Special Proceedings cases General Principles

Vda. De Perez vs. Tolete FACTS: Dr. Jose Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became American citizens and residents of New York, each executed a will also in New York, containing provisions on presumption of survivorship (in the event that it is not known which one of the spouses died first, the husband shall be presumed to have predeceased his wife). Later, the entire family perished in a fire that gutted their home. Thus, Rafael, who was named trustee in Jose's will, filed for separate probate proceedings of the wills. Later, Evelyn's mother, Salud Perez, filed a petition for reprobate in Bulacan. Rafael opposed, arguing that Salud was not an heir according to New York law. He contended that since the wills were executed in New York, New York law should govern. He further argued that, by New York law, he and his brothers and sisters were Jose's heirs and as such entitled to notice of the reprobate proceedings, which Salud failed to give. For her part, Salud said she was the sole heir of her daughter, Evelyn, and that the two wills were in accordance with New York law. But before she could present evidence to prove the law of New York, the reprobate court already issued an order, disallowing the wills. ISSUE: Whether or not the reprobate of the wills should be allowed

HELD: Extrinsic Validity of Wills of Non-Resident Aliens The respective wills of the Cunanan spouses, who were American citizens, will only be effective in this country upon compliance with the following provision of the Civil Code of the Philippines: Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. Thus, proof that both wills conform with the formalities prescribed by New York laws or by Philippine laws is imperative. Evidence for Reprobate of Wills Probated outside the Philippines The evidence necessary for the reprobate or allowance of wills which have been probated outside of the Philippines are as follows: (1) the due execution of the will in accordance with the foreign laws; (2) the testator has his domicile in the foreign country and not in the Philippines; (3) the will has been admitted to probate in such country; (4) the fact that the foreign tribunal is a probate court, and (5) the laws of a foreign country on procedure and allowance of wills (III Moran Commentaries on the Rules of Court, 1970 ed., pp. 419-429; Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v. Hix, 54 Phil. 610 [1930]). Except for the first and last requirements, the petitioner submitted all the needed evidence. The necessity of presenting evidence on the foreign laws upon which the probate in the foreign country is based is impelled by the fact that our courts cannot take judicial notice of them. On Lack of Notice to Jose's Heirs This petition cannot be completely resolved without touching on a very glaring fact - petitioner has always considered herself the sole heir of Dr. Evelyn Perez Cunanan and because she does not consider herself an heir of Dr. Jose F. Cunanan, she noticeably failed to notify his heirs of the filing of the proceedings. Thus, even in the instant petition, she only impleaded respondent Judge, forgetting that a judge whose order is being assailed is merely a nominal or formal party (Calderon v. Solicitor General, 215 SCRA 876 [1992]). The rule that the court having jurisdiction over the reprobate of a will shall "cause notice thereof to be given as in case of an original will presented for allowance" (Revised Rules of Court, Rule 27, Section 2) means that with regard to notices, the will probated abroad should be treated as if it were an "original will" or a will that is presented for probate for the first time. Accordingly, compliance with Sections 3 and 4 of Rule 76, which require publication and notice by mail or personally to the "known heirs, legatees, and devisees of the testator resident in the Philippines" and to the executor, if he is not the petitioner, are required. The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner's claim, are entitled to notices of the time and place for proving the wills. Under Section 4 of Rule 76 of the Revised Rules of Court, the "court shall also cause copies of the notice of the time and place fixed for proving the will to be addressed to the designated or other known heirs, legatees, and devisees of the testator, . . . " WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall allow petitioner reasonable time within which to submit evidence needed for the joint probate of the wills of the Cunanan spouses and see to it that the brothers and sisters of Dr. Jose F. Cunanan are given all notices and copies of all pleadings pertinent to the probate proceedings.

San Pablo Manufacturing Corporation vs. CIR [G.R. No. 147749. June 22, 2006] 15 AUG Ponente: CORONA, J. FACTS: San Pablo Manufacturing Corporation (SPMC) is a domestic corporation engaged in the business of milling, manufacturing and exporting of coconut oil and other allied products. It was assessed and ordered to pay by the Commissioner of Internal Revenue miller's tax and manufacturer's sales tax, among other deficiency taxes, for taxable year 1987 particularly on SPMC's sales of crude oil to United Coconut Chemicals, Inc. (UNICHEM) while the deficiency sales tax was applied on its sales of corn and edible oil as manufactured products. SPMC opposed the assessments. The Commissioner denied its protest. SPMC appealed the denial of its protest to the Court of Tax Appeals (CTA) by way of a petition for review. docketed as CTA Case No. 5423. It insists on the liberal application of the rules because, on the merits of the petition, SPMC was not liable for the 3% miller's tax. It maintains that the crude oil which it sold to UNICHEM was actually exported by UNICHEM as an ingredient of fatty acid and glycerine, hence, not subject to miller's tax pursuant to Section 168 of the 1987 Tax Code. Since UNICHEM, the buyer of SPMC's milled products, subsequently exported said products, SPMC should be exempted from the miller's tax. ISSUE: Whether or not SPMC's sale of crude coconut oil to UNICHEM was subject to the 3% miller's task

HELD: NO. Petition was denied. RATIO: The language of the exempting clause of Section 168 of the 1987 Tax Code was clear. The tax exemption applied only to the exportation of rope, coconut oil, palm oil, copra by-products and dessicated coconuts, whether in their original state or as an ingredient or part of any manufactured article or products, by the proprietor or operator of the factory or by the miller himself. Where the law enumerates the subject or condition upon which it applies, it is to be construed as excluding from its effects all those not expressly mentioned. Expressio unius est exclusio alterius. Anything that is not included in the enumeration is excluded therefrom and a meaning that does not appear nor is intended or reflected in the very language of the statute cannot be placed therein. The rule proceeds from the premise that the legislature would not have made specific enumerations in a statute if it had the intention not to restrict its meaning and confine its terms to those expressly mentioned. The rule of expressio unius est exclusio alterius is a canon of restrictive interpretation. Its application in this case is consistent with the construction of tax exemptions in strictissimi juris against the taxpayer. To allow SPMC's claim for tax exemption will violate these established principles and unduly derogate sovereign authority.

G.R. No. 122880 April 12, 2006 FELIX AZUELA, Petitioner, vs. COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G. CASTILLO, Respondents. D E C I S I O N TINGA, J.: The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal recognition to the due execution of this document, the Court is provided the opportunity to assert a few important doctrinal rules in the execution of notarial wills, all self-evident in view of Articles 805 and 806 of the Civil Code. A will whose attestation clause does not contain the number of pages on which the will is written is fatally defective. A will whose attestation clause is not signed by the instrumental witnesses is fatally defective. And perhaps most importantly, a will which does not contain an acknowledgment, but a mere jurat, is fatally defective. Any one of these defects is sufficient to deny probate. A notarial will with all three defects is just aching for judicial rejection. There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of imperatives for the proper execution of a notarial will. Full and faithful compliance with all the detailed requisites under Article 805 of the Code leave little room for doubt as to the validity in the due execution of the notarial will. Article 806 likewise imposes another safeguard to the validity of notarial wills — that they be acknowledged before a notary public by the testator and the witnesses. A notarial will executed with indifference to these two codal provisions opens itself to nagging questions as to its legitimacy. The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of the cousin of the decedent. The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full: HULING HABILIN NI EUGENIA E. IGSOLO SA NGALAN NG MAYKAPAL, AMEN: AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin o testamento: Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan; Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay walang pasubali't at kondiciones; Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya. Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981. (Sgd.) EUGENIA E. IGSOLO (Tagapagmana) PATUNAY NG MGA SAKSI Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa't dahon, sa harap ng lahat at bawa't sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa't isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa't dahon ng kasulatan ito. EUGENIA E. IGSOLO address: 500 San Diego St. Sampaloc, Manila Res. Cert. No. A-7717-37 Issued at Manila on March 10, 1981. QUIRINO AGRAVA address: 1228-Int. 3, Kahilum Pandacan, Manila Res. Cert. No. A-458365 Issued at Manila on Jan. 21, 1981 LAMBERTO C. LEAÑO address: Avenue 2, Blcok 7, Lot 61, San Gabriel, G.MA., Cavite Res. Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981 JUANITO ESTRERA address: City Court Compound, City of Manila Res. Cert. No. A574829 Issued at Manila on March 2, 1981. Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila. (Sgd.) PETRONIO Y. BAUTISTA Doc. No. 1232 ; NOTARIO PUBLIKO Page No. 86 ; Until Dec. 31, 1981 Book No. 43 ; PTR-152041-1/2/81-Manila Series of 1981 TAN # 1437-977-81 The three named witnesses to the will affixed their signatures on the left-hand margin of both pages of the will, but not at the bottom of the attestation clause. The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner prayed that the will be allowed, and that letters testamentary be issued to the designated executor, Vart Prague. The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the attorney-in-fact of "the 12 legitimate heirs" of the decedent.2 Geralda Castillo claimed that the will is a forgery, and that the true purpose of its emergence was so it could be utilized as a defense in several court cases filed by oppositor against petitioner, particularly for forcible entry and usurpation of real property, all centering on petitioner's right to occupy the properties of the decedent.3 It also asserted that contrary to the representations of petitioner, the decedent was actually survived by 12 legitimate heirs, namely her grandchildren, who were then residing abroad. Per records, it was subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965,4 and the mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months.5 Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance with law. She pointed out that decedent's signature did not appear on the second page of the will, and the will was not properly acknowledged. These twin arguments are among the central matters to this petition. After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992.6 The RTC favorably took into account the testimony of the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The RTC also called to fore "the modern tendency in respect to the formalities in the execution of a will x x x with the end in view of giving the testator more freedom in expressing his last wishes;"7 and from this perspective, rebutted oppositor's arguments that the will was not properly executed and attested to in accordance with law. After a careful examination of the will and consideration of the testimonies of the subscribing and attesting witnesses, and having in mind the modern tendency in respect to the formalities in the execution of a will, i.e., the liberalization of the interpretation of the law on the formal requirements of a will with the end in view of giving the testator more freedom in expressing his last wishes, this Court is persuaded to rule that the will in question is authentic and had been executed by the testatrix in accordance with law. On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the signature of the testatrix, the following statement is made under the sub-title, "Patunay Ng Mga Saksi": "Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa't dahon, sa harap ng lahat at bawa't sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa't isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa't dahon ng kasulatan ito." The aforequoted declaration comprises the attestation clause and the acknowledgement and is considered by this Court as a substantial compliance with the requirements of the law. On the oppositor's contention that the attestation clause was not signed by the subscribing witnesses at the bottom thereof, this Court is of the view that the signing by the subscribing witnesses on the left margin of the second page of the will containing the attestation clause and acknowledgment, instead of at the bottom thereof, substantially satisfies the purpose of identification and attestation of the will. With regard to the oppositor's argument that the will was not numbered correlatively in letters placed on upper part of each page and that the attestation did not state the number of pages thereof, it is worthy to note that the will is composed of only two pages. The first page contains the entire text of the testamentary dispositions, and the second page contains the last portion of the attestation clause and acknowledgement. Such being so, the defects are not of a serious nature as to invalidate the will. For the same reason, the failure of the testatrix to affix her signature on the left margin of the second page, which contains only the last portion of the attestation clause and acknowledgment is not a fatal defect. As regards the oppositor's assertion that the signature of the testatrix on the will is a forgery, the testimonies of the three subscribing witnesses to the will are convincing enough to establish the genuineness of the signature of the testatrix and the due execution of the will.8 The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his since deceased mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court of Appeals reversed the trial court and ordered the dismissal of the petition for probate.9 The Court of Appeals noted that the attestation clause failed to state the number of pages used in the will, thus rendering the will void and undeserving of probate.10 Hence, the present petition. Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of pages used in a notarial will be stated in the attestation clause" is merely directory, rather than mandatory, and thus susceptible to what he termed as "the substantial compliance rule."11

