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G.R. No. 45629 September 22, 1938

ANTILANO G. MERCADO, petitioner,vs.ALFONSO SANTOS, Judge of First Instance of Pampanga, respondents.ROSARIO BASA DE LEON, ET AL., intervenors.

Claro M. Recto and Benigno S. Aquino for petitioner.Esperanza de la Cruz and Heracio Abistao for respondents.Sotto and Sotto for intervenors.

LAUREL, J.:

On May 28, 1931, the petitioner herein filed in the Court of First Instance of Pampanga a petition for the probate of the will of his deceased wife, Ines Basa.Without any opposition, and upon the testimony of Benigno F. Gabino, one of theattesting witnesses, the probate court, on June 27,1931, admitted the will to probate. Almost three years later, on April 11, 1934, the five intervenors hereinmoved ex parte to reopen the proceedings, alleging lack of jurisdiction of the court to probate the will and to close the proceedings. Because filed ex parte, the motion was denied. The same motion was filed a second time, but with notice to the adverse party. The motion was nevertheless denied by the probate court onMay 24, 1934. On appeal to this court, the order of denial was affirmed on July26, 1935. (Basa vs. Mercado, 33 Off. Gaz., 2521.)

It appears that on October 27, 1932, i. e., sixteen months after the probate ofthe will of Ines Basa, intervenor Rosario Basa de Leon filed with the justice of the peace court of San Fernando, Pampanga, a complaint against the petitioner herein, for falsification or forgery of the will probated as above indicated. The petitioner was arrested. He put up a bond in the sum of P4,000 and engaged theservices of an attorney to undertake his defense. Preliminary investigation of the case was continued twice upon petition of the complainant. The complaint wasfinally dismissed, at the instance of the complainant herself, in an order dated December 8, 1932. Three months later, or on March 2, 1933, the same intervenorcharged the petitioner for the second time with the same offense, presenting the complaint this time in the justice of the peace court of Mexico, Pampanga. Thepetitioner was again arrested, again put up a bond in the sum of P4,000, and eng

aged the services of counsel to defend him. This second complaint, after investigation, was also dismissed, again at the instance of the complainant herself who alleged that the petitioner was in poor health. That was on April 27, 1933. Some nine months later, on February 2, 1934, to be exact, the same intervenor accused the same petitioner for the third time of the same offense. The information was filed by the provincial fiscal of Pampanga in the justice of the peace courtof Mexico. The petitioner was again arrested, again put up a bond of P4,000, and engaged the services of defense counsel. The case was dismissed on April 24, 1934, after due investigation, on the ground that the will alleged to have been falsified had already been probated and there was no evidence that the petitionerhad forged the signature of the testatrix appearing thereon, but that, on the contrary, the evidence satisfactorily established the authenticity of the signature aforesaid. Dissatisfied with the result, the provincial fiscal, on May 9, 1934

, moved in the Court of First Instance of Pampanga for reinvestigation of the case. The motion was granted on May 23, 1934, and, for the fourth time, the petitioner was arrested, filed a bond and engaged the services of counsel to handle his defense. The reinvestigation dragged on for almost a year until February 18, 1934, when the Court of First Instance ordered that the case be tried on the merits. The petitioner interposed a demurrer on November 25, 1935, on the ground that the will alleged to have been forged had already been probated. This demurrerwas overruled on December 24, 1935, whereupon an exception was taken and a motion for reconsideration and notice of appeal were filed. The motion for reconsideration and the proposed appeal were denied on January 14, 1936. The case proceede

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d to trial, and forthwith petitioner moved to dismiss the case claiming again that the will alleged to have been forged had already been probated and, further,that the order probating the will is conclusive as to the authenticity and due execution thereof. The motion was overruled and the petitioner filed with the Court of Appeals a petition for certiorari with preliminary injunction to enjoin the trial court from further proceedings in the matter. The injunction was issuedand thereafter, on June 19, 1937, the Court of Appeals denied the petition for certiorari, and dissolved the writ of preliminary injunction. Three justices dissented in a separate opinion. The case is now before this court for review on certiorari.

