specpro full cases

7/29/2019 Specpro Full Cases

1/89

SPECPRO FULL CASES

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. L-32281 June 19, 1975

PEDRO ERMAC, and his children, ELENA, CARLOS,

ANTONIO, LUCIANO, HILARIO, INDALECIO and FRANCISCA,all surnamed ERMAC, petitioners,vs.CENON MEDELO and JUDGE HERNANDO PINEDA aspresiding judge of Branch II of the LANAO DEL NORTE Courtof First Instance, respondents.

Anthony Santos & Teddy S. Rodriguez for petitioners.

Irene D. Jurado for respondents.

BARREDO, J.:

Petition forcertiorarito set aside the order of respondent court ofJune 25, 1970, in its Special Proceedings No. 1517, approvingthe project of partition filed by private respondent, pursuant to theorder of the same court providing for summary settlement of theintestate estate of the deceased spouses Potenciano Ermac and

Anastacia Mariquit as well as of the order of July 15, 1970denying reconsideration of the first order.

The above-named spouses both died leaving as the only propertyto be inherited by their heirs a parcel of land, Lot 1327, Cad. 292,

covered by OCT No. RP-355 (262) of the Register of Deeds ofIligan City, with an assessed value of P590.00. Accordingly,herein respondent Cenon Medelo, one of the grandchildren of thesaid spouses, (being one of the children of their predeceaseddaughter Digna Ermac) filed a petition for summary settlement ofsaid estate. All requirements having been complied with, andthere being no opposition thereto, on January 21, 1970,respondent court issued an order granting the same, enumeratingall the heirs entitled to participate in the inheritance and orderingpetitioner to present the proper project of partition of the lotaforementioned. On February 2, 1970, however, petitioner Pedro

Ermac, one of the children of the deceased spouses, moved forreconsideration of the order of settlement, praying for theelimination of Lot 1327 from the estate on the ground that itbelongs to him and his wife. This motion was denied, the courtruling that the proper remedy is a separate suit. Accordingly,petitioner, together with his children, filed the correspondingaction, Civil Case No. 1564 of the Court of First Instance of Lanaodel Norte. And when upon submission of the project of partition,the respondent court approved the same over his objectionpredicated on the pendency of Civil Case No. 1564, petitionermoved for reconsideration, but the motion was denied. Hence,the present petition.

The sole question to be resolved here is whether or notrespondent court exceeded its jurisdiction or gravely abused itsdiscretion in approving the project of partition covering Lot No.1327 notwithstanding that it is being claimed by petitioners in aseparate civil action to be their property and not of the estate.Such being the case, the petition cannot prosper.

The policy of the law is to terminate proceedings for thesettlement of the estate of deceased persons with the least loss


2/89

of time. This is specially true with small estates for which the rulesprovide precisely a summary procedure dispensing with theappointment of an administrator together with the other involvedand cumbersome steps ordinarily required in the determination ofthe assets of the deceased and the persons entitled to inhirit

therefrom and the payment of his obligations. Definitely, theprobate court is not the best forum for the resolution of adverseclaims of ownership of any property ostensibly belonging to thedecedent's estate. 1While there are settled exceptions to this ruleas applied to regular administration proceedings, 2it is not properto delay the summary settlement of a deceased person justbecause an heir or a third person claims that certain properties donot belong to the estate but to him. 3Such claim must beventilated in an independent action, and the probate court shouldproceed to the distribution of the estate, if there are no other legalobstacles to it, for after all, such distribution must always besubject to the results of the suit. For the protection of the claimantthe appropriate step is to have the proper annotation of lispendens entered.

Accordingly, the instant petition is dismissed, without prejudice topetitioner having the proper annotation of lis pendens regardingCivil Case No. 1564 made on the title covering Lot 1327.

Costs against petitioners.

Fernando (Chairman), Antonio, Aquino and Concepcion Jr., JJ.,concur.

Footnotes

1 Bernardo vs. Court of Appeals, 7 SCRA 367.

2 Guzman vs. Anog, 37 Phil. 61.

3 The case of Gutierrez vs. Cruz, 24 SCRA 69,relied upon by petitioner did not involve asummary settlement.

FIRST DIVISION

[G.R. No. L-8492. February 29, 1956.]

In the Matter of the Declaration of the Civil Status of: LOURDES G. LUKBAN,Petitioner-ApOF THE PHILIPPINES, Oppositor-Appellee.

D E C I S I O N

This is a petition filed in the Court of First Instance of Rizal for a declaration that PetitionerisFrancisco Chuidian who is presumed to be dead and has no legal impediment to contract a subseque

The Solicitor General opposed the petition on the ground that the same is not authorized bypresented her evidence, the court sustained the opposition and dismissed the petition. Hence this ap

Petitionerherein, contracted marriage with Francisco Chuidian on December 10,Church, Manila. On December 27, of the same year, Francisco left Lourdes after a violent quarrel abeen heard from despite diligent search made by her. She also inquired about him from his parentwas able to indicate his whereabouts. She has no knowledge if he is still alive, his last known addPaco, Manila. She believes that he is already dead because he had been absent for more than twent

intends to marry again, she desires that her civil status be defined in order that she may be relieved

We believe that the petition at bar comes within the purview of our decision in the case of Nicolai SSup., 243, wherein it was held that a petition for judicial declaration that Petitioners husband is prebe entertained because it is not authorized by law, and if such declaration cannot be made in a spethe present, much less can the court determine the status ofPetitioneras a widow since this matterupon the fact of death of the husband. This the court can declare upon proper evidence, but not topresumed to be dead. (Nicolai Szartraw, 46 Off. Gaz., 1st sup. 243).

The philosophy behind the ruling that such judicial pronouncement cannot be made in a proceedi


3/89

se above-cited. Thus, we there said that A judicial pronouncement to that effect, even if final andll be a prima facie presumption only. It is still disputable. It is for that reason that it cannot be the subjectcement or declaration, if it is the only question or matter involved in a case, or upon which a competentt is, therefore, clear that a judicial declaration that a person is presumptively dead, because he had been

en years, being a presumption juris tantum only, subject to contrary proof, cannot reach the stage ofal.

t the remedy she is seeking for can be granted in the present proceedings because in the case of Hagansil., 880, it was declared that a special proceeding is an application or proceeding to establish the status

or a particular fact; chan roblesvirtualawlibrarybut, as already said, that remedy can be invoked if the purpose is to seek theof the husband, and not, as in the present case, to establish a presumption of death. If it can bethat the husband is dead, the court would not certainly deny a declaration to that effect as has beenof Nicolas Szartraw, supra.

s that the present petition can be entertained because article 349 of the Revised Penal Code, in definingat a person commits that crime if he contracts a second marriage before the absent spouse has been

ely dead by means of a judgment rendered in the proper proceedings and, it is claimed, the presentn the purview of this legal provision. The argument is untenable for the words proper proceedings usedly refer to those authorized by law such as those which refer to the administration or settlement of theperson (Articles 390 and 391, new Civil Code). That such is the correct interpretation of the provision in

rt in the case of Jones vs. Hortiguela, 64 Phil., 179, wherein this Court made the following comment:

the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. Thece made in accordance with the provisions of the Civil Code has for its sole purpose to enable the takingecautions for the administration of the estate of the absentee. For the celebration of civil marriage,ly requires that the former spouse has been absent for seven consecutive years at the time of the secondpouse present does not know his or her former spouse to be living, that each former spouse is generallynd the spouse present so believes at the time of the celebration of the marriage (section III, paragraph 2,

68).

d from is affirmed, without pronouncement as to costs.

, Montemayor, Reyes, A., Jugo, Labrador, Concepcion, Reyes, J. B. L. and Endencia,

THIRD DIVISION

ANGELITA VALDEZ,

Petitioner,

- versus -

G.R. No. 180863

Present:

YNARES-SANTIAGO,J.