The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which we replicate in full. Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court. The appellate court, in its Decision, considered only one defect, the failure of the attestation clause to state the number of pages of the will. But an examination of the will itself reveals several more deficiencies. As admitted by petitioner himself, the attestation clause fails to state the number of pages of the will.12 There was an incomplete attempt to comply with this requisite, a space having been allotted for the insertion of the number of pages in the attestation clause. Yet the blank was never filled in; hence, the requisite was left uncomplied with. The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy Coque v. Navas L. Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court noted that among the defects of the will in question was the failure of the attestation clause to state the number of pages contained in the will.15 In ruling that the will could not be admitted to probate, the Court made the following consideration which remains highly relevant to this day: "The purpose of requiring the number of sheets to be stated in the attestation clause is obvious; the document might easily be so prepared that the removal of a sheet would completely change the testamentary dispositions of the will and in the absence of a statement of the total number of sheets such removal might be effected by taking out the sheet and changing the numbers at the top of the following sheets or pages. If, on the other hand, the total number of sheets is stated in the attestation clause the falsification of the document will involve the inserting of new pages and the forging of the signatures of the testator and witnesses in the margin, a matter attended with much greater difficulty."16 The case of In re Will of Andrada concerned a will the attestation clause of which failed to state the number of sheets or pages used. This consideration alone was sufficient for the Court to declare "unanim[ity] upon the point that the defect pointed out in the attesting clause is fatal."17 It was further observed that "it cannot be denied that the x x x requirement affords additional security against the danger that the will may be tampered with; and as the Legislature has seen fit to prescribe this requirement, it must be considered material."18 Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon. Rosal,20 wherein the Court allowed probate to the wills concerned therein despite the fact that the attestation clause did not state the number of pages of the will. Yet the appellate court itself considered the import of these two cases, and made the following distinction which petitioner is unable to rebut, and which we adopt with approval: Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does not state the number of pages used upon which the will is written. Hence, the Will is void and undeserving of probate. We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195," to the effect that a will may still be valid even if the attestation does not contain the number of pages used upon which the Will is written. However, the Decisions of the Supreme Court are not applicable in the aforementioned appeal at bench. This is so because, in the case of "Manuel Singson versus Emilia Florentino, et al., supra," although the attestation in the subject Will did not state the number of pages used in the will, however, the same was found in the last part of the body of the Will: "x x x The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the attestation clause shall state the number of pages or sheets upon which the will is written, which requirement has been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to whom the property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of the number of sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself. But here the situation is different. While the attestation clause does not state the number of sheets or pages upon which the will is written, however, the last part of the body of the will contains a statement that it is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical considerations." (page 165-165, supra) (Underscoring supplied) In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in the Will states the number of pages used in the: "x x x We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire will that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself states that "this Last Will and Testament consists of two pages including this page" (pages 200-201, supra) (Underscoring supplied). However, in the appeal at bench, the number of pages used in the will is not stated in any part of the Will. The will does not even contain any notarial acknowledgment wherein the number of pages of the will should be stated.21 Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a time when the statutory provision governing the formal requirement of wills was Section 618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos, considering that the requirement that the attestation state the number of pages of the will is extant from Section 618.23 However, the enactment of the Civil Code in 1950 did put in force a rule of interpretation of the requirements of wills, at least insofar as the attestation clause is concerned, that may vary from the philosophy that governed these two cases. Article 809 of the Civil Code states: "In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805." In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "the underlying and fundamental objective permeating the provisions on the [law] on [wills] in this project consists in the [liberalization] of the manner of their execution with the end in view of giving the testator more [freedom] in [expressing] his last wishes. This objective is in accord with the [modern tendency] in respect to the formalities in the execution of wills."24 However, petitioner conveniently omits the qualification offered by the Code Commission in the very same paragraph he cites from their report, that such liberalization be "but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator."25 Caneda v. Court of Appeals26 features an extensive discussion made by Justice Regalado, speaking for the Court on the conflicting views on the manner of interpretation of the legal formalities required in the execution of the attestation clause in wills.27 Uy Coque and Andrada are cited therein, along with several other cases, as examples of the application of the rule of strict construction.28 However, the Code Commission opted to recommend a more liberal construction through the "substantial compliance rule" under Article 809. A cautionary note was struck though by Justice J.B.L. Reyes as to how Article 809 should be applied: x x x The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing witnesses are three or the will was notarized. All these are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in the attestation clause, being the only check against perjury in the probate proceedings.29 (Emphasis supplied.) The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision, considering that the failure to state the number of pages of the will in the attestation clause is one of the defects which cannot be simply disregarded. In Caneda itself, the Court refused to allow the probate of a will whose attestation clause failed to state that the witnesses subscribed their respective signatures to the will in the presence of the testator and of each other,30 the other omission cited by Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded. Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission which can be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will itself."31 Thus, a failure by the attestation clause to state that the testator signed every page can be liberally construed, since that fact can be checked by a visual examination; while a failure by the attestation clause to state that the witnesses signed in one another's presence should be considered a fatal flaw since the attestation is the only textual guarantee of compliance.32 The failure of the attestation clause to state the number of pages on which the will was written remains a fatal flaw, despite Article 809. The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages.33 The failure to state the number of pages equates with the absence of an averment on the part of the instrumental witnesses as to how many pages consisted the will, the execution of which they had ostensibly just witnessed and subscribed to. Following Caneda, there is substantial compliance with this requirement if the will states elsewhere in it how many pages it is comprised of, as was the situation in Singson and Taboada. However, in this case, there could have been no substantial compliance with the requirements under Article 805 since there is no statement in the attestation clause or anywhere in the will itself as to the number of pages which comprise the will. At the same time, Article 809 should not deviate from the need to comply with the formal requirements as enumerated under Article 805. Whatever the inclinations of the members of the Code Commission in incorporating Article 805, the fact remains that they saw fit to prescribe substantially the same formal requisites as enumerated in Section 618 of the Code of Civil Procedure, convinced that these remained effective safeguards against the forgery or intercalation of notarial wills.34 Compliance with these requirements, however picayune in impression, affords the public a high degree of comfort that the testator himself or herself had decided to convey property post mortem in the manner established in the will.35 The transcendent legislative intent, even as expressed in the cited comments of the Code Commission, is for the fruition of the testator's incontestable desires, and not for the indulgent admission of wills to probate. The Court could thus end here and affirm the Court of Appeals. However, an examination of the will itself reveals a couple of even more critical defects that should necessarily lead to its rejection. For one, the attestation clause was not signed by the instrumental witnesses. While the signatures of the instrumental witnesses appear on the left-hand margin of the will, they do not appear at the bottom of the attestation clause which after all consists of their averments before the notary public. Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin."37 While three (3) Justices38 considered the signature requirement had been substantially complied with, a majority of six (6), speaking through Chief Justice Paras, ruled that the attestation clause had not been duly signed, rendering the will fatally defective. There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin. We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a memorandum of the facts attending the execution of the will" required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation. The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable, because said signatures are in compliance with the legal mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.39 The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the requirement that the instrumental witnesses sign each page of the will, from the requisite that the will be "attested and subscribed by [the instrumental witnesses]." The respective intents behind these two classes of signature are distinct from each other. The signatures on the left-hand corner of every page signify, among others, that the witnesses are aware that the page they are signing forms part of the will. On the other hand, the signatures to the attestation clause establish that the witnesses are referring to the statements contained in the attestation clause itself. Indeed, the attestation clause is separate and apart from the disposition of the will. An unsigned attestation clause results in an unattested will. Even if the instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation clause, such signatures cannot demonstrate these witnesses' undertakings in the clause, since the signatures that do appear on the page were directed towards a wholly different avowal. The Court may be more charitably disposed had the witnesses in this case signed the attestation clause itself, but not the left-hand margin of the page containing such clause. Without diminishing the value of the instrumental witnesses' signatures on each and every page, the fact must be noted that it is the attestation clause which contains the utterances reduced into writing of the testamentary witnesses themselves. It is the witnesses, and not the testator, who are required under Article 805 to state the number of pages used upon which the will is written; the fact that the testator had signed the will and every page thereof; and that they witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. The only proof in the will that the witnesses have stated these elemental facts would be their signatures on the attestation clause. Thus, the subject will cannot be considered to have been validly attested to by the instrumental witnesses, as they failed to sign the attestation clause. Yet, there is another fatal defect to the will on which the denial of this petition should also hinge. The requirement under Article 806 that "every will must be acknowledged before a notary public by the testator and the witnesses" has also not been complied with. The importance of this requirement is highlighted by the fact that it had been segregated from the other requirements under Article 805 and entrusted into a separate provision, Article 806. The non-observance of Article 806 in this case is equally as critical as the other cited flaws in compliance with Article 805, and should be treated as of equivalent import. In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no manner of contemplation can those words be construed as an acknowledgment. An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed.41 It involves an extra step undertaken whereby the signor actually declares to the notary that the executor of a document has attested to the notary that the same is his/her own free act and deed. It might be possible to construe the averment as a jurat, even though it does not hew to the usual language thereof. A jurat is that part of an affidavit where the notary certifies that before him/her, the document was subscribed and sworn to by the executor.42 Ordinarily, the language of the jurat should avow that the document was subscribed and sworn before the notary public, while in this case, the notary public averred that he himself "signed and notarized" the document. Possibly though, the word "ninotario" or "notarized" encompasses the signing of and swearing in of the executors of the document, which in this case would involve the decedent and the instrumental witnesses. Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless remain invalid, as the express requirement of Article 806 is that the will be "acknowledged", and not merely subscribed and sworn to. The will does not present any textual proof, much less one under oath, that the decedent and the instrumental witnesses executed or signed the will as their own free act or deed. The acknowledgment made in a will provides for another all-important legal safeguard against spurious wills or those made beyond the free consent of the testator. An acknowledgement is not an empty meaningless act.43 The acknowledgment coerces the testator and the instrumental witnesses to declare before an officer of the law that they had executed and subscribed to the will as their own free act or deed. Such declaration is under oath and under pain of perjury, thus allowing for the criminal prosecution of persons who participate in the execution of spurious wills, or those executed without the free consent of the testator. It also provides a further degree of assurance that the testator is of certain mindset in making the testamentary dispositions to those persons he/she had designated in the will. It may not have been said before, but we can assert the rule, self-evident as it is under Article 806. A notarial will that is not acknowledged before a notary public by the testator and the witnesses is fatally defective, even if it is subscribed and sworn to before a notary public. There are two other requirements under Article 805 which were not fully satisfied by the will in question. We need not discuss them at length, as they are no longer material to the disposition of this case. The provision requires that the testator and the instrumental witnesses sign each and every page of the will on the left margin, except the last; and that all the pages shall be numbered correlatively in letters placed on the upper part of each page. In this case, the decedent, unlike the witnesses, failed to sign both pages of the will on the left margin, her only signature appearing at the so-called "logical end"44 of the will on its first page. Also, the will itself is not numbered correlatively in letters on each page, but instead numbered with Arabic numerals. There is a line of thought that has disabused the notion that these two requirements be construed as mandatory.45 Taken in isolation, these omissions, by themselves, may not be sufficient to deny probate to a will. Yet even as these omissions are not decisive to the adjudication of this case, they need not be dwelt on, though indicative as they may be of a general lack of due regard for the requirements under Article 805 by whoever executed the will. All told, the string of mortal defects which the will in question suffers from makes the probate denial inexorable. WHEREFORE, the petition is DENIED. Costs against petitioner

