and be benefited with the probate of same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal imperfections may be brushed aside when authenticity of the instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.) Authenticity and due execution is the dominant requirements to be fulfilled when such will is submitted to the courts for allowance. For that purpose the testimony of one of the subscribing witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such witnesses (and of other additional witnesses) the court may

form its opinion as to the genuineness and authenticity of the testament, and the circumstances its due execution. Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since as stated, they need no witnesses; provided however, that they are "entirely written, dated, and signed by the hand of the testator himself." The law, it is reasonable to suppose, regards the document itself as material proof of authenticity, and as its own safeguard, since it could at any time, be demonstrated to be or not to be in the hands of the testator himself. "In the probate of a holographic will" says the New Civil Code, "it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three such witnesses shall be required. In the absence of any such witnesses, (familiar with decedent's handwriting) and if the court deem it necessary, expert testimony may be resorted to." The witnesses so presented do not need to have seen the execution of the holographic will. They may be mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in the testator's hand. However, the oppositor may present other witnesses who also know the testator's handwriting, or some expert witnesses, who after comparing the will with other writings or letters of the deceased, have come to the conclusion that such will has not been written by the hand of the deceased. (Sec. 50, Rule 123). And the court, in view of such contradictory testimony may use its own visual sense, and decide in the face of the document, whether the will submitted to it has indeed been written by the testator. Obviously, when the will itself is not submitted, these means of opposition, and of assessing the evidence are not available. And then the only guaranty of authenticity3 the testator's handwriting has disappeared. Therefore, the question presents itself, may a holographic will be probated upon the testimony of witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator? How can the oppositor prove that such document was not in the testator's handwriting? His witnesses who know testator's handwriting have not examined it. His experts can not testify, because there is no way to compare the alleged testament with other documents admittedly, or proven to be, in the testator's hand. The oppositor will, therefore, be caught between the upper millstone of his lack of knowledge of the will or the form thereof, and the nether millstone of his inability to prove its falsity. Again

the proponent's witnesses may be honest and truthful; but they may have been shown a faked document, and having no interest to check the authenticity thereof have taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the knowledge that none could convict them of perjury, because no one could prove that they have not "been shown" a document which they believed was in the handwriting of the deceased. Of course, the competency of such perjured witnesses to testify as to the handwriting could be tested by exhibiting to them other writings sufficiently similar to those written by the deceased; but what witness or lawyer would not foresee such a move and prepare for it? His knowledge of the handwriting established, the witness (or witnesses) could simply stick to his statement: he has seen and read a document which he believed was in the deceased's handwriting. And the court and the oppositor would practically be at the mercy of such witness (or witnesses) not only as to the execution, but also as to the contents of the will. Does the law permit such a situation? The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed will by secondary evidence the testimony of witnesses, in lieu of the original document. Yet such Rules could not have contemplated holographic wills which could not then be validly made here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.) Could Rule 77 be extended, by analogy, to holographic wills? Spanish commentators agree that one of the greatest objections to the holographic will is that it may be lost or stolen4 an implied admission that such loss or theft renders it useless.. This must be so, because the Civil Code requires it to be protocoled and presented to the judge, (Art. 689) who shall subscribe it and require its identity to be established by the three witnesses who depose that they have no reasonable doubt that the will was written by the testator (Art. 691). And if the judge considers that the identity of the will has been proven he shall order that it be filed (Art. 693). All these, imply presentation of the will itself. Art. 692 bears the same implication, to a greater degree. It requires that the surviving spouse and the legitimate ascendants and descendants be summoned so that they may make "any statement they may desire to submit with respect to the authenticity of the will." As it is universally admitted that the holographic will is usually done by the testator and by himself alone, to prevent others from knowing either its execution or its contents, the above article 692 could not have the idea of simply permitting such relatives to state whether they know of the will, but whether in

