The document discusses a legal case in the Philippines where Maximo Wong petitioned to change his name back to Maximo Alcala, Jr. after feeling embarrassed due to his Chinese surname in a Muslim community. The court ultimately ruled in favor of the name change, emphasizing that there was sufficient evidence of ridicule and the potential for improved social and business life. The decision illustrates the balance between statutory obligations for adopted children to use their adoptive parents' surname and an individual's right to change their name under certain circumstances.

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RULE 73 REGALADO, J.: G.R. No. 97906 May 21, 1992
REPUBLIC OF THE PHILIPPINES vs.COURT OF APPEALS and MAXIMO WONG
Petitioner seeks to set aside the judgment of respondent Court of
Appeals 1
in affirmance of the decision of the court a quo 2
granting the petition filed by herein private respondent Maximo Wong for the change of
his name to Maximo Alcala, Jr. w hich washis name prior to his adoption by Hoong Wong and Concepcion Ty Wong.
The facts are undisputed. Private respondent Maximo Wong is the legitimate son of Maximo Alcala, Sr. and Segundina Y. Alcala. When he w as but
tw o and a half years old and then know n as Maximo Alcala, Jr., and his sister Margaret Alcala, w as then nine years old, they w ere, with the consent
of their naturalparents 3
and by order of the court in Special Case No. 593 4
issued on September 9, 1967, adopted by spouses Hoong Wong and
Concepcion Ty Wong, both naturalized Filipinos. Hoong Wong, now deceased, w as an insurance agent w hile Concepcion Ty Wong w as a high
schoolteacher. They decided to adopt the children as they remained childless after fifteen yearsof marriage. The couples show ered their adopted
children w ith parental love and reared them as their ow n children.
Upon reaching the age of tw enty-tw o, herein private respondent, by then married and a junior Engineering student at Notre Dame University,
Cotabato City, filed a petition to change his name to Maximo Alcala, Jr. It w as averred that his use of the surname Wong embarrassed and isolated
him from his relatives and friends, as the same suggests a Chinese ancestry w hen in truth and in fact he is a Muslim Filipino residing in a Muslim
community, and he w ants to erase any implication w hatsoever of alien nationality; that he is being ridiculed for carrying a Chinese surname, thus
hampering his business and social life; and that his adoptive mother does not oppose his desire to revert to his former surname.
As earlier stated, on July 2, 1986, the matter w as resolved in favor of private respondent, the trial court decreeing that, the jurisdictional
requirements having been fully complied w ith, petitioner's prayer to change his name from Maximo Wong to Maximo Alcala, Jr. w as granted. 5
On
appeal to respondent court, and over the opposition of petitioner Republic through the Solicitor General, the decision of the court below w as
affirmed in full, hence, this petition for review on certiorari.
The lone issue to be settled is whether or not the reasons given by private respondent in his petitionfor change of name are valid,
sufficientand proper to warrant the grantingof said petition.
The Solicitor General contends that private respondent's allegations of ridicule and/or isolation from family and friends w ere unsubstantiated and
cannot justify the petition for change of name. He claims that for private respondent to cast aside the name of his adoptive father is crass
ingratitude to the memory of the latter and to his adoptive mother w ho is still alive, despite her consent to the petition for change of name. Further,
the Solicitor General posits that the reversion of Maximo Wong to his old name violates Articles 341 and 365 of the Civil Code, w hich requires an
adopted child to use the surname of the adopter, and w ould identify him w ith his parents by nature, thus giving the impression that he has severed
his relationship w ith his adoptive parents. 6
In refutation, private respondent argues that he did as the law required, that is, upon adoption he used the surname of the adopter. How ever, being
already emancipated, he can now decide w hat is best for and by himself. It is at this time that he realized that the Chinese name he carries causes
him undue ridicule and embarrassment and affects his businessand social life. In fact, his adoptive mother, being aw are of his predicament, gave
her consent to the petition for change of name, albeit making it clear that the same shall in no w ay affect the legal adoption, and even underw ent
the rigors of trial to substantiate her sw orn statement. If his adoptive mother does not take offense nor feel any resentment, abhorrence or
insecurity about his desire to change his name, private respondent avers that there can be no possible prejudice on her, much less the State. 7
We feelthat w e should preface our review of this case with a clear comprehension of the legal significance of a person's name. For all practical and
legal purposes, a man's name is the designation by w hich he is know n and called in the community in w hich be lives and is best know n. It is
defined as the w ord or combination of w ordsby w hich a person is distinguished from other individuals and, also, as the label or appellation w hich
he bears for the convenience of the w orld at large addressing him, of in speaking of or dealing w ith him. 8 Names are used merely as one method

2. of indicating the identity of persons; they are descriptive of persons for identification, since, the identity is the essential thing and it has frequently
been held that, w hen identity is certain, a variance in, or misspelling of, the name is immaterial. 9
The names of individuals usually have tw o parts: the given name or proper name, and the surname or family name. The given or proper name is
that w hich is given to the individual at birth or baptism, to distinguish him from other individuals. The name or family name is that w hich identifies
the family to w hich he belongs and is continued from parent to child. The given name may be freely selected by the parents for the child; but the
surname to w hich the child is entitled is fixed by law . 10
A name is said to have the follow ing characteristics: (1) It is absolute, intended to protect the individual from being confused w ith others. (2) It is
obligatory in certain respects, for nobody can be w ithout a name. (3) It is fixed, unchangeable, or immutable, at least at the star t, and may be
changed only for good cause and by judicial proceedings. (4) It is outside the commerce of man, and, therefore, inalienable and intransmissible by
act inter vivos or mortis causa. (5) It is imprescriptible. 11
Title XIII, Book I of the Civil Code, in Articles 364 to 380, provides the substantive rules w hich regulate the use of surnames. Considering the
subject and personalities involved in this present review , particular attention must be called to Article 365 w hich mandates that "(a)n adopted child
shall bear the surname of the adopter," in correlation w ith Article 341 on the effects of adoption, among w hich is to"(e)ntitle the adopted person to
use the adopter's surname." This same entitlement of an adopted child is maintained in Article 39(3), Title II of Presidential Decree No. 603,
otherw ise know n as the Child and Youth Welfare Code. More recently, Executive Order No. 209, as amended by Executive Order No. 227, or the
Family Code, echoes the same statutory right of an adopted child to use the surname of the adopter. 12
Clearly, from the very wordingsof the law , it
may be inferred that this use of the surname of the adopter by the adopted child is both an obligation and a right.
Under Article 376 by the Civil Code, "(n)o person can change his name or surname w ithout judicial authority." The application for change of name
thereunder involves a specialproceeding governed by and conducted under the strictures of Rule 103 of the Rules of Court and one w hich involves
substantialchanges, w ith the declared objective of such judicialproceedings being the prevention of fraud. The purpose of the statutory procedure
authorizing a change of personalname is simply to have, w hereverpossible, a record of the change, and in keeping w ith the object of the statute,
court to w hich application is made should normally make its decree recording such change of name. 13
A change of name is a specialproceeding to establish the status of a person involving his relation w ith others, that is, his legal position in, or w ith
regard to, the rest of the community. It is a proceeding in rem 14
and, as such, strict compliance w ith all jurisdictional requirements, particularly on
publication, is essentialin order to vest the court w ith jurisdiction thereover. 15
For this purpose, the only name that may be changed is the true or
official name recorded in the civil register. 16
To digress a little for purposes of clarification, the change of name contemplated under Article 376 and reglementarily implemented by Rule 103
must not be confused w ith and cannot be effected through the summary proceeding proposed in Article 412 of the some Code, as procedurally
regulated by Rule 108 of the Rules, w hich refers only to correction of clerical errors, such as those w hich are visible to the eye or obvious to the
understanding, or an error made by a clerk or transcriber, or a mistake in copying or w riting, or some harmless or innocuous change, 17
and not
those w hich w ill involve substantial changes. 18
Turning now to the case at bar, w e are guided by the jurisprudential dictum that the State has an interest in the names borne by individuals and
entities for the purpose of identification, and a change of name is not a matter of right but of sound judicial discretion, to be exercised in the light of
reasons adduced and the consequences that w ill likely follow ; 19
it is a privilege w hich may be granted only upon a show ing of a proper or
reasonable cause or compelling reason therefor. 20
We find unacceptable the assertion of the Solicitor General that private respondent's allegation of ridicule and embarrassment due to the use of his
present surname is unsubstantiated.
The testimony of private respondent in the low er court bears out the existence of valid cause in his bid for change of name:
ATTY. DUMAMBA:
Q Now , after adoption, w hen you went to school, what did you use as your surname?
A "Wong," sir.
Q Now , after you adopted the surname "Wong?" in your studies, w hat did you observe?
A I observed that "Wong" as a surname embarrassed me to my friends and w hen I go w ith Chinese friends I cannot talk Chinese. I am
living in Campo Muslim, a Muslim community but no one can believe that I am Muslim. I have a little business of Furniture but I have little
(sic) customer because no one believes me that I am Muslim.
Q You w ant to informthis Honorable Court that this family name you are using w hich is "Wong" embarrassed you from (sic) your friends
and relatives and also cause(d) damage to your business?
A Yes sir.
xxx xxx xxx
ATTY. DUMAMBA:
Q Now , considering that according to you, you are embarrassed because of the family name you are using, your friends shy aw ay from
you and it is a handicap in your business, w hat is your desire for the Court to do in order to help you?
A Change my family name.
Q From "Wong" to w hat do you w ant your surname changed?
A "Alcala, Jr.", sir.
xxx xxx xxx
COURT:
Q What is your purpose in changing your family name from Maximo Wong to Maximo Alcala, Jr.?
A I feel embarrassed to my friends and also to my relatives and as I said I have a little business of furniture and only a few customers
buying for the fact that they don't believe I am Muslim.
Cross.
ATTY. SERO:
With the permission of the Honorable Court.
Q Your father's name is Maximo Alcala, Sr., is he still alive?
A Yes, sir.
Q And w hat does your father sayto this proposed changed (sic) of your name, your family name to your real family name given to you?
A Yes, sir.
Q They have no objection to it?
A No, sir.
Q Stated before this Honorable Court, the purpose w hy you w anted to change your name from "Wong" to "Alcala" is so that to av oid
embarrassment because you are a Muslim and your Muslim relatives think that you are Chinese.
A Yes, sir.
Q Not for the purpose to hide anything or w hat not?
A No, sir. 21
The foregoing testimony of private respondent is materially corroborated by the testimony of private respondent's adoptive mother:
Q Now , w hat did you observe to (sic) your son Maximo Wong after you and your husband adopted him?
A When I adopted him and he used the surname "Wong" I observed that some of his relatives, cousins and friends seem to shy aw ay
from him and despise him in school that is w hy I agreed to change his name. 22
We uphold these observations in the decision of respondent appellate court:
The purpose of the law an allow ing of change of name as contemplated by the provisions of Rule 103 of the Rules of Court is to give a
person an opportunity to improve his personality and to provide his best interest. (Calderon vs. Republic, 19 SCRA 721). In granting or
denying the petition for change of name, the question of proper and reasonable cause is left to the discretion of the court. The evidence
presented need only be satisfactory to the court and not all the best evidence available is required. (Uy vs. Republic, L-22712, Nov. 25,
1965; Nacionales vs. Republic,
L-18067, April 29, 1966; both cases cited in 1 SCRA 843). In the present case, We believe that the court a quo had exercised its
discretion judiciously w hen it granted the petition.

3. From the testimony of petitioner-appellee and of his adopter mother Concepcion Ty-Wong, We discern that said appellee w as prompted
to file the petition for change of name because of the embarrassment and ridicule his family name "Wong" brings in his dealings w ith his
relatives and friends, he being a Muslim Filipino and living in a Muslim community. Another cause is his desire to improve his social and
business life. It has been held that in the absence of prejudice to the state or any individual, a sincere desire to adopt a Filipino name to
erase signs of a former alien nationality w hich only hamper(s) social and business life, is a proper and reasonable cause for change of
name (Uy vs. Republic, L-22712, Nov. 25, 1965, Que Liong Sian vs. Republic, L-23167, Aug. 17, 1967, 20 SCRA 1074). Justice dictates
that a person should be allow ed to improve his socialstanding as long as in doing so, he does not cause prejudice or injury to the interest
of the State or other persons (Calderon vs. Republic, supra). Nothing w hatsoever is shown in the record of this case that such prejudice
or injury to the interest of the state or of other persons w ould result in the change of petitioner's name. 23
It bears stressing at this point that to justify a request for change of name, petitioner must show not only some proper or compelling reason therefor
but also that he w ill be prejudiced by the use of his true and official name. 24
Among the grounds for change of name w hich have been held valid
are: (a) When the name is ridiculous, dishonorable or extremely difficult to w rite or pronounce; (b) When the change results as a legal
consequence, as in legitimation; (c) When the change w ill avoid confusion; 25
(d) Having continuously used and been know n since childhood by a
Filipino name, unaw are of her alien parentage; 26
(e) A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith
and w ithout prejudicing anybody; 27
and (f) When the surname causes embarrassment and there is no show ing that the desired change of name
w as for a fraudulent purpose or that the change of name w ould prejudice public interest. 28
In granting or denying petitions for change of name, the question of proper and reasonable cause is left to the sound discretion of the court. The
evidence presented need only be satisfactory to the court and not all the best evidence available. 29
Summarizing, in special proceedings for
change of name, w hat is involved is not a mere matter of allow ance or disallowanceof the request, but a judicious evaluation of the sufficiency and
propriety of the justifications advanced in support thereof, mindfulof the consequent results in the event of its grant and w ith the sole prerogative for
making such determination being lodged in the courts.
While it is true that the statutory fiat under Article 365 of the Civil Code is to the effect that an adopted child shall bear the surname of the adopter, it
must nevertheless be borne in mind that the change of the surname of the adopted child is more an incident rather than the object of adoption
proceedings. 30
The act of adoption fixes a status, viz., that of parent and child. More technically, it is an act by w hich relations of paternity and
affiliation are recognized as legally existing betw een persons not so related by nature. It has been defined as the taking into one's family of the child
of another as son or daughter and heir and conferring on it a title to the rights and privileges of such. The purpose of an adoption proceeding is to
effect this new status of relationship between the child and its adoptive parents, the change of name w hich frequently accompanies adoption being
more an incident than the object of the proceeding. 31
The w elfare of the child is the primary consideration in the determination of an application for
adoption. On this point, there is unanimous agreement. 32
It is the usual effect of a decree of adoption to transfer fromthe naturalparents to the adoptive parents the custody of the child's person, the duty of
obedience ow ing by the child, and all other legal consequences and incidents of the natural relation, in the same manner as if the child had been
born of such adoptive parents in law ful w edlock, subject, how ever, to such limitations and restrictions as may be by statute imposed. 33
More
specifically under the present state of our law , the Family Code, superseding the pertinent provisions of the Civil Code and of the Child and Youth
Welfare Code on the matter, 34
relevantly provides in this w ise w ith regard to the issue involved in this case:
Art. 189. Adoption shall have the follow ing effects:
(1) For civil purposes, the adopted shall be deemed to be the legitimate child of the adopters and both shall acquire the reciprocal rights
and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the
adopters; (Emphasis supplied.)
xxx xxx xxx
The Solicitor General maintains the position that to sustain the change of name w ould run counter to the behest of Article 365 of the Civil Code and
the ruling in Manuel vs. Republic35
that "one should not be allow ed to use a surname w hich otherwisehe is not permitted to employ under the law ,"
and w ould set a bad example to other persons w ho might also seek a change of their surnames on lame excuses. 36
While w e appreciate the Solicitor General's apprehensions and concern, we find the same to be unfounded. We do not believe that by reverting to
his old name, private respondent w ould then be using a name w hich he is prohibited by law fromusing. True, the law prescribes the surname that a
person may employ; but the law does not go so far as to unqualifiedly prohibit the use of any other surname, and only subjects such recourse to the
obtention of the requisite judicial sanction. What the law does not prohibit, it permits.
If w e w ere to follow the argument of the Solicitor General to its conclusion, then there w ill never be any possibility or occasion for any person,
regardless of status, to change his name, in view of the supposed subsequent violation of the legal imperative on the use of surnames in the event
that the petition is granted. Rule 103 of the Rules of Court w ould then be rendered inutile. This could hardly have been the intendment of the law .
A petition for change of name is a remedy allow ed under our law only by w ayof exception to the mandatory provisions of the Civil Code on the use
of surnames. The law fixes the surname that may be used by a person, at least inceptively, and it may be changed only upon judicial permission
granted in the exercise of sound discretion. Section 1 of Rule 103, in specifying the parties w ho may avail of said remedy, uses the generic term
"persons" to signify allnatural persons regardless of status. If a legitimate person may, under certain judicially accepted exc eptionalcircumstances,
petition the court for a change of name, w e do not see any legal basis or logic in discriminating against the availment of such a remedy by an
adopted child. In other w ords, Article 365 is not an exception, much less can it bar resort, to Rule 103.
We are of the view that the circumstances herein obtaining are w ithin the ambit of the established exceptions and find merit in private respondent's
submission:
Rule 103 of the Rules of Court has its primordial purpose w hich (State) is to give a person in opportunity to improve his personality and
provide his best interest (Calderon vs. Republic, 19 SCRA 721). In the instant case, the court a quo found the petition of Maximo Wong
for change of name justifiable after due hearing, thus its factual findings and appreciation of testimonies count heavily and need not be
disturbed unless for strong and cogent reasons because the trial court is in a better position to examine real evidence as w ell as to
observe the demeanor of the w itnesseswhile testifying in the case (Baliw ag Transit, Inc. vs. CA, 147 SCRA 82). Moreover, the trial court
could take judicial notice of other existing factors in the community w here herein respondent lives w hich it considers material in its
judicious determination of the case. . . .
Additionally, herein respondent is already of age and as such he can decide w hat is best for him. His experience w ith regards (sic) his
socialand business dealings is personal and it is only him (sic) w ho can attest to the same. Finding his predicament's proper remedy is
solely through legal process, herein respondent accordingly filed a petition pursuant to Rule 103 of the Rules of Court w hich was granted
by the Court a quo. 37
Besides, w e have faith in the circumspection of our low er courts and that, in the exercise of their discretion, said courts s hall consider petitions for
change of name only on cogent and meritorious grounds as w ould justify the granting of such applications. We do not expect our trial courts to
cater or give in to the w himor caprice of an applicant, aside fromthe fact that there is alw ays the safeguard and correctiv e interdiction of appellate
review .
It is not fair to construe the desired reversion of private respondent to the use of the name of his parents by nature as cross ingratitude. To go by
the Solicitor General's suggestion that private respondent should have his adoption revoked if he w ants to use the surname of his natural father
w ould be to exact too clear a toll for making use of an appropriate and valid remedy available under the law .
Herein private respondent, before he filed the petition for change of name, asked for his adoptive mother's permission to do so:
Q Now , in filing this petition for change of surname, you had talked w ith your adopted mother?
A Yes, sir.
Q Did you ask permission from her w hether she w ants you to change the surname?
A Yes, sir. 38
True enough, the above testimony of private respondent w as confirmed by his adoptive mother in this manner:
Q How are you related to Maximo Wong?