Chairperson,

CHICO-NAZARIO,

VELASCO, JR.,

NACHURA, and

PERALTA,JJ.

Promulgated:


4/89

REPUBLIC OF THE PHILIPPINES,

Respondent.

September 8, 2009

x--------------------------------------------------------------------------

----------x

DECISION

NACHURA,J.:

Before this Court is a Petition for Review

on Certiorari under Rule 45 of the Rules of Court

assailing the Decision of the Regional Trial Court (RTC)

of Camiling, Tarlac dated November 12, 2007

dismissing petitioner Angelita Valdezs petition for the

declaration of presumptive death of her husband, Sofio

Polborosa (Sofio).

The facts of the case are as follows:

Petitioner married Sofio on January 11, 1971 in

Pateros, Rizal. On December 13, 1971, petitioner gave

birth to the spouses only child, Nancy. According to

petitioner, she and Sofio argued constantly because

the latter was unemployed and did not bring home any

money. In March 1972, Sofio left their conjugal

dwelling. Petitioner and their child waited for him to

return but, finally, in May 1972, petitioner decided to

go back to her parents home in Bancay 1st, Camiling,

Tarlac. Three years passed without any word from

Sofio. In October 1975, Sofio showed up at Bancay 1st.

He and petitioner talked for several hours and they

agreed to separate. They executed a document to that

effect.[1] That was the last time petitioner saw him.

After that, petitioner didnt hear any news of Sofio, his

whereabouts or even if he was alive or not.[2]

Believing that Sofio was already dead, petitioner

married Virgilio Reyes on June 20, 1985.[3] Subsequently, however, Virgilios application for

naturalization filed with the United States Department

of Homeland Security was denied because petitioners

marriage to Sofio was subsisting.[4] Hence, on March

29, 2007, petitioner filed a Petition before the RTC of

Camiling, Tarlac seeking the declaration of

presumptive death of Sofio.

The RTC rendered its Decision[5] on November 12,

2007, dismissing the Petition for lack of merit. The RTC

held that Angelita was not able to prove the well-

grounded belief that her husband Sofio Polborosa was

already dead. It said that under Article 41 of the

Family Code, the present spouse is burdened to prove

that her spouse has been absent and that she has a

well-founded belief that the absent spouse is already

dead before the present spouse may contract a

subsequent marriage. This belief, the RTC said, must

be the result of proper and honest-to-goodness

inquiries and efforts to ascertain the whereabouts of

the absent spouse.

The RTC found that, by petitioners own admission,

she did not try to find her husband anymore in light of
http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn1http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn2http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn3http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn4http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn5http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn1http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn2http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn3http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn4http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn5


5/89

their mutual agreement to live separately. Likewise,

petitioners daughter testified that her mother

prevented her from looking for her father. The RTC

also said there is a strong possibility that Sofio is still

alive, considering that he would have been only 61years old by then, and people who have reached their

60s have not become increasingly low in health and

spirits, and, even assuming as true petitioners

testimony that Sofio was a chain smoker and a

drunkard, there is no evidence that he continues to

drink and smoke until now.

Petitioner filed a motion for reconsideration.[6] She

argued that it is the Civil Code that applies in this case

and not the Family Code since petitioners marriage toSofio was celebrated on January 11, 1971, long before

the Family Code took effect. Petitioner further argued

that she had acquired a vested right under the

provisions of the Civil Code and the stricter provisions

of the Family Code should not be applied against her

because Title XIV of the Civil Code, where Articles 384

and 390 on declaration of absence and presumption of

death, respectively, can be found, was not expressly

repealed by the Family Code. To apply the stricterprovisions of the Family Code will impair the rights

petitioner had acquired under the Civil Code.

The RTC denied the Motion for Reconsideration in a

Resolution dated December 10, 2007.[7]

Petitioner now comes before this Court seeking the

reversal of the RTC Decision and Motion for

Reconsideration.

In its Manifestation and Motion,[8] the Office of the

Solicitor General (OSG) recommended that the Court

set aside the assailed RTC Decision and grant the

Petition to declare Sofio presumptively dead. The OSG

argues that the requirement of well-founded belief

under Article 41 of the Family Code is not applicable to

the instant case. It said that petitioner could not be

expected to comply with this requirement because it

was not yet in existence during her marriage to Virgilio

Reyes in 1985. The OSG further argues that before the

effectivity of the Family Code, petitioner alreadyacquired a vested right as to the validity of her

marriage to Virgilio Reyes based on the presumed

death of Sofio under the Civil Code. This vested right

and the presumption of Sofios death, the OSG posits,

could not be affected by the obligations created under

the Family Code.[9]

Next, the OSG contends that Article 390 of the Civil

Code was not repealed by Article 41 of the Family

Code.[10] Title XIV of the Civil Code, the OSG said, was

not one of those expressly repealed by the Family

Code. Moreover, Article 256 of the Family Code

provides that its provisions shall not be retroactively

applied if they will prejudice or impair vested or

acquired rights.[11]
http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn6http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn7http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn8http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn9http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn10http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn11http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn6http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn7http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn8http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn9http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn10http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn11


6/89

The RTC Decision, insofar as it dismissed the Petition,

is affirmed. However, we must state that we are

denying the Petition on grounds different from those

cited in the RTC Decision.

Initially, we discuss a procedural issue. Under the

Rules of Court, a party may directly appeal to this

Court from a decision of the trial court only on pure

questions of law. A question of law lies, on one hand,

when the doubt or difference arises as to what the law

is on a certain set of facts; on the other hand, a

question of fact exists when the doubt or difference

arises as to the truth or falsehood of the alleged facts.

Here, the facts are not disputed; the controversy

merely relates to the correct application of the law orjurisprudence to the undisputed facts.[12]

The RTC erred in applying the provisions of the

Family Code and holding that petitioner needed to

prove a well-founded belief that Sofio was already

dead. The RTC applied Article 41 of the Family Code,

to wit:

Art. 41. A marriage contracted by any person

during subsistence of a previous marriage shall be nulland void, unless before the celebration of the

subsequent marriage, the prior spouse had been

absent for four consecutive years and the spouse

present has a well-founded belief that the absent

spouse was already dead. In case of disappearance

where there is danger 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 of contracting a subsequent

marriage under the preceding paragraph, the spouse

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 reappearance of the absent spouse.

It is readily apparent, however, that the marriages of

petitioner to Sofio and Virgilio on January 11, 1971 and

June 20, 1985, respectively, were both celebrated

under the auspices of the Civil Code.

The pertinent provision of the Civil Code is Article 83:

Art. 83. Any marriage subsequently contracted

by any person during the lifetime of the first spouse of

such person with any person other than such first

spouse shall be illegal and void from its performance,

unless:

(1) The first marriage was annulled or

dissolved; or

(2) The first spouse had been absent for seven

consecutive years at the time of the second marriage

without the spouse present having news of the

absentee being alive, of if the absentee, though he has

been absent for less than seven years, is generally

considered as dead and believed to be so by the

spouse present at the time of contracting such
http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn12http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn12


7/89

subsequent marriage, or if the absentee is presumed

dead according to Articles 390 and 391. The marriage

so contracted shall be valid in any of the three cases

until declared null and void by a competent court.

Article 390 of the Civil Code states:

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.

The absentee shall not be presumed dead for the

purpose of opening his succession till after an absence

of ten years. If he disappeared after the age of

seventy-five years, an absence of five years shall be

sufficient in order that his succession may be opened.