Petitioner contends (1) that the probate of the will of his deceased wife is a bar to his criminal prosecution for the alleged forgery of the said will; and, (2) that he has been denied the constitutional right to a speedy trial.

1. Section 306 of our Code of Civil Procedure provides as to the effect ofjudgments.

SEC. 306. Effect of judgment. The effect of a judgment or final order in an action or special proceeding before a court or judge of the Philippine Islands or of the United States, or of any State or Territory of the United States, having jurisdiction to pronounce the judgment or order, may be as follows.

1. In case of a judgment or order against a specific thing, or in respect t

o the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or relation of a particular person, the judgment or order is conclusive upon the title of the thing, the will or administration, or the condition or relation of the person Provided, That the probate of a will or granting of letters of administration shallonly be prima facie evidence of the death of the testator or intestate.

xxx xxx xxx

(Emphasis ours.)

Section 625 of the same Code is more explicit as to the conclusiveness of the due execution of a probate will. It says.

SEC. 625. Allowance Necessary, and Conclusive as to Execution. No will shall pass either the real or personal estate, unless it is proved and allowed in the Court of First Instance, or by appeal to the Supreme Court; and the allowance by the court of a will of real and personal estate shall be conclusive as to its due execution. (Emphasis ours.)

(In Manahan vs. Manahan 58 Phil., 448, 451), we held:

. . . The decree of probate is conclusive with respect to the due execution thereof and it cannot be impugned on any of the grounds authorized by law, except that of fraud, in any separate or independent action or proceeding. Sec. 625, Code of Civil Procedure; Castañeda vs. Alemany, 3 Phil., 426; Pimentel vs. Palanca, 5

Phil., 436; Sahagun vs. De Gorostiza, 7 Phil., 347; Limjuco vs. Ganara, 11 Phil., 393; Montañano vs. Suesa, 14 Phil., 676; in re Estate of Johnson, 39 Phil, 156;Riera vs. Palmaroli, 40 Phil., 105; Austria vs. Ventenilla, 21 Phil., 180; Ramirez vs. Gmur, 42 Phil., 855; and Chiong Jocsoy vs. Vano, 8 Phil., 119.

In 28 R. C. L., p. 377, section 378, it is said.

The probate of a will by the probate court having jurisdiction thereof is usually considered as conclusive as to its due execution and validity, and is also conclusive that the testator was of sound and disposing mind at the time when he ex

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ecuted the will, and was not acting under duress, menace, fraud, or undue influence, and that the will is genuine and not a forgery. (Emphasis ours.)

As our law on wills, particularly section 625 of our Code of Civil Procedure aforequoted, was taken almost bodily from the Statutes of Vermont, the decisions of the Supreme Court of the State relative to the effect of the probate of a willare of persuasive authority in this jurisdiction. The Vermont statute as to theconclusiveness of the due execution of a probated will reads as follows.

SEC. 2356. No will shall pass either real or personal estate, unless it isproved and allowed in the probate court, or by appeal in the county or supreme court; and the probate of a will of real or personal estate shall be conclusive as to its due execution. (Vermont Statutes, p. 451.)

Said the Supreme Court of Vermont in the case of Missionary Society vs. Eells (68 Vt., 497, 504): "The probate of a will by the probate court having jurisdiction thereof, upon the due notice, is conclusive as to its due execution against the whole world. (Vt. St., sec. 2336; Fosters Exrs. vs. Dickerson, 64 Vt., 233.)"

The probate of a will in this jurisdiction is a proceeding in rem. The provision of notice by Publication as a prerequisite to the allowance of a will is constructive notice to the whole world, and when probate is granted, the judgment of the court is binding upon everybody, even against the State. This court held in the case of Manalo vs. Paredes and Philippine Food Co. (47 Phil., 938):

The proceeding for the probate of a will is one in rem (40 Cyc., 1265), and thecourt acquires jurisdiction over all the persons interested, through the publication of the notice prescribed by section 630 of the Code of Civil Procedure, and any order that may be entered therein is binding against all of them.