4. A My adopted son.
Q He is your adopted son, did your son talk to you w hen he filed this petition for change of his surname?
A Yes, he even tried to ask me and I said, alright if you w ant to change.
xxx xxx xxx
Q Now , w hen you agreed to the filing of this petition for change of name, did you reduce your consent in w riting?
A Yes, sir, I agreed also so that his business w ill prosper because
he is already Alcila and not Wong because Wong they said is Chinese. 39
As proof of her assent to the filing of said petition (her husband having already passed aw ay), Concepcion Ty Vda. de Wong ex ecuted an affidavit
in Cotabato City on May 27, 1985, w ith these textual declarations:
That I am the same and identical person, w ho is the surviving adapted (sic) parent of Maximo Wong.
That I personally discovered it myself from the time my adapted (sic) son Maximo used the surname of my late husband Wong, his
relatives and childhood friends shy aw ay from him because he is branded as a son of a chinese w hich is different from them w hose
parents are muslim Filipinos;
That I pity my son w ho is often rediculed (sic) by his friends and relatives because of his family name Wong, hence, in order not to
humper (sic) his social and business life in the future, I am voluntarily and of my ow n free w ill w ithout being forced, coerced, or
intimidated give (sic) my consent to his desire to change his desire to change his surname w ithout affecting how ever the legal adoption
granted by the Court on September 9, 1967, making him as one of my legal and compulsory heir (sic).
That I am executing this affidavit to attest to the truth of all the above mentioned facts and for all legal intent (sic) and purposes. 40
There could be no other plausible reason for private respondent to first secure has adoptive mother's consent before resorting to the questioned
legal recourse other than the parentalrespect and reverence which is ow ed by and to be expected of a dutifulchild. If private respondent w as such
an ingrate, as the Solicitor General w ould have us believe, he w ould not have bothered to seek his adoptive mother's counsel. In the same breath,
had his adoptive mother regarded him as an ungratefuladoptee, she w ould not have executed the affidavit above quoted, much less testify in his
behalf at the hearing of his petition.
Moreover, w orthyof note is the fact that private respondent's adoptive mother emphasized that she executed the above affidavit "w ithout affecting
the legal adoption granted by the Court on September 9, 1967, making him as one of my legal and compulsory heir(s)." This is incontrovertible
proof that she never entertained any misgivings or reservations w ith respect to her consent to his petition. This likew ise dispels any possible
confusion as to private respondent's legal status or adoptive paternity and his successional rights. Concordantly, w e have heretofore held that a
change of name does not define or effect a change in one's existing family relations or in the rights and duties flow ing therefrom. It does not alter
one's legal capacity, civil status or citizenship; w hat is altered is only the name. 41
WHEREFORE, the petition is DENIED and the decision of respondent Court of Appeals is hereby AFFIRMED in toto.
SO ORDERED. Narvasa, C.J., Paras, Padilla and Nocon, JJ., concur.
Makalintal, J.: May 31, 1969 G.R. No. L-22761
ROSE BUSH MALIG and JOE, THOMAS, and JOHN all surnamed BUSH, represented in this suit by their attorney-in-fact, ROSE BUSH MALIG
vs.
MARIA SANTOS BUSH
This is an appeal by the plaintiffs from two orders ofthe Court of First Instance ofManila in Civil CaseNo. 51639, the fir st dismissing the complaint and
the second denying the motion to reconsider the order ofdismissal.
On September 19, 1962 the plaintiffs filed the complaint, alleging that they were the acknowledged natural children and the o nly heirs in the direct
line of the deceased John T. Bush, having been born ofthe common-law relationship oftheir father with Apolonia Perez from 1923 up to August, 1941;
that said John T. Bush and Apolonia Perez, during the conception ofthe plaintiffs, were not suffering from any disability to marry each other; that they
lived with their alleged father during his lifetime and were considered and treated by. him as his acknowledge natural childr en; that said John T. Bush,
at the time of his death, left several real and personal properties; that the defendant, by falsely a lleging that she was the legal wife ofthe deceased
was able to secure her appointment as administratrix ofthe estate ofthe deceased in Testate Proceedings No. 29932 ofthe Co urt ofFirst Instance of
Manila; that she submitted to the court for approval a projectofpartition, purporting to show that the deceased left a willwhereby he bequeathed his
estate to three persons, namely: Maria Santos Bush, Anita S. Bush and Anna Berger; that the defendant then knew that the plai ntiffs were the
acknowledged natural children ofthe deceased; and that they discovered the fraud and misrepresentation perpetrated by the defendant only in J uly,
1962. They prayed that the project of partition be annulled; that the defendant be ordered to submit a complete inventory and accounting ofall the
properties left by the deceased and another project ofpartition adjudicating to the plaintiffs their legal participation in the said estate and/or in the
event that the defendant had disposed ofall or part ofthe estate, that she be ordered to pay them the market value thereof; and that the defendant
be ordered to pay for the value ofthe fruits received, damages and attorney’s fees.
The defendant moved to dismiss, alleging lack ofcause ofaction,res judicata and statute of limitations. The plaintiffs opposed and the defendant filed
a reply to the opposition. On January 10, 1963 the lower court denied the motion, “itappearing that the grounds upon which s aid motion is based are
not indubitable.” In time, the defendant filed her answer specifically denying all the material averments ofthe complaint and invoking laches, res
judicata and statute oflimitations as affirmative defenses.
After the issues were joined the case was set for hearing, but on the date thereofthe hearing was postponed upon the defendant’s manifestation that
she would file a written motion to dismiss. The motion, when filed, challenged the jurisdiction ofthe court, stating that si nce the action was one to
annul a project of partition duly approved by the probate court it was that court alone which could take cognizance ofthe case, citing Rule 75, Section
1, of the Rules of Court. On October 31, 1963 the lower court granted the motion and dismissed the complaint, not on the grou nd relied upon by the
defendant but because the action had prescribed. The plaintiffs moved to reconsider but were turned down; hence, this appeal.
The procedural question posed by appellants is: May the lower court dismiss an action on a ground not alleged in the motion t o dismiss?
It must be remembered that the first motion to dismiss, alleging lack ofcause ofaction, res judicata and statute oflimitat ions, was denied because
those grounds did not appear to the court to be indubitable. The second motion reiterated none of those grounds and raised only the question of
jurisdiction. In dismissing the complaint upon a ground not relied upon, the lower court in effect did so motu proprio, witho ut offering the plaintiffs a
chance to argue the point. In fact the court did not even state in its order why in its opinion the action had prescribed, and why in effect, without any
evidence or new arguments on the question, it reversed its previous ruling that the ground ofprescription was not indubitabl e.

5. In Manila Herald Publishing Co., Inc. vs. Ramos, et al., 88 Phil. 94, it was held:
Section 1 of Rule 8 enumerates the grounds upon which an action may be dismissed, and it specifically ordains that a motion t o this end be filed. In
the light of this express requirement we do not believe that the court had power to dismiss the case without the requisite motion duly presented.
The fact that the parties filed memoranda upon the court’s indication or order in which they discussed the proposition that t he action was
unnecessary and was improperly brought outside and independently ofthe case for libel did not supply the deficiency. Rule 30 ofthe Rules ofCourt
provides for the cases in which an action may be dismissed, and the inclusion of those therein provided excludes any other, u nder the familiar
maxims, inclusio unius est exclusivo ulterius. The only instance in which, according to said Rules, the court may dismiss upo n the court’s own motion
an action is, when the ‘plaintifffails to appear at the time ofthe trial or to prosecute his action for an unreasonable length oftime or to comply with
the Rules or any order of the court.
The foregoing ruling is applicable in this case, because although a motion to dismiss had been presented defendant the resolu tion ofthe court
granting the same was based upon a ground not alleged in said motion. But assuming that the lower court could properly consider the question of
prescription anew, the samestill did not appear to be indubitable on the face ofthe allegations in the complaint. The defen dant cites Article 137 of
the Civil Code, which provides that an action for acknowledgment of natural children may be commenced only during the lifetim e ofthe putative
parents, except in two instances not obtaining in this case, and that the present action was c ommenced afterthe death ofthe putative father ofthe
plaintiffs. The said provision is not of indubitable application, since the plaintiffs do not seek acknowledgment but allege as a matter offact that
they “are the acknowledged natural children and the only heirs in the directline ofthe late John T. Bush.” Whether or not this allegation is true will,
of course, depend upon the evidence to be presented at the trial.
The defendant insists in this instance on the jurisdictional ground posed in her motion to dismiss, citing Rule 75, Section 1, of the Rules of Court
formerly in force (now Rule 73, Section 1), which says:
SECTION 1. Where estate ofdeceased persons settled. –Ifthe decedent is an inhabitant ofthe Philippines at the timeofhis death, whe ther a citizen or
an alien, his will shall be proved, or letters ofadministration granted, and his estate settled, in the Court ofFirst Insta nce in the province in which he
resides at the time of his death, and ifhe is an inhabitant ofa foreign country, the Court ofFirst Instance ofany province in which he had estate. The
court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The
jurisdiction assumed by a court, so far as it depends on the place ofresidence ofthe decedent, or ofthe location ofhis estate, shall not be contested in
a suit or proceeding, except in an appeal from that court, in the original case, or when the want ofjurisdiction appears on the record.
It will be noted that the foregoing rule fixes jurisdiction for purposes ofthe special proceeding for the settlement ofthe estate ofa deceased person,
“so far as it depends on the place of residence ofthe decedent, or ofthe location ofhis estate. ” The matter really concerns venue, as the caption of
Rule cited indicates, and in order to preclude different courts which may properly assume jurisdiction from doing so, the Rul e specifies that “the court
first taking cognizance ofthe settlement ofthe estate ofa decedent, shall exercise jurisdiction to the exclusion ofall other courts.”
In the final analysis this actionis not necessarily one to annul the partition already madeand approved by the probate cour t, and to reopen the estate
proceeding so that a new partition may be made, but for recovery by the plaintiffs ofthe portion oftheir alleged inheritance ofwhich, th rough fraud,
they have been deprived. Without prejudice to whatever defenses may be available to the defendant, this Court believes that the plaintiffs’ cause
should not be foreclosed without a hearing on the merits. WHEREFORE, the orders appealed from are set aside and the case rema nded for further
proceedings. Costs against the defendant-appellee in this instance.
G.R. No. L-24742, October 26, 1973
Rosa Cayerano Cuenco vs. CA, Manuel Cuenco, Lourdes Cunco, Concepcion Cuenco Manguerra, Carmen Cuenco,
Consuelo Cuenco reyes, and Teresita cuenco Gonzalez
The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the
exclusion of all other courts
FACTS: SenatorMariano JesusCuencodiedinManila.He wassurvivedbyhiswidow andtwominor sons, residing in
Quezon City, and children of the first marriage, residing in Cebu. Lourdes, one of the children from the first
marriage,filedaPetitionforLetters of Administration with the Court of First Instance (CFI) Cebu, alleging that the
senator died intestate in Manila but a resident of Cebu with properties in Cebu and Quezon City.
The petitionstill pending with CFI Cebu, Rosa Cayetano Cuenco, the second wife, filed a petition with CFI Rizal for
the probate of the lastwill andtestament,where she wasnamedexecutrix.Rosaalsofiledanoppositionandmotion
to dismiss in CFI Cebu but this court held in abeyance resolution over the opposition until CFI Quezon shall have
acted on the probate proceedings.
Lourdesfiledanoppositionandmotiontodismiss in CFI Quezon, on ground of lack of jurisdiction and/or improper
venue,consideringthatCFICebualreadyacquiredexclusivejurisdictionoverthe case.The oppositionandmotion to
dismiss were denied. Upon appeal CA ruled in favor of Lourdes and issued a writ of prohibition to CFI Quezon.
ISSUEs: Whether or not CA erred in issuing the writ of prohibition
Whether or not CFI Quezon acted without jurisdiction or grave abuse of discretion in taking cognizance and
assumingexclusive jurisdictionoverthe probate proceedingsinpursuance toCFICebu's order expressly consenting
in deference to the precedence of probate over intestate proceedings
HELD: The Supreme CourtfoundthatCA erredin law inissuingthe writof prohibitionagainst the Quezon City court
fromproceedingwiththe testate proceedingsandannullingandsetting aside all its orders and actions, particularly
itsadmissiontoprobate of the last will andtestamentof the deceasedandappointingpetitioner-widowasexecutrix
thereof without bond pursuant to the deceased testator's wish.
On Venue and Jurisdiction