Reynoso v. Santiago, 85 Phil 268 Short summary: husband and eldest son wanted to reopen the probate proceedings of the deceased wife/mom and wanted the reappointment of the surviving husband as the executor Facts: Decedent: Salvadora Obispo S.Spouse: Victorio Reynoso Eldest son: Juan Reynoso -Leoncio Cadiz and other heirs of decedent Salvadora Obispo presented an application in CFI for administration of Salvadora's property (No. 2914) -Father and son opposed application and filed a document, allegedly the last will and testament of Salvadora, w/ a counter petition for probate TC: alleged last will and testament is a forgery CA: reversed -Father and son filed 2 petitions, one special proceedign (No. 2914) an another under a separate and new docket number (3107) and with different title (Testate Estate of the deceased Salvadora Obispo) 1st petition: (1) special administrator, Meliton Palabrica (2914), be ordered to turn over the properties of the deceased and proceeds of copra, nuts and other agricultural products to Victorio Reynoso, and render accounting within reasonable time; (2) render an accounting w/n a reasonable time (3) closing of intestate proceeding 2nd petition: estate be administered and settled in special proceeding, Victorio Reynoso be appointed as executor -prayer for accounting -delivery by him to the new executor of the properties -2 petitions decided separately by Judge Santiago 1st petition: substitution unnecessary, inconvenient and expensive + intestate proceeding should not be converted into a testate proceeding in the same original expediente w/o the necessity of changing its number, name or title -withheld: because of the pendency on appeal of a case in which special administrator is plaintiff and appellee and Victorio Reynoso defendant and appellant (re: parcel of coconut land) WON the intestate proceeding should be discontinued and a new proceeding should be instituted instead? -this is in the sound discretion of the court. In no manner does it prejudice the substantial rights of any heirs or creditors. Amor propio is perhaps the only thing is at stake on this phase of the controversy. WON a regular executor should be appointed?

-appointment of the deceased's husband as executor or administrator: If one other than the surviving spouse is appointed, which is possible, the feared conflict will not materialize. If Victorio Reynoso is chosen, a special administrator may be named to represent the estate in the suit against him. Section 8 of Rule 87 provides that "If the executor or administrator has a claim against the estate he represents, he shall give notice thereof, in writing, to the court, and the court shall appoint a special administrator who shall, in the adjustment of such claim, have the same power and be subject to the same liability as the general administrator or executor in the settlement of the claims." The situation in which Victorio Reynoso is found with reference to the land within the spirit if not exactly within the letter of this provision. -Subject to this observation, an administrator should be appointed without delay in accordance with the final decision of the Court of Appeals. The appointment of a special administrator is justified only when there is delay in granting letters testamentary or of administration occasioned by an appeal from the allowance or disallowance of a will or some other cause. The Court of Appeals having decreed the probate of the will and the appointment of an albacea, there is no valid reason for the further retention of a special administrator. The appointment of a regular administrator is necessary for the prompt settlement and distribution of the estate. There are important duties devolving on a regular administrator which a special administrator can not perform, and there are many actions to be taken by the court which could not be accomplished before a regular administrator is appointed. B. Extrajudicial settlement by agreement between heirs - Summary settlement of estates Section 1. Extrajudicial settlement by agreement between heirs If the decedent left no will And no debts And the heirs are all of age Or the minors are represented by their judicial or legal representatives duly authorized for the purpose The parties may, Without securing letters of administration Divide the estate among themselves as they see fit By means of a public instrument filed in the office of the register of deeds And should they disagree They may do so in an ordinary action of partition. If there is only one heir He may adjudicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds The parties to an extrajudicial settlement, Whether by public instrument or by stipulation in a pending action for partition or the sole heir who adjudicates the entire estate to himself by means of an affidavit shall file, simultaneously with and as a condition precedent to the filing of the public instrument or stipulation in the action for partition or the affidavit in the office of the register of deeds a bond with the said register of deeds, in an amount equivalent to the value of the personal property involved as certified to under oath by the parties concerned and conditioned upon the payment of any just claim that may be filed under Section 4 of this rule. It shall be presumed that the decedent left no debts If no creditor files a petition for letters of administration Within two (2) years after the death of the decedent. 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. Section 2 - Summary settlement of estates of small value Whenever the gross value of the estate of a deceased person Whether he died testate or intestate, Does not exceed Php10,000.00 And that fact is made to appear to the Court of First Instance having jurisdiction of the estate By the petition of an interested persn And upon hearing, Which shall be held not less than 1 month Nor more than 3 months From the date of the last publication of a notice which shall be published once a week for 3 consecutive weeks in a newspaper of general circulation in the province, and after such other notice to interested persons as the court may direct, the court may proceed summarily, without the appointment of an executor or administrator, and without delay, to grant, if proper, allowance of the will, if there be, to determine who are the persons legally entitled to participate in the estate, and to apportion and divide it among them after the payment of such debts of the estate as the court shall then find to be due; and such persons, in their own right, if they are of lawful age and legal capacity, or by their guardians or trustees legally appointed and qualified, if otherwise, shall thereupon be entitled to receive and enter into the possession of the portions of the estate to be awarded to them respectively. The court shall make such orders as may be just Respecting the costs of the proceedings, And all orders and judgments made or rendered in the course thereof Shall be recorded in the office of the clerk And the order of partition or award, If it involves real estate, Shall be recorded in the proper register's office. Section 3 - Bond to be filed by distributees The court, Before allowing a partition in accordance with the provisions of the proceeding section, may require the distributes, if property other than real is to be distributed, to file a bond in an amount to be fixed by the court, conditioned for the payment of any just claim which may be filed under the next succeeding section. Section 4 - Liability of distributees and estate If it shall appear at any time within 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 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 distribute shall contribute in the payment thereof, And may issue execution, If circumstances require, Against the bond provided in the next 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 2 years after such distribution, Notwithstanding any transfers of real estate that may have been made. Section 5 - Period for claim of minor or incapacitated person If on the date of the expiration of the period of 2 years prescribed in the preceding section The person authorized to file a claim is a minor or mentally incapacitated, Or is in prison Or outside of the Philippines, He may present his claim within 1 year after such disability is removed.

G.R. No. 72706 October 27, 1987 CONSTANTINO C. ACAIN, petitioner, vs. HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA A. FERNANDEZ and ROSA DIONGSON, respondents. On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City Branch XIII, a petition for the probate of the will of the late Nemesio Acain and for the issuance to the same petitioner of letters testamentary, docketed as Special Proceedings No. 591 ACEB (Rollo, p. 29), on the premise that Nemesio Acain died leaving a will in which petitioner and his brothers Antonio, Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. The will allegedly executed by Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27) with a translation in English (Rollo, p. 31) submi'tted by petitioner without objection raised by private respondents. The will contained provisions on burial rites, payment of debts, and the appointment of a certain Atty. Ignacio G. Villagonzalo as the executor of the testament. On the disposition of the testator's property, the will provided: THIRD: All my shares that I may receive from our properties. house, lands and money which I earned jointly with my wife Rosa Diongson shall all be given by me to my brother SEGUNDO ACAIN Filipino, widower, of legal age and presently residing at 357-C Sanciangko Street, Cebu City. In case my brother Segundo Acain pre-deceased me, all the money properties, lands, houses there in Bantayan and here in Cebu City which constitute my share shall be given to me to his children, namely: Anita, Constantino, Concepcion, Quirina, laura, Flores, Antonio and Jose, all surnamed Acain. Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming to be heirs, with Constantino as the petitioner in Special Proceedings No. 591 ACEB After the petition was set for hearing in the lower court on June 25, 1984 the oppositors (respondents herein Virginia A. Fernandez, a legally adopted daughter of tile deceased and the latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the following grounds for the petitioner has no legal capacity to institute these proceedings; (2) he is merely a universal heir and (3) the widow and the adopted daughter have been pretirited. (Rollo, p. 158). Said motion was denied by the trial judge. After the denial of their subsequent motion for reconsideration in the lower court, respondents filed with the Supreme Court a petition for certiorari and prohibition with preliminary injunction which was subsequently referred to the Intermediate Appellate Court by Resolution of the Court dated March 11, 1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159). Respondent Intermediate Appellate Court granted private respondents' petition and ordered the trial court to dismiss the petition for the probate of the will of Nemesio Acain in Special Proceedings No. 591 ACEB His motion for reconsideration having been denied, petitioner filed this present petition for the review of respondent Court's decision on December 18, 1985 (Rollo, p. 6). Respondents' Comment was filed on June 6, 1986 (Rollo, p. 146). On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153). Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157); the Memorandum for petitioner was filed on September 29, 1986 (Rollo, p. 177). Petitioner raises the following issues (Memorandum for petitioner, p. 4): (A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with preliminary injunction is not the proper remedy under the premises; (B) The authority of the probate courts is limited only to inquiring into the extrinsic validity of the will sought to be probated and it cannot pass upon the intrinsic validity thereof before it is admitted to probate; (C) The will of Nemesio Acain is valid and must therefore, be admitted to probate. The preterition mentioned in Article 854 of the New Civil Code refers to preterition of "compulsory heirs in the direct line," and does not apply to private respondents who are not compulsory heirs in the direct line; their omission shall not annul the institution of heirs; (D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law; (E) There may be nothing in Article 854 of the New Civil Code, that suggests that mere institution of a universal heir in the will would give the heir so instituted a share in the inheritance but there is a definite distinct intention of the testator in the case at bar, explicitly expressed in his will. This is what matters and should be in violable. (F) As an instituted heir, petitioner has the legal interest and standing to file the petition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio Acain and (G) Article 854 of the New Civil Code is a bill of attainder. It is therefore unconstitutional and ineffectual. The pivotal issue in this case is whether or not private respondents have been pretirited.