the face of the document itself they think the testator wrote it. Obviously, this they can't do unless the will itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with the will if they think it authentic, or to oppose it, if they think it spurious.5 Such purpose is frustrated when the document is not presented for their examination. If it be argued that such choice is not essential, because anyway the relatives may oppose, the answer is that their opposition will be at a distinct disadvantage, and they have the right and privilege to comply with the will, if genuine, a right which they should not be denied by withholding inspection thereof from them. We find confirmation of these ideas--about exhibition of the document itself--in the decision of the Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a document containing testamentary dispositions in the handwriting of the deceased, but apparently mutilated, the signature and some words having been torn from it. Even in the face of allegations and testimonial evidence (which was controverted), ascribing the mutilation to the opponents of the will. The aforesaid tribunal declared that, in accordance with the provision of the Civil Code (Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it shall produce no effect. Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo 688 del Codigo civil, que para que sea valido el testamento olografo debera estar escrito todo el y firmado por testador, con expression del ao, mes y dia en que se otorque, resulta evidente que para la validez y eficacia de esos testamentos, no basta la demostracion mas o menos cumplida de que cuando se otorgaron se

This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the Spanish Civil Code provisions on the matter.6 PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que los herederos e sus fijos ovieren esta manda, fasta ... annos muestrenla al obispo de la tierra, o al juez fasta VI meses y el obispo o el juez tomen otros tales tres escritos, que fuesen fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si semjara la letra de la manda, sea confirmada la manda. E depues que todo esto fuere connoscido, el obispo o el juez, o otras testimonios confirmen el escripto de la manda otra vez, y en esta manera vala la manda. (Art. 689, Scaevola--Codigo Civil.) (According to the Fuero above, the will itself must be compared with specimens of the testators handwriting.) All of which can only mean: the courts will not distribute the property of the deceased in accordance with his holographic will, unless they are shown his handwriting and signature.7 Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555). Taking all the above circumstances together, we reach the conclusion that the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will.8 Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a Rule of Court for the allowance of such holographic wills. We hesitate, however, to make this Rule decisive of this controversy, simultaneously with its promulgation. Anyway, decision of the appeal may rest on the sufficiency, rather the insufficiency, of the evidence presented by petitioner Fausto E. Gan. At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself; in the second, the testimony of the subscribing or instrumental witnesses (and of the notary, now).

Ilenaron todos esos requisitos, sino que de la expresada redaccion el precepto legal, y por el tiempo en que el verbo se emplea, se desprende la necesidad de que el documento se encuentre en dichas condiciones en el momento de ser presentado a la Autoridad competente, para au adveracion y protocolizacion; y como consecuencia ineludible de ello, forzoso es affirmar que el de autos carece de validez y aficacia, por no estarfirmado por el testador, cualquiera que sea la
causa de la falta de firma, y sin perjuicio de las acciones que puedan ejercitar los perjudicados, bien para pedir indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su castigo en via criminal si procediere, por constituir dicha omision un defecto insubsanable . . . .

The loss of the holographic will entails the loss of the only medium of proof; if the ordinary will is lost, the subscribing witnesses are available to authenticate. In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts on the particular day, the likelihood that they would be called by the testator, their intimacy with the testator, etc. And if they were intimates or trusted friends of the testator they are not likely to end themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not receive anything on account of the will. Whereas in the case of holographic wills, if oral testimony were admissible9 only one man could engineer the fraud this way: after making a clever or passable imitation of the handwriting and signature of the deceased, he may contrive to let three honest and credible witnesses see and read the forgery; and the latter, having no interest, could easily fall for it, and in court they would in all good faith affirm its genuineness and authenticity. The will having been lost the forger may have purposely destroyed it in an "accident" the oppositors have no way to expose the trick and the error, because the document itself is not at hand. And considering that the holographic will may consist of two or three pages, and only one of them need be signed, the substitution of the unsigned pages, which may be the most important ones, may go undetected. If testimonial evidence of holographic wills be permitted, one more objectionable feature feasibility of forgery would be added to the several objections to this kind of wills listed by Castan, Sanchez Roman and Valverde and other wellknown Spanish Commentators and teachers of Civil Law.10 One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be testifying to a fact which they saw, namely the act of the testator of subscribing the will; whereas in the case of a lost holographic will, the witnesses would testify as to their opinion of the handwriting which they allegedly saw, an opinion which can not be tested in court, nor directly contradicted by the oppositors, because the handwriting itself is not at hand. Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge's disbelief. In addition to the dubious circumstances described in the appealed decision, we find it hard to believe that the deceased should show her will precisely to relatives who had received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into amending her will to give them a share, or threaten to reveal its execution to her husband