The Court, on several occasions, had interpreted the

above-quoted provision in this wise:

For the purposes of the civil marriage law, it is not

necessary to have the former spouse judicially

declared an absentee. The declaration of absence

made in accordance with the provisions of the Civil

Code has for its sole purpose to enable the taking of

the necessary precautions for the administration of the

estate of the absentee. For the celebration of civil

marriage, however, the law only requires that the

former spouse has been absent for seven consecutive

years at the time of the second marriage, that the

spouse present does not know his or her former

spouse to be living, that such former spouse isgenerally reputed to be dead and the spouse present

so believes at the time of the celebration of the

marriage.[13]

Further, the Court explained that presumption of

death cannot be the subject of court proceedings

independent of the settlement of the absentees

estate.

In re Szatraw[14]

is instructive. In that case, petitionercontracted marriage with a Polish national in 1937.

They lived together as husband and wife for three

years. Sometime in 1940, the husband, on the pretext

of visiting some friends, left the conjugal abode with

their child and never returned. After inquiring from

friends, petitioner found that her husband went

to Shanghai, China. However, friends who came

from Shanghai told her that the husband was not seen

there. In 1948, petitioner filed a petition for the

declaration of presumptive death of her husband

arguing that since the latter had been absent for more

than seven years and she had not heard any news

from him and about her child, she believes that he is

dead. In deciding the case, the Court said:

The petition is not for the settlement of the estate of

Nicolai Szatraw, because it does not appear that he
http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn13http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn14http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn13http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn14


8/89

possessed property brought to the marriage and

because he had acquired no property during his

married life with the petitioner. The rule invoked by

the latter is merely one of evidence which permits the

court to presume that a person is dead after the factthat such person had been unheard from in seven

years had been established. This presumption may

arise and be invoked and made in a case, either in an

action or in a special proceeding, which is tried or

heard by, and submitted for decision to, a competent

court. Independently of such an action or special

proceeding, the presumption of death cannot be

invoked, nor can it be made the subject of an

action or special proceeding. In this case, there is

no right to be enforced nor is there a remedy prayed

for by the petitioner against her absent husband.

Neither is there a prayer for the final determination of

his right or status or for the ascertainment of a

particular fact (Hagans v. Wislizenus, 42 Phil. 880), for

the petition does not pray for a declaration that the

petitioner's husband is dead, but merely asks for a

declaration that he be presumed dead because he had

been unheard from in seven years. If there is any

pretense at securing a declaration that the petitioner'shusband is dead, such a pretension cannot be granted

because it is unauthorized. The petition is for a

declaration that the petitioner's husband is

presumptively dead. But this declaration, even if

judicially made, would not improve the petitioner's

situation, because such a presumption is already

established by law. A judicial pronouncement to

that effect, even if final and executory, would

still be a prima facie presumption only. It is still

disputable. It is for that reason that it cannot be

the subject of a judicial pronouncement or

declaration, if it is the only question or matterinvolved in a case, or upon which a competent

court has to pass. The latter must decide finally the

controversy between the parties, or determine finally

the right or status of a party or establish finally a

particular fact, out of which certain rights and

obligations arise or may arise; and once such

controversy is decided by a final judgment, or such

right or status determined, or such particular fact

established, by a final decree, then the judgment on

the subject of the controversy, or the decree upon the

right or status of a party or upon the existence of a

particular fact, becomes res judicata, subject to no

collateral attack, except in a few rare instances

especially provided by law. It is, therefore, clear that a

judicial declaration that a person is

presumptively dead, because he had been

unheard from in seven years, being a

presumptionjuris tantum only, subject to

contrary proof, cannot reach the stage of finalityor become final. Proof of actual death of the person

presumed dead because he had been unheard from in

seven years, would have to be made in another

proceeding to have such particular fact finally

determined. If a judicial decree declaring a person

presumptively dead, because he had not been heard

from in seven years, cannot become final and


9/89

executory even after the lapse of the reglementary

period within which an appeal may be taken, for such

presumption is still disputable and remains subject to

contrary proof, then a petition for such a declaration is

useless, unnecessary, superfluous and of no benefit tothe petitioner.[15]

In Lukban v. Republic,[16] petitioner Lourdes G. Lukban

contracted marriage with Francisco Chuidian on

December 10, 1933. A few days later, on December

27, Francisco left Lourdes after a violent quarrel. She

did not hear from him after that day. Her diligent

search, inquiries from his parents and friends, and

search in his last known address, proved futile.

Believing her husband was already dead since he hadbeen absent for more than twenty years, petitioner

filed a petition in 1956 for a declaration that she is a

widow of her husband who is presumed to be dead and

has no legal impediment to contract a subsequent

marriage. On the other hand, the antecedents in Gue

v. Republic[17] are similar to Szatraw. On January 5,

1946, Angelina Gues husband left Manila where they

were residing and went to Shanghai, China. From that

day on, he had not been heard of, had not written to

her, nor in anyway communicated with her as to his

whereabouts. Despite her efforts and diligence, she

failed to locate him. After 11 years, she asked the

court for a declaration of the presumption of death of

Willian Gue, pursuant to the provisions of Article 390 of

the Civil Code of thePhilippines.

In both cases, the Court reiterated its ruling

in Szatraw. It held that a petition for judicial

declaration that petitioner's husband is presumed to

be dead cannot be entertained because it is not

authorized by law.[18]

From the foregoing, it can be gleaned that, under the

Civil Code, the presumption of death is established by

law[19] and no court declaration is needed for the

presumption to arise. Since death is presumed to have

taken place by the seventh year of absence,[20] Sofio is

to be presumed dead starting October 1982.

Consequently, at the time of petitioners marriage to

Virgilio, there existed no impediment to petitionerscapacity to marry, and the marriage is valid under

paragraph 2 of Article 83 of the Civil Code.

Further, considering that it is the Civil Code that

applies, proof of well-founded belief is not required.

Petitioner could not have been expected to comply

with this requirement since the Family Code was not

yet in effect at the time of her marriage to Virgilio. The

enactment of the Family Code in 1988 does not

change this conclusion. The Family Code itself states:

Art. 256. This Code shall have retroactive

effect insofar as it does not prejudice or impair vested

or acquired rights in accordance with the Civil Code or

other laws.

To retroactively apply the provisions of the Family

Code requiring petitioner to exhibit well-founded
http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn15http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn16http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn17http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn18http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn19http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn20http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn15http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn16http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn17http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn18http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn19http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/180863.htm#_ftn20


10/89

belief will, ultimately, result in the invalidation of her

second marriage, which was valid at the time it was

celebrated. Such a situation would be untenable and

would go against the objectives that the Family Code

wishes to achieve.

In sum, we hold that the Petition must be

dismissed since no decree on the presumption of

Sofios death can be granted under the Civil Code, the

same presumption having arisen by operation of law.

However, we declare that petitioner was capacitated

to marry Virgilio at the time their marriage was

celebrated in 1985 and, therefore, the said marriage is

legal and valid.

WHEREFORE, the foregoing premises considered, the

Petition is DENIED.

SO ORDERED.

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

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

SECOND DIVISION

JOSEPH CUA, G.R. No.156536

Petitioner,

Present:

PUNO,J.,Chairperson,

SANDOVAL-

GUTIERREZ,

- versus - CORONA,AZCUNA, and

GARCIA,JJ.

Promulgate

d:

GLORIA A. VARGAS, AURORAVARGAS, RAMON

VARGAS, October 31, 2006MARITES VARGAS, EDELINAVARGAS AND GEMMA VARGAS,

Respondents.

x

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

---------------------- x

DECISION

AZCUNA,J.:


11/89

This is a petition for review under Rule 45 of

the Rules of Court seeking the reversal of the

decision[1] dated March 26, 2002, and the

resolution[2] dated December 17, 2002, of the Court of

Appeals in CA-G.R. SP No. 59869 entitled Gloria A.