6. Under Rule 73, the court firsttakingcognizance of the settlementof the estate of adecent,shall exercise jurisdiction
to the exclusion of all other courts.
The residence of the decentorthe locationof hisestate isnot an elementof jurisdictionoverthe subjectmatter but
merely of venue. If this were otherwise, it would affect the prompt administration of justice.
The court withwhomthe petitionisfirstfiledmustalsofirsttake cognizance of the settlementof the estate inorder
to exercise jurisdiction over it to the exclusion of all other courts.
~*~*~*~*~*~*~*~
Unlike a civil action which has definite adverse parties, a special proceeding has no definite adverse party. The
definitionsof acivil actionanda special proceeding,respectively,inthe Rulesillustrate thisdifference.A civil action,
in which "a party sues another for the enforcement or protection of a right, or the prevention or redress of a
wrong"34 necessarilyhasdefiniteadverseparties,whoare eitherthe plaintiffordefendant.35 On the other hand, a
special proceeding,"bywhichaparty seekstoestablishastatus,right,ora particularfact,"36 has one definiteparty,
who petitions or applies for a declaration of a status, right, or particular fact, but no definite adverse party. In the
case at bar, itbearsemphasisthatthe estate of the decedent is not being sued for any cause of action. As a special
proceeding, the purpose of the settlement of the estate of the decedent is to determine all the assets of the
estate,37 pay its liabilities,38 and to distribute the residual to those entitled to the same.39
~*~*~*~*~*~*~*~*~
A CIVILACTION isone by whicha party suesanotherforthe enforcementorprotection of a right, or the prevention
or redressof a wrong.(See.3[a], Rule 1, 1997 Rulesof Civil Procedure),whileaSPECIALPROCEEDING is a remedy by
whicha party seekstoestablishastatus,a rightor a particularfact.(Sec.3[C].Rule 1,1997 Rulesof Civil Procedure.)
BAUTISTA ANGELO, J.: G.R. No. L-7635 July 25, 1955
TASIANA ONGSINGCO, Guardian of Francisco de Borja vs. HON. BIENVENIDO A. TAN, as Judge of the CFI of Rizal and JOSE
DE BORJA, administrator of the estate of the late Josefa Tangco,
Petitioner Tasiana Ongsingco is the w ife and judicial guardian of one Francisco de Borja w ho w as declared incompetent by the Court of First
Instance of Rizal in Special Proceedings No. 1764. Francisco de Borja is the surviving spouse of Josefa Tangco w hose estate is being settled in
Special Proceedings No. 7866 of the same court. Respondent Jose de Borja is the son of Francisco de Borja, w ho, on June 29, 1953, w as
appointed administrator of the estate of Josefa Tangco.
Francisco de Borja, according to petitioner, is the ow ner of tw o parcels of land situated in Santa Rosa, Nueva Ecija, w hich he acquired by
inheritance fromhis late father Marcelo de Borja and as such form part of his separate properties. On October 27, 1953, Francisco de Borja w as
declared incompetent by the court as aforesaid, and petitioner, his second w ife, wasappointed his guardian. As such guardian, petitioner took over
fromher husband the possession of said tw o parcels of land and commenced the threshing of the palay crop standing thereon for the benefit of her
w ard.
On January 16, 1954, respondent Jose de Borja, as administrator of the estate of Josefa Tangco, filed a motion in the estate proceedings of the
latter praying that petitioner be restrained fromthreshing the palay on the lands until the ow nership thereof has been definitely determined either by
the court or by agreement of the parties. Petitioner opposed the motion challenging the jurisdiction of the court and contending that if its purpose is
to pass on the question of ow nership, such can only be threshed out elsew here and not by the probate court.
Because it became obvious to petitioner that respondent administrator w ould insist in his motion w hose main aim is to prevent petitioner and her
laborers fromthreshing the crop standing on the lands and, on the other hand, the several attempts made to agree on the identity of the lands had
failed, petitioner filed an action on January 21, 1954 in the Court of First Instance of Nueva Ecija to restrain respondent administrator from
interferring w ith the harvesting and threshing of the crop on the claim that the lands w ere the exclusive property of her w ard Francisco de Borja
(Civil Case No. 1350). On the same date, the court granted the preliminary injunction prayed for upon the filing by petitioner of a bond of P5,000.
On January 25, 1954, respondent Jose de Borja filed an urgent petition in the same case asking the court to dismiss the action for lack of
jurisdiction and to dissolve the preliminary injunction that w as issued. This petition w as denied.
On January 29, 1954, respondent court issued an order the dispositive part of w hich reads:
IN VIEW OF THE FOREGOING CONSIDERATIONS, the guardian Tasiana Ongsingco is hereby ordered not to meddle in the threshing of the
palay harvested in the lands declared under Tax Declaration No. 540 (Annexes A and A-1). The administrator and the guardian are ordered to
find fromamong the properties of the incapacitated Francisco de Borja in Tabuanting, Sta. Rosa, Nueva Ecija, the tw o parcels of land having
an approximate area as those tw o lots adjudicated in his favor by the Commissioners on Partition, and once found, let the parties agree on the
matter, so as to avoid any future controversy, and to notify this Court of their agreement. IT IS SO ORDERED.
On February 10, 1954, petitioner filed a motion for reconsideration calling attention to the fact that both the guardian and the administrator had
already attempted to arrive at an agreement as to the identity of the lots w hich are claimed to be the exclusive property of Francisco de Borja, but
they failed to do so, and because of such inability and the immediate need of harvesting and threshing the crop standing thereon, petitioner filed an
action in the Court of First Instance of Nueva Ecija precisely to determine once and for all the title to, and ow nership of, said lands and to issue a
preliminary injunction restraining respondent Jose de Borja from interferring w ith the w ork of petitioner; but, in view of respondent Borja's
opposition, respondent court denied the motion for reconsideration.
The present petition poses the follow ing issues: (1) considering that the dispute betw een petitioner and respondent administr ator involves the
ow nership of tw o parcels of land now the subject of an action in the Court of First Instance of Nueva Ecija, has respondent court jurisdiction to
determine said dispute in the estate proceedings of the late Josefa Tangco?; and (2) having the Court of First Instance of Nueva Ecija issued a w rit
of preliminary injunction to restrain respondent administrator frominterferring with the threshing of the crop standing on said lands, can respondent

7. court, after having been apprised of said order, issue an order the effect of w hich is to nullify and render ineffective said w rit of preliminary
injunction?.
There is no dispute that the tw o parcels of land in Santa Rosa, Nueva Ecija are claimed by petitioner as part of the separate property of Francis co
de Borja so much so that she took possession thereof when she assumed her commission as guardian on October 27, 1953. That she succeeded
in taking actualpossession of said lands is show n by the fact that w hen she commenced the threshing of the crop standing thereon, respondent
Jose de Borja filed a petition in the estate proceedings of Josefa Tangco to restrain her from threshing said crop. Then a dispute arose as to the
ow nership of said parcels of land. On one hand, petitioner claims that they belong exclusively to her w ard having inherited them from his late father
Marcelo de Borja, w hile, on the other, respondent administrator contends that they are not the land adjudicated to the incompetent by the
commissioners on partition. The parties had made several attempts to arrive at an agreement as to the identity of the disputed lands, but they
failed, and because there w as a pressing need of immediately threshing the crop standing thereon, petitioner filed an action in the Court of First
Instance of Nueva Ecija to determine once and for all the title and ow nership of said lands. In the same case, the court issued a preliminary
injunction restraining respondent administrator from interferring w ith the administration of said properties. But such action notw ithstanding,
respondent court issued the orders in question w hich not only go into the issue of ow nership but render ineffective the w rit of injunction issued by
the Court of First Instance of Nueva Ecija. Can respondent court do so?
It is a w ell-settled rule in this jurisdiction, sanctioned and reiterated in a long line of decisions that, "the question of ow nership of property is one
w hich should be determined in an ordinary action and not in probate proceedings, and this w hether or not the property is alleged to belong to the
estate" (Franco vs. O'Brien, 13 Phil., 359). In another case, it w as held that "The general rule is that questions as to title to property cannot be
passed upon in testate or intestate proceedings" (Pascual vs. Pascual, 73 Phil., 561, 562; See also Cordova Vda. de Mañalac vs.Ocampo, 73 Phil.,
661, 662), or stating the rule more elaborately, "When questions arise as to the ow nership of property alleged to be a part of the estate of a
deceased person, but claimed by some other person to be his property, not by virtue of any right of inheritance from the deceased, but by title
adverse to that of the deceased and his estate, such questions cannot be determined in the courts of administrative proceedings. The Court of First
Instance, acting as a probate court, has no jurisdiction to adjudicate such contentions, w hich must be submitted to the court in the exercise of its
general jurisdiction as a court of first instance . . .." (Guzman vs. Anog, 37 Phil., 61.)
The dispute betw een petitioner and respondent administrator involving, as it does, the ow nership of tw o parcels of land situated in Santa Rosa,
Nueva Ecija, and this question having been squarely raised in an action pending in the court of first instance of said province, w hich w as instituted
by petitioner against respondent administrator precisely because of the dispute that had arisen betw een them over said property, it is the sense of
this Tribunal that respondent court exceeded its jurisdiction in acting upon the said question in its capacity as probate court. On the face of such
issue w hich necessarily involves the ownership of the properties, we considerof no consequence the claim that w hat respondent court merely did
w as to lookinto the identity of said properties. This question is necessarily imbibed in the greater issue of ow nership and being interw oven one can
hardly draw the line of demarcation that w ould separate one from the other.
As regards the question w hether the order of respondent court restraining petitioner from threshing the palay crop standing on the lands has been
properly issued on the face of the w rit of preliminary injunction issued by the Court of First Instance of Nueva Ecija, the answ eris not difficult to find:
the court should not have issued the order, for "It is settled by an overwhelming w eight of authority that no court has pow er to interfere by injunction
w ith the judgments or decree of a court of concurrent or coordinate jurisdiction having equal pow er to grant the relief sought by injunction. . . . The
various branches of the Court of First Instance of Manila are in a sense coordinate courts and to allow them to interfere w ith each other's judgments
or decrees by injunctions w ould obviously lead to confusion and might seriously hinder the administration of justice." (Cabigao vs. Del Rosario, 44
Phil., 182; Seealso Philippine National Bank vs. Javellana, 92 Phil., 525; Montesa vs. Manila Cordage Company, 92 Phil., 25.)
Wherefore, petition is granted w ithout costs. The orders of respondent court dated January 29, 1954 and February 18, 1954 are hereby set aside.
GR No. L-21938-39, May 29, 1970
VICENTE URIARTE vs. CFI of Negros Or., CFI of Manila, JUAN URIARTE ZAMACONA and HIGINIO URIARTE
Short summary: allegednatural childof the deceasedfiledpetitionfor settlement of INTESTATE estate of Don Juan
Uriarte y Goite in Negros Occidental Court. PNB was even appointed as special administrator, but PNB failed to
qualified.MTDfiledbynephewof DonJuan,allegingthatwhile he wasinSpain,the deceased made a will AND that
petitioner had doubtful interest (proceeding for his recognition as a natural child not yet done). Pending this, the
nephewsinstitutedapetitionforprobate of the will of DonJuaninManila.Allegednatural sonopposed,contending
that Negroscourtsalreadyhadexclusive jurisdictionof the case.ButNegroscourtdismissedthe special proceeding,
and the Manilacourt proceededtoprobate the will.Petitionercontestedit.Courtheld that since the decedent was
a non-resident, both Manila and Negros courts may be proper venues for the proceedings. But since probate
proceedings enjoy priority over intestate proceedings, action by Manila court proper. Even if the venue was
improper,petitionerconsideredtohave waivedthe defectbylaches.Lastly,the courtheldthatif everrecognizedas
the natural child of the decedent, he could opt to intervene in the probate proceedings, or to have it opened if
already finished.
Facts: -Don Juan Uriarte y Goite died in Spain, left properties both in Manila and Negros
-The alleged natural son of Don Juan, VICENTE URIARTE, filed petition for settlement of INTESTATE ESTATE of Don
Juan before the Negros Occidental court. Note that during that time, the proceedings for compulsory
acknowledgment as the natural son of Don Juan was still pending
-PNB also was appointed as special administrator of the estate, but PNB failed to qualify
-OPPOSITION TO PETITION by HIGINIO URIARTE (nephew of Don Juan):
Don Juan left a will, executed in Spain, duly authenticated - submitted before Negros court
ViCENTE's capacity and interest are questionable
-JUAN URIARTE ZAMACONA (di ko alam how related) commenced SPECPRO for PROBATE OF LAST WILL OF DON
JUAN before Manila courts + MTD in Negros Courts
Since there's a will, no need for intestate proceedings before Negros Courts
Vicente had no legal personality to sue
>>>OPPOSED byVICENTE:NegrosCourtsfirsttook cognizance, it had acquired exclusive jurisdiction over the same
NEGROS COURT: DISMISS proceedings before it

8. -VICENTE filed OMNIBUS MOTION in Manila Court for leave to intervene + dismissal of petition for probate +
annulment of proceedings - DENIED
-Manila court admitted to probate the last will
WON NEGROS COURT ERRED IN DISMISSING THE INTESTATE PROCEEDINGS BEFORE IT? NO.
Decedent is an inhabitant of a foreign country (Spain) during the time of his death, so the courts in the province s
where he left property may take cognizance of settlement of his estate
-here, decedent left properties both in Manila and in Negros
Even if Negros court first took cognizance of the case, still has to give way to Manila court
special proceeding intended to effect the distribution of the estate of a deceased person, whether in accordance
with the law on intestate succession or in accordance with his will, is a "probate matter" or a proceeding for the
settlement of his estate.
BUT testate proceedings, for the settlement of the estate of a deceased person take precedence over intestate
proceedings for the same purpose.
So even pending Intestate proceedings, if it is found it hat the decedent had left a last will, proceedings for the
probate of the latter should replace the intestate proceedings even if at that stage an administrator had already
beenappointed,the latter beingrequiredto render final account and turn over the estate in his possession to the
executor subsequently appointed.
If will rejected or disproved, proceedings shall continue as intestacy
VICENTE already waived procedural defect of VENUE IMPROPERLY LAID
-He knew that there was a will when a MTD was filed in Negros court, so he should have filed a MTD in Manila
court earlier: Manila court already
*appointed an administrator
*admitted the will to probate more than 5 months earlier
-court would not annul proceedings regularly had in a lower court even if the latter was not the proper
venue therefor, if the net result would be to have the same proceedings repeated in some other court of similar
jurisdiction
As to interest of Vicente in the case
-two alternatives for an acknowledged natural child to prove his status and interest in the estate of the deceased
parent:
(1) to intervene in the probate proceeding if it is still open; and
(2) to ask for its reopening if it has already been closed.
MEDIALDEA, J.: GR No. 83484 February 12, 1990
CELEDONIA SOLIVIO vs. THE HONORABLE COURT OF APPEALS and CONCORDIA JAVELLANA VILLANUEVA
This is a petition for review of the decision dated January 26, 1988 of the Court of Appeals in CA GR CV No. 09010 (Concordia Villanueva
v. Celedonia Solivio) affirming the decision of the trial court in Civil Case No. 13207 for partition, reconveyance of ow ners hip and
possession and damages.
This case involves the estate of the late novelist, Esteban Javellana, Jr., author of the first post-w ar Filipino novel "Without Seeing the
Daw n," w ho died a bachelor, w ithout descendants, ascendants, brothers, sisters, nephew s or nieces. His only surviving relatives are: (1)
his maternal aunt, petitioner Celedonia Solivio, the spinster half -sister of his mother, Salustia Solivio; and (2) the private respondent,
Concordia Javellana-Villanueva, sister of his deceased father, Esteban Javellana, Sr. He w as a posthumous child. His father died barely
ten (10) months after his marriage in December, 1916 to Salustia Solivio and four months before Esteban, Jr. w as born. Salustia and her
sister, Celedonia (daughter of Engracio Solivio and his second w ife Josefa Fernandez), a teacher in the Iloilo Provincial High School,
brought up Esteban, Jr.
Salustia brought to her marriage paraphernal properties (various parcels of land in Calinog, Iloilo covered by 24 titles) w hich she had
inherited from her mother, Gregoria Celo, Engracio Solivio's first w ife (p. 325, Record), but no conjugal property w as acquired during her
short-lived marriage to Esteban, Sr.
On October 11, 1959, Salustia died, leaving all her properties to her only child, Esteban, Jr., including a house and lot in La Paz, Iloilo City,
w here she, her son, and her sister lived. In due time, the titles of all these properties w ere transferred in the name of Esteban, Jr.
During his lifetime, Esteban, Jr. had, more than once, expressed to his aunt Celedonia and some close friends his plan to place his estate
in a foundation to honor his mother and to help poor but deserving students obtain a college education. Unfortunately, he died of a heart
attack on February 26,1977 w ithout having set up the foundation.
Tw o w eeks after his funeral, Concordia and Celedonia talked about w hat to do w ith Esteban's properties. Celedonia told Concor dia about
Esteban's desire to place his estate in a foundation to be named after his mother, from w hom his properties c ame, for the purpose of
helping indigent students in their schooling. Concordia agreed to carry out the plan of the deceased. This fact w as admitted by her in her
"Motion to Reopen and/or Reconsider the Order dated April 3, 1978" w hich she filed on July 27, 1978 in Special Proceeding No. 2540,
w here she stated:
4. That petitioner knew all along the narrated facts in the immediately preceding paragraph [that herein movant is also the relative of
the deceased w ithin the third degree, she being the younger sister of the late Esteban Javellana, father of the decedent herein],
because prior to the filing of the petition they (petitioner Celedonia Solivio and movant Concordia Javellana) have agreed to make the
estate of the decedent a foundation, besides they have closely know n each other due to their filiation to the decedent and they have
been visiting each other's house w hich are not far aw ay for (sic) each other. (p. 234, Record; Emphasis supplied.)
Pursuant to their agreement that Celedonia w ould take care of the proceedings leading to the formation of the foundation, Celedonia in
good faith and upon the advice of her counsel, filed on March 8, 1977 Spl. Proceeding No. 2540 for her appointment as special
administratrix of the estate of Esteban Javellana, Jr. (Exh. 2). Later, she filed an amended petition (Exh. 5) praying that letters of
administration be issued to her; that she be declared sole heir of the deceased; and that after payment of all claims and rendition of
inventory and accounting, the estate be adjudicated to her (p. 115, Rollo).