Article 854 of the Civil Code provides: Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devisees and legacies shall be valid insofar as they are not; inofficious. If the omitted compulsory heirs should die before the testator, the institution shall he effectual, without prejudice to the right of representation. Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114 SCRA 478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil Code may not apply as she does not ascend or descend from the testator, although she is a compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory heir, there is no preterition even if she is omitted from the inheritance, for she is not in the direct line. (Art. 854, Civil code) however, the same thing cannot be said of the other respondent Virginia A. Fernandez, whose legal adoption by the testator has not been questioned by petitioner (.Memorandum for the Petitioner, pp. 8-9). Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the adopted person the same rights and duties as if he were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter. It cannot be denied that she has totally omitted and preterited in the will of the testator and that both adopted child and the widow were deprived of at least their legitime. Neither can it be denied that they were not expressly disinherited. Hence, this is a clear case of preterition of the legally adopted child. Pretention annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtual de legado mejora o donacion" Maniesa as cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA [1982]). The only provisions which do not result in intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned. The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator results in totally abrogating the will because the nullification of such institution of universal heirs-without any other testamentary disposition in the will-amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 of the Civil Code offers no leeway for inferential interpretation (Nuguid v. Nuguid), supra. No legacies nor devises having been provided in the will the whole property of the deceased has been left by universal title to petitioner and his brothers and sisters. The effect of annulling the "Institution of heirs will be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper legacies and devises must, as already stated above, be respected. We now deal with another matter. In order that a person may be allowed to intervene in a probate proceeding he must have an interest iii the estate, or in the will, or in the property to be affected by it either as executor or as a claimant of the estate and an interested party is one who would be benefited by the estate such as an heir or one who has a claim against the estate like a creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor, neither a devisee or a legatee there being no mention in the testamentary disposition of any gift of an individual item of personal or real property he is called upon to receive (Article 782, Civil Code). At the outset, he appears to have an interest in the will as an heir, defined under Article 782 of the Civil Code as a person called to the succession either by the provision of a will or by operation of law. However, intestacy having resulted from the preterition of respondent adopted child and the universal institution of heirs, petitioner is in effect not an heir of the testator. He has no legal standing to petition for the probate of the will left by the deceased and Special Proceedings No. 591 A-CEB must be dismissed. As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is an oppressive exercise of j judicial authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies of certiorari and prohibition are not available where the petitioner has the remedy of appeal or some other plain, speedy and adequate remedy in the course of law (DD Comendador Construction Corporation v. Sayo (118 SCRA 590 [1982]). They are, however, proper remedies to correct a grave abuse of discretion of the trial court in not dismissing a case where the dismissal is founded on valid grounds (Vda. de Bacang v. Court of Appeals, 125 SCRA 137 [1983]). Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court, the general rule is that the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testator's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the Court has declared that the will has been duly authenticated. Said court at this stage of the proceedings is not called upon to rule on the intrinsic validity or efficacy of the provisions of the will (Nuguid v. Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]). The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will (Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid the oppositors to the probate moved to dismiss on the ground of absolute preteriton The probate court acting on the motion held that the will in question was a complete nullity and dismissed the petition without costs. On appeal the Supreme Court upheld the decision of the probate court, induced by practical considerations. The Court said: We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation will be protracted. And for aught that appears in the record, in the event of probate or if the court rejects the will, probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief that we might as well meet head-on the issue of the validity of the provisions of the will in question. After all there exists a justiciable controversy crying for solution. In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the surviving spouse was grounded on petitioner's lack of legal capacity to institute the proceedings which was fully substantiated by the evidence during the hearing held in connection with said motion. The Court upheld the probate court's order of dismissal. In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the petition deals with the validity of the provisions of the will. Respondent Judge allowed the probate of the will. The Court held that as on its face the will appeared to have preterited the petitioner the respondent judge should have denied its probate outright. Where circumstances demand that intrinsic validity of testamentary provisions be passed upon even before the extrinsic validity of the will is resolved, the probate court should meet the issue. (Nepomuceno v. Court of Appeals, supra; Nuguid v. Nuguid, supra). In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings No. 591 ACEB of the Regional Trial Court of Cebu on the following grounds: (1) petitioner has no legal capacity to institute the proceedings; (2) he is merely a universal heir; and (3) the widow and the adopted daughter have been preterited (Rollo, p. 158). It was denied by the trial court in an order dated January 21, 1985 for the reason that "the grounds for the motion to dismiss are matters properly to be resolved after a hearing on the issues in the course of the trial on the merits of the case (Rollo, p. 32). A subsequent motion for reconsideration was denied by the trial court on February 15, 1985 (Rollo, p. 109). For private respondents to have tolerated the probate of the will and allowed the case to progress when on its face the will appears to be intrinsically void as petitioner and his brothers and sisters were instituted as universal heirs coupled with the obvious fact that one of the private respondents had been preterited would have been an exercise in futility. It would have meant a waste of time, effort, expense, plus added futility. The trial court could have denied its probate outright or could have passed upon the intrinsic validity of the testamentary provisions before the extrinsic validity of the will was resolved (Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra. The remedies of certiorari and prohibition were properly availed of by private respondents. Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had the right to resort to the more speedy, and adequate remedies of certiorari and prohibition to correct a grave abuse of discretion, amounting to lack of jurisdiction, committed by the trial court in not dismissing the case, (Vda. de Bacang v. Court of Appeals, supra) and even assuming the existence of the remedy of appeal, the Court harkens to the rule that in the broader interests of justice, a petition for certiorari may be entertained, particularly where appeal would not afford speedy and adequate relief. (Maninang Court of Appeals, supra). PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned decision of respondent Court of Appeals promulgated on August 30, 1985 and its Resolution dated October 23, 1985 are hereby AFFIRMED.

Cruz vs. Cristobal, 498 SCRA 37 Short Summary: Children of 1st marriage were excluded from the partition of the San Juan Lot by their father by the Children of the 2nd Marriage 1st marriage children: Buenaventura Cristobal and Ignacia Cristobal >Elisa-bunso >Mercedes - eldest sister >Anselmo >Socorro (SAME) 2nd marriage children: Buenaventura Cristobal and Donata Enriquez >Norberto >Florencio >Eufrosina >Jose (JENF) Dad bought land in San Juan in 1926. He died in 1930. So children squabble over property. -Children of 2nd marriage executed an EJ partition of San Juan property w/o knowledge of 1st marriage children (1st marriage children only found out about it after 6 decades) -they attempted to settle at the barangay level but failed to do so. -1st marriage children filed COMPLAINT FOR ANNULMENT OF TITLE AND DAMAGES: (1) Annulment of deed of partition (2) cancellation of TCTs in favor of 2nd marriage children (3) re-partitioning of the subject property (4) damages -evidence presented to prove filiation (by 1st marriage children) *baptismal certificates of Elisa, Anselmo and Socorro *Certification from Local Civil Registrar for Socorro that the records in 1909 (when she was born) were all destroyed due to ordinary wear and tear *Testimonies: >Elisa: mom (Ignacia) died when she was only 1y7m ...lived with aunt Martina Cristobal because dad married again ...brother Anselmo and sister Socorro lived with 2nd family in San Juan ...when dad died, Anselmo lived with her and their aunt then Socorro lived with Mercedes ...when Stepmom Donata died, 2nd family children lived with Elisa, Anselmo and their aunt ...she is now living in the disputed San Juan property since 1948. Other houses in the area belonged to half brothers and sisters -out of the 535sqm, she only occupies 36sqm of the San Juan lot -2nd marriage children divided the property among themselves w/o giving 1st marriage children their share -she was offered by Eufrosina to choose between a portion of the land or money but said she'll have to consult the other 1st marriage children. When she inquired, she found out that the 2nd marriage children already divided amongst themselves the said property to the exclusion of the 1st marriage children CROSS: knew that the 2nd marriage children were the ones paying real estate tax due to the land >Ester Santos: corroborated what Elisa already said ...said that the children had harmonious relationship, until when the 1st marriage children and their grandchildren were called squatters by the 2nd marriage children and their grandchildren CROSS: did not know the name of the 1st wife though she knew Buenaventura was married prior to marriage with Donata >Jose (presented by the 1st FC though belonging to the 2nd FC): only found out about the 1st FC when they lived with aunt Martina, and did not admit that Elisa was their sister but only offered land so that she could have a piece of property of her own Evidence of 2nd FC (respondents): *Testimonies: >Eufrosina: parents (Donata and Buenaventura) were married in 1919. They bought the San Juan property in 1926. ...they lived with Aunt Martina since their parents died and knew since they were kids about the 1st FC (that they were their brothers and sisters) ...admitted that they did execute an EJ Partition of the San Juan property but asserted that the 1st FC never asserted their alleged right over the property ...that they were the ones paying for the real estate tax of said property TC: dismissed case: petitioners failed to prove their filiation with Buenaventura Cristobal ...baptismal and birth certificates have scant evidentiary value ...inaction for a long period of time amounted to laches CA: were able to prove their filiation thru "other means allowed by the Rules of Court and special laws" BUT they are barred by lachees WON LACHES APPLY WHEN IT RESULTS TO GROSS INJUSTICE AND INEQUITY SOUGHT TO BE PREVENTED BY SUCH PRINCIPLE