Vargas, Aurora Vargas, Ramon

Vargas, Marites Vargas, Edelina Vargas

and Gemma Vargas v. Joseph Cua.

The facts are as follows:

A parcel of residential land with an area of 99

square meters located in San

Juan, Virac, Catanduanes was left behind by the

latePaulina Vargas. On February 4, 1994, a notarized

Extra Judicial Settlement Among Heirs was executedby and among Paulina Vargas heirs, namely Ester

Vargas, Visitacion Vargas, Juan

Vargas, Zenaida V. Matienzo, Rosario V. Forteza,

Andres Vargas, Gloria Vargas,Antonina Vargas

and Florentino Vargas, partitioning and adjudicating

unto themselves the lot in question, each one of them

getting a share of 11 square meters. Florentino,

Andres, Antonina and Gloria, however, did not sign

the document. Only Ester, Visitacion,

Juan, Zenaida and Rosario signed it. The Extra

Judicial Settlement Among Heirs was published in

the Catanduanes Tribune for three consecutive weeks.[3]

On November 15, 1994, an Extra JudicialSettlement Among Heirs with Sale[4] was again

executed by and among the same heirs over the same

property and also with the same sharings. Once more,

only Ester, Visitacion, Juan, Zenaida and Rosario

signed the document and their respective shares

totaling 55 square meters were sold to Joseph Cua,

petitioner herein.

According to Gloria Vargas, the widow of

Santiago Vargas and one of respondents herein, she

came to know of the Extra Judicial Settlement Among

Heirs with Sale dated November 16, 1994 only when
http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn1http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn2http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn3http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn4http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn1http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn2http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn3http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn4


12/89

the original house built on the lot was being

demolished sometime in May 1995.[5] She likewise

claimed she was unaware that an earlier Extra Judicial

Settlement Among Heirs dated February 4,

1994 involving the same property had been published

in the Catanduanes Tribune.[6]

After knowing of the sale of the 55 square

meters to petitioner, Gloria Vargas tried to redeem the

property, with the following letter[7]

sent to petitioneron her behalf:

29th June 1995

Mr. Joseph Cua

Capilihan, Virac, Catanduanes

Sir:

This is in behalf of my client, Ms. AuroraVargas,[8] (c/o Atty. Prospero V. Tablizo) one ofthe lawful heirs of the late Paulina Vargas,

original owner of Lot No. 214of Virac, Poblacion covered by ARP No. 031-

0031 in her name.

I understand that a document Extra Judicial

Settlement Among Heirs with Sale was

executed by some of my clients co-heirs andalleged representatives of other co-heirs, by

virtue of which document you acquired by

purchase from the signatories to the said

document, five (5) shares with a total area offifty-five square meters of the above-describedland.

This is to serve you notice that my client shall

exercise her right of legal redemption of said five

(5) shares as well as other shares which you maylikewise have acquired by purchase. And you are

hereby given an option to agree to legalredemption within a period of fifteen (15) days

from your receipt hereof.

Should you fail to convey to me your agreement

within said 15-day-period, proper legal actionshall be taken by my client to redeem said shares.

Thank you.

Very truly yours,(Sgd.)

JUAN G. ATENCIA

When the offer to redeem was refused and after

having failed to reach an amicable settlement at the

barangay level,[9] Gloria Vargas filed a case for

annulment of Extra Judicial Settlement and Legal
http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn5http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn6http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn7http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn8http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn9http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn5http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn6http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn7http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn8http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn9


13/89

Redemption of the lot with the Municipal Trial Court

(MTC) of Virac, Catanduanes against petitioner and

consigned the amount of P100,000 which is the

amount of the purchase with the Clerk of Court on

May 20, 1996.[10] Joining her in the action were her

children with Santiago, namely, Aurora,

Ramon, Marites, Edelina andGemma, all surnamed

Vargas.

Subsequently, Carlos Gianan, Jr. andGloria Arcilla, heirs of the alleged primitive owner of

the lot in question, Pedro Lakandula, intervened in the

case.[11]

Respondents claimed that as co-owners of the

property, they may be subrogated to the rights of the

purchaser by reimbursing him the price of the sale.

They likewise alleged that the 30-day period

following a written notice by the vendors to their co-

owners for them to exercise the right of redemption of

the property had not yet set in as no written notice

was sent to them. In effect, they claimed that the Extra

Judicial Settlement Among Heirs and the Extra

Judicial Settlement Among Heirs with Sale were null

and void and had no legal and binding effect on them.[12]

After trial on the merits, the MTC rendered a

decision[13] in favor of petitioner, dismissing the

complaint as well as the complaint-in-intervention for

lack of merit, and declaring the Deed of Extra Judicial

Settlement Among Heirs with Sale valid and binding.The MTC upheld the sale to petitioner because the

transaction purportedly occurred after the partition of

the property among the co-owner heirs. The MTC

opined that the other heirs could validly dispose of

their respective shares. Moreover, the MTC found that

although there was a failure to strictly comply with

the requirements under Article 1088 of the Civil

Code[14] for a written notice of sale to be served upon

respondents by the vendors prior to the exercise of the

formers right of redemption, this deficiency was

cured by respondents actual knowledge of the sale,

which was more than 30 days before the filing of their
http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn10http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn11http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn12http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn13http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn14http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn10http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn11http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn12http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn13http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn14


14/89

complaint, and their consignation of the purchase

price with the Clerk of Court, so that the latter action

came too late. Finally, the MTC ruled that

respondents failed to establish by competent proof

petitioners bad faith in purchasing the portion of the

property owned by respondents co-heirs.[15]

On appeal, the Regional Trial Court (RTC),

Branch 42, of Virac, Catanduanes affirmed the MTC

decision in a judgment dated November 25, 1999. Thematter was thereafter raised to the Court of Appeals

(CA).

The CA reversed the ruling of both lower courts

in the assailed decision dated March 26, 2002,

declaring that the Extra Judicial Settlement Among

Heirs and the Extra Judicial Settlement Among Heirs

with Sale, dated February 4, 1994 and November 15,

1994, respectively, were void and without any legal

effect. The CA held that, pursuant to Section 1, Rule

74 of the Rules of Court,[16] 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.

His motion for reconsideration having been

denied, petitioner filed the present petition for review.

The issues are:

Whether heirs are deemed

constructively notified and bound,regardless of their failure to participate

therein, by an extrajudicial settlement and

partition of estate when the extrajudicialsettlement and partition has been duly

published; and,

Assuming a published extrajudicial

settlement and partition does not bindpersons who did not participate therein,whether the written notice required to be

served by an heir to his co-heirs in

connection with the sale of hereditaryrights to a stranger before partition under

Article 1088 of the Civil Code[17] can be

dispensed with when such co-heirs have
http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn15http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn16http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn16http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn17http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn15http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn16http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn17


15/89

actual knowledge of the sale such that the30-day period within which a co-heir can

exercise the right to be subrogated to the

rights of a purchaser shall commence

from the date of actual knowledge of thesale.

Petitioner argues, as follows:

Firstly, the acquisition by petitioner of the

subject property subsequent to the extrajudicialpartition was valid because the partition was duly

published. The publication of the same constitutes due

notice to respondents and signifies their implied

acquiescence thereon. Respondents are therefore

estopped from denying the validity of the partition

and sale at this late stage. Considering that the

partition was valid, respondents no longer have the

right to redeem the property.

Secondly, petitioner is a possessor and builder

in good faith.

Thirdly, the MTC had no jurisdiction over the

complaint because its subject matter was incapable of

pecuniary estimation. The complaint should have

been filed with the RTC.

Fourthly, there was a non-joinder of

indispensable parties, the co-heirs who sold theirinterest in the subject property not having been

impleaded by respondents.