Ildefonso Yap. And this leads to another point: if she wanted so much to conceal the will from her husband, why did she not entrust it to her beneficiaries? Opportunity to do so was not lacking: for instance, her husband's trip to Davao, a few days after the alleged execution of the will. In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77, sec. 6.11 Wherefore, the rejection of the alleged will must be sustained. Judgment affirmed, with costs against petitioner.

Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J. B. L., Endencia and Felix, JJ., concur.
G.R. No. L-40804 January 31, 1978 ROSARIO FELICIANO VDA. DE RAMOS, MIGUEL DANILA, RAYMUNDO A. DANILA, CONSOLACION SANTOS, MIGUEL G. DANILA, AMOR DANILA, MOISES MARTINEZ, MIGUELA GAVINO, MELITON NISTA, PRIMITIVA NISTA, HEIRS OF DANIEL NISTA, MOISES NISTA, DOMINGO NISTA and ADELAIDA NISTA, petitioners, vs. COURT OF APPEALS, MARCELINA (MARTINA) GUERRA and THE HEIRS OF BUENAVENTURA GUERRA, respondents.

Ernesto C. Hidalgo for petitioners. Romulo S. Brion & Florentino M. Poonin for private respondents.

GUERRERO, J.: Appeal by way of certiorari of the decision 1 of the Court of Appeals in CA-G.R. No. 49915-R, entitled "Adelaida Nista Petitioner-appellee, versus Buenaventura Guerra, et al., Oppositors -Appellants, " denying and disallowing the probate of

the second last will and codicil of the late Eugenia Danila previously probated by the Court of First Instance of Laguna Branch III at San Pablo City. The facts are rotated in the appealed decision. the pertinent portions of which state: It appears that on June 2, 1966, Adelaida Nista who claimed to be one of the instituted heirs, filed a petition for the probate of the alleged will and testament dated March 9, 1963 (Exhibit H) and codicil dated April 18, 1963 (Exhibit L) of the late Eugenia Danila who died on May 21, 1966. The petitioner prayed that after due notice and proper hearing, the alleged will and codicil be probates and allowed and that she or any other person be appointed as administrator of the testatrix's estate. She also prayed that in case no opposition thereto be interposed and the value of the estate be less than P10,000.00, said estate be summarily settled in accordance with the Rules. Buenaventura and Marcelina (Martina) both surnamed Guerra filed an opposition on July 18, 1966 and an amended opposition on August 19, 1967, to the petition alleging among others that they are the legally adopted son and daughter of the late spouses Florentino Guerra and Eugenia Danila (Exhibit 1); that the purported will and codicil subject of the petition (Exhibits H and L) were procured through fraud and undue influence; that the formalities requited by law for the execution of a will and codicil have not been complied with as the same were not properly attested to or executed and not expressing the free will and deed of the purported testatrix; that the late Eugenia Danila had already executed on November 5, 1951 her last will and testament (Exhibit 3) which was duly probated (Exhibit 4) and not revoked or annulled during the lifetime of the testatrix, and that the petitioner is not competent and qualified to act as administration of the estate. On November 4, 1968, the petitioner and the oppositors, assisted by their respective counsels, entered into a Compromise Agreement with the following terms and conditions, thus:

1. That oppositors Buenaventura Guerra and Marcelina (Martina) Guerra are the legally adopted son and daughter, respectively, of the deceased spouses, Florentino Guerra and Eugenia Manila; 2. That Florentino Guerra pre-deceased Eugenia Danila that Eugenia Danila died on May 21, 1966, at San Pablo City, but during her lifetime, she had already sold, donated or disposed of all her properties, some of which to Marcelina Martina Guerra, as indicated and confirmed in paragraph 13 of the Complaint in Civil Case No. SP620, entitled Marcelina Guerra versus Adelaida Nista, et al., and Which We hereby 'likewise admit and confirm; 3. That, however, with respect to the parcel of riceland covered by TCT No. T-5559 of the Register of Deeds of San Pablo City, which oppositors believe to be the estate left and undisposed of at the time of the death of the owner thereof, Eugenia Danila it now appears that there is a Deed of Donation covering the same together with another parcel of coconut land situated at Barrio San Ignacio, San Pablo City, with an area of 19,905 sq.m., and covered by Tax Declaration No. 31286, executed by the late Eugenia Danila in favor of Adelaida Nista, as per Doc. No. 406, Page No. 83, Series of 1966 under Notarial Register III of Notary Public Pio Aquino of San Pablo city; 4. That inasmuch as the above-mentioned parcel of coconut and has been earlier donated inter vivos and validly conveyed on November 15, 1965 by the late Eugenia Danila to Marcelina (Martina) Guerra as shown by Doc. No. 237, Page No. 49, Series of 1965, under Notarial Register XV of Notary Public Atty. Romulo S. Brion of San Pablo City, the inclusion of said parcel in the subsequent donation to Adelaida Nista is admittedly considered a mistake and of no force and effect and will in no way prejudice the ownership and right of Marcelina Martina Guerra over the said parcel; that as a matter of fact Whatever rights and interests Adelaida Nista has or may still have thereon are already considered waived and renounced in favor of Marcelina Martina Guerra;

5. That in view of the fact that the riceland mentioned in paragraph 3 of the foregoing appears to have already been disposed of by Eugenia Danila in favor of petitioner Adelaida Nista which the parties hereto do not now contest, there is therefore no more estate left by the said deceased Eugenia Danila to he disposed of by the will sought to be probated in this proceedings; that consequently, and for the sake of peace and harmony money among the relations and kins and adopted children of the deceased Eugenia Danila and with the further aim of settling differences among themselves, the will and codicil of Eugenia Danila submitted to this Honorable Court by the petitioner for probate, are considered abrogated and set aside; 6. That as the late Eugenia Danila has incurred debts to private persons during her lifetime, which in addition to the burial and incidental expenses amounts to SIX THOUSAND EIGHT HUNDRED PESOS (P6,800.00) her adopted daughter, Marcelina (Martina) Guerra is now determined to settle the same, but herein petitioner Adelaida Nista hereby agrees to contribute to Marcelina (Martina) Guerra for the settlement of the said indebtedness in the amount of THREE THOUSAND FOUR HUNDRED PESOS (P3,400.00), Philippine Currency, the same to be delivered by Adelaida Nista to Marcelina (Martina) Guerra at the latter's residence at Rizal Avenue, San Pablo City, on or about February 28, 1969; 7. That should there be any other property of the deceased Eugenia Danila that may later on be discovered to be undisposed of as yet by Eugenia Danila during her lifetime, the same should be considered as exclusive property of her adopted children and heirs, Buenaventura Guerra and Marcelina (Martina) Guerra and any right of the petitioner and signatories hereto, with respect to said property or properties, shall be deemed waived and renounced in favor of said Buenaventura and Marcelina (Martina) Guerra; and 8. That with the exception of the foregoing agreement, parties hereto waived and renounce further claim against each other, and the above-entitled case. (Exh. 6)