9. After due publication and hearing of her petition, as w ell as her amended petition, she w as declared sole heir of the estate of Esteban
Javellana, Jr. She explained that this w as done for three reasons: (1) because the properties of the estate had come from her sister,
Salustia Solivio; (2) that she is the decedent's nearest relative on his mother's side; and (3) w ith her as sole heir, the disposition of the
properties of the estate to fund the foundation w ould be facilitated. On April 3, 1978, the court (Branch II, CFI, now Branch 23, RTC)
declared her the sole heir of Esteban, Jr. Thereafter, she sold properties of the estate to pay the taxes and other obligations of the
deceased and proceeded to set up the "SALUSTIA SOLIVIO VDA. DE JAVELLANA FOUNDATION" w hich she caused to be registered in
the Securities and Exchange Commission on July 17,1981 under Reg. No. 0100027
Four months later, or on August 7, 1978, Concordia Javellana Villanueva filed a motion for reconsideration of the court's order declaring
Celedonia as "sole heir" of Esteban, Jr., because she too w as an heir of the deceased. On October 27, 1978, her motion w as denied by
the court for tardiness (pp. 80-81, Record). Instead of appealing the denial, Concordia filed on January 7, 1980 (or one year and tw o
months later), Civil Case No. 13207 in the Regional Trial Court of Iloilo, Branch 26, entitled "Concordia Javellana- Villanueva v. Celedonia
Solivio" for partition, recovery of possession, ow nership and damages. On September 3, 1984, the said trial court rendered judgment in
Civil Case No. 13207, in favor of Concordia Javellana-Villanueva. On Concordia's motion, the trial court ordered the execution of its
judgment pending appeal and required Celedonia to submit an inventory and accounting of the estate. In her motions for reconsideration of
those orders, Celedonia averred that the properties of the deceased had already been transferred to, and w ere in the possession of, the
'Salustia Solivio Vda. de Javellana Foundation." The trial court denied her motions for reconsideration.
In the meantime, Celedonia perfected an appeal to the Court of Appeals (CA GR CV No. 09010). On January 26, 1988, the Court of
Appeals, Eleventh Division, rendered judgment affirming the decision of the trial court in toto.Hence, this petition for review w herein she
raised the follow ing legal issues:
1. w hether Branch 26 of the RTC of Iloilo had jurisdiction to entertain Civil Case No. 13207 for partition and recovery of Concordia
Villanueva's share of the estate of Esteban Javellana, Jr. even w hile the probate proceedings (Spl. Proc. No. 2540) w ere still pending
in Branch 23 of the same court;
2. w hether Concordia Villanueva w as prevented from intervening in Spl. Proc. No. 2540 through extrinsic fraud;
3. w hether the decedent's properties w ere subject to reserva troncal in favor of Celedonia, his relative w ithin the third degree on his
mother's side from w hom he had inherited them; and
4. w hether Concordia may recover her share of the estate after she had agreed to place the same in the Salustia Solivio Vda. de
Javellana Foundation, and notw ithstanding the fact that conformably w ith said agreement, the Foundation has been formed and
properties of the estate have already been transferred to it.
I. The question of jurisdiction—
After a careful review of the records, w e find merit in the petitioner's contention that the Regional Trial Court, Branch 26, lacked jurisdiction
to entertain Concordia Villanueva's action for partition and recovery of her share of the estate of Esteban Javellana, Jr. w hile the probate
proceedings (Spl, Proc. No. 2540) for the settlement of said estate are still pending in Branch 23 of the same court, there being as yet no
orders for the submission and approval of the administratix's inventory and accounting, distributing the residue of the estate to the heir, and
terminating the proceedings (p. 31, Record).
It is the order of distribution directing the delivery of the residue of the estate to the persons entitled thereto that brings to a close the
intestate proceedings, puts an end to the administration and thus far relieves the administrator from his duties (Santiesteban v.
Santiesteban, 68 Phil. 367, Philippine Commercial and Industrial Bank v. Escolin, et al., L-27860, March 29, 1974, 56 SCRA 266).
The assailed order of Judge Adil in Spl. Proc. No. 2540 declaring Celedonia as the sole heir of the estate of Esteban Javellana, Jr. did not
toll the end of the proceedings. As a matter of fact, the last paragraph of the order directed the administratrix to "hurry up the settlement of
the estate." The pertinent portions of the order are quoted below :
2. As regards the second incident [Motion for Declaration of Miss Celedonia Solivio as Sole Heir, dated March 7, 1978], it appears
from the record that despite the notices posted and the publication of these proceedings as required by law , no other heirs c ame out
to interpose any opposition to the instant proceeding. It further appears that herein Administratrix is the only claimant-heir to the estate
of the late Esteban Javellana w ho died on February 26, 1977.
During the hearing of the motion for declaration as heir on March 17, 1978, it w as established that the late Esteban Javellana died
single, w ithout any know n issue, and w ithout any surviving parents. His nearest relative is the herein Administratrix, an elder [sic]
sister of his late mother w ho reared him and w ith w hom he had alw ays been living w ith [sic] during his lifetime.
x x x x x x x x x
2. Miss Celedonia Solivio, Administratrix of this estate, is hereby declared as the sole and legal heir of the late Esteban S. Javellana,
w ho died intestate on February 26, 1977 at La Paz, Iloilo City.
The Administratrix is hereby instructed to hurry up w ith the settlement of this estate so that it can be terminated. (pp, 14-16, Record)
In view of the pendency of the probate proceedings in Branch 11 of the Court of First Instance (now RTC, Branch 23), Concordia's motion
to set aside the order declaring Celedonia as sole heir of Esteban, and to have herself (Concordia) declared as co-heir and recover her
share of the properties of the deceased, w as properly filed by her in Spl. Proc. No. 2540. Her remedy w hen the court denied her motion,
w as to elevate the denial to the Court of Appeals for review on certiorari. How ever, instead of availing of that remedy, she filed more than
one year later, a separate action for the same purpose in Branch 26 of the court. We hold that the separate action w as improperly filed for
it is the probate court that has exclusive jurisdiction to make a just and legal distribution of the estate.
In the interest of orderly procedure and to avoid confusing and conflicting dispositions of a decedent's estate, a court should not interfere
w ith probate proceedings pending in a co-equal court. Thus, did w e rule in Guilas v. Judge of the Court of First Instance of Pampanga, L-
26695, January 31, 1972, 43 SCRA 111, 117, w here a daughter filed a separate action to annul a project of partition executed betw een her
and her father in the proceedings for the settlement of the estate of her mother:
The probate court loses jurisdiction of an estate under administration only after the payment of all the debts and the remaining estate
delivered to the heirs entitled to receive the same. The finality of the approval of the project of The probate court, in the exercise of its
jurisdiction to make distribution, has pow er to determine the proportion or parts to w hich each distributed is entitled. ... The pow er to
determine the legality or illegality of the testamentary provision is inherent in the jurisdiction of the court making a just and legal
distribution of the inheritance. ... To hold that a separate and independent action is necessary to that effect, w ould be contrary to the
general tendency of the jurisprudence of avoiding multiplicity of suits; and is further, expensive, dilatory, and impractical. (Marcelino v.
Antonio, 70 Phil. 388)
A judicial declaration that a certain person is the only heir of the decedent is exclusively w ithin the range of the administratrix
proceedings and can not properly be made an independent action. (Litam v. Espiritu, 100 Phil. 364)
A separate action for the declaration of heirs is not proper. (Pimentel v. Palanca, 5 Phil. 436)
partition by itself alone does not terminate the probate proceeding (Timbol v. Cano, 1 SCRA 1271, 1276, L-15445, April 29, 1961;
Siguiong v. Tecson, 89 Phil. pp. 28, 30). As long as the order of the distribution of the estate has not been complied w ith, the probate
proceedings cannot be deemed closed and terminated Siguiong v. Tecson, supra); because a judicial partition is not final and
conclusive and does not prevent the heirs from bringing an action to obtain his share, provided the prescriptive period therefore has
not elapsed (Mari v. Bonilia, 83 Phil. 137). The better practice, however, for the heir who has not received his share, is to demand his
share through a proper motion in the same probate or administration proceedings, or for reopening of the probate or admini strative
proceedings if it had already been closed, and not through an independent action, w hich w ould be tried by another court or Judge
w hich may thus reverse a decision or order of the probate or intestate court already final and executed and re-shuffle properties long
ago distributed and disposed of. (Ramos v. Ortuzar, 89 Phil. 730,; Timbol v. Cano, supra; Jingco v. Daluz, L-5107, April 24, 1953, 92
Phil. 1082; Roman Catholic v. Agustines, L-14710, March 29, 1960, 107 Phil. 455

10. In Litam et al., v. Rivera, 100 Phil. 364, w here despite the pendency of the special proceedings for the settlement of the intestate estate of
the deceased Rafael Litam the plaintiffs-appellants filed a civil action in w hich they claimed that they w ere the children by a previous
marriage of the deceased to a Chinese w oman, hence, entitled to inherit his one-half share of the conjugal properties acquired during his
marriage to Marcosa Rivera, the trial court in the civil case declared that the plaintiffs-appellants w ere not children of the deceased, that
the properties in question w ere paraphernal properties of his w ife, Marcosa Rivera, and that the latter w as his only heir. On appeal to this
Court, w e ruled that "such declarations (that Marcosa Rivera w as the only heir of the decedent) is improper, in Civil Case No. 2071, it
being within the exclusive competence of the court in Special Proceedings No. 1537, in w hich it is not as yet, in issue, and, w ill not be,
ordinarily, in issue until the presentation of the project of partition.
How ever, in the Guilas case, supra, since the estate proceedings had been closed and terminated for over three years, the action for
annulment of the project of partition w as allow ed to continue. Considering that in the instant case, the estate proc eedings are still pending,
but nonetheless, Concordia had lost her right to have herself declared as co-heir in said proceedings, We have opted likew ise to proceed
to discuss the merits of her claim in the interest of justice.The orders of the Regional Trial Court, Branch 26, in Civil Case No. 13207
setting aside the probate proceedings in Branch 23 (formerly Branch 11) on the ground of extrinsic fraud, and declaring Concordia
Villanueva to be a co-heir of Celedonia to the estate of Esteban, Jr., ordering the partition of the estate, and requiring the administratrix,
Celedonia, to submit an inventory and accounting of the estate, w ere improper and officious, to say the least, for these matters he w ithin
the exclusive competence of the probate court.
II. The question of extrinsic fraud—
Was Concordia prevented from intervening in the intestate proceedings by extrinsic fraud employed by Celedonia? It is notew orthy that
extrinsic fraud w as not alleged in Concordia's original complaint in Civil Case No. 13207. It w as only in her amended complaint of March 6,
1980, that extrinsic fraud w as alleged for the first time.
Extrinsic fraud, as a ground for annulment of judgment, is any act or conduct of the prevailing party w hich prevented a fair submission
of the controversy (Francisco v. David, 38 O.G. 714). A fraud 'w hich prevents a party from having a trial or presenting all of his case to
the court, or one w hich operates upon matters pertaining, not to the judgment itself, but to the manner by w hich such judgment w as
procured so much so that there w as no fair submission of the controversy. For instance, if through fraudulent machination by one [his
adversary], a litigant w as induced to w ithdraw his defense or w as prevented from presenting an available defense or cause of action
in the case w herein the judgment w as obtained, such that the aggrieved party w as deprived of his day in court through no fault of his
ow n, the equitable relief against such judgment may be availed of. (Yatco v. Sumagui, 44623-R, July 31, 1971). (cited in Philippine
Law Dictionary, 1972 Ed. by Moreno; Varela v. Villanueva, et al., 96 Phil. 248)
The charge of extrinsic fraud is, how ever, unw arranted for the follow ing reasons:
1. Concordia w as not unaw are of the special proceeding intended to be filed by Celedonia. She admitted in her complaint that she
and Celedonia had agreed that the latter w ould "initiate the necessary proceeding" and pay the taxes and obligations of the estate.
Thus paragraph 6 of her complaint alleged:
6. ... for the purpose of facilitating the settlement of the estate of the late Esteban Javellana, Jr. at the low est possible cost and the
least effort, the plaintiff and the defendant agreed that the defendant shall initiate the necessary proceeding, cause the payment of
taxes and other obligations, and to do everything else required by law , and thereafter, secure the partition of the estate betw een her
and the plaintiff, [although Celedonia denied that they agreed to partition the estate, for their agreement w as to place the estate in a
foundation.] (p. 2, Record; emphasis supplied)
Evidently, Concordia w as not prevented from intervening in the proceedings. She stayed aw ay by choice. Besides, she knew that the
estate came exclusively from Esteban's mother, Salustia Solivio, and she had agreed w ith Celedonia to place it in a foundation as the
deceased had planned to do. The court noted that Concordia's motion did not comply w ith the requisites of a petition for relief from
judgment nor a motion for new trial.
The rule is stated in 49 Corpus Juris Secundum 8030 as follow s:
Where petition w as sufficient to invoke statutory jurisdiction of probate court and proceeding was in rem no subsequent errors or
irregularities are available on collateral attack. (Bedw ell v. Dean 132 So. 20)
Celedonia's allegation in her petition that she w as the sole heir of Esteban w ithin the third degree on his mother's side w as not false.
Moreover, it w as made in good faith and in the honest belief that because the properties of Esteban had come from his mother, not his
father, she, as Esteban's nearest surviving relative on his mother's side, is the rightful heir to them. It w ould have been s elf-defeating and
inconsistent w ith her claim of sole heirship if she stated in her petition that Concordia w as her co-heir. Her omission to so state did not
constitute extrinsic fraud.
Failure to disclose to the adversary, or to the court, matters w hich w ould defeat one's ow n claim or defense is not such extr insic fraud
as w ill justify or require vacation of the judgment. (49 C.J.S. 489, citing Young v. Young, 2 SE 2d 622; First National Bank & Trust Co.
of King City v. Bow man, 15 SW 2d 842; Price v. Smith, 109 SW 2d 1144, 1149)
It should be remembered that a petition for administration of a decedent's estate may be filed by any "interested person" (Sec. 2, Rule 79,
Rules of Court). The filing of Celedonia's petition did not preclude Concordia from filing her ow n.
III. On the question of reserva troncal—
We find no merit in the petitioner's argument that the estate of the deceased w as subject to reserva troncal and that it pertains to her as his
only relative w ithin the third degree on his mother's side. The reserva troncal provision of the Civil Code is found in Article 891 w hich reads
as follow s:
ART. 891. The ascendant w ho inherits from his descendant any property w hich the latter may have acquired by gratuitous title from
another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the
benefit of relatives w ho are w ithin the third degree and w ho belong to the line from w hich said property came.
The persons involved in reserva troncal are:
1. The person obliged to reserve is the reservor (reservista)—the ascendant w ho inherits by operation of law property from his
descendants.
2. The persons for w hom the property is reserved are the reservees (reservatarios)—relatives w ithin the third degree counted from the
descendant (propositus), and belonging to the line from w hich the property came.
3. The propositus—the descendant w ho received by gratuitous title and died w ithout issue, making his other ascendant inherit by
operation of law . (p. 692, Civil Law by Padilla, Vol. II, 1956 Ed.)
Clearly, the property of the deceased, Esteban Javellana, Jr., is not reservable property, for Esteban, Jr. w as not an ascendant, but the
descendant of his mother, Salustia Solivio, from w hom he inherited the properties in question. Therefore, he did not hold his inheritance
subject to a reservation in favor of his aunt, Celedonia Solivio, w ho is his relative w ithin the third degree on his mother's side. The reserva
troncal applies to properties inherited by an ascendant from a descendant w ho inherited it from another ascendant or 9 brother or sis ter. It
does not apply to property inherited by a descendant from his ascendant, the reverse of the situation covered by Article 891.
Since the deceased, Esteban Javellana, Jr., died w ithout descendants, ascendants, illegitimate children, surviving spouse, br others,
sisters, nephew s or nieces, w hat should apply in the distribution of his estate are Articles 1003 and 1009 of the Civil Code w hich provide:
ART. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed
to the entire estate of the deceased in accordance w ith the follow ing articles.
ART. 1009. Should there be neither brothers nor sisters, nor children of brothers or sisters, the other collateral relatives shall succeed
to the estate.
The latter shall succeed w ithout distinction of lines or preference among them by reason of relationship by the w hole blood.