NO. -PRELIMINARY MATTER: although the title of the pleading filed by the petitioners is for annulment of title and damages, they prayed for the re-partitioning of the subject land so the court would not limit their decision on the title -WON Filiation proved: A172. Filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) the open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws: may consist of the child's baptismal certificate, a judicial admission, a family bible in which the child's name has been entered, common reputation respecting the child's pedigree, admission by silence, the testimony of witnesses, and other kinds of proof of admission under Rule 130 of the Rules of Court -in this case, the petitioners were able to present many evidences which would show that they were indeed children of Buenaventura. The respondents on the other hand failed to refute the claim of the petitioners that they were Buenaventura's children (some even admitted that they were their half bro and sis) -WON DEED OF PARTITION VALID: R74.1 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. (Underscoring supplied) -here: the sole property of Buenaventura's estate is the San Juan property, thus, it is equivalent to the EJ settlement of t his estate. As the 1st MC were excluded from said partition (and did not have notice thereof), the said partition would not bind them. -WON Action has already prescribed No. *Article 494, NCC: "no co-owner shall be obliged to remain in the co-ownership. Such co-owner may demand at anytime the partition of the thing owned in common, insofar as his share is concerned." ... "No prescription shall lie in favor of a co-owner or co-heirs as long as he expressly or impliedly recognizes the co-ownership." *Budlong vs. Bondoc: action for partition is imprescriptible. It cannot be barred by prescription -how divided: Old civil code applies (as Donata and Buenaventura both died in the 1930s when the NCC was only effective 1950). Art 921 and 931: intestate succession = all children would divide the estate equally Art834: widow was only entitled to usufruct over property, which would terminate upon her death WON Laches would apply. NO. -Laches is the negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it has abandoned it or declined to assert it. It does not involve mere lapse or passage of time, but is principally an impediment to the assertion or enforcement of a right, which has become under the circumstances inequitable or unfair to permit. -There is no evidence showing failure or neglect on their part, for an unreasonable and unexplained length of time, to do that which, by exercising due diligence, could or should have been done earlier. The doctrine of stale demands would apply only where for the reason of the lapse of time, it would be inequitable to allow a party to enforce his legal rights. Moreover, absence any strong or compelling reason, this Court is not disposed to apply the doctrine of laches to prejudice or defeat the rights of an owner. 29 Laches is a creation of equity and its application is controlled by equitable considerations. Laches cannot be used to defeat justice or perpetuate an injustice. Neither should its application be used to prevent the rightful owners of a property from recovering what has been fraudulently registered in the name of another. *Nominal damages awarded

TRINIDAD V. ACAPULCO 493 SCRA 179 Facts Backstory: Acapulco owed Trinidad around P566k. Trinidad's version: as payment for the P566k, Acapulco gave him the Mercedez Benz she bought from Canete for P500k by way of dacion en pago. A deed of sale was executed to that effect. He did not give instructions to Acapulco to buy it from Canete, he did not borrow it from Acapulco and Acapulco did not demand for its return Acapulco's version: Acapulco was asked by Canete to sell the Mercedes Benz for P580k (but she could buy it herself for P500k). While she was finding a buyer, Trinidad borrowed the car from her and instructed her to buy the car from Canete herself then Trinidad would then pay her (so bayaran muna nya para mura bili then saka bibilhin ni Trinidad). However, after buying the Benz from Canete, Trinidad did not return the car and did not pay Acapulco, saying that he would just offset whatever Acapulco owes to him. As a result, the checks issued by Acapulco in favor of Canete (to pay the P500k) were not funded and bounced. Criminal charges were filed against her by Canete. -Acapulco filed Complaint for nullification of sale she made in favor of Trinidad, prayed that the car be returned to her and that Trinidad pay damages. -Trinidad alleged that there was dacion en pago between them (and alleged those above) -Pre-trial order focused on WON there was dacion en pago between them RTC: NO DACION EN PAGO because no common consent (for Acapulco); -MR :he alleged that there was implied consent on the part of Acapulco because she delivered the car herself after he threatened that he'll file an estafa case against her -Supplemental Motion: assuming no consent from Acapulco, there was legal compensation (since Acapulco owed him P566k and the cost of the car was P500k) -appealed to CA CA: affirm (1) legal compensation allegation filed too late (2) parties already agreed that the issue would only be WON there was dacion en pago (3) dacion en pago was not present - Acapulco did not give consent (4) no legal compensation (obligation in money not equivalent to delivery of car) (5) admission that the sale price of the car was not paid by him (as he wanted that the car be given as payment for Acapulco's debts) entitled Acapulco to file action for rescission of sale ISSUE: WON legal compensation argument of Trinidad should still be appreciated, though not expressly stated in his Answer to the Complaint before RTC, as his allegations in the answer and the facts proven in TC shows the presence of legal compensation

HELD: For TRINIDAD. There's legal compensation On technical rules (late raising of issue of legal compensation): -Our rules recognize the broad discretionary power of an appellate court to waive the lack of proper assignment of errors and to consider errors not assigned. The interest of justice dictates that the Court consider and resolve issues even though not particularly raised if it is necessary for the complete adjudication of the rights and obligations of the parties and it falls within the issues already found by them. While it is true that petitioner failed to raise the issue of legal compensation at the earliest opportunity, this should not preclude the courts from appreciating the same especially in this case, where ignoring the same would only result to unnecessary and circuitous filing of cases. Indeed, the doctrine that higher courts are precluded from entertaining matters neither alleged in the pleadings nor raised during the proceedings below but ventilated for the first time only in a motion for reconsideration or on appeal, is subject to exceptions, such as when: (a) grounds not assigned as errors but affecting jurisdiction over the subject matter; (b) matters not assigned as errors on appeal but are evidently plain or clerical errors within contemplation of law; (c) matters not assigned as errors on appeal but consideration of which is necessary in arriving at a just decision and complete resolution of the case or to serve the interests of justice or to avoid dispensing piecemeal justice; (d) matters not specifically assigned as errors on appeal but raised in the trial court and are matters of record having some bearing on the issue submitted which the parties failed to raise or which the lower court ignored; (e) matters not assigned as errors on appeal but closely related to an error assigned; and (f) matters not assigned as errors on appeal but upon which the determination of a question properly assigned, is dependent. ON WON there was LEGAL COMPENSATION -Compensation takes effect by operation of law even without the consent or knowledge of the parties concerned when all the requisites mentioned in Article 1279 of the Civil Code are present. This is in consonance with Article 1290 of the Civil Code which provides that: Article 1290. When all the requisites mentioned in article 1279 are present, compensation takes effect by operation of law, and extinguishes both debts to the concurrent amount, even though the creditors and debtors are not aware of the compensation. Since it takes place ipso jure, when used as a defense, it retroacts to the date when all its requisites are fulfilled. Article 1279 provides that in order that compensation may be proper, it is necessary: (1) that each one of the obligors be bound principally, and that he be at the same time a principal creditor of the other; (2) that both debts consist in a sum of money, or if the things due are consumable, they be of the same kind, and also of the same quality if the latter has been stated; (3) that the two debts be due; (4) that they be liquidated and demandable; (5) that over neither of them there be any retention or controversy, commenced by third persons and communicated in due time to the debtor. Here, petitioner's stance is that legal compensation has taken place and operates even against the will of the parties because: (a) respondent and petitioner were personally both creditor and debtor of each other; (b) the monetary obligation of respondent was P566,000.00 and that of the petitioner was P500,000.00 showing that both indebtedness were monetary obligations the amount of which were also both known and liquidated; - of no moment if the other obligation was the delivery of the car (c) both monetary obligations had become due and demandable—petitioner's obligation as shown in the deed of sale and respondent's indebtedness as shown in the dishonored checks; and (d) neither of the debts or obligations are subject of a controversy commenced by a third person. SPECIAL PROCEEDINGS

Republic vs Court of Appeals Facts: -Apolinaria Malinao Jomoc wanted a declaration of the presumptive death of her husband Clemente Jomoc, who has been absent for 9 years, to be able to marry again. -RTC: granted it, declared her husband presumptively dead ...basis: Article 41,par2, FC: four consecutive years only required; must institute a summary proceeding for the declaration of presumptive death of absentee spouse -Republic, through OSG, sought to appeal by filing ONLY A NOTICE OF APPEAL -TC disapporved the Notice of appeal: based on Rule 41, Section 2(a), there should also be a RECORD OF APPEAL filed and served as the present case was a special proceeding -OSG filed MR: denied -OSG filed Petition for certiorari before CA: declaration of presumptive death is NOT A SPECIAL PROCEEDING or a case of multiple or separate appeals which would require a record on appeal -CA: denied Petition for certiorari: (1) OSG failed to attach CTC of assailed order (TC's denial of MR) (2) OSG failed to attach a copy of the order declaring Clemente Jomoc presumptively dead ---based on (1) and (2) alone + Rule 46.3: the case should have been dismissed! (2) Declaration of presumptive death is a SPECIAL PROCEEDING as it merely seeks for a declaration of the trial court of the presumptive death of the absentee spouse. It does not seek enforcement or protection of a right or the prevention or redress of a wrong. Neither does it involve a demand of a right or a COA that can be enforced ISSUE: WON THE DECLARATION OF PRESUMPTIVE DEATH OF AN ABSENTEE SPOUSE IS A SPECIAL PROCEEDIGN OR A SUMMARY PROCEEDING (IF NOT A SPECIAL PROCEEDING, DOES NOT NEED A RECORD ON APPEAL)