This Agreement was approved by the lower court in a judgment readings as follows: WHEREFORE, said compromise agreement, being not contrary to public policy, law and moral, the same is hereby approved and judgment is hereby rendered in accordance with the terms and conditions set forth in the above- quoted compromise agreement, which is hereby made an integral part of the dispositive portion of this decision, and the parties are strictly enjoined to comply with the same. (Exh. 7) On November 16, 1968, Rosario de Ramos, Miguel Danila Felix Danila Miguel Gavino Amor Danila Consolacion Santos and Miguel Danila son of the late Fortunato Danila filed a motion for leave to intervene as co-petitioners alleging that being instituted heirs or devisees, they have rights and interests to protect in the estate of the late Eugenia Danila They also filed a reply partly admitting and denying the material allegations in the opposition to the petition and alleging among other things, that oppositors repudiated their institution as heirs and executors when they failed to cause the recording in the Register of Deeds of San Pablo City the will and testament dated November 5, 1951 (Exhibit 3) in accordance with the Rules and committed acts of ingratitude when they abandoned the testatrix and denied her support after they managed, through fraud and undue influence, to secure the schedule of partition dated January 15, 1962. The Intervenors prayed for the probate and/or allowance of the will and codicil (Exhibits H and L), respectively and the appointment of any of them in as administrator of said estate. On December 6, 1968, the intervenors also filed a motion for new trial and/or re-hearing and/or relief from judgment and to set aside the judgment based on compromise dated November 5, 1968. The oppositors interposed an opposition to the motion to which the intervenors filed their reply. The lower court resolved the motions in an order the dispositive portion reading, thus:

FOR ALL THE FOREGOING the Court hereby makes the following dispositions (1) Movants Rosario de Ramos, Miguel C. Danila Miguela Gavino Amor Danila Consolacion Santos, Miguel A. Danila and Raymundo Danila are allowed and admitted to intervene to this proceeding as Party Petitioners; and likewise admitted in their reply to the amended opposition of November 11, 1968; (2) The compromise agreement dated October 15, 1968 by and between Petitioner Adelaida Nista and oppositors Buenaventura Guerra and Marcelina Guerra Martina is disapproved, except as regards their respective lawful rights in the subject estate; and, accordingly, the judgment on compromise rendered by this Court on November 5, 1968 is reconsidered and set aside; and (3) The original Petition and amended opposition to probate of the alleged will and codicil stand. xxx xxx xxx The lower court also denied the motion for the appointment of a special administrator filed by the intervenors. xxx xxx xxx A motion for reconsideration of the foregoing order was filed by the intervenors co-petitioners but the motion was denied. xxx xxx xxx On February 9, 1971, a motion for the substitution of Irene, Crispina, Cristina Casiano, Edilberto Felisa, Guerra in place of their father, the oppositor Buenaventura Guerra who died on January 23, 1971, was filed and granted by the lower court. After trial on the merits, the lower court rendered its decision dated July 6, 1971 allowing the probate of the wilt In that decision, although two of the attesting witness Odon Sarmiento and Rosendo Paz, testified that they did not see the

testatrix Eugenia Danila sign the will but that the same was already signed by her when they affixed their own signatures thereon, the trial court gave more weight and ment to the .'straight-forward and candid" testimony of Atty. Ricardo Barcenas, the Notary Public who assisted in the execution of the wilt that the testatrix and the three (3) instrumental witnesses signed the will in the presence of each other, and that with respect to the codicil the same manner was likewise observed as corroborated to by the testimony of another lawyer, Atty. Manuel Alvero who was also present during the execution of the codicil. The dispositive portion of the decision reads: WHEREFORE, it appearing that the late Eugenia Danila had testamentary capacity when she executed the will, Exh. H., and the codicil Exh. L, and that said will and codicil were duly signed by her and the three attesting witnesses and acknowledged before a Notary Public in accordance with the formalities prescribed by law, the said will and codicil are hereby declared probated. No evidence having been adduced regarding the qualification and fitness of any of the intervenors- co-petitioners to act as executors, the appointment of executors of the will and codicil is held pending until after due hearing on the matter. SO ORDERED. Oppositors Marcelina Guam and the heirs of Buenaventura Guam appealed the foregoing decision to the Court of Appeals The latter court, in its derision dated May 12, 1975 ruled that the lower court acted correctly in setting aside its judgment approving the Compromise Agreement and in allowing the intervenor petitioners to participate in the instant probate proceedings; however, it disallowed the probate of the will on the that the evidence failed to establish that the testatrix Eugenia Danila signed her will in the presence of the instrumental witness in accordance with Article 805 of the Civil Code, as testified to by the two surviving instrumental witnesses. In this present appeal petitioners vigorously insists on constitutional grounds the nullity of the decision of respondent court but We deem it needless to consider the same as it is not necessary in resolving this appeal on the following assigned errors:

(A) THE COURT OF APPEALS ERRED GRAVELY IN NOT HAVING GIVEN WEIGHT TO THE MANIFESTATION CLAUSES IN THE TESTAMENT AND CODICIL ANNEX B (PETITION) AND INSTEAD IT GAVE CREDENCE TO THE TESTIMONIES OR BIASED WITNESSES OVER THEIR OWN ATTESTATION CLAUSES AND THE TESTIMONIAL EVIDENCE AND NOTARIAL ACKNOWLEDGEMENT OF THE NOTARY PUBLIC; AND (B) THAT THE COURT OF APPEALS ERRED IN HAVING DENIED THE PROBATE OF THE WILL AND CODICIL DESPITE CONVINCING EVIDENCE FOR THEIR ALLOWANCE. We reverse the judgment of the Court of Appeals and restore the decision of the trial court allowing probate of the will and codicil in question. The main point in controversy here is whether or not the last testament and its accompanying codicil were executed in accordance with the formalities of the law, considering the complicated circumstances that two of the attesting witnesses testified against their due execution while other non-subscribing witnesses testified to the contrary. Petitioners argue that the attestation clauses of the win and codicil which were signed by the instrumental witnesses are admissions of due execution of the deeds, thus, preventing the said witnesses from prevaricating later on by testifying against due execution. Petitioners further maintain that it is error for respondent court to give credence to the testimony of the biased witnesses as against their own attestation to the fact of due execution and over the testimonial account of the Notary Public who was also present during the execution and before whom right after, the deeds were acknowledged. Private respondents, on the other hand reiterate in their contention the declaration of the two surviving witnesses, Odon Sarmiento and Rosendo Paz, that the win was not signed by the testatrix before their presence, which is strengthened by two photographic evidence showing only the two witnesses in the act of signing, there being no picture of the same occasion showing the testatrix signing the will. Respondent court holds the view that where there was an opportunity to take pictures it is not understandable why pictures were taken of the witnesses and not of the testatrix. It concludes that the absence of the latter's picture to complete the evidence belies the testimony of Atty. Barcenas that the testatrix and the witnesses did sign the will and the codicil in the presence of each other.

The oppositors' argument is untenable. There is ample and satisfactory evidence to convince us that the will and codicil were executed in accordance with the formalities required by law. It appears positively and convincingly that the documents were prepared by a lawyer, Atty. Manuel Alvero The execution of the same was evidently supervised by his associate, Atty. Ricardo Barcenas and before whom the deeds were also acknowledged. The solemnity surrounding the execution of a will is attended by some intricacies not usually within the comprehension of an ordinary layman. The object is to close the door against bad faith and fraud, to avoid substitution of the will and testament, and to guarantee their truth and authenticity. 2 If there should be any stress on the participation of lawyers in the execution of a wig, other than an interested party, it cannot be less than the exercise of their primary duty as members of the Bar to uphold the lofty purpose of the law. There is no showing that the abovenamed lawyers had been remiss in their sworn duty. Consequently, respondent court failed to consider the presumption of ty in the execution of the questioned documents. There were no incidents brought to the attention of the trial court to arouse suspicion of anomaly. While the opposition alleged fraud and undue influence, no evidence was presented to prove their occurrence. There is no question that each and every page of the will and codicil carry the authentic signatures of Eugenia Danila and the three (3) attesting witnesses. Similarly, the attestation claim far from being deficient, were properly signed by the attesting witnesses. Neither is it disputed that these witnesses took turns in signing the will and codicil in the presence of each other and the testatrix. Both instruments were duly acknowledged before a Notary Public who was all the time present during the execution. The presumption of regularity can of course be overcome by clear and convincing evidence to the contrary, but not easily by the mere expediency of the negative testimony of Odon Sarmiento and Rosendo Paz that they did not see the testatrix sign the will. A negative testimony does not enjoy equal standing with a positive assertion, and faced with the convincing appearance of the will, such negative statement must be examined with extra care. For in this regard It has also been held that the condition and physical appearance of a questioned document constitute a valuable factor which, if correctly evaluated in the light of surrounding circumstances, may help in determining whether it is genuine or forged. Subscribing witnesses may forget or exaggerating what they really know, saw, heard or did; they may be biased and, therefore, tell only half-truths to mislead the court or favor one party to the prejudice of the others. This cannot be