Fifthly, the appeal to the CA should have been

dismissed as it was not properly verified by

respondents. Gloria Vargas failed to indicate that she

was authorized to represent the other respondents

(petitioners therein) to initiate the petition. Moreover,

the verification was inadequate because it did not state

the basis of the alleged truth and/or correctness of the

material allegations in the petition.


16/89

The petition lacks merit.

The procedure outlined in Section 1 of Rule 74

is an ex parteproceeding. The rule plainly states,

however, that persons who do not participate or had

no notice of an extrajudicial settlement will not be

bound thereby.[18] 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 ofextrajudicial settlement and partition), and not after

such an agreement has already been executed[19] 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 decedents 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.

This is not to say, though, that respondents co-

heirs cannot validly sell their hereditary rights to third

persons even before the partition of the estate. The

heirs who actually participated in the execution of the

extrajudicial settlements, which included the sale to

petitioner of theirpro indiviso shares in the subject

property, are bound by the same. Nevertheless,

respondents are given the right to redeem these shares

pursuant to Article 1088 of the Civil Code. The right

to redeem was never lost because respondents were

never notified in writing of the actual sale by their co-
http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn18http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn19http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn18http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn19


17/89

heirs. Based on the provision, there is a need for

written notice to start the period of redemption, thus:

Should any of the heirs sell hishereditary rights to a stranger before the

partition, any or all of the co-heirs may besubrogated to the rights of the purchaser by

reimbursing him for the price of thesale, provided they do so within the period ofone month from the time they were notified

in writing of the sale by the

vendor. (Emphasis supplied.)

It bears emphasis that the period of one month

shall be reckoned from the time that a co-heir is

notified in writing by the vendor of the actual

sale. Written notice is indispensable and mandatory,[20] actual knowledge of the sale acquired in some

other manner by the redemptioner notwithstanding. It

cannot be counted from the time advance notice isgiven of an impending or contemplated sale. The law

gives the co-heir thirty days from the time written

notice of the actual sale within which to make up his

or her mind and decide to repurchase or effect the

redemption.[21]

Though the Code does not prescribe any

particular form of written notice nor any distinctivemethod for written notification of redemption, the

method of notification remains exclusive, there being

no alternative provided by law.[22] This proceeds from

the very purpose of Article 1088, which is to keep

strangers to the family out of a joint ownership, if, as

is often the case, the presence of outsiders be

undesirable and the other heir or heirs be willing and

in a position to repurchase the share sold.[23]

It should be kept in mind that the obligation to

serve written notice devolves upon the vendor co-

heirs because the latter are in the best position to

know the other co-owners who, under the law, must

be notified of the sale.[24] This will remove all

uncertainty as to the fact of the sale, its terms and its

perfection and validity, and quiet any doubt that the

alienation is not definitive.[25] As a result, the party
http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn20http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn21http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn22http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn23http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn24http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn25http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn20http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn21http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn22http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn23http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn24http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn25


18/89

notified need not entertain doubt that the seller may

still contest the alienation. [26]

Considering, therefore, that respondents co-

heirs failed to comply with this requirement, there is

no legal impediment to allowing respondents to

redeem the shares sold to petitioner given

the formers obvious willingness and capacity to do

so.

Likewise untenable is petitioners contention

that he is a builder in good faith. Good faith consists

in the belief of the builder that the land the latter is

building on is ones own without knowledge of any

defect or flaw in ones title.[27] Petitioner derived his

title from the Extra Judicial Settlement Among Heirs

With Sale dated November 15, 1994. He was verymuch aware that not all of the heirs participated

therein as it was evident on the face of the document

itself. Because the property had not yet been

partitioned in accordance with the Rules of Court, no

particular portion of the property could have been

identified as yet and delineated as the object of the

sale. This is because the alienation made by

respondents co-heirs was limited to the portion which

may be allotted to them in the division upon the

termination of the co-ownership. Despite this glaring

fact, and over the protests of respondents, petitioner

still constructed improvements on the property. For

this reason, his claim of good faith lacks credence.

As to the issue of lack of jurisdiction, petitioneris estopped from raising the same for the first time on

appeal. Petitioner actively participated in the

proceedings below and sought affirmative ruling from

the lower courts to uphold the validity of the sale to

him of a portion of the subject property embodied in

the extrajudicial settlement among heirs. Having

failed to seasonably raise this defense, he cannot,

under the peculiar circumstances of this case, be

permitted to challenge the jurisdiction of the lower

court at this late stage.While it is a rule that a

jurisdictional question may be raised at any time, an
http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn26http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn27http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn26http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn27


19/89

exception arises where estoppel has already

supervened.

Estoppel sets in when a party participates in all

stages of a case before challenging the jurisdiction of

the lower court. One cannot belatedly reject or

repudiate its decision after voluntarily submitting to

its jurisdiction, just to secure affirmative relief against

one's opponent or after failing to obtain such relief.

The Court has, time and again, frowned upon the

undesirable practice of a party submitting a case fordecision and then accepting the judgment, only if

favorable, and attacking it for lack of jurisdiction

when adverse.[28]

Petitioners fourth argument, that there is a non-

joinder of indispensable parties, similarly lacks

merit. An indispensable party is a 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.[29] The party's interest in the

subject matter of the suit and in the relief sought is so

inextricably intertwined with the other parties that

the formers legal presence as a party to the

proceeding is an absolute necessity. Hence, an

indispensable party is one whose interest will be

directly affected by the court's action in the litigation.

In the absence of such indispensable party, there

cannot be a resolution of the controversy before the

court which is effective, complete, or equitable.[30]

In relation to this, it must be kept in mind that

the complaint filed by respondents ultimately prayedthat they be allowed to redeem the shares in the

property sold by their co-heirs. Significantly, the right

of the other heirs to sell their undivided share in the

property to petitioner is not in dispute. Respondents

concede that the other heirs acted within their

hereditary rights in doing so to the effect that the latter

completely and effectively relinquished their interests

in the property in favor of petitioner. Petitioner

thus stepped into the shoes of the other heirs to

become a co-owner of the property with respondents.

As a result, only petitioners presence is absolutely
http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn28http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn29http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn30http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn28http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn29http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn30


20/89

required for a complete and final determination of the

controversy because what respondents seek is to be

subrogated to his rights as a purchaser.

Finally, petitioner contends that the petition

filed by respondents with the CA should have been

dismissed because the verification and certificate of

non-forum shopping appended to it were defective,

citing specifically the failure of respondent Gloria

Vargas to: (1) indicate that she was authorized to

represent her co-respondents in the petition, and (2)state the basis of the alleged truth of the allegations.

The general rule is that the certificate of non-

forum shopping must be signed by all the plaintiffs or

petitioners in a case and the signature of only one of

them is insufficient.[31] Nevertheless, the rules on

forum shopping, which were designed to promote and

facilitate the orderly administration of justice, should

not be interpreted with such absolute literalness as to

subvert their own ultimate and legitimate objective.

Strict compliance with the provisions regarding the

certificate of non-forum shopping merely underscores

its mandatory nature in that the certification cannot be

altogether dispensed with or its requirements

completely disregarded.[32] Under justifiable

circumstances, the Court has relaxed the rule

requiring the submission of such certification

considering that although it is obligatory, it is not

jurisdictional.[33]

Thus, when all the petitioners share a common

interest and invoke a common cause of action or

defense, the signature of only one of them in the

certification against forum shopping substantially

complies with the rules.[34] The co-respondents of

respondent Gloria Vargas in this case were her

children. In order not to defeat the ends of justice, the

Court deems it sufficient that she signed the petitionon their behalf and as their representative.