HELD: it is NOT A SPECIAL RPOCEEDING! RULE 72: SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES Section 1. Subject matter of special proceedings. - Rules of special proceedings are provided for in the following: (a) Settlement of estate of deceased persons; (b) Escheat; (c) Guardianship and custody of children; (d) Trustees; (e) Adoption; (f) Rescission and revocation of adoption; (g) Hospitalization of insane persons; (h) Habeas corpus; (i) Change of name; (j) Voluntary dissolution of corporations; (k) Judicial approval of voluntary recognition of minor natural children; (l) Constitution of family home; (m) Declaration of absence and death; (n) Cancellation or correction of entries in the civil registry. Sec. 2. Applicability of rules of civil actions. - In the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings. (Underscoring supplied) CIVIL CODE Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. x x x (Emphasis and underscoring supplied) FAMILY CODE Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouses had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouses was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose pf contracting the subsequent marriage under the preceding paragraph, the spouses present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of a reappearance of the absent spouse. (Emphasis and underscoring supplied) RULES OF COURT ON WHEN RECORD ON APPEAL REQUIRED Rule 41, Section 2 of the Revised Rules of Court, on Modes of Appeal, invoked by the trial court in disapproving petitioner's Notice of Appeal, provides: Sec. 2. Modes of appeal. - (a) Ordinary appeal. - The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or these Rules so require. In such cases, the record on appeal shall be filed and served in like manner. (Emphasis and underscoring supplied) By the trial court's citation of Article 41 of the Family Code, it is gathered that the petition of Apolinaria Jomoc to have her absent spouse declared presumptively dead had for its purpose her desire to contract a valid subsequent marriage. Ergo, the petition for that purpose is a "summary proceeding," following above-quoted Art. 41, paragraph 2 of the Family Code. Since Title XI of the Family Code, entitled SUMMARY JUDICIAL PROCEEDING IN THE FAMILY LAW, contains the following provision, inter alia: x x x Art. 238. Unless modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this Codes requiring summary court proceedings. Such cases shall be decided in an expeditious manner without regard to technical rules. (Emphasis and underscoring supplied) x x x, there is no doubt that the petition of Apolinaria Jomoc required, and is, therefore, a summary proceeding under the Family Code, not a special proceeding under the Revised Rules of Court appeal for which calls for the filing of a Record on Appeal. It being a summary ordinary proceeding, the filing of a Notice of Appeal from the trial court's order sufficed. That the Family Code provision on repeal, Art. 254, provides as follows: Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of Republic Act No. 386, otherwise known as the Civil Code of the Philippines, as amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and 42 of Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code, as amended, and all laws, decrees, executive orders, proclamations rules and regulations, or parts thereof, inconsistent therewith are hereby repealed, (Emphasis and underscoring supplied), seals the case in petitioner's favor. *IN SHORT, SINCE THE TRIAL COURT USED THE FAMILY CODE, AND THE FAMILY CODE DESIGNATES SUCH CASES AS A SUMMARY PROCEEDING AND NOT A SPECIAL PROCEEDING, IT IS NOT A SPECIAL PROCEEDING... Finally, on the alleged procedural flaw in petitioner's petition before the appellate court. Petitioner's failure to attach to his petition before the appellate court a copy of the trial court's order denying its motion for reconsideration of the disapproval of its Notice of Appeal is not necessarily fatal, for the rules of procedure are not to be applied in a technical sense. Given the issue raised before it by petitioner, what the appellate court should have done was to direct petitioner to comply with the rule. As for petitioner's failure to submit copy of the trial court's order granting the petition for declaration of presumptive death, contrary to the appellate court's observation that petitioner was also assailing it, petitioner's 8-page petition filed in said court does not so reflect, it merely having assailed the order disapproving the Notice of Appeal. DEFINITION: R2.2, ROC Cause of action defined: a COA -is the act or omission By which a party violates the right of another DISTINGUISHED FROM CIVIL ACTION R2.1 AND 2.2 R2.1: Ordinary Civil Actions, basis of - every civil action Must be based on a cause of action R2.2 COA SUBJECT MATTER RULE 72.1, ROC Rules of Special proceedings are provided for in the following cases: Settlement of estate of deceased persons Escheat Guardianship and custody of children Trustees Adoption Rescission and revocation of adoption Hospitalization of insane persons Habeas corpus Change of name Voluntary dissolution of corporations Judicial approval of voluntary recognition of minor natural children Constitution of family home Declaration of absence and death Cancellation or correction of entries in the civil registry APPLICABILITY OF RULES OF CIVIL ACTIONS RULE 12.2, ROC In the absence of special provisions The rules provided for in ordinary actions shall be As far as practicable Be applicable in special proceedings

EPIFANIO SAN JUAN, JR. vs. JUDGE RAMON A. CRUZ, et. al., , G.R. No. 167321, July 31, 2006

In the recent case of EPIFANIO SAN JUAN, JR. vs. JUDGE RAMON A. CRUZ, et. al., , G.R. No. 167321, July 31, 2006, it was held that "the heirs may be allowed to be substituted for the deceased without requiring the appointment of an administrator or executor"; and that "a prior appointment of an administrator or executor of the estate of (a party) is not necessary for his heirs to acquire legal capacity to be substituted as representatives of the estate.... (as) said heirs may designate one or some of them as their representative before the trial court". THUS : X x x. The second paragraph of (Sec. 16, Rule 3) is plain and explicit: the heirs may be allowed to be substituted for the deceased without requiring the appointment of an administrator or executor. However, if within the specified period a legal representative fails to appear, the court may order the opposing counsel, within a specified period, to process the appointment of an administrator or executor who shall immediately appear for the estate of the deceased. The pronouncement of this Court in Lawas v. Court of Appeals (relied upon by petitioner), that priority is given to the legal representative of the deceased (the executor or administrator) and that it is only in case of unreasonable delay in the appointment of an executor or administrator, or in cases where the heirs resort to an extrajudicial settlement of the estate that the court may adopt the alternative of allowing the heirs of the deceased to be substituted for the deceased, is no longer true. In Gochan v. Young, a case of fairly recent vintage, the Court ruled as follows: The above-quoted rules, while permitting an executor or administrator to represent or to bring suits on behalf of the deceased, do not prohibit the heirs from representing the deceased. These rules are easily applicable to cases in which an administrator has already been appointed. But no rule categorically addresses the situation in which special proceedings for the settlement of an estate have already been instituted, yet no administrator has been appointed. In such instances, the heirs cannot be expected to wait for the appointment of an administrator; then wait further to see if the administrator appointed would care enough to file a suit to protect the rights and the interests of the deceased; and in the meantime do nothing while the rights and the properties of the decedent are violated or dissipated. The Rules are to be interpreted liberally in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding. They cannot be interpreted in such a way as to unnecessarily put undue hardships on litigants. For the protection of the interests of the decedent, this Court has in previous instances recognized the heirs as proper representatives of the decedent, even when there is already an administrator appointed by the court. When no administrator has been appointed, as in this case, there is all the more reason to recognize the heirs as the proper representatives of the deceased. Since the Rules do not specifically prohibit them from representing the deceased, and since no administrator had as yet been appointed at the time of the institution of the Complaint with the SEC, we see nothing wrong with the fact that it was the heirs of John D. Young, Sr. who represented his estate in the case filed before the SEC. (Emphasis supplied) The heirs of the estate of Oscar Casa do not need to first secure the appointment of an administrator of his estate, because from the very moment of his death, they stepped into his shoes and acquired his rights as devisee/legatee of the deceased Loreto San Juan. Thus, a prior appointment of an administrator or executor of the estate of Oscar Casa is not necessary for his heirs to acquire legal capacity to be substituted as representatives of the estate. Said heirs may designate one or some of them as their representative before the trial court.

Cua v. Vargas, 506 SCRA 374 SHort Summary: Cua bought property from some of the co-heirs who were also signatories to the 2 documents they executed, excluding some of the other heirs who were not notified before the alleged partition, though there was a publication of the partition after the partition was done. Mom/Decedent: Paulina Vargas Heirs: Ester Visitacion Juan Zenaida Rosario <> Andres Gloria Antonina Florentino Those who signed the notarized EJ Settlement: Ester Visitacion Juan Zenaida Rosario -the said EJ Settlement was published in Catanduanes Tribune for 3 consecutive weeks -they were also the ones who executed an EJ Settlement Among Heirs with Sale with Cua *the latter 4 never signed any document *all documents executed and published in 1994 -one of the heirs (Gloria Vargas, widow of Santiago Vargas) claimed that she only knew of the EJ Settlement + Sale when the original house was demolished sometime in 1995; claimed she was unaware of said settlement -tried to redeem the property from Cua but Cua refused their offer -amicable settlement not reached in barangay level -ACTION FOR ANNULMENT OF EJ SETTLEMENT AND LEGAL REDEMPTION OF LOT, MTC: 30-d period ff a written notice by vendors to co-owners not sent to them so the EJ Settlement and Sale were null and void and had no legal effect on them MTC: DISMISS -transaction occurred after partition so the co-owners could validly dispose of their shares -written notice of sale under A1088, though not sent, was cured by the ACTUAL KNOWLEDGE OF SALE (which was more than 30d before filing of complaint) -no bad faith on part of Cua RTC, appeal: affirm MTC CA: Reversed RTC and MTC -pursuant to Section 1, Rule 74 of the Rules of Court, the extrajudicial settlement made by the other co-heirs is not binding upon respondents considering the latter never participated in it nor did they ever signify their consent to the same. -MR Denied WON PUBLICATION of the EJ Partition was binding on the non-signatory heirs because it constitutes due notice and therefore, the non-signatory co-heirs were already estopped from assailing the partition and sale WON THE RESPONDENTS NON-SIGNATORY CO-HEIRS HAD RIGHT TO REDEEM? WON Cua was a builder in GF WON MTC does not have jurisdiction, this being incapable of pecuniary estimation WON it should still be dismissed for non-joinder of indispensable parties

NO. Publication was made AFTER THE PARTITION WAS MADE, NOT BEFORE WHICH WAS REQUIRED IN R74.1 -The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding. The rule plainly states, however, that persons who do not participate or had no notice of an extrajudicial settlement will not be bound thereby. It contemplates a notice that has been sent out or issued before any 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), and not after such an agreement has already been executed as what happened in the instant case with the publication of the first deed of extrajudicial settlement among heirs. -The publication of the settlement does not constitute constructive notice to the heirs who had no knowledge or did not take part in it because the same was notice after the fact of execution. The requirement of publication is geared for the protection of creditors and was never intended to deprive heirs of their lawful participation in the decedent's estate. In this connection, the records of the present case confirm that respondents never signed either of the settlement documents, having discovered their existence only shortly before the filing of the present complaint. Following Rule 74, these extrajudicial settlements do not bind respondents, and the partition made without their knowledge and consent is invalid insofar as they are concerned. YES. -sale of pro indiviso shares allowed, subject to right of redemption of other co-heirs. This right was never lost because the non-signatory co-heirs were never notified in writing of the actual sale. NOTIFICATION IN WRITING OF THE SALE BY THE VENDOR is required to start the period of redemption (w/n 1 month from the time they were notified in writing of the sale); even if the co-heirs have actual knowledge of sale, the notification in writing is still required. As there was no such notice here, the right to redeem the shares is still with the non-signatory co-heirs. -method of notification remains exclusive, no alternative provided by law -purpose of A1088: keep strangers to the family out of a joint ownership -not in GF because he was very much aware that NOT ALL THE HEIRS PARTICIPATED IN THE EJ SETTLEMENT + SALE, as evident from the face of the document itself -since no valid partition yet, no sale could occur. Despite this glaring fact, and over the protests of the respondents, he still constructed improvements on the property Cua estopped thru active participation in the MTC NO. -indispensable party: party-in-interest, without whom there can be no final determination of an action and who is required to be joined as either plaintiff or defendant. -here: prayer of complaint was that they be allowed to redeem shares in property sold. The other co-heirs already relinquished their right over their shares to Cua with the alleged sale. As a result, the other co-heirs who sold him the property are not anymore needed. On improper verification and CNFS Rule may be relaxed. And since the respondent share a common interest with the other respondent, her sole signature complies with the rules.