said of the condition and Physical appearance of the questioned document. Both, albeit silent, will reveal the naked truth, hiding nothing, forgetting nothing, and exaggerating nothing. 3 Unlike other deeds, ordinary wills by necessity of law must contain an attestation clause Which, significantly is a separate memorandum or record of the facts surrounding that the conduct of execution. Once signed by the attesting witnesses, it that compliance with the indispensable legal formalities had been observed. This Court had previously hold that the attestation clause basically contracts the pretense of undue ex execution which later on may be made by the attesting witnesses. 4 In the attestation clause, the witnesses do not merely attest to the signature of the testatrix but also to the proper execution of the will, and their signature following that of the testatrix show that they have in fact at not only to the genuineness of the testatrix's signature but also to the due execution of the will as embodied in the attention clause. 5 By signing the wilt the witnesses impliedly to the truth of the facts which admit to probate, including the sufficiency of execution, the capacity of the testatrix, the absence of undue influence, and the like. 6 In this jurisdiction, all the attesting witness to a will if available, must be called to prove the wilt Under this circumstance, they become "forced witnesses" " and their declaration derogatory to the probate of the will need not bind the proponent hence, the latter may present other proof of due exemption even if contrary to the testimony of or all of the at, testing witness. 7 As a rule, if any or all of the submitting witness testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful ability, the will may, nevertheless, be allowed if the court is satisfied from the testimony of other witness and from all the evidence presented that the will was executed and attested in the manner by law. 8 Accordingly, although the subscribing witnesses to a contested will are the best witness in connection with its due execution, to deserve full credit, their testimony must be reasonable, and unbiased; if otherwise it may be overcome by any competent evidence, direct or circubstantial. 9 In the case at bar, the s bear a disparity in the quality of the testimonies of Odon Sarmiento and Rosendo Paz on one hand, and the Notary Public, Atty. Ricardo A. Barcenas, on the other. The testimony of Odon Sarmiento was contradicted by his own admission. Though his admission to the effect that "when Eugenia Danila signed the testament (he) and the two other attesting witnesses Rosendo Paz and Calixto Azusada were present" (t.s.n., Feb. 12, 1970, p. 115) was made extrajudicially, it was not squarely refuted when inquired upon during the trial.

With respect to the testimony of Rosendo Paz, it had been refuted by the declaration of Atty. Ricardo A. Barcenas. The records show that this attesting witness was fetched by Felix Danila from his place of work in order to act as witness to a wilt Rosendo Paz did not know what the document he signed was all about. Although he performed his function as an attesting witness, his participation was rather passive. We do not expect, therefore, that his testimony, "half-hearted" as that of Odon Sarmiento, be as candid and complete as one proceeding from a keen mind fully attentive to the details of the execution of the deeds. Quite differently, Atty. Ricardo A. Barcenas, more than a direct witness himself, was Purposely there to oversee the accomplishment of the will and codicil. His testimony is an account of what he actually heard and saw during the conduct of his profession. There is no evidence to show that this lawyer was motivated by any material interest to take sides or that his statement is truth perverted. It has been regarded that the function of the Notary Public is, among others, to guard against any illegal or immoral arrangements in the execution of a will. 10 In the absence of any showing of self-interest that might possibly have warped his judgment and twisted his declaration, the intervention of a Notary Public, in his professional capacity, in the execution of a will deserves grave consideration. 11 An appraise of a lawyer's participation has been succinctly stated by the Court in Fernandez v. Tantoco, supra, this wise: In weighing the testimony of the attesting witnesses to a will, his statements of a competent attorney, who has been charged with the responsibility of seeing to the proper execution of the instrument, is entitled to greater weight than the testimony of a person casually called to anticipate in the act, supposing of course that no motive is revealed that should induce the attorney to prevaricate. The reason is that the mind of the attorney being conversant of the instrument, is more likely to become fixed on details, and he is more likely than other persons to retain those incidents in his memory. One final point, the absence of a photograph of the testator Eugenia Danila in the act of signing her will. The fact that the only pictures available are those which show the Witnesses signing the will in the presence of the testatrix and of each other does not belie the probability that the testatrix also signed the will before the presence of the witnesses. We must stress that the pictures are worthy only of what they show and prove and not of what they did not speak of including the events they failed to capture. The probate of a will is a proceeding not embued with adverse character, wherein courts should relax the rules on