11. Therefore, the Court of Appeals correctly held that:
Both plaintiff-appellee and defendant-appellant being relatives of the decedent w ithin the third degree in the collateral line, each,
therefore, shall succeed to the subject estate 'w ithout distinction of line or preference among them by reason of relationship by the
w hole blood,' and is entitled one-half (1/2) share and share alike of the estate. (p. 57, Rollo)
IV. The question of Concordia's one-half share—
How ever, inasmuch as Concordia had agreed to deliver the estate of the deceased to the foundation in honor of his mother, Salustia
Solivio Vda. de Javellana (from w hom the estate came), an agreement w hich she ratified and confirmed in her "Motion to Reopen and/or
Reconsider Order dated April 3, 1978" w hich she filed in Spl. Proceeding No. 2540:
4. That ... prior to the filing of the petition they (petitioner Celedonia Solivio and movant Concordia Javellana) have agreed to make
the estate of the decedent a foundation, besides they have closely know n each other due to their filiation to the decedent and they
have been visiting each other's house w hich are not far aw ay for (sic) each other. (p. 234, Record; Emphasis supplied)
she is bound by that agreement. It is true that by that agreement, she did not w aive her inheritance in favor of Celedonia, but she did agree
to place all of Esteban's estate in the "Salustia Solivio Vda. de Javellana Foundation" w hich Esteban, Jr., during his lifetime, planned to set
up to honor his mother and to finance the education of indigent but deserving students as w ell.
Having agreed to contribute her share of the decedent's estate to the Foundation, Concordia is obligated to honor her commitment as
Celedonia has honored hers.
WHEREFORE, the petition for review is granted. The decision of the trial court and the Court of Appeals are hereby SET ASIDE.
Concordia J. Villanueva is declared an heir of the late Esteban Javellana, Jr. entitled to one-half of his estate. How ever, comformably w ith
the agreement betw een her and her co-heir, Celedonia Solivio, the entire estate of the deceased should be conveyed to the "Salustia
Solivio Vda. de Javallana Foundation," of w hich both the petitioner and the private respondent shall be trustees, and each shall be entitled
to nominate an equal number of trustees to constitute the Board of Trustees of the Foundation w hich shall administer the same for the
purposes set forth in its charter. The petitioner, as administratrix of the estate, shall submit to the probate court an inventory and
accounting of the estate of the deceased preparatory to terminating the proceedings therein. SO ORDERED.
http://remediallawdoctrines.blogspot.com/2011_10_01_archive.html
Javier69 SCRA 524 (1989)
Beatriz de Zuzuarregui vda. De Reyes v. CA, Pilar Ibanez vda. De zuzuarregui, Administratriz, Antonio de Zuzuarregui, Jr.,
Enrique de Zuzuarregui and Pacita
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 ofdecedent
-administratix of the estate
Illegit children:
Antonio de Zuzuarregui, Jr.
Enrique de Zuzuarregui
Jose de Zuzuarregui
*Beatriz de Zuzuarregui vda. Re reyes: daughterof Antonio Sr. by anothermother
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

12. -CA: Affirm
Pacita's allegation: no clerical area. The area in the project of partition is correct. She would not have relinquished her s hare in the
Antipolo land if she new nothing would remain from the land. It was even repeated 4x in the project of partition
ISSUE: 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 substantialdifference
in value in their shares...
REGALADO, J.: G.R. No. L-47027 January 27, 1989
BEATRIZ DE ZUZUARREGUI VDA. DE REYES vs. HONORABLE COURT OF APPEALS, PILAR IBAÑEZVDA. DE ZUZUARREGUI, Administratrix,
ANTONIO DE ZUZUARREGUI, JR., ENRIQUE DE ZUZUARREGUI and PACITA JAVIER
In this petition for review on certiorari, We are asked to set aside the decision of the Court of Appeals, promulgated on September 19, 1977 in CA-G.R.
No. 53197-R 1
which affirmed the order of the Court of First Instance of Rizal, Branch IV, Quezon City dated March 26, 1973, issued in Special
Proceedings Q-325, entitled "Intestate Estate of Don Antonio de Zuzuarregui, Sr.". 2
Respondent administratrix, Pilar Ibañez Vda. de Zuzuarregui, is the surviving spouse of Antonio de Zuzuarregui, Sr., while petitioner Beatriz de
Zuzuarregui Vda. de Reyes and the other heirs of said estate, namely, Antonio de Zuzuarregui, Jr., Enrique de Zuzuarregui and Jose de Zuzuarregui, are
the illegitimate children of the decedent. The parties herein are the only heirs of the deceased wh ose estate was the subject of said settlement
proceedings. Petitioner was the daughter of the deceased by a mother different from that of his aforesaid three (3) sons, their mother being Pacita Javier
who was the niece of the herein respondent administratrix. 3
According to the project of partition dated June 17, 1958 and approved by the probate court, the respective shares of said he irs in the real estate left by
the deceased are as follows: Pilar Ibañez Vda. de Zuzuarregui, 12/16 thereof, inclusive of 1/2 of said assets which pertains to her share in the conjugal
partnership; Beatriz, 1/16; Antonio, Jr., 1/16; Enrique, 1/16; and Jose, 1/16. 4
Among the real properties in the project of partition is a parcel of land covered by and described in Transfer Certificate of Title No. 42643 located in
Antipolo, Rizal. In said project of partition, its area is stated as 83,781 square meters, with an assessed value of P6,430.0 0. This statement of said area
was repeated in said document four time, 5
that is, in adjudicating the corresponding portions of said land to Pilar (12/15), Antonio, Jr. (1/15). Enrique
(1/15) and Jose (1/15). 6
The petitioner didnot have a share in the aforesaid parcel of land because she relinquished her right thereto "in lieu of her bigger
share in Antipolo, Rizal, real estate property." 7
On January 29, 1973, the respondent administratrix and the other three distributees filed a motion to reopen Special Proceedings No. Q-325 for the
purpose of correcting an alleged typographical error in the description of the parcel of land covered by Transfer Certificate of Title No. 42643 since,
according to them, the correct land area is 803,781.51 square meters and not 83,781 square meters. 8
The heirs of Beatriz de Zuzuarregui Vda. de Reyes
filed their opposition to said motion. 9
The court a quo issued the contestedorder, with the following dispositive portion: WHEREFORE, (1) Sp. Proceeding No. Q-325 entitled, The Intestate
Estate of Don Antonio de Zuzuarregui, Sr. is ordered opened for the purpose of correctinga clerical error in the description of the parcel of land covered
by T.C.T. No. 42643; (2) The area of land coveredby T.C.T. No. 42643 be corrected by cancelling 83,781 sq. meters and changing it to 803,781.51 sq.
meters to conform with the description of land area in T.C.T. No. 42643; (3) That said corrections be made as pages 3, 6, 9, 10, and 12 of the project of
Partition. 10
As already stated, the affirmance of said order by the Court of Appeals eventuated in the elevation of the controversy to Us under the present recourse.
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
correctedor 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. 11
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 t he
decision. 12
However, according to the petitioner,there was no such clerical error. While it is not disputed that the area covered by Transfer Certificate of Title No.
42643 is 803,781.15 square meters, the petitioner insists that "the area intended by the heirs of Don Antonio de Zuzuarregui, Sr., in the Project of
Partition as approved by the trial court is the area of 83,781 sq. m. and not 803,781,51 sq. m. 13

13. She claims that she would not have relinquished her share in said parcel of land if the true area was not fraudulently concealed from her at the time the
project of partition was executed. 14
She further contends that the fact that the description of the area as 83,781 square meters was repeated several times
is sufficient evidence to show that such was the area intended in the project of partition. 15
Such contentions are without merit. There is, therefore, no reason to disturb, much less to reverse, the factual finding of the lower court that a
typographical or clerical error was clearly committed by inadvertence in the project of partition.
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 undiv ided 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 adjudicat ion 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 per ceptively 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 hav e in holding in suspense
the distribution of the difference of 720,000 square meters? 16
Besides, petitioner suggests that she and the male heirs could not see eye to eye because they did not have a common mother. 17
If so, this supposed
antagonism would even be a compelling reason for the parties to insist on the total partition of all the properties in the first instance, rather than for them
to remain as co-owners for a long time. As hereinbefore indicated, the project of partition is dated June 17, 1958, 18
while the motion to re-open the
proceedings was filed only on January 29, 1973.
If We were to indulge petitioner in her stand that the area of 803,781 square meters was typewritten in the document as 83,78 1 square meters, not
because of the typist's error in omittingthe number "0" between the numbers "8" and "3" in the first three digits but because the latter area of only 83,781
square meters was the one intended for distribution, then the irresistible question would be how and why the parties arrived at that particular latter figure.
It will be observed that such a portion would constitute only 10.42336% of the total landarea covered by Transfer Certificat e of Title No. 42643. On top
of this, the assumed area of 83,781 square meters has still to be divided into fifteen (15) parts to arrive at the aliquot portions of 12/15 and 1/15 of the
other heirs in this particular property. Why would the parties deliberately create such an unlikely mathematical situation wh ich would complicate the
actual physical segregation of the area supposed to be distributed?
It is, therefore, a logical and credible explanation that the omission of the zero between the figures "8" and "3" converted "803,781" to "83,781", a
product purely of clerical oversight. Petitioner has not offeredany plausible contrary explanation. Parenthetically, she had the assistance of legal counsel
in the intestate proceedings and in the preparation of the project of partition. 19
Petitioner's lamentations of injustice in the partition are demonstrably unfounded. It will be observed that according to her own computation, 20
she
received her 1/16 share in the estate consisting of 279,803 square meters of land, while her half brothers received on the av erage 154,975.11 square
meters each. Even if the supposed shares of the respondents in the remaining 720.000 square meters in the lot covered by Transfer Certificate of Title
No. 42643 were to be added, the share of each brother would be only 202,975. 11 square meters. There would not be a substantial difference in value
since the petitioner received190,000 square meters of land located also in Antipolo, Rizal; while in Balara, Quezon City, she received mo re than her half
brothers, that is, 75,803 square meters as against their individual 74,309.70 square meters. It was only in Pasong Tamo where she received slightly less,
14,000 square meters compared to Enrique's and Jose's 14,115 square meters each, but more than Antonio, Jr.'s 13,621 square m eters.
The ineluctable consequence of the foregoing considerations is that, both in law and equity, the court a quo and the respondent court committed no error
prejudicial to petitioner. WHEREFORE, certiorari is DENIED and the decision of the respondent court is AFFIRMED. SO ORDERED.
RULE 74 TUASON, J.: G.R.No. L-273 March 29, 1947
CRESENCIA HERNANDEZ vs. ZACARIAS ANDAL, QUIRINO DIMASACAT, MARIA HERNANDEZ and AQUILINAHERNANDEZ
The plaintiff, Cresencia Hernandez, the intervenors, Maria and Aquilina Hernandez, and Pedro and Basilia Hernandez who are not parties here, are brother and sisters. They
acquired in common by descent from their father a parcel of land of which he died seized and known as lot No. 120073 of the Batangas cadastral survey.
On January 23, 1944, the intervenors sold 1800 square meters of this parcel, a portion which is particularly described in the deed of conveyance Exhibit A, to Zacarias Andal,
the defendant, and Andal's wife in consideration of P860. This portion purports to be the combined shares of the intervenors in the larger parcel, allotted to them in a verbal
partition alleged to have been made (time not stated) among the five brother and sisters.
After the sale, on a date as to which the evidence is in disagreement but which is not now important, the plaintiff attempted to repurchase the land sold to Andal. According
to her original complaint, dated February 3, 1944, she offered the purchasers P150 as price of repurchase, this being, according to that complaint, the amount Andal had paid
for Maria Hernandez's and Aquilina Hernandez's shares, but Andal, it is alleged, refused to part with the property.
On April 8, the plaintiff filed a supplemental complaint. She alleged that when the cause was called for trial on March 8, she announced in open court that she was willing to
repurchase her sister's share from Andal for P860 and reimburse Andal for his expense; that Andal asked for continuance until the 29th stating that he had made other
expenses; that on 29th she brought P860 to repurchase the land in question but the case was again postponed because the plaintiff's sisters had intervened; and that
meanwhile, on the 26th, Andal resold the land fictitiously to the vendors for P970.
It results that on the date last mentioned Andal executed a deed of sale for P970 in favor of the intervenors, an amount which included Andal's expenses as well as the normal
sale price. The document of repurchase gave as reason for the transaction the fact that it had been agreed that in the event trouble should arise the sellers should return to the
buyer what they had received and pay the latter his expenses.
On February 14, 1944, the defendant filed his answer alleging that Maria and Aquilina Hernandez had sold him their respective portions of the inherited land for P860 and
that he had no objection to disposing of those portions in favor of the plaintiff for P860 plus the expenses he had incurred in the execution of the deed of sale amounting to
P50, but that he was unwilling to accept P150, which was all the plaintiff offered him besides his expenses.
On April 4, 1944, Maria and Aquilina Hernandez's answer in intervention was filed. The intervenors alleged that there had been a partition among them and their brother and
sisters "with the share of each delineated and marked, and after partition and delineation everyone took exclusive, separate and independent possession of his portion in the
partition." They charged the plaintiff with bad faith in that "it was upon her request for chance that the sale to the defendant, about to take place last November, was delayed
till January of this year when she finally informed the intervenors that they could sell to the defendant, or she could pay only P150 and could not raise the amount of P860
offered by the defendant."
Cresencia Hernandez, the plaintiff, was the only witness to testify on her own behalf. Substantially she reiterated the allegations in her two complaints. Zacarias Andal, the
defendant, also testified. He said that he was in possession of the land in question until he returned it to the intervenors. He declared that the plaintiff offered to repurchase
the land from him long after he had bought it, that is, when she was about to file her action. He stated that after he came from Candelaria, Tayabas, with the document of sale
he showed it to the plaintiff: that was on the 23rd of January. He was able to do this because he lived near Cresencia and passed by her house on his way home from
Candelaria. He said that Cresencia Hernandez upon being shown the document merely exclaimed, "Oh, so you already have a document." When asked whether the land
"described in the complaint of the herein plaintiff has been the object of partition among the co-owners Pedro, Basilia, Cresencia, Maria and Aquilina surnamed Hernandez,"
counsel for the plaintiff objected on the ground that the best evidence was the document of partition, and the objection was sustained. The same objection and the same ruling
were made on the same ground when the witness was queried how it was that the land he had bought from Maria and Aquilina Hernandez had been specified in the deed of
sale, Exhibit A.
In consequence of this ruling, counsel for the defendant and intervenors did not call any more witnesses but only announced that he had witnesses ready to prove that a parol
partition among the five brother and sisters had been made, mentioning the names of six such witnesses. Counsel for the plaintiff again objected asserting that "under the
Rules of Court agreement affecting real estate may not be proved except by means of writing subscribed by the person against whom the proof is offered. "Upon this
objection, the court ruled that under Rules 74 and 123 of the Rules of Court (Statute of Frauds) as well as under article 1248 of the Civil Code, parol evidence of partition
was inadmissible, adding that to decide the case it had enough with the testimony and evidence offered by the parties.