Vda. De Reyes v. CA, 169 SCRA 524 (1989) Short Facts: Beatriz, (not sure if illegit or legit child) opposes the correction of judgment and the re-opening of the probate proceedings to correct a alleged typographical error in the sqm of the Antipolo land in question, claiming that there was no typographical error and the parties intended to share only that area of land. Decedent: Antonio de Zuzuarregui, Sr. Pilar Ibanez de Susuarregui: surviving spouse of decedent -administratix of the estate Illegit children: Antonio de Zuzuarregui, Jr. Enrique de Zuzuarregui Jose de Zuzuarregui *Beatriz de Zuzuarregui vda. Re reyes: daughter of Antonio Sr. by another mother Pacita Javier: niece of administratix -mother of the three illegit children Project of partition: Pilar: 12/16, inclusive of 1/2 of the assets (share of conjugal partnership) Beatriz: 1/16 Antonio, Jr.: 1/16 Enrique: 1/16 Jose: 1/16 Antipolo, Rizal property: mentioned 4x in document -adjudicated to Pilar (12/15), Antonio Jr. (1/15), Enrique (1/15) and Jose (1/15) -Pacita relinquished her right "in lieu of her bigger share in Antipolo, Rizal, real estate property" -administratix and other three distributees filed a MOTION TO REOPEN SPECIAL PROCEEDIGNS for the purpose of correcting an alleged typographical error in the description of the parcel of land (correct land area: 803,781.51, not 83,781sqm) -opposition to motion TC: (1) opened for purpose of correcting clerical error in description of land (2) correct land area to conform with description of land area in TCT (3) correction be made in the project of partition -CA: Affirm Pacita's allegation: no clerical area. The area in the project of partition is correct. She would not have relinquished her share in the Antipolo land if she new nothing would remain from the land. It was even repeated 4x in the project of partition WON there was a clerical error, which is an exemption to correcting or supplying a final judgment already entered?

NONE. On correction of clerical errors: It is well settled that even if a decision has become final, clerical errors or mistakes or omission plainly due to inadvertence or negligence may be corrected or supplied even after the judgment has been entered. The correction of a clerical error is an exception to the general rule that no amendment or correction may be made by the court in its judgment once the latter had become final. The court may make this amendment ex parte and, for this purpose, it may resort to the pleadings filed by the parties, the court's findings of facts and its conclusions of law as expressed in the body of the decision. -TC already found that a typographical or clerical error was clearly committed by inadvertence in the project of partition -probate proceeding, nature: That a special proceeding for the settlement of an estate is filed and intended to settle the ENTIRE estate of the deceased is obvious and elementary. It would be absurd for the heirs to intentionally excluded or leave a parcel of land or a portion thereof undistributed or undivided because the proceeding is precisely designed to end the community of interests in properties held by co-partners pro indiviso without designation or segregation of shares. -It is readily apparent from the project of partition that it was meant to be, as in fact it is, a full and complete adjudication and partition of all properties of the estate, necessarily including the entire area of the land covered by Transfer Certificate of Title No. 42643. Thus as perceptively posed by the queries of the respondents, if the intention of the heirs was to make only a partial adjudication and distribution of the subject parcel of land, why is it that they did not make any further disposition of the remaining balance of 720,000 square meters? What sound reason would the heirs have in holding in suspense the distribution of the difference of 720,000 square meters? -if they cannot see eye to eye, why share properties as co-owners? -weird that the parties came up with 83,781, just omitting the zeroes. So only logical reason is that they just forgot to put zero. -according to her own computation, she already received her 1/16 share in the estate. There would not be a substantial difference in value in their shares...

G.R. No. 149576 August 8, 2006 REPUBLIC OF THE PHILIPPINES, represented by the Land Registration Authority, Petitioner, vs. KENRICK DEVELOPMENT CORPORATION, Respondent. FACTS: This case stemmed from the construction by respondent Kenrick Development Corporation of a concrete perimeter fence around some parcels of land located behind the Civil Aviation Training Center of the Air Transportation Office (ATO). Parcels of land were allegedly registered in the name of Alfonso Concepcion. As a result, the ATO was dispossessed of some 30,228 square meters of prime land. Respondent justified its action with a claim of ownership over the property. The Solicitor General filed a complaint for revocation, annulment and cancellation of certificates of title in behalf of the Republic of the Philippines (as represented by the LRA) against respondent and Alfonso Concepcion. On December 5, 1996, respondent filed its answer which was purportedly signed by Atty. Onofre Garlitos, Jr. as counsel for respondent. Since Alfonso Concepcion could not be located and served with summons, the trial court ordered the issuance of an alias summons by publication against him on February 19, 1997. The case was thereafter punctuated by various incidents relative to modes of discovery, pre-trial, postponements or continuances, motions to dismiss, motions to declare defendants in default and other procedural matters. During the congressional hearing held on November 26, 1998, one of those summoned was Atty. Garlitos, respondent's former counsel. He testified that he prepared respondent's answer and transmitted an unsigned draft to respondent's president, Mr. Victor Ong. The signature appearing above his name was not his. He authorized no one to sign in his behalf either. And he did not know who finally signed it. With Atty. Garlitos' revelation, the Republic promptly filed an urgent motion on December 3, 1998 to declare respondent in default, predicated on its failure to file a valid answer. The Republic argued that, since the person who signed the answer was neither authorized by Atty. Garlitos nor even known to him, the answer was effectively an unsigned pleading. Pursuant to Section 3, Rule 7 of the Rules of Court, 3 it was a mere scrap of paper and produced no legal effect. RTC: Granted Republic's motion, declared defendant in default, allowed Republic to present evidence ex parte. It found respondent's answer to be sham and false and intended to defeat the purpose of the rules. Motion for Reconsideration by Respondent: Denied. Petition for certiorari.  CA: Reversed RTC ISSUE: Whether or not an answer can be admitted despite the lack of signature by the counsel

RULING: Only the signature of either the party himself or his counsel operates to validly convert a pleading from one that is unsigned to one that is signed. Counsel's authority and duty to sign a pleading are personal to him. He may not delegate it to just any person. Procedural requirements which have been labeled as mere technicalities have their own valid raison d' eitre. To summarily brush them aside may result in arbitrariness and injustice. Procedural rules are promulgated into law designed to facilitate the adjudication of cases and while the court related the rules from time to time, it must not let it be the last bastion for erring litigants. The signature of counsel constitutes an assurance by him that he has read the pleading; that, to the best of his knowledge, information and belief, there is a good ground to support it; and that it is not interposed for delay. Under the Rules of Court, it is counsel alone, by affixing his signature, who can certify to these matters . The preparation and signing of a pleading constitute legal work involving practice of law which is reserved exclusively for the members of the legal profession. Counsel may delegate the signing of a pleading to another lawyer but cannot do so in favor of one who is not. The Code of Professional Responsibility provides: Rule 9.01 ― A lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the Bar in good standing. Therefore, the blanket authority respondent claims Atty. Garlitos entrusted to just anyone was void. Any act taken pursuant to that authority was likewise void. There was no way it could have been cured or ratified by Atty. Garlitos' subsequent acts. Moreover, the transcript of the November 26, 1998 Senate hearing shows that Atty. Garlitos consented to the signing of the answer by another "as long as it conformed to his draft." We give no value whatsoever to such self-serving statement. No doubt, Atty. Garlitos could not have validly given blanket authority for just anyone to sign the answer. The trial court correctly ruled that respondent's answer was invalid and of no legal effect as it was an unsigned pleading. Respondent was properly declared in default and the Republic was rightly allowed to present evidence ex parte. The Court's pronouncement in Garbo v. Court of Appeals is relevant: Procedural rules are [tools] designed to facilitate the adjudication of cases. Courts and litigants alike are thus [enjoined] to abide strictly by the rules. And while the Court, in some instances, allows a relaxation in the application of the rules, this, we stress, was never intended to forge a bastion for erring litigants to violate the rules with impunity. The liberality in the interpretation and application of the rules applies only in proper cases and under justifiable causes and circumstances. While it is true that litigation is not a game of technicalities, it is equally true that every case must be prosecuted in accordance with the prescribed procedure to insure an orderly and speedy administration of justice. Like all rules, procedural rules should be followed except only when, for the most persuasive of reasons, they may be relaxed to relieve a litigant of an injustice not commensurate with the degree of his thoughtlessness in not complying with the prescribed procedure. In this case, respondent failed to show any persuasive reason why it should be exempted from strictly abiding by the rules. As a final note, the Court cannot close its eyes to the acts committed by Atty. Garlitos in violation of the ethics of the legal profession. Thus, he should be made to account for his possible misconduct. 