WHEREFORE, the petition is DENIED for

lack of merit. Costs against petitioner.
http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn31http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn32http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn33http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn34http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn31http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn32http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn33http://sc.judiciary.gov.ph/jurisprudence/2006/october2006/156536.htm#_ftn34


21/89

SO ORDERED.

SECOND DIVISION

[G.R. No. 118680. March 5, 2001]

MARIA ELENA RODRIGUEZ

PEDROSA,petitioner, vs. THE HON.

COURT OF APPEALS, JOSE, CARMEN,

MERCEDES & RAMON, all surnamedRODRIGUEZ, ROSALINA

RODRIGUEZ, CHAN LUNG FAI, MATEO

TAN TE, TE ENG SUY, LORETA TE,

VICTORIO S. DETALIA, JEROME

DEIPARINE, PETRONILO S. DETALIA,

HUBERT CHIU YULO, PATERIO N. LAO,

LORENSITA M. PADILLA,

IMMACULATE CONCEPCION

COLLEGE AND LILIAN EXPRESS, INC.

and TIO TUAN, respondents.

D E C I S I O N

QUISUMBING, J.:

This petition assails the decision of the Court of Appealsdated May 23, 1994 which affirmed the judgment of the

Regional Trial Court, Branch 15, of Ozamiz City in Civil Case

No. OZ-1397.

The facts of this case are as follows:

On April 8, 1946, the spouses Miguel Rodriguez andRosalina J. de Rodriguez initiated proceedings before the CFI

of Ozamiz City for the legal adoption of herein petitioner,Maria Elena Rodriguez Pedrosa. On August 1, 1946, the CFI

granted the petition and declared petitioner Pedrosa the adopted

child of Miguel and Rosalina.

On April 29, 1972, Miguel died intestate. Thereafter,

petitioner and Rosalina entered into an extrajudicial settlement

of Miguels estate, adjudicating between themselves in equalproportion the estate of Miguel.

On November 21, 1972, private respondents filed anaction to annul the adoption of petitioner before the CFI of

Ozamiz City, with petitioner and herein respondent Rosalina asdefendants docketed as OZ 349.

On August 28, 1974, the CFI denied the petition andupheld the validity of the adoption. Thereafter, the private

respondents appealed said decision to the Court of Appeals.

On March 11, 1983, while said appeal was pending, theRodriguezes entered into an extrajudicial settlement with

respondent Rosalina for the partition of the estate of Migueland of another sister, Pilar. Rosalina acted as the

representative of the heirs of Miguel Rodriguez. Pilar had no

heirs except his brothers and sisters.

The Deed of Extrajudicial Settlement and Partition

covered fourteen parcels of land covering a total area of


22/89

224,883 square meters. These properties were divided amongJose, Carmen, Mercedes, Ramon and the heirs of Miguel,

represented solely by Rosalina. The heirs of Miguel were

given 226 square meters of parcel 2, and 9,567 square metersand 24,457 square meters of parcels 7 and 9, respectively.[1] The total land area allocated to the heirs of Miguel was34,250 square meters.

Armed with the Deed of Extrajudicial Settlement andPartition, respondents Rodriguezes were able to secure new

Transfer Certificates of Title (TCTs) and were able to transfer

some parcels to the other respondents herein. [2]

Lots 504-A-6, 504-B-3 and 504-C-4, portions of Parcel 3,

designated as Lot 504, were transferred to respondents ChuanLung Fai,[3]but not included in the Deed of Settlement and

Partition, were transferred to respondent Lilian Express, Inc.

and are now registered under TCT No. T-11337. Parcel 6, Lot560, was subdivided among Ramon, Jose, Carmen and

Mercedes and was designated as Lots 560-A, 560-B, 560-C,560-D and 560-E. Lot 560-A covering 500 square meters was

transferred to respondent Victorino Detall[4] and wassubsequently transferred to Jerome Deiparine who registered it

under his name under TCT No. T-10706. Lot 560-B with 500

square meters was transferred to respondent PetroniloDetalla[5] and was later transferred to respondent Hubert Chiu

Yulo who registered it under his name under TCT No. T-11305. Lot 560-C was transferred and registered under the

name of respondent Paterio Lao with TCT No. T-10206. Lot

560-D was sold to and subsequently registered in the name ofLorensita M. Padilla under TCT No. T-10207. The remaining

portion, Lot 560-E consisting of 43,608 square meters wasbought by respondent Immaculate Concepcion College and

was registered in its name under TCT No. T-10208.[6]

On June 19, 1986, the parties in the appeal which sought toannul the adoption of petitioner Pedrosa filed a joint Motion to

Dismiss. On June 25, 1986, the Court of Appeals dismissed

the appeal but upheld the validity of the adoption of petitioner.

Thereafter, petitioner sent her daughter, Loreto Jocelyn, toclaim their share of the properties from the Rodriguezes. Thelatter refused saying that Maria Elena and Loreto were not

heirs since they were not their blood relatives.

Petitioner, then, filed a complaint to annul the 1983

partition. The said complaint was filed on January 28,

1987. Said complaint was later amended on March 25, 1987 toinclude the allegation that earnest efforts toward a

compromise were made between the plaintiffs and thedefendants, but the same failed.[7]

The Regional Trial Court dismissed the complaint.

Petitioner appealed to the Court of Appeals. The appellatecourt affirmed the decision of the trial court. Its ruling was

premised on the following grounds:[8]

1) that the participation of Rosalina has already estoppedher from questioning the validity of the partition, andsince she is already estopped, it naturally follows thatMaria Elena, her successor-in-interest, is likewiseestopped, applying Article 1439 of the Civil Code;

2) that the appeal of Maria Elena and her claim that thepartition is null and void is weakened by herinconsistent claim that the partition would have beenalright had she been given a more equitable share;

3) the action is essentially an action for rescission and hadbeen filed late considering that it was filed beyond the 4year period provided for in Article 1100 of the Civil

Code;[9]
http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn1http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn2http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn3http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn3http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn3http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn4http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn5http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn6http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn6http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn7http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn8http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn9http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn1http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn2http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn3http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn4http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn5http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn6http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn7http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn8http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn9


23/89

4) that fraud and/or bad faith was never established.

Petitioner filed a Motion for Reconsideration, which was

denied by the Court of Appeals in a Resolution datedDecember 20, 1994.[10]

Hence, this petition wherein the petitioner asserts that thefollowing errors were allegedly committed by the Court of

Appeals in -

I. FINDING THAT THE EXTRAJUDICIALSETTLEMENT AND PARTITION ENTERED INTOBY DEFENDANT JUREDINI AND DEFENDANTS-APPELLANTS RODRIGUEZES WAS VALID ANDBINDING UPON THE PLAINTIFF-APPELLANTWHO DID NOT PARTICIPATE IN SAIDTRANSACTION

II. CONCLUDING THAT THE CLAIM OFPLAINTIFF-APPELLANT HAVE ALREADYPRESCRIBED TWO (2) YEARS AFTERPUBLICATION OF THE EXTRAJUDICIAL

SETTLEMENT AND PARTITION IN THENEWSPAPER OF GENERAL CIRCULATION

III. ...CONCLUDING THAT THE CLAIM OFPLAINTIFF-APPELLANT IS BARRED OR

ESTOPPED IN FILING THIS CASE (sic) IN VIEWOF THE DISMISSAL OF THE APPEAL IN CIVIL

CASE NO. OZ 349 INTERPOSED BY HEREINDEFENDANTS-APPELLEES WHO WERE THENPLAINTIFFS-APPELLANTS IN AC[C]-G.R. NO. SP-00208

IV. SUSTAINING THE DEFENDANT-APPELLEES CLAIM THAT AS THEY HAVE NOTAS YET RECOGNIZED PLAINTIFF-APPELLANTAS AN ADOPTED DAUGHTER OF MIGUELRODRIGUEZ IT WAS NOT NECESSARY FOR