14. Thereafter the court handed down its decision declaring that the resale of the land by Zacarias Andal in favor of Maria and Aquilina Hernandez was illegal and in bad faith.
It, however, did not seem to have found as a fact the allegation that the resale was simulated. The court then made this judgment:
The defendant and the intervenors are appealing from the foregoing decision and in their joint brief made one assignment of error:
The lower court erred in refusing to admit oral evidence for proving a contract of partition among the heirs on the ground that it was not admissible.
Before proceeding with a discussion of the questions raised we are tempted to point up some seeming incongruities in the above-quoted judgment. Although Zacarias Andal
is no longer interested in the case, as far as the land is concerned, and even though the intervenors have become again the absolute owners and are now in full possession of
the property, while Andal has already gotten his money back, the judgment would have Andal execute a deed of resale in favor of the plaintiff and received from her the
price of repurchase. The judgment is silent as to the intervenors with reference to the execution of the deed of sale or the receipt of the sale price. And the lower court made
no finding and expressed no opinion as to whether the offer of P150 instead of P860, not to mention Andal's expenses, by the plaintiff as price of repurchase was sufficient
compliance with article 1067 of the Civil Code on which the court rested the plaintiff's cause of action.
However, in this decision we are concerned mainly with the application of section 21 of Rule 123 and section 1 of Rule 74 both of the Rules of Court. Article 1248 of the
Civil Code has no bearing on the case.
There is a conflict of authority as to whether an agreement of partition is such a contract as is required to be in writing under the statute of frauds. One line of authorities
holds the affirmative view; other authorities say no. The reason for the rule that excludes partition from the operation of the statute of frauds is that partition is not a
conveyance but simply a separation and designation of that part of the land which belongs to each tenant in common. (27 C.J., 206.) The differences in the conclusions
reached are "due perhaps to varied phraseology of the statutes" in the several states. (40 Amer. Jur., 15.) However the case may be, as enacted in the Philippines, first in
section 335 of the former Code of Civil Procedure, and now in Rule 123, section 21, of the Rules of Court, the law has been uniformly interpreted in a long line of cases to be
applicable to executory and not to completed or executed contracts. (27 C.J., 206.) In this jurisdiction performance of the contract takes it out of the operation of the statute.
(Gomez vs. Salcedo, 26 Phil., 485; Almirol and Cariño vs. Monserrat, 48 Phil., 67.) The statute of frauds does not declare the contracts therein enumerated void and of no
legal effect, but only makes ineffective the action for specific performance. (Almirol and Cariño vs. Monserrat, supra.) In the United States, even in those states where the
affirmative view of the question has been followed, "the weight of authority upholds the rule that an oral partition is effective when several possession is taken under it by the
respective parties to the agreement." (27 C.J., 206.)
On general principle, independent and in spite of the statute of frauds, courts of equity have enforced oral partition when it has been completely or partly performed.
Regardless of whether a parol partition or agreement to partition is valid and enforceable at law, equity will in proper cases, where the parol partition has actually been
consummated by the taking of possession in severalty and the exercise of ownership by the parties of the respective portions set off to each, recognize and enforce such parol
partition and the rights of the parties thereunder. Thus, it has been held or stated in a number of cases involving an oral partition under which the parties went into possession,
exercised acts of ownership, or otherwise partly performed the partition agreement, that equity will confirm such partition and in a proper case decree title in accordance with
the possession in severalty.
In numerous cases it has been held or stated that parol partitions may be sustained on the ground of estoppel of the parties to assert the rights of a tenant in common as to
parts of the land divided by parol partition as to which possession in severalty was taken and acts of individual ownership were exercised. And a court of equity will
recognize the agreement and decree it to be valid and effectual for the purpose of concluding the right of the parties as between each other to hold their respective parts in
severalty.
A parol partition may also be sustained on the ground that the parties thereto have acquiesced in and ratified the partition by taking possession in severalty, exercising acts of
ownership with respect thereto, or otherwise recognizing the existence of the partition.
A number of cases have specifically applied the doctrine of part performance, or have stated that a part performance is necessary, to take a parol partition out of the operation
of the statute of frauds. It has been held that where there was a partition in fact between tenants in common, and a part performance, a court of equity would have regard to
and enforce such partition agreed to by the parties. (40 Amer. Jur., 15-18.)
It is on the effects of Rule 74, section 1, of the Rules of Court on a parol partition that there are sharp divergences of opinion among the members of this Court. This section
reads:
If the decedent left no debts and the heirs and legatees are all of age, or the minors are represented by their judicial guardians, the parties may, without securing letters of
administration, divide the estate among themselves as they see fit by means of a public instrument file 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 or one legatee, he may adjudicate to himself the entire estate by means of an affidavit filed in the office
of the register of deeds. It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two years after the death of the
decedent.
It is contended that under this rule a verbal partition is entirely void and cannot be validated by any acts of the parties short of the execution of a public document and its
registration.
As a general proposition, transactions, so far as they affect the parties, are required to be reduced to writing either as a condition of jural validity or as a means of providing
evidence to prove the transactions. Written form exacted by the statute of frauds, for example, "is for evidential purposes only." (Domalagan vs. Bolifer, 33 Phil., 471.) The
decisions of this Court which we have noticed were predicated on this assumption. The Civil Code, too, requires the accomplishment of acts or contracts in a public
instrument, not in order to validate the act or contract but only to insure its efficacy so that after the existence of the acts or contracts has been admitted, the party bound may
be compelled to execute the document. (Hawaiian Philippine Co. vs .Hernaez, 45 Phil., 746.)
Is section 1 of Rule 74 constitutive and not merely evidential of partition? In other words, is writing the act that confers legal validity upon the agreement? There are no
indications in the phraseology of this rule which justify an affirmative answer to these questions. It must be noted that where the law intends a writing or other formality to be
the essential requisite to the validity of the transactions it says so in clear and unequivocal terms. Thus, the statute of frauds as originally enacted in England and as enacted in
some of the states, uses the words "utterly void" with statute transactions required to be in writing are absolutely void and not merely voidable if not made in the manner
indicated. Again article 633 of the Civil Code says that donation may be valid only when made in a public document. Article 146 of the Mortgage Law makes known its
intention to have the execution of a public instrument and its registration in the registry indispensable to the validity of the contract by using this phrase: "in order that
voluntary mortgages may be legally created in a valid manner." Article 1765 of the Civil Code also employs for the same purpose similar expression with reference to the
execution of a public document: "in order that mortgage may be validly constituted." And with respect to the formalities of last wills and testaments, section 618 of Act No.
190 makes this emphatic statement: "No will shall be valid to pass upon any estate real or personal nor change or affect the same, unless it be written etc." Other examples
might be mentioned.
Section 1 of Rule 74 contains no such express or clear declaration that the required public instruments is to be constitutive of a contract of partition or an inherent element of
its effectiveness as between the parties. And this Court had no apparent reason, in adopting this rule, to make the efficacy of a partition as between the parties dependent on
the execution of a public instrument and its registration. On the other hand, the opposite theory is not without reasonable support. We can think of possible factors against the
proposition that a public document and its registration were contemplated as necessary ingredients to give life to a contract of partition so that without them no oral partition
can bind the parties.
1. In the first place, the Rules of Court of which the rule under consideration forms a part were promulgated by the Judicial Department under authority to deal with matters
of procedure exclusively. For this court to prescribe what is to be a binding agreement between co-heirs in the settlement of their private affairs which in no way affect the
rights of third parties would be to transcends its rule-making power. We bring out this limitation upon the authority of this court to make rules, as an aid to interpretation,
as a method of arriving at the conclusion that section 1 of Rule 74 was meant to be remedial and not a rule of substantive law of far-reaching importance and serious
juridical and practical implications. It is to be presumed that the framers of the Rules of Court realized the bounds of this court's functions and did not intend to trespass on
purely substantive rights of the parties to the partition. To the extent the execution and registration of a notarized instrument are made essential elements to validity to
protect innocent third parties, the rule is legitimate and necessary; legitimate because decedent's estate are placed under the jurisdiction of the courts to administer and
distribute. The interests of third parties eliminated, the rule loses its character as one of procedure and practice and invades the realm of substantive law.
Section 596 of Act No. 190, which is the precursor of section 1 Rule 74, is enlightening and instructive. The former after stating that heirs may apportion and divide the
estate among themselves as they may see fit by agreement duly executed in writing by all of them, adds the words "and not otherwise." These words, in our opinion, were
expressive of an intention to make the written formality inherent element of the validity of a parol partition. But what is far more to the point is that by logical process of
deduction the elimination from the new rule of the words "and not otherwise" imports the casting away from the prescribed public document of its jural character which
the document enjoyed in the former code. At the same time, the inclusion of the aforesaid words in the old provision serves to emphasize the necessity of a positive and
clear language if a given contractual formality is to be the exclusive basis of the contract's binding effect on the parties. It is of course unnecessary to say that the attaching
of jural character to the prescribed public instrument in section 596 of Act No. 190 is no argument for contending that such document must be clothed with the same
raiment in the new Rules. Act No. 190 was a mixture of procedural and substantive provisions, having been enacted by the legislative body itself which, unlike this court,
was unhampered and untrammelled, except by the fundamental law, in the choice of its subjects of legislation.
2. The civil law looks upon the role of public instruments in acts and contracts with greater liberality with a view to better adaptation to human frailties and idiosyncracies. In
their blind faith in friends and relatives, in their lack of experience and foresight, and their ignorance, men, in spite of laws, will make and continue to make verbal

15. contracts. The advantages of an air-tight policy concerning such contracts fall far short of compensating for the resulting damage, injustice, inconveniences and confusion.
So even though articles 1278, 1279 and 1280 of the Civil Code have made provisions for public instrument for all transactions and contracts whose object is the creation,
modification or extinction of real rights in immovables, it has been recognized and held that verbal contracts may be effective between the parties. A leading case on this
subject is Thunga Chui vs. Que Bentec (2 Phil., 561), Mr. Justice Williard writing the decision. It was said in that case that when the essential requisites for the existence
of a contract are present, the contract is binding upon the parties, and, although required to be in writing by article 1280 of the Civil Code, the plaintiff can maintain an
action under article 1279 to compel the execution of a written instrument. It says that "article 1279 does not impose an obligation, but confers a privilege upon both
contracting parties, and the fact that the plaintiff has not made use of same does not bar his action." It further says that article 1279, far from making the enforceability of
the contract dependent upon any special intrinsic form, recognizes its enforceability by the mere act of granting the contracting parties an adequate remedy whereby to
compel the execution of public writing or any other special form whenever such form is necessary in order that contract may produce the effect which is desired according
to whatever its object. This doctrine was iterated and reiterated in a series of decisions perhaps longer than that on any other legal topic. And it has been extended even to
verbal contracts involving land registered under the Torrens Act. Do the Rules of Court adhere to this salutary principle? We can perceive no sufficient ground for the new
Rules to depart from it. No considerations of public policy enter into a partition of hereditary estate among co-heirs greater than those involved in a contract between
strangers which operates to create, transmit, modify or extinguish property rights in land. If as between strangers the creation, transmission, modification or extinction of
real rights may be lawfully effected by parol agreement notwithstanding the requirement that it be put in writing, the new rule could not be more intransigent when the
transaction is between co-heirs and there is no change of ownership but simply designation and segregation of that part which belongs to each heir.
The requirement that a partition be put in a public document and registered has, in our opinion, for its purpose the protection of creditors and at the same time the protection
of the heirs themselves against tardy claims. Note that the last sentence of the section speaks of debts and creditors. The object of registration is to serve as constructive
notice, and this means notice to others. It must follow that the intrinsic validity of partition not executed with the prescribed formalities does not come into play when, as
in this case, there are no creditors or the rights of creditors are not affected. No rights of creditors being involved, it is competent for the heirs of an estate to enter into an
agreement for distribution in a manner and upon a plan different from those provided by law.
It is said that the findings, conclusions and judgment in the appealed decision are not assigned as errors and that for this reason the appeal should be dismissed. We do not
think that the premise of this objection is exactly correct. The evidence on parol partition tendered by the defendant and intervenors was ruled out and they specifically
complain of this exclusion as error. In this manner the assignment of error squarely meets and attacks the opinion and judgment of the trial court. A superficial analysis of the
case will show that on the validity of the alleged partition hangs the result of the entire litigation, and on that validity depends in turn the competence of the excluded
evidence. These two interrelated points are the core of the whole case. All other points are incidental to and revolve around them. If a completed oral partition may be
enforced, as the defendant and the intervenors contend and as we opine, their evidence should be allowed, and if allowed and it establishes their allegation, the plaintiff's
cause of action vanishes.
If the appellant's assignment of error be not considered a direct challenge to the decision of the court below, we still believe that the objection takes a narrow view of practice
and procedure contrary to the liberal spirit which pervades the Rules of Court. The first injunction of the new Rules (Rule 1, section 2) is that they "shall be liberally
construed in order to promote their object and to assist the parties in obtaining just, speedy, and inexpensive determination of every action and proceeding." In line with the
modern trends of procedure, we are told that, "while an assignment of error which is required by law or rule of court has been held essential to appellate review, and only
those assigned will be considered, there are a number of cases which appear to accord to the appellate court a broad discretionary power to waive the lack of proper
assignment of errors and consider errors not assigned. And an unassigned error closely related to an error properly assigned, or upon which the determination of the question
raised by the error properly assigned is dependent, will be considered by the appellate court notwithstanding the failure to assign it as error." (4 C.J.S., 1734; 3 C.J., 1341,
footnote 77.) At the least, the assignment of error, viewed in this light, authorizes us to examine and pass upon the decision of the court below.
The judgment is reversed and the case is remanded to the court of origin for further proceeding and a new decision not incompatible with this decision, with costs of this
appeal against the appellee.
Moran, C.J., Pablo, Hilado, Bengzon, Briones, Hontiveros, and Padilla, JJ., concur.
REYES, J.B.L., J.: G.R. No. L-23758 May 20, 1968
MAXIMINA OYOD DE GARCES, ET AL., vs. ESMERALDA BROCE, ET AL.
Appeal instituted by both parties in Civil Case No. 137 (6780) of the Court of First Instance of Negros Occidental, from the decision rendered
therein, dismissing the complaint in said case; declaring as valid the sale to defendant Esmeralda Broce, by the heirs of Fortunata Oyod, of a
portion of Lot No. 228 of the San Carlos Cadastre and referred to as Lot No. 228-D; and ordering therein defendant Esmeralda Broce to pay to
plaintiffs the sum of P780.00 w ith legal interest thereon, from the date of the promulgation of the decision until its full payment.
In a complaint filed on September 19, 1962 in the Court of First Instance of Negros Occidental (w hich w as later amended), Max imina Oyod de
Garces, Gregorio Oyod and Pio V. Garces sought the termination of a lease and annulment of sale, in favor of defendants Tranquilino Broce and
Esmeralda Broce, and the return by the latter, of a parcel of land described as Lot No. 228-D of the subdivision of Lot No. 228 of the Cadastral
Survey of San Carlos, Negros Occidental, w ith an area of 354,250 square meters more or less, that plaintiffs claimed to be their property pro-
indiviso. At the pre-trial hearing of the case, the parties stipulated on the follow ing:
1. That the original ow ners of Lot No. 228 w ere Severo Oyod and Bonifacia Mahinay and their ow nership is evidenced by Original Certificate of
Title No. 23777 of the Registry of Deeds of Negros Occidental.
2. That the said registered ow ners had four children namely — Fortunata, Eugenia, Gregorio and Maxima Oyod.
3. That Eugenia died sometime in 1950 after the death of Severo Oyod; that Maxima Oyod is married to Pio V. Garces; and that Fortunate Oyod,
married Pedro Barbon and their children are Melecia, Narciso, Leopoldo, Carlos, Margarita, Leonardo, Lilia and Ildefonso Barbon.
4. That in 1930 the heirs of Severo Oyod executed a Deed of Extra-Judicial partition w hich is document 888, page 12, book 7, series of 1930 of
Notary Public Victorino G. Apuhin (pp. 101 to 105 of record).
5. That on September 5, 1951 the heirs of Severo Oyod executed a Deed of Extra-judicial Settlement w hich is document 457, page 93, book 2,
series of 1951 of Notary Public Filomeno T. Enriquez (pp. 77 to 78 of the record).
6. That Fortunata Oyod executed a lease agreement in favor of Tranquilino Broce on October 28, 1957 (Document 284, page 39, book 9, series
of 1957 of Notary Public Apuhin, pp. 77 to 78 of the Record).
7. That on September 25, 1962, the heirs of Fortunata Oyod Barbon executed an Extra-Judicial Settlement and Sale in favor of Esmeralda P.
Broce w hich is document 188, page 92, book 1, series of 1962 of Notary Public Roque Agravante (pp. 109 to 111 of the record).
8. That the questions before this Court are as follow s:
(a) Which should prevail, the Extra-Judicial Settlement of 1930 or that of 1951?
(b) If the 1930 Extra-Judicial Settlement is upheld, then the buyer Esmeralda Broce bought on September 25, 1962, Lot No. 228-D, is
described in the 1930 document.
(c) If the 1951 Extra-Judicial Settlement is upheld, then Fortunata Oyod ow ned an undivided share in Lot No. 288; and w hat Esmeralda Broce
acquired in 1962 is not Lot No. 228-D specifically, but an undivided share of ¼ in Lot 228.
After due hearing, the court rendered judgment on July 11, 1964, upholding the due execution and validity of the 1930 extrajudicial partition by the
heirs of Severo Oyod and Bonifacia Mahinay of Lot No. 228, and of the sale in 1962 to Esmeralda Broce of Lot No. 228-D by the heirs of Fortunata
Oyod. And, finding that the heirs of the deceased Severo Oyod contracted an obligation w ith the Philippine National Bank prior to the sale of Lot
No. 228-D, to pay the outstanding taxes on the entire Lot 228, the court ruled that lien w as thus created and attached to the land. Esmeralda Broce
w as then ordered to pay to plaintiffs the sum of P780.00 or 1/5 of the said obligation, as share of Lot 228-D.
Both parties appealed; plaintiffs excepting fromthe ruling that sustains the validity of the extrajudicialpartition of 1930 and the order to Esmeralda
Broce to pay only the sum of P780.00 instead of P2,392.00; w hereas, defendant Esmeralda Broce prays for her totalexculpation fromany liability.
It is evident fromthe issues formulated and litigated in the court below , which are again being raised in this appeal by the plaintiffs-appellants, that
the controversylies on the effect of the execution of the extrajudicialpartition in 1951, w hich was duly recorded in the Registry of Deeds, upon the
1930 agreement w hich, although embodied in a public instrument, w as admittedly not registered.1
For, if there w as a valid partition of Lot No. 228
(one of the properties included in the 1930 agreement) and ow nership of the portions respectively assigned to the heirs thereunder had indeed
passed to the latter, then the sale of Lot No. 228-D to Esmeralda Broce in 1962 w ould also be valid. Upon the other hand, if there w as proper