G.R. No. L-32328 September 30, 1977 TESTATE ESTATE OF THE LATE ADRIANO MALOTO: ALDINA MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, and ASILO DE MOLO, petitioners-appellants vs. FELINO MALOTO and FELINO MALOTO, oppositors-appellees. Ramon C. Zamora, Lorenzo E. Coloso, Jose L. Castigador, Arthur Defensor & Sixto Demaisip and Flores, Macapagal, Ocampo & Balbastro for petitioners-appellants. Nacianceno G. Rico & Felipe G. Espinosa for oppositors-appellees. FERNANDEZ, J.: This is a petition to review the order dated April 13, 1970 of the Court of First Instance of Iloilo, Branch III, in Special Proceeding No. 2176 dismissing the petition for the probate of a will. 1 One Adriana Maloto died on October 20, 1963 in Iloilo City, her place of residence. Aldina Maloto Casiano, Constancio Maloto, Panfilo Maloto, and Felino Maloto, niece and nephews, respectively, of Adriana Maloto, in the belief that decedent died intestate, commenced on November 4, 1963 in the Court of First Instance of iloilo an intestate proceeding docketed as Special Proceeding No. 1736. In the course of said intestate proceeding, Aldina Maloto Casiano, Constancio Maloto, Panfilo Maloto and Felino Maloto executed an extrajudicial Partition of the estate of Adriana Maloto on February 1, 1964 whereby they adjudicated said estate unto themselves in the proportion of one-fourth (1/4) share for each. 2 The Court of First Instance of iloilo, then prescribed by Judge Emigdio V. Nietes, ed he diamond partition on March approve extrajudicial on March 21, 1964. 3 On April 1, 1967, a document dated January 3, 1940 purporting to be the last with and testament of Adriana Maloto was delivered to the Clerk of Art of the Art of First Instant of Iloilo. 4 It appears that Aldina Maloto Casiano Consent Maloto, Panfilo Maloto, and Felino Maloto are named as heirs but Maloto Casiano and Constancio Maloto allegedly have shares in said with which are bigger, different and more valuable than what they obtained in the extrajudicial partition. The said will also allegedly made dispositions to certain devisees and/or legatees, among whom being the Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor. On May 24, 1967, Aldina Maloto Casiano and Constancio Maloto filed in Special Proceeding No. 1736 a motion (1) for reconsideration; (2) annulment of the proceedings; and (3) for the allowance of the last will and testament of Adriana Maloto. 5 The Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor also filed in Special Proceeding No. 1736 petitions for the allowance of the will of Adriana Maloto. 6 Panfilo Maloto and Felino Maloto opposed the motion of Aldina Maloto Casiano and Constancio Maloto. The Court of First Instance of iloilo, through Judge Emigdio V. Nietes, issued an order dated November 16, 1968 denying the motion to reopen the proceedings on the ground that the said motion had been filed out of time. A motion for reconsideration of said order was denied. Petitioners appealed from the order of denial. On motion of Panfilo Maloto and Felino Maloto, the lower court dismissed the appeal on the ground that it was filed late. A motion for reconsideration of the order of dismissal was denied. A supplemental order dated April 1, 1969 stating as additional ground that the appeal is improper was issued. The petitioners filed a petition for certiorari and mandamus with the Supreme Court docketed as G.R. No. L-30479. This Court dismissed the petition in a resolution dated May 14, 1969 which reads: L-010479 (Constancio Maloto, et al, vs. Hon. Emigdio V. Nietes, etc., et al.) — THE COURT RESOLVED to dismiss the petition for certiorari and mandamus, without passing on the issue of whether or not the petitioners appeal from the order of November 16, 1968 of respondent Judge was made on time, it appearing that the more appropriate remedy of petitioners in the premises stated in the petition is for petitioners to initiate a separate proceeding for the probate of the alleged will in question. 7 Acting on the petitioners' motion for reconsideration and citation, fl Art issued a resolution dated July 15, 1969 which reads: Acting on the motion for reconsideration and/or clarification filed by petitioner in G. R. No. L-30479, Constancio Maloto, et al., vs. Hon. Emigdio V. Nietes, etc. et al., dated June 11, 1969, the Court resolved to DENY the motion for reconsideration, with the clarification that the matter of whether or not the pertinent findings of facts of respondent Judge in his herein subject order of November 16, 1968 constitute res adjudicata may be raised in the proceedings for probate of the alleged will in question indicated in the resolution of this Court of May 14, 1969, wherein such matter will be more appropriately determined. 8 Thereupon, the herein petitioners commenced Special Proceeding No. 2176 in the Court of First Instance of Iloilo for the probate of the alleged last will and testament of Adriana Maloto. 9 Panfilo Maloto and Felino Maloto filed an opposition with a motion to dismiss on the following grounds: I. THAT THE ALLEGED WILL SOUGHT TO BE PROBATED HAD BEEN DESTROYED AND REVOKED BY THE TESTATRIX. II. THAT THE INSTANT PETITION FOR PROBATE IS NOW BARRED BY PRIOR JUDGMENT OR ORDER (OR RES JUDICATA). III. THAT THE ESTATE OF THE LATE ADRIANA MALOTO HAD ALREADY PASSED OUT OF EXISTENCE AND TITLE THERETO HAD ALREADY ARRESTED IN THE DISTRIBUTEES OF THEIR ASSIGNS. IV. THAT PETITIONERS ALDINA MALOTO CASIANO AND CONSTANCIO MALOTO ARE NOW ESTOPPED FROM SEEKING THE REMEDY TENDER THIS PROCEEDING, THEY HAVING CEASED TO BE INTERESTED PARTIES. 10 In an order dated April 13, 1970, the probate court dismissed the petition for the probate of the with on the basis of the finding of said court in Special Proceeding No. 1736 that the alleged win sought to be Probated had been destroyed and revoked by the testatrix. The probate court sustained the oppositors' contention that the petition for probate is now barred by the order of November 16, 1968 in the intestate estate proceeding, Special Proceeding No. 1736. 11 The herein petitioners allege that the probate court committed the following errors: I THE LOWER COURT ERRED IN HOLDING THAT THE .kl).NIITTEI)I,Y GENUINE LAST WILL AND TESTAMENT OF THE LATE ADRIANA MALOTO (THE SUBJECT OF PETITION FOR PROBATE — SPECIAL PROCEEDING NO. 2176, CFI ILOILO) HAD PREVIOUSLY BEEN REVOKED BY HER (ADRIANA MALOTO). II THE LOWER COURT ERRED IN HOLDING THAT SAID PETITION (FOR PROBATE OF THE AFORESAID LAST WILL AND TESTAMENT OF THE LATE ADRIANA MALOTO) IS NOW BARRED BY PRIOR JUDGMENT. I. E., THAT THE MATTER CONCERNED IS NOW RES ADJUDICATA III THE LOWER COURT, THEREFORE, ERRED IN DISMISSING THE AFORESAID PETITION FOR PROBATE OF THE LAST WILL AND TESTAMENT OF THE LATE ADRIANA MALOTO AND IN NOT, INSTEAD, GIVING IT (THE PETITION ABOVE-CITED DUE COURSE.12

The instant petition for review is meritorious. The probate court had no jurisdiction to entertain the petition for the probate of the alleged with of Adriana Maloto in Special Proceeding No. 1736. Indeed, the motion to reopen the was denied because the same was filed out of time. Moreover, it is not proper to make a finding in an intestate estate proceeding that the discovered will has been revoked. As a matter of fact, the probate court in Special Proceeding No. 1736 stated in the order of November 16, 1968 that "Movants should have filed a separate action for the probate of the Will." 13 And this court stated in its resolution of May 14, 1969 that "The more appropriate remedy of the petitioners in the premises stated in the petition is for petitioners to initiate a separate proceeding for the probate of the alleged with in question." In view of the foregoing, the order of November 16, 1968 in Special Proceeding No. 1736 is not a bar to the present petition for the probate of the alleged will of Adriana Maloto. WHEREFORE, the order dated April 13, 1970 dismissing the petition for the probate of the alleged will of Adriana Maloto is hereby set aside and the lower court is directed to proceed with the hearing of the petition in Special Proceeding No. 2176 on the merits, with costs against the respondents. SO ORDERED.

VITUG vs CA 188 SCRA 755 FACTS: The current case is a chapter in an earlier suit decided the SC involving the probate of the two wills of the late Dolores Luchangco Vitug who named private respondent Rowena Faustino-Corona as executrix. In said decision, the court SC upheld the appointment of Nenita Alonte as co- special administrator of Mrs. Vitug's estate with her (Mrs. Vitug's) widower, petitioner Roma rico G. Vitug, pending probate. On Jan. 1985, Romarico G. Vitug filed a motion asking for authority from the probate court to sell certain shares of stock and real properties belonging to the estate to cover allegedly his advances to the estate, plus interests, which he claimed were personal funds. As found by the CA the alleged advances were spent for the payment of estate tax, deficiency estat e tax, and "increment thereto." Rowena Corona opposed the motion to sell on the ground that the same funds withdrawn were conjugal partnership properties and part of the estate, and hence, there was allegedly no ground for reimbursement. She also sought his ouster for failure to include the sums in question for inventory and for "concealment of funds belonging to the estate." Vitug insists that the said funds are his exclusive property having acquired the same through a survivorship agreement executed with his late wife and the bank. The trial courts upheld the validity of such agreement. On the other hand, the CA held that the survivorship agreement constitutes a conveyance mortis causa whic h "did not comply with the formalities of a valid will as prescribed by Article 805 of the Civil Code," and secondly, assuming that it is a mere donation inter vivos, it is a prohibited donation under the provisions of Article 133 of the Civil Code. ISSUE : W/N the survivorship agreement between the spouses Vitug constitutes a donation?

VITUG vs CA 188 SCRA 755 FACTS: The current case is a chapter in an earlier suit decided the SC involving the probate of the two wills of the late Dolores Luchangco Vitug who named private respondent Rowena Faustino-Corona as executrix. In said decision, the court SC upheld the appointment of Nenita Alonte as co- special administrator of Mrs. Vitug's estate with her (Mrs. Vitug's) widower, petitioner Roma rico G. Vitug, pending probate. On Jan. 1985, Romarico G. Vitug filed a motion asking for authority from the probate court to sell certain shares of stock and real properties belonging to the estate to cover allegedly his advances to the estate, plus interests, which he claimed were personal funds. As found by the CA the alleged advances were spent for the payment of estate tax, deficiency estat e tax, and "increment thereto." Rowena Corona opposed the motion to sell on the ground that the same funds withdrawn were conjugal partnership properties and part of the estate, and hence, there was allegedly no ground for reimbursement. She also sought his ouster for failure to include the sums in question for inventory and for "concealment of funds belonging to the estate." Vitug insists that the said funds are his exclusive property having acquired the same through a survivorship agreement executed with his late wife and the bank. The trial courts upheld the validity of such agreement. On the other hand, the CA held that the survivorship agreement constitutes a conveyance mortis causa whic h "did not comply with the formalities of a valid will as prescribed by Article 805 of the Civil Code," and secondly, assuming that it is a mere donation inter vivos, it is a prohibited donation under the provisions of Article 133 of the Civil Code. ISSUE : W/N the survivorship agreement between the spouses Vitug constitutes a donation? HELD: No. The conveyance in question is not, first of all, one of mortis causa, which should be embodied in a will. A will has been defined as "a personal, solemn, revocab le and free act by which a capacitated person disposes of his property and rights and declares or complies with duties to take effect after his death." In other words, the bequest or device must pertain to the testator. In this case, the monies subject of savings account No. 35342-038 were in the nature of conjugal funds. In the case relied on, Rivera v. People's Bank and Trust Co., the SC rejected claims that a survivorship agreement purports to deliver one party's separate properties in favor of the other , but simply, their joint holdings. There is no showing that the funds exclusively belonged to one party, and hence it must be presumed to be conjugal, having been acquired during the existence of the marital relations. Neither is the survivorship agreement a donation inter vivos, for obvious reasons, because it was to take effect after the death of one party. Secondly, it is not a donation between the spouses because it involved no conveyance of a spouse 's own properties to the other. The SC added that the agreement involves no modification petition of the conjugal partnership, as held by the Court of Appeals, by "mere stipulation" and that it is no "cloak" to circumvent the law on conjugal property relations. Certainly, the spouses are not prohibited by law to invest conjugal property, say, by way of a joint and several bank account, more commonly denominated in banking parlance as an "and/or" account. In the case at bar, when the spouses Vitug opened savings account No. 35342-038, they merely put what rightfully belonged to them in a money-making venture. They did not dispose of it in favor of the other, which would have arguably been sanctionable as a prohibited donation. The conclusion is accordingly unavoidable that Mrs. Vitug having predeceased her husband, the latter has acquired upon her death a vested right over the amounts under savings account No. 35342-038 of the Bank of America. Insofar as the respondent court ordered their inclusion in the inventory of assets left by Mrs. Vitug, we hold that the court was in error. Being the separate property of petitioner, it forms no more part of the estate of the deceased.