THEM TO HAVE HER PARTICIPATE IN THEEXTRAJUDICIAL SETTLEMENT, EXHIBITS S

AND I

V. CONCLUDING THAT THE PLAINTIFF-

APPELLANT HAD NOT CONCLUSIVELY SHOWNTHAT MIGUEL RODRIGUEZ WAS A CO-OWNEROF THE LANDS SOLD AND HENCE IT FOLLOWSTHAT SHE HAS NO RIGHT OF REDEMPTION OFTHOSE LANDS

VI. FINDING THAT PORTION OF LOTS NOS. 504AND 560 SOLD TO THE OTHER DEFENDANTSAPPELLEES WERE CLEAN AND FREE FROMENCUMBRANCES OR ANY FLAWS HENCE WEREVALID

VII. FINDING THAT THE PLANTIFFAPPELLANT NEVER APPEARED IN COURT TOTESTIFY OR REBUT THE ASSERTIONS OF THEDEFENDANTSAPPELLANTS THAT THERE WASA VALID PARTITION

VIII. AWARDING PLAINTIFFAPPELLANTDAMAGES FOR THE INCOME OF HER SHARE INTHE PROPERTIES IN QUESTION[11]

In sum, the issues to be resolved in our view are (1)whether or not the complaint for annulment of the Deed of

Extrajudicial Settlement and Partition had already prescribed;(2) whether or not said deed is valid; and (3) whether or not the

petitioner is entitled to recover the lots which had already beentransferred to the respondent buyers.

Petitioner argues that the complaint for annulment of the

extrajudicial partition has not yet prescribed since theprescriptive period which should be applied is four years

following the case ofBeltran vs. Ayson, 4 SCRA 69
http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn10http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn11http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn10http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn11


24/89

(1962). She also avers that Sec. 4, Rule 74 which provides fora two-year prescriptive period needs two requirements. One,

the party assailing the partition must have been given notice,

and two, the party assailing the partition must have participatedtherein. Petitioner insists these requirements are not present in

her case,[12] since she did not participate in the Deed ofExtrajudicial Settlement and Partition. She cites Villaluz vs.

Neme, 7 SCRA 27, 30 (1963), where we held that a deed ofextrajudicial partition executed without including some of the

heirs, who had no knowledge and consent to the same, is

fraudulent. She asserts that she is an adoptive daughter andthus an heir of Miguel.[13]

Petitioner also contends that the respondent buyers werebuyers in bad faith since they failed to exercise the necessary

due diligence required before purchasing the lots in question.[14] In the alternative, petitioner wants to redeem the said lots as a co-ownerof respondent Rodriguezes under the provisions of Article 1620 of the New

Civil Code.[15]

Lastly, petitioner asserts that she will suffer lesion if the

partition would be allowed. She asks for the rescission of thesaid partitioning under Articles 165-175 of the Civil Code.[16]

Respondents, in response, claim that the action ofpetitioner had already prescribed. In addition, they argue that

petitioner, Maria Elena, and Rosalina already have their shares

in the estate of Miguel Rodriguez reflected in the compromiseagreement they entered into with the respondent Rodriguezes

in AC- G.R. SP 00208. Finally, respondents aver that the non-participation of Maria Elena in the extrajudicial partition was

understandable since her status as an adopted child was then

under litigation. In any case, they assert that the shares ofMiguels heirs were adequately protected in the said partition.[17]

Section 4, Rule 74[18] provides for a two year prescriptiveperiod (1) to persons who have participated or taken part or had

notice of the extrajudicial partition, and in addition (2) when

the provisions of Section 1[19] of Rule 74 have been strictlycomplied with, i.e., that all the persons or heirs of the decedent

have taken part in the extrajudicial settlement or arerepresented by themselves or through guardians.[20]

Petitioner, as the records confirm, did not participate in theextrajudicial partition. Patently then, the two-year prescriptive

period is not applicable in her case.

The applicable prescriptive period here is four (4) years asprovided in Gerona vs. De Guzman, 11 SCRA 153 (1964),

which held that:

[The action to annul] a deed of extrajudicialsettlement upon the ground of fraud...may be filed

within four years from the discovery of the fraud. Suchdiscovery is deemed to have taken place when said

instrument was filed with the Register of Deeds andnew certificates of title were issued in the name of

respondents exclusively.[21]

Considering that the complaint of the petitioner was filed

on January 28, 1987, or three years and ten months after thequestioned extrajudicial settlement dated March 11, 1983, was

executed, we hold that her action against the respondents onthe basis of fraud has not yet prescribed.

Section 1 of Rule 74 of the Rules of Court is the applicablerule on publication of extrajudicial settlement. It states:
http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn12http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn12http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn13http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn14http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn15http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn16http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn16http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn17http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn18http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn19http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn20http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn20http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn20http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn20http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn21http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn12http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn13http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn14http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn15http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn16http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn17http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn18http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn19http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn20http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn21


25/89

The fact of the extrajudicial settlement or administration

shall be published in a newspaper of general circulation

in the manner provided in the next succeedingsection;but no extrajudicial settlement shall be binding

upon any person who has not participated therein or hadno notice thereof.[22]

Under said provision, without the participation of allpersons involved in the proceedings, the extrajudicial

settlement cannot be binding on said persons. The rule

contemplates a notice which must be sent out orissued before the Deed of Settlement and/or Partition is agreed

upon, i.e., a notice calling all interested parties to participate inthe said deed of extrajudicial settlement and partition,

not after, which was when publication was done in the instantcase. Following Rule 74 and the ruling inBeltran vs.Ayson, since Maria Elena did not participate in the said

partition, the settlement is not binding on her.

The provision of Section 4, Rule 74 will also not apply

when the deed of extrajudicial partition is sought to be annulledon the ground of fraud. A deed of extrajudicial partition

executed without including some of the heirs, who had no

knowledge of and consent to the same, is fraudulent andvicious. [23]Maria Elena is an heir of Miguel together with her

adopting mother, Rosalina. Being the lone descendant ofMiguel, she excludes the collateral relatives of Miguel from

participating in his estate, following the provisions of Article1003 of the Civil Code.[24] The private respondent Rodriguezes

cannot claim that they were not aware of Maria Elenas

adoption since they even filed an action to annul the decree ofadoption. Neither can they claim that their actions were valid

since the adoption of Maria Elena was still being questioned at

the time they executed the deed of partition. The complaintseeking to annul the adoption was filed only twenty six (26)

years after the decree of adoption, patently a much delayed

response to prevent Maria Elena from inheriting from heradoptive parents. The decree of adoption was valid and

existing. With this factual setting, it is patent that privaterespondents executed the deed of partition in bad faith with

intent to defraud Maria Elena.

In the case ofSegura vs. Segura, the Court held:

This section [referring to section 4, Rule 74] provides in

gist that a person who has been deprived of his lawfulparticipation in the estate of the decedent, whether as

heir or as creditor, must assert his claim within two

years after the extrajudicial or summary settlement ofsuch estate under Sections 1 and 2 respectively of the

same Rule 74. Thereafter, he will be precluded fromdoing so as the right will have prescribed.

It is clear that Section 1 of Rule 74 does not apply to the

partition in question which was null and void as far as

the plaintiffs were concerned. The rule covers onlyvalid partitions. The partition in the present case was

invalid because it excluded six of the nine heirs whowere entitled to equal shares in the partitioned

property. Under the rule, no extrajudicial settlementshall be binding upon any person who has not

participated therein or had no notice thereof. As thepartition was a total nullity and did not affect the

excluded heirs, it was not correct for the trial court to
http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn22http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn22http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn23http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn23http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn24http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn22http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn23http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn24


26/89

hold that their right to challenge the partition had

prescribed after two years from its execution in 1941.[25]

To say that Maria Elena was represented by Rosalina in

the partitioning is imprecise. Maria Elena, the adopted child,was no longer a minor at the time Miguel died. Rosalina, onlyrepresented her own interests and not those of Maria

Elena. Since Miguel predeceased Pilar, a sister, his estate

automatically vested to his child and widow, in equalshares. Respondent Rodriguezes interests did not include

Miguels estate but only Pilars estate.