16. cancellation and substitution of that 1930 settlement, by the extrajudicialpartition of 1951, w herein the heirs agreed to form a co-ow nership of the
w hole Lot 228, then w hat could be acquired by defendant-appellee Esmeralda Broce w ould only be an undetermined ¼ share of the same lot.
The issue — of the effect of an unregistered extrajudicial settlement2
among the heirs of the estate of a deceased person — is not new . It w as
previously resolved by this Court in favor of the validity of the partition in the case of Hernandez vs. Andal, 78 Phil. 196, in this w ise:
Is section 1 of Rule 74 constitutive and not merely evidential of partition? In other w ords, is w riting the act that confers legal validity upon the
agreement? There are no indications in the phraseology of this rule w hich justify an affirmative answ er to these questions. It must be noted
that w here the law intends a w riting or other formality to be the essential requisite to the validity of the transaction, it says so in clear and
unequivocalterms. Thus, the statute of frauds as originally enacted in England and as enacted in some of the states, uses the w ords "utterly
void" w ith reference to certain transactions. Under the terms of such statute transactions required to be in w riting are absolutely void and not
merely voidable if not made in the manner indicated. Again article 633 of the Civil Code says that donation may be valid only w hen made in a
public document. Article 146 of the Mortgage Law makes know n its intention to have the execution of a public instrument and its registration in
the registry indispensable to the validity of the contract by using this phrase: "in order that voluntary mortgages may be legally created in a
valid manner." Article 1765 of the Civil Code also employs for the same purpose similar expression w ith reference to the exec ution of a public
document: "in order that mortgage may be validly constituted." And w ith respect to the formalities of last w ills and testaments, section 618 of
Act No. 190 makes this emphatic statement: "No w ill shall be valid to pass upon any estate real or personal nor charge or aff ect the same,
unless it be w ritten etc." Other examples might be mentioned. Section 1 of Rule 74 contains no such express or clear declaration that the
required public instrument is to be constitutive of a contract of partition or an inherent element of its effectiveness as between the parties. And
this Court had no apparent reason, in adopting this rule, to make the efficacyof a partition as betw een the parties dependent on the execution
of a public instrument and its registration.... (78 Phil. 204-205).
Touching on the purpose of the registration-requirement in the said provision, this Court ruled in the same case:
The requirement that a partition be put in a public document and registered has, in our opinion, for its purpose the protection of creditors and
at the same time the protection of the heirs themselves against tardy claims. Note that the last sentence of the section speaks of debts and
creditors. The object of registration is to serve as constructive notice, and this means notice to others. It must follow that the intrinsic validity of
a partition not executed w ith the prescribed formalities does not come into play w hen, as in this case, there are no creditors or the rights of the
creditors are not affected. No rights of creditors being involved, it is competent for the heirs of an estate to enter into an agreement for
distrubution in a manner and upon a plan different from those provided by law . (Cas. cit., pp. 208-209).
There is nothing here on record to indicate that w hen the first partition agreement w as entered into, there existed any claim against the estate of the
deceased or that prejudice w as therebycaused to any third party. Considering that a voluntary division of the estate of the deceased, by the heirs
among themselves, is conclusive3
and confersupon said heirs exclusive ow nership of the respective portions assigned to them,4
the extrajudicial
partition made by the heirs of Severo Oyod in 1930 could not have been cancelled or subtituted by the execution, by some of these heirs, of
another extrajudicialsettlement of the same estate in 1951 even if the latter document be registered, particularly since one of the co-signers of the
1930 agreement, Eugenia Oyod, had died on January 8, 1950, (Exh. D) before the second extrajudicial settlement w as made. The low er court,
therefore, committed no error in holding that the sale to defendant-appellee Esmeralda Broce of Lot 228-D in 1962 did not suffer from any infirmity.
A second reason is that it is not show n that appellee Broce had notice or know ledge of the second partition of 1951. As the 1930 partition w as
operative to vest title in Fortunata Oyod to the lot allotted to her, even if the agreement w as unrecorded, Broce had reason to rely thereon.
How ever, there is no basis to the low er court's order to defendant-appellant, Esmeralda Broce, to assume a proportionate share of the
indebtedness contracted by the surviving heirs of the deceased Severo Oyod w ith the Philippine National Bank. The fact alone that the property in
dispute originally formed part of the estate of said deceased person and that the obligation w as contracted prior to its purchase by herein
defendant-appellant, to pay the taxes due on the estate of the deceased, does not render the vendee answ erable therefor. As pronounced by this
Court in the case of Habaña vs. Imbo, supra, if there is really need to sell properties belonging to an heir to pay the debts of the estate, there
should first be exhaustion of other properties still ow ned by the said heir. In the present case, there is no proof that the heirs of Fortunata Oyod
received from the estate of Severo Oyod no property other than Lot 228-D. Furthermore, it does not even appear that this obligation to the
Philippine National Bank w as duly constituted as an encumbrance on the w hole Lot 228. As mere vendee of Lot 228-D, defendant-appellant cannot
be required to share in the payment of an obligation contracted by the heirs of the estate, of w hich she is not one. WHEREFORE, as above
modified, the decision appealed from is hereby affirmed. Costs against plaintiffs-appellants.
MAKALINTAL, J.: G.R. No. L-21725 November 29, 1968
AURELIO ARCILLAS vs. HON. GREGORIO D. MONTEJO, Judge of the Court of First Instance of Zamboanga, MODESTA
ALFARO, GERONIMO ARCILLAS and VICENTE ARCILLAS
Filed before the Court of First Instance of Zamboanga on November 12 and 16, 1962, respectively, are tw o separate petitions having direct and
specialreference to Lot No. 276. This lot, covered by TransferCertificate of Title No. RT-244 (2155 (0-656), forms a major part of the estate of the
late Eustaquio Arcillas w ho died intestate on March 8, 1958 in the City of Zamboanga.
In the petition dated November 12 Geronimo Arcillas, one of the heirs of the deceased, sought the cancellation of TCT No. RT-244 in the name of
the deceased and prayed for the issuance of a new certificate of title in the names of the heirs in the enumerated proportions alleged in the petition.
It w as claimed that at various dates after the death of the deceased, severaltransactionsaffecting Lot No. 276 transpired, prominent among w hich
w ere the separate sales of their respectiveshares and participation in Lot No. 276 executed by four (4) other children of the deceased in favor of
co-heir Vicente Arcillas. Invoking section 112 of Act No. 496 (Land Registration Act), Geronimo Arcillas argued that the proportion of each heir's
participation in said lot should be accurately reflected in a new certificate of title. But before any other material pleading could be filed w ith respect
to this petition, five (5) other children of the deceased filed the November 16 petition aforementioned. This later petition, docketed as Special
Proceeding No. 632, prayed for the issuance of letters of administration in favor of herein petitioner preparatory to the final settlement of the
deceased's estate. Paragraphs 3 and 4 of this later petition, insofar as pertinent to this case, read:
3. That the deceased left an estate consisting of real property in Zamboanga City w ith a probable value of not less than SIX THOUSAND
PESOS (P6,000.00), Philippine Currency;
4. That as far as petitioners know , the deceased left no debts remaining unpaid;
In the meantime, on November 23, 1962 herein petitioner filed his opposition to the November 12 petition on the ground that inasmuch as Lot No.
276 — the subject matter thereof — w as included in the estate of the deceased for w hich a petition for administration had actually been filed and
w as awaiting resolution, that petition (the one dated November 12) should be held in abeyance until after Special Proceeding No. 632 w as closed
and terminated. Recognizing then the merit of petitioner's ground, respondent Judge issued an order on December 1, 1963 temporarily holding in
abeyance resolution of the November 12 petition until the termination of the intestate proceedings.
Meanw hile, in his answ er to the November 16 petition (Sp. Proc. No. 632) Geronimo Arcillas, this time joined by Vicente Arcillas and the w idow
Modesta Alfaro, opposed the issuance of letters of administration to herein petitioner, arguing that inasmuch as Lot No. 276 w as the only property
left by the deceased and the deceased left no debts, the petition for administration w as improper. How ever petitioner, in his reply on January 18,
1963, insisted that there w ere stillother properties of the estate of the deceased besides Lot No. 276; he likew ise took issue w ith respondents' view
that administration proceedings could be dispensed w ith asserting, firstly, that there w as no unanimity among the heirs for extrajudicial partition
and, secondly, that some of the heirs had been unduly deprived of their participation in the estate.
On March 8, 1963 respondent court denied the November 16 petition for the issuance of letters of administration and at the same time gave due
course to the November 12 petition. Reasoned the court: "... to obviate the necessity of spending uselessly w hich w ould only deplete the funds of
the estate; to avoid unnecessary delay in the partition of the property involved herein, and follow ing the doctrines establis hed by the Honorable
Supreme Court in several cases of the same nature, w hich is in consonance w ith the provisions of Section 1, Rule 74 of the Rules of Court, the
court is of the opinion that the herein petition (should) be denied and (holds that) the cadastral motion of the oppositor Geronimo Arcillas covering
the same property is the most expedient and proper action."
Unable to have this order reconsidered petitioner filed the instant petition for certiorari w ith mandamus and preliminary injunction. On December 2,
1963, upon filing by petitioner of the required bond, w e issued a w rit of preliminary injunction enjoining respondent Judge from proceeding w ith the
hearing of the "cadastral motion" dated November 12, 1962.

17. The issues to be determined are w hether respondent Judge acted properly (1) in dismissing the administration proceedings under the authority of
section 1, rule 74 of the New Rules of Court upon averments that the estate left no debts and all the heirs entitled to share in its distribution are all
of age and (2) in maintaining that the "cadastral motion" brought under the provision of section 112 of the Land Registration Act w as the more
proper proceeding under the circumstances.
Under section 1, Rule 74 of the New Rules of Court, if the decedent left no w illand no debts and the heirs and legatees are all of age, or the minors
are represented by their judicial guardians, the parties may, w ithout 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. And primarily anchored on the proposition that inasmuch as in the present case the minimum requirements of the aforementioned section
obtain, i.e. the decedent left no w ill and no debts and the heirs are all of age, respondents claim that there is no necessity for the institution of
specialproceedings and the appointment of an administrator for the settlement of the estate for the reason that it is superfluous and unnecessary.
In other w ords, respondentsapparently view section 1 of Rule 74 as mandatory upon the heirs so long as the deceased left no w ill nor any pending
obligations to be paid and his heirs are all of age.
We cannot entirely agree w ith the respondents. On a similar contention in the past, w e had occasion to explain inRodriguez, et al. v. Tan, et al., 92
Phil. 273:
... section I does not preclude the heirs from instituting administration proceedings, even if the estate has no debts or obligation, if they do not
desire to resort for good reasons to an ordinary action of partition. While section 1 allow s the heirs to divide the estate among themselves as
they may see fit, or to resort to an ordinary action of partition, it does not compel them to do so if they have good reasons to take a different
course of action. Said section is not mandatory or compulsory as may be gleaned from the use made therein of the w ord may. If the intention
w ere otherwise the framer of the rule w ould have employed the w ordshall as w as done in other provisions that are mandatory in character.
Note that the w ord may its used not only once but in the w hole section w hich indicates an intention to leave the matter entirely to the
discretion of the heirs.
Having decided to institute administration proceedings instead of resorting to the less expensive modes of settlement of the estate, i.e. extrajudicial
settlement or ordinary action for partition, the heirs may not then be rebuffed in the exercise of their discretion granted under section 1 of Rule 74 of
the Rules of Court merely on the ground that the expenses usually common in administration proceedings may deplete the funds of the estate. The
resultant delay and necessary expenses incurred thereafter are consequences w hich must be deemed to have been voluntarily assumed by the
heirs themselves so that they may not in the future be heard to complain of these matters. Besides, the truth or veracity of petitioner's claim as to
the alleged existence of other properties of the deceased aside from the lot in question can be more adequately ascertained in administration
proceedings rather than in any other action.
Understandably the allow ance of the hearing of the "cadastral" motion, supposedly brought under the authority of section 112 of Act 496, cannot be
sustained. While this section authorizes, among others, a person in interest to ask the court for any erasure, alteration, or amendment of a
certificate of title "upon the ground that registered interests of any description, whether vested, contingent, expectant, or inchoate have terminated
and ceased," and apparently the November 12 petition comes w ithin its scope, such relief can only be granted if there is unanimity among the
parties, or there is no adverse claim or serious objection on the part of any party in interest; otherw ise the case becomes controversial and should
be threshed out in an ordinary case or in the case w here the incident properly belongs (see Puguid v. Reyes, L-21311, August 10, 1967 and the
cases cited therein). In the instant case the obvious lack of unanimity among the parties in interest, manifestly demonstrated by petitioners' express
objection to the cancellation of TCT No. RT-244, sufficiently removes the November 12 petition from the scope of section 112 of Act 496. Besides,
the proceedings provided in the Land Registration Act are summary in nature and hence inadequate for the litigation of issues w hich properly
pertain to the case w here the incident belongs.
IN VIEW OF THE FOREGOING, judgment is hereby rendered setting aside the appealed orders and directing respondent Judge or w hoever is
presiding the court below to reinstate SpecialProceedings No. 632; the w rit of preliminary injunction previously issued enjoining respondent Judge
from proceeding w ith the hearing of the "cadastral" motion dated November 12, 1962 is hereby made permanent. Costs against respondents,
except respondent Judge.
NOCON, J.: G.R. No. 100993 March 30, 1993
CONCEPCION MUÑOZ DIVINA as representedby her daughter Amelia Tinoco vs. THE CA and JUANITA N. MUÑOZ
The petition before us is an action for recovery of sum of money based on an extra-judicial agreement. The counsel for the private respondent
informed this court that respondent, Juanita Muñoz has succumbed to old age during the pendency of this appeal, and that despite efforts exerted,
none of her relatives has come forw ard to substitute the deceased in this proceeding.
The contending parties are in-law s, w ho are contesting the inheritance of the deceased spouse of the now deceased respondent. Eleuterio M.
Muñoz w as the brother of Trinidad Muñoz-Marticio, Maximo M. Muñoz and Concepcion Muñoz-Divina (herein petitioner, represented by her
daughter Amelia Tinoco). Eleuterio w as married to Juanita, although their union w as not blessed w ith a child. Upon Eleuterio's demise, Juanita
invited her three in-law s to participate in the extra-judicial settlement of the estate of her husband, they being the only heirs.
Eleuterio's properties, both personal and real, w ere assessed in the amount of P709,403.00, less the expenses for the burial, w ake and other
incidental costs, the remaining balance left for partition amounted to P669,458.50. Based on the "Extra-Judicial Settlement of Estate of Eleuterio M.
Muñoz, w ith Deed of Sale" 1
the heirs agreed that three-fourths (3/4) of the total net value of the property or P502,093.87 shall be adjudicated to
respondent, Juanita, w hile the remaining one-fourth (1/4) or the amount of P167,364.00 shall be divided equally among Eleuterio's brother and
sisters, each to receive more or less P55,788.00.
In the same instrument, the heirs agreed that Maximo, Trinidad and Concepcion w ere to sell to Juanita all their rights and participation to the estate
and in consideration thereof, Juanita is to pay each of the heirs P55,788.00 or a total of P167,364.00 to expedite the settlement of the estate. The
document w as prepared and notarized by Atty. Teodulo C. Gabor, and signed by all the parties on December 18, 1980. On the same day, Juanita
executed an affidavit promising to pay the other heirs their share in Eleuterio's inheritance w ithin six (6) months from January 18, 1980. 2
On January 24, 1984, Concepcion signed a "Statement of Partition, Assets of the Late Eleuterio M. Muñoz". 3
This document itemized the amount
due to Concepcion, the agreed deductions and advances made by her and her daughter, Amelia, from Juanita. Tw o days thereafter, Concepcion
caused Juanita to sign a certification w hich states that the residential house located at 4548 Quintos Street, Makati, (w here Amelia w ith her family
used to reside) w as part of the inheritance received by Concepcion from the estate of Eleuterio. 4
Sometime on September 1986, Juanita filed an accion publiciana against Ernesto Tinoco, husband of Amelia and tw o other tenants occupying the
apartments on Quintos Street. The case, docketed as Civil Case No. 15030, 5
w as decided in favor of Juanita and became final on March 1988,
there being no appeal instituted by the defendants. Defendant, Ernesto, w as ordered to immediately vacate the property and allow plaintiff, Juanita
to recover possession thereof.
On February 1988, or almost eight years after the signing of the extra-judicial settlement, Juanita's in-law s filed a complaint for revocation and
annulment of the extra-judicialsettlement of estate of Eleuterio, naming Juanita as defendant. In due time, how ever, Maximo and Trinidad w ithdrew
as plaintiffs, leaving Concepcion, represented by her daughter, Amelia Tinoco, to pursue the case.
The complaint alleges that Juanita, by means of strategy and stealth and through fraud and illegal means, convinced and lured the plaintiff s therein
in executing the Extra-Judicial Settlement of the Estate of Eleuterio M. Muñoz; that defendant Juanita has not paid each of the plaintiffs the amount
of P55,788.00 or a total of P167,364.00 contrary to the stipulation in the said document; and that a certain property (apartment units) designated as
4544, 4546 and 4548 located at Quintos St., Makati together w ith the parcel of land on w hich the units w ere constructed w ere not turned over by
defendant to Concepcion as promised by her in the certification 6
she signed on January 26, 1984.
The trial court, w hile upholding the validity of the Extra-Judicial Settlement, is of the belief that petitioner Concepcion w as not paid the balance of
her share giving credence to the affidavit of respondent Juanita signed in 1980 acknow ledging such fact.