evidence "to the end that nothing less than the best evidence of which the matter is susceptible" should be presented to the court before a reported will may be probated or denied probate. 12 We find here that the failure to imprint in photographs all the stages in the execution of the win does not serve any persuasive effect nor have any evidentiary value to prove that one vital and indispensable requisite has not been acted on. Much less can it defeat, by any ordinary or special reason, the presentation of other competent evidence intended to confirm a fact otherwise existent but not confirmed by the photographic evidence. The probate court having satisfied itself that the win and codicil were executed in accordance with the formalities required by law, and there being no indication of abuse of discretion on its part, We find no error committed or any exceptional circumstance warranting the subsequent reversal of its decision allowing the probate of the deeds in question. WHEREFORE, the decision of respondent Court of Appeals is hereby reversed in so far its it disallowed the probate of the will and codicil. With costs against respondents. SO ORDERED.

This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section 3, Rule 50 of the Rules of Court. As found by the Court of Appeals: ... On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla on the following grounds: (1) Appellant was estopped from claiming that the deceased left a will by failing to produce the will within twenty days of the death of the testator as required by Rule 75, section 2 of the Rules of Court; (2) The alleged copy of the alleged holographic will did not contain a disposition of property after death and was not intended to take effect after death, and therefore it was not a will (3) The alleged hollographic will itself,and not an alleged copy thereof, must be produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil. 509; and (4 ) The deceased did not leave any will, holographic or otherwise, executed and attested as required by law. The appellees likewise moved for the consolidation of the case with another case Sp. Proc. No, 8275). Their motion was granted by the court in an order dated April 4, 1977. On November 13, 1978, following the consolidation of the cases, the appellees moved again to dismiss the petition for the probate of the will. They argued that: (1) The alleged holographic was not a last will but merely an instruction as to the management and improvement of the

Teehankee (Chairman), Makasiar, Muoz Palma and Fernandez, JJ., concur.

G.R. No. L-58509 December 7, 1982 IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA deceased, MARCELA RODELAS, petitioner-appellant, vs. AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.

Luciano A. Joson for petitioner-appellant. Cesar Paralejo for oppositor-appellee.

RELOVA, J.:

schools and colleges founded by decedent Ricardo B. Bonilla; and (2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills. Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of February 23, 1979. The appellees then filed a motion for reconsideration on the ground that the order was contrary to law and settled pronouncements and rulings of the Supreme Court, to which the appellant in turn filed an opposition. On July 23, 1979, the court set aside its order of February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B. Bonilla. The court said: ... It is our considered opinion that once the original copy of the holographic will is lost, a copy thereof cannot stand in lieu of the original. In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter of holographic wills the law, it is reasonable to suppose, regards the document itself as the material proof of authenticity of said wills. MOREOVER, this Court notes that the alleged holographic will was executed on January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14 years from the time of the execution of the will to the death of the decedent, the fact that the original of the will could not be located shows to our mind that the decedent had discarded before his death his allegedly missing Holographic Will. Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is contended that the dismissal of appellant's petition is contrary to law and well-settled jurisprudence.

On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal does not involve question of fact and alleged that the trial court committed the following assigned errors: I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF; II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL; III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL. The only question here is whether a holographic will which was lost or cannot be found can be proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the court after its due execution has been proved. The probate may be uncontested or not. If uncontested, at least one Identifying witness is required and, if no witness is available, experts may be resorted to. If contested, at least three Identifying witnesses are required. However, if the holographic will has been lost or destroyed and no other copy is available, the will can not be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court.

WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE. SO ORDERED.

Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.