Could petitioner still redeem the properties from

buyers? Given the circumstances in this case, we areconstrained to hold that this is not the proper forum to decide

this issue. The properties sought to be recovered by thepetitioner are now all registered under the name of thirdparties. Well settled is the doctrine that aTorrens Title cannot

be collaterally attacked. The validity of the title can only beraised in an action expressly instituted for such purpose.[26]

Petitioner asks for the award of damages. No receipts,

agreements or any other documentary evidence was presentedto justify such claim for damages. Actual damages, to be

recoverable, must be proved with a reasonable degree ofcertainty. Courts cannot simply rely on speculation, conjecture

or guesswork in determining the fact and amount of damages.[27] The same is true for moral damages. These cannot be

awarded in the absence of any factual basis.[28] The

unsubstantiated testimony of Loreto Jocelyn Pedrosa is hearsayand has no probative value. It is settled in jurisprudence that

damages may not be awarded on the basis of hearsay evidence.[29] Nonetheless, the failure of the petitioner to substantiate her

claims for damages does not mean that she will be totally

deprived of any damages. Under the law, nominal damages areawarded, so that a plaintiffs right, which has been invaded or

violated by defendants may be vindicated and recognized.[30]

Considering that (1) technically, petitioner sustained injury

but which, unfortunately, was not adequately and properlyproved, (2) petitioner was unlawfully deprived of her legalparticipation in the partition of the estate of Miguel, her

adoptive father, (3) respondents had transferred portions of theproperties involved to third parties, and (4) this case has

dragged on for more than a decade, we find it reasonable to

grant in petitioners favor nominal damages in recognition ofthe existence of a technical injury.[31] The amount to be awarded

as such damages should at least commensurate to the injurysustained by the petitioner considering the concept and purpose

of said damages.[32]

Such award is given in view of the peculiarcircumstances cited and the special reasons extant in this case.[33] Thus, the grant of ONE HUNDRED THOUSAND

(P100,000.00) PESOS to petitioner as damages is proper inview of the technical injury she has suffered.

WHEREFORE, the petition is GRANTED. The assaileddecision of the Court of Appeals is hereby REVERSEDand

SET ASIDE. The Deed of Extrajudicial Settlement and

Partition executed by private respondents on March 11, 1983is declared invalid. The amount of P100,000.00 is hereby

awarded to petitioner as damages to be paid by privaterespondents, who are also ordered to pay the costs.

SO ORDERED.

Bellosillo (Chairman), Mendoza, Buena, andDe Leon, Jr.,JJ., concur.
http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn25http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn26http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn26http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn27http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn28http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn29http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn30http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn30http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn31http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn32http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn33http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn25http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn26http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn27http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn28http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn29http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn30http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn31http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn32http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/118680.htm#_edn33


27/89

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-23445 June 23, 1966

REMEDIOS NUGUID, petitioner and appellant,vs.FELIX NUGUID and PAZ SALONGA NUGUID, oppositors andappellees.

Custodio O. Partade for petitioner and appellant.Beltran, Beltran and Beltran for oppositors and appellees.

SANCHEZ, J.:

Rosario Nuguid, a resident of Quezon City, died on December 30,1962, single, without descendants, legitimate or illegitimate.Surviving her were her legitimate parents, Felix Nuguid and PazSalonga Nuguid, and six (6) brothers and sisters, namely:

Alfredo, Federico, Remedios, Conrado, Lourdes and Alberto, allsurnamed Nuguid.

On May 18, 1963, petitioner Remedios Nuguid filed in the Courtof First Instance of Rizal a holographic will allegedly executed by

Rosario Nuguid on November 17, 1951, some 11 years beforeher demise. Petitioner prayed that said will be admitted to probateand that letters of administration with the will annexed be issuedto her.

On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid,concededly the legitimate father and mother of the deceasedRosario Nuguid, entered their opposition to the probate of her will.Ground therefor, inter alia, is that by the institution of petitionerRemedios Nuguid as universal heir of the deceased, oppositors

who are compulsory heirs of the deceased in the directascending line were illegally preterited and that inconsequence the institution is void.

On August 29, 1963, before a hearing was had on the petition for

probate and objection thereto, oppositors moved to dismiss onthe ground of absolute preterition.

On September 6, 1963, petitioner registered her opposition to themotion to dismiss.1wph1.t

The court's order of November 8, 1963, held that "the will inquestion is a complete nullity and will perforce create intestacy ofthe estate of the deceased Rosario Nuguid" and dismissed thepetition without costs.

A motion to reconsider having been thwarted below, petitionercame to this Court on appeal.

1. Right at the outset, a procedural aspect has engaged ourattention. The case is for the probate of a will. The court's area ofinquiry is limited to an examination of, and resolution on,the extrinsicvalidity of the will. The due execution thereof, thetestatrix's testamentary capacity, and the compliance with therequisites or solemnities by law prescribed, are thequestions solelyto be presented, and to be acted upon, by thecourt. Said court at this stage of the proceedings is not calledupon to rule on the intrinsicvalidity or efficacy of the provisions ofthe will, the legality of any devise or legacy therein.1

A peculiar situation is here thrust upon us. The parties shuntedaside the question of whether or not the will should be allowedprobate. For them, the meat of the case is the intrinsic validity ofthe will. Normally, this comes only after the court has declaredthat the will has been duly authenticated.2 But petitioner andoppositors, in the court below and here on appeal, travelled onthe issue of law, to wit: Is the will intrinsically a nullity?


28/89

We pause to reflect. If the case were to be remanded for probateof the will, nothing will be gained. On the contrary, this litigationwill be protracted. And for aught that appears in the record, in theevent of probate or if the court rejects the will, probability existsthat the case will come up once again before us on the same

issue of the intrinsic validity or nullity of the will. Result: waste oftime, effort, expense, plus added anxiety. These are the practicalconsiderations that induce us to a belief that we might as wellmeet head-on the issue of the validity of the provisions of the willin question.3 After all, there exists a justiciable controversy cryingfor solution.

2. Petitioner's sole assignment of error challenges thecorrectness of the conclusion below that the will is a completenullity. This exacts from us a study of the disputed will and theapplicable statute.

Reproduced hereunder is the will:

Nov. 17, 1951

I, ROSARIO NUGUID, being of sound and disposing mind andmemory, having amassed a certain amount of property, dohereby give, devise, and bequeath all of the property which I mayhave when I die to my beloved sister Remedios Nuguid, age 34,residing with me at 38-B Iriga, Q.C. In witness whereof, I havesigned my name this seventh day of November, nineteenhundred and fifty-one.

(Sgd.) Illegible

T/ ROSARIO NUGUID

The statute we are called upon to apply in Article 854 of the CivilCode which, in part, provides:

ART. 854. The preterition or omission of one, some, or allof the compulsory heirs in the direct line, whether living atthe time of the execution of the will or born after the deathof the testator, shall annul the institution of heir; but thedevises and legacies shall be valid insofar as they are not

inofficious. ...

Except for inconsequential variation in terms, the foregoing is areproduction of Article 814 of the Civil Code of Spain of 1889,which is similarly herein copied, thus

Art. 814. The preterition of one or all of the forced heirs inthe direct line, whether living at the t

specpro full cases

Documents