18. The affidavit, how ever, w as executed on the same day that the extra-judicial partition w as signed. On that very day, it is understandable that
respondent did not have the cash to pay her co-heirs and as she testified, she had to sell some properties in order to give her in-law s their agreed
share. 7
On the other hand, the appellate court, w hile also finding the Extra-Judicial Settlement valid, found that all the heirs, namely Concepcion, Trinidad
and Maximo w ere indeed paid their share.
Moreover, defendant-appellant's evidence reveal that the three (Maximo Muñoz, Trinidad Marticio and Concepcion Divina) w ere paid
their respective shareson different dates. On December 1, 1981, Maximo Muñoz executed a sw orn statement wherein he acknow ledged
receipt of P30.000.00 "as evidence and partial payment of my share to the estate (Exh. 13, p. 136, Rec.) Subsequently, on August 11,
1984, he acknow ledged receipt of the amount of P9,762.00 in full payment of (his) share in the estate (p. 131, Rec.). Likew ise, Trinidad
Marticio signed a list w hich showed cash advances in the amount of P23,200.00 taken from defendant-appellant Juanita Muñoz and her
share of the estate tax in the amount of P16,056.00 or a total of P39,256.00. Thus, the total amount due her w as only P16,532.00 of her
share of P55,788.00 in the estate of Eleuterio Muñoz. She affixed her signature at the bottom of the statement of partition on January 23,
1984. On January 24, 1984, plaintiff-appellee Concepcion Divina likew ise acknowledge receipt of a statement of partition (Exh. 2) similar
to those given to Maximo Muñoz and Trinidad Marticio. It itemizes the cash advances taken either by appellee Concepcion Divina or her
daughter Amelia Tinoco w hich totaled P15,415.00. Her share in the estate tax amounted to P16,056.00. Thus, the total amount due her
w as P24,317.00. While appellee's signature appears at the bottom of the statement of partition (Exh. 2), she, how ever, denies having
signed it. To affirmthe fact that the signature appearing on the statement of partition (Exh. 2 and Exh. E) is not hers, appellee w rote her
name on a piece of paper in open court (Exh. F). The trial court, how ever, did not find any need to make a comparison . . . 8
The appellate court, how ever, found the signature of Concepcion in the statement of partition (Exhibit "2") evidencing proof of payment of her share
by respondent, genuine. Said the court:
We, how ever, must disagree w ith the opinion of the trial court that "it cannot lend credence to the statement of partition (Exh. 2) as proof
of payment of Concepcion's share by defendant." First of all, We are of the view that the signature of appellee Concepcion Divina on the
statement of partition (Exh. 2) is in her genuine signature. We have compared it w ith her signatures on the Special Pow er of Attorney (p.
6, Rec.) and the extra-judicial settlement agreement (Exh. 8) and We find that it is strikingly similar to the questioned signature. By the
naked eye, and by cursory examination of the three signatures, We are convinced that they w ere w ritten by the same person, i.e.,
appellee Concepcion Divina. Additionally, since appellee disclaims her signature in Exhibit 2, she should have utilized a handw riting
expert to prove it is a forgery.
Moreover, if it is true that she w as not paid her share, Concepcion Divina should have brought this to the attention of appellant Juanita
Muñoz w ithin tw o (2) yearsfromthe time she signed the extra-judicialsettlement agreement. There is nothing in the record that she ever
made any w ritten demand for payment of her share. On the contrary, the statement of partition (Exh. 2) indicates that she w as fully paid
her share in the estate of her brother. Surely, w hen she acknow ledged receipt of the statement of partition (Exh. 2), she should have
questioned the amount w hich reflected the cash advances taken by her or daughter Amelia. She did not do so at the time of receipt or
immediately thereafter. In effect, she confirmed the contents of the partition settlement.9
The extra-judicial settlement agreement is a contract, w herein the parties may establish such stipulations, clauses and conditions as they may
deem convenient, provided that the legitime of the compulsory heirs are preserved. In the absence of fraud and provided all requisites are met, the
same should be upheld as valid and binding betw een parties.
Extra-judicial partition, being a speedy and less expensive method of distribution of the estate, is specifically provided for in Section 1, Rule 74 of
the Rules of Court, that in the absence of a w ill and w here the decedent left no debts and the heirs are all of age, the heirs may divide the estate
among themselves as they see fit by means of a public instrument, and should they disagree, they may do so in an ordinary action of partition.
In proceeding w ith the actualpartition of the properties mentioned in the deed, the parties, of course, are duty bound to abide by the mutual w aiver
of rights agreed upon in the document. 10
A party can not, in law and in good conscience, be allow ed to reap the fruits of a partition, agreement or
judgment and repudiate w hat does not suit him. 11
WHEREFORE, this petition is DISMISSED. The ruling of the appellate court is hereby AFFIRMED in toto.
SO ORDERED.
JUGO, J.: G.R. Nos. L-2963-4 December 27, 1951
GUARDIANSHIP OF RUFINO CRISOSTOMO and his minor childrenRUFINO CRISOSTOMO, JR., JUAN CRISOSTOMO, ROBERTO
CRISOSTOMO, and GABRIEL CRISOSTOMO. HERMOGENES C. FERNANDO, as Guardian of the minors
vs. GERMAN CRISOSTOMO and PACITA FERNANDO
---------------------------
INTESTATE ESTATE OF THE DECEASED SPOUSES RUFINO CRISOSTOMO and PETRA FERNANDO. GERMAN CRISOSTOMO and
PACITA FERNANDO vs. HERMOGENES C. FERNANDO, as Guardian of the minors RUFINO CRISOSTOMO, JR., JUAN
CRISOSTOMO, ROBERTO CRISOSTOMO, and GABRIEL CRISOSTOMO
This is an appeal from several orders of the Court of First Instance of Bulacan in case No. 38 of said court, entitled "Guardianship of Rufino
Crisostomo, Sr. and his minor children Rufino, Jr., Roberto, Juan, and Gabriel, all surnamed Crisostomo," w hich has been numbered by this Court
G.R. No. L-2693, and case No. 318 of the same court, entitled "Inestate Estate of the spouses Rufino Crisostomo and Petra Fernando," w hich has
been numbered by this Court G.R. No. L-2694. These tw o cases have been combined in view of the intimate and necessary relations betw een
them.
In case G.R. No. L-2963, Hermogenes C. Fernando w as appointed on August 14, 1945, guardian of Rufino Crisostomo and his minor children
Rufino, Jr., Juan, Roberto, and Gabriel as to their persons and properties. Later Rufino Crisostomo Sr., died, leaving his said four minor children
under the guardianship of said Hermogenes C. Fernando.
The value of the properties involved in the tw o proceedings exceeds P50,000 and the pertinent questions raised are only of law .
On June 12, 1948, the guardian filed a motion w ith the Court of First Instance of Bulacan praying for the approval of an extra-judicial settlement of
the estate of the deceased parents of the minors, the spouses Rufino Crisostomo, Sr. and Petra Fernando, w ho died intestate on August 15, 1945
and January 16, 1945, respectively. The guardianad litem filed an opposition to said motion. The regular guardian filed an answ er to the opposition.
The court entered the follow ing:
ORDER
This is motion f or the approv al of an extra-judicial settlement marked Exhibit "A". The Supreme Court in the certiorari case, G.R. No. L-2172, has ruled: The guardian of
the minor children of the deceased is not, as such, administrator of the estate of the deceased until and af ter said estate has been acquired by or adjudicated to the
minors by proper proceedings. In v iew hereof , the said motion is hereby denied and the deed of extra-judicial settlement executed by the legal guardian Hermogenes C.
Fernando on May 23, 1948, a duplicate copy of which is marked A is declared null and v oid. Hermogenes C. Fernando is order deliv er to the Clerk of Court the original
copy of Exhibit "A" within 5 day s f rom the receipt of a copy of this order. Let a copy of this order be attached to the Special Proceedings No. 316. IT IS SO ORDERED.
(Sgd.) POTENCIANO PECSON Judge
The guardian appealed from the above order.
On July 23, 1948, the guardian filed in the guardianship proceedings a petition praying the court to punish for contempt German Crisostomo (one of
the administrators of the estate of the deceased spouses appointed in the intestate proceedings above mentioned) and one Victor Dimagiba,
alleging that they had illegally taken possession of certain properties belonging to the minor w ards, inherited by them from their parents. The Court
denied the petition on the ground that German Crisostomo had the right to possess those properties in his capacity as co-administrator of the
estate of the deceased spouses and that Victor Dimagiba w as only his overseer. The guardian filed a motion for reconsideration w hich the court
denied on September 16, 1948. He appealed from said order.
In case G.R. No. L-2694, entitled "Inestate Estate of the Spouses Rufino Crisostomo and Petra Fernando," German Crisostomo filed a petition, as
next of kin, for the opening of the inestate proceedings of the himself and Pacita Fernando, another next appointment of himself and Pacita
Fernando, another next of kin, as co-administrator of said estate. The guardian in case G.R. No. L-2693 filed on February 28, 1948, an opposition

19. to the appointment of the administrators and moved for the dismissal of the inestate proceedings on the ground that the properties left by said
spouses were already in his possession as such guardian. On April 1, 1948, the court issued an order denying the motion to dismiss the inestate
proceedings. On April 2, 1948, the guardian filed another petition reiterating the motion of dismissal. On April 7, 1948, the court appointed German
Crisostomo and Pacita Fernando co-administrators of the estate of the above-mentioned spouses with the appropriate bonds, impliedly denying the
reiteration of the motion for dismissal.
On June 21, 198, the guardian filed a motion for the closing, termination and filing in the archives of the record of the inestate proceedings on the
ground that the properties involved therein had already been extrajudicially declaring null and void the extrajudicial partition made by the guardian
and denying said motion for closing the inestate proceedings. The guardian appellee form the above order as w ell as from the one dismissing the
petition for contempt. It may be gathered from the above statement of the pleadings, motions, petitions, and orders of the court below that the
principal issue in this case is w hether the court should have denied the petition for the opening of inestate proceedings, or should have dismissed it,
upon motion of the appellant, after they had commenced, and w hether the project of partition submitted by the guardian in the guardianship
proceedings should have been approved. The other questions as to the contempt of court allegedly committed by the co-administrator German
Crisostomo together w ith his overseer Victor Dimagiba, may be disposed of as a mere corollary of the principal issues as to the dismissal of the
inestate proceedings.
On April 27, 1948, the guardian filed w ith this Court a petition.
In the petition, substantially the same questions are raised as those discussed in the brief of the appellant herein. This Court, in a resolution dated
May 5, 1948, w hich became final on July 2, 1948, passed the follow ing resolutions:
Considering the petition for certiorari with preliminary injunction filed by the petitioner in case No. L-2172 (Hermogenes Fernando, etc., vs. Court of
First Instance of Bulacan et al.), the same is DEFINED, inasmuch as the brothers of the deceased have interest, as next of kin, to petition for letters
of administrators, the heirs of the deceased being minors, and the respondent judge acted w ithin his jurisdiction in appointing the petitioners as
administrators under section 6, Rule 79. The guardian of the minor children of the deceased is not, as such, administrator of the estate of the
deceased until and after said estate has been acquired by or adjudicated to the minors by proper proceedings.
The guardian filed an extensive motion for reconsideration of said resolution of the court, discussing w ith further details the matter involved in the
present case, and setting forth further arguments in support of his contention.
This Court, after giving due consideration to all the facts and arguments appearing in the original petition and in the motion for reconsideration,
passed the resolution of June 11, 1948, w hich reads as follow s:
In G.R. No. L-2172, Fernando vs. Judge of First Instance of Bulacan, et al., the motion f or reconsideration is denied. Respondent judge had jurisdiction and did not
exceed it in appointing the other respondent, who are the brother and sister or nearest of kin of the decedent, as administrators of the latter's estate. The jurisdictional
f acts ref erred to in section 2 (a) Rule 80, are the death of the decedent, his hav ing lef t his estate in such prov ince were probate court is sitting, or lif e he is an inhabitant
of a f oreign country , his hav ing lef t his estate in such prov ince. The name or competency of the person or persons f or whim letters of administration are pray ed is not a
jurisdictional f act, it is another additional f act to be alleged in the petition (d); but "no def ect in the petition shall render v oid the issue of letters of administration" that is,
shall div est the court of its jurisdiction to appoint the administrator. A petition f or certiorari does not lie to correct errors; if the lower court has committed any error, the
proper remedy would be appeal. The guardian of the minors f ather who died af ter the guardian had been appointed, until said properties hav e been adjudicated or
awarded to them either by extrajudicial or judicial partition. No partition either judicial or extra judicial hav ing as y et been made adjudicating the said properties to the
minors, the properties of the deceased hav e nev er been placed under the administration of the guardian of his minor children.
Mr. Justice Perfecto dissented.
It w ill be seen from the above that the principal issue in this case as to w hether the intestate proceedings should be dismissed has already been
decided by this Court in the certiorari proceedings as far back as July 2, 1948, w ith the exception that if there had been errors committed in the
appointment of the guardian (not in the institution of the intestate proceedings, w hich had been declared w ithin the jurisdiction of the court) those
errors in the appointment may be corrected in an appeal. After examining the record, w e do not see any error in the appointment of German
Crisostomo and Pacita Fernando as co-administrators as they w ere the brother and sister, respectively, of the deceased, no evidence having been
presented by the appellant w hy those persons should not be appointed, either on account of their incompetency or lack of moral qualifications. We,
therefore, affirm the order of the court appointing them.
It should be borne in mind that the above resolutions of this Court constitute res judicata and "the law of the case" w ith regard to this appeal and
they can no longer be questioned or put in issue in the present case. It results then, that the claim of the appellant that the intestate proceedings
should be dismissed has to be denied and, as all the other questions are dependent on said issue, they should also be decided adversely to the
appellant. In view of the foregoing, the orders appealed from are hereby affirmed, w ith costs against the appellant. it is so ordered.