Through the publication of the petition for the probate of the will, the court acquires jurisdiction over all such persons as are interested in said will; and any judgment that may be rendered after said proceeding is binding against the whole world.

In Everrett vs. Wing (103 Vt., 488, 492), the Supreme Court of Vermont held.

In this State the probate of a will is a proceeding in rem being in form and substance upon the will itself to determine its validity. The judgment determines the status of the instrument, whether it is or is not the will of the testator. When the proper steps required by law have been taken the judgment is binding upon everybody, and makes the instrument as to all the world just what the judgment declares it to be. (Woodruff vs. Taylor, 20 Vt., 65, 73; Burbeck vs. Little, 50 Vt., 713, 715; Missionary Society vs. Eells, 68 Vt., 497, 504; 35 Atl., 463.) The proceedings before the probate court are statutory and are not governed by common law rules as to parties or causes of action. (Holdrige vs. Holdriges Estate, 53 Vt., 546, 550; Purdy vs. Estate of Purdy, 67 Vt. 50, 55; 30 Atl., 695.) Noprocess is issued against anyone in such proceedings, but all persons interested in determining the state or conditions of the instrument are constructively notified by the publication of notice as required by G. L. 3219. (Woodruff vs. Tayl

or, supra; In re Warners Estate 98 Vt., 254; 271; 127 Atl., 362.)

Section 333, paragraph 4, of the Code of Civil Procedure establishes an incontrovertible presumption in favor of judgments declared by it to be conclusive.

SEC. 333. Conclusive Presumptions. The following presumptions or deductions, which the law expressly directs to be made from particular facts, are deemedconclusive.

xxx xxx xxx

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4. The judgment or order of a court, when declared by this code to be conclusive.

Conclusive presumptions are inferences which the law makes so peremptory that it will not allow them to be overturned by any contrary proof however strong. (Brant vs. Morning Journal Assn., 80 N.Y.S., 1002, 1004; 81 App. Div., 183; see, also, Joslyn vs. Puloer, 59 Hun., 129, 140, 13 N.Y.S., 311.) The will in question having been probated by a competent court, the law will not admit any proof to overthrow the legal presumption that it is genuine and not a forgery.

The majority decision of the Court of Appeals cites English decisions to bolster up its conclusion that "the judgment admitting the will to probate is binding upon the whole world as to the due execution and genuineness of the will insofaras civil rights and liabilities are concerned, but not for the purpose of punishment of a crime." The cases of Dominus Rex vs. Vincent, 93 English Reports, Full Reprint, 795, the first case being decided in 1721, were cited to illustrate the earlier English decisions to the effect that upon indictment for forging a will, the probating of the same is conclusive evidence in the defendants favor of its genuine character. Reference is made, however, to the cases of Rex vs. Gibson, 168 English Reports, Full Reprint, 836, footnote (a), decided in 1802, and Rex vs. Buttery and Macnamarra, 168 English Reports, Full Reprint, 836, decided in1818, which establish a contrary rule. Citing these later cases, we find the following quotation from Black on Judgments, Vol. II, page 764.

A judgment admitting a will to probate cannot be attacked collaterally althoughthe will was forged; and a payment to the executor named therein of a debt due the decedent will discharge the same, notwithstanding the spurious character of the instrument probated. It has also been held that, upon an indictment for forging a will, the probate of the paper in question is conclusive evidence in the defendants favor of its genuine character. But this particular point has lately been ruled otherwise.

It was the case of Rex vs. Buttery, supra, which induced the Supreme Court of Massachussetts in the case of Waters vs. Stickney (12 Allen 1; 90 Am. Dec., 122) also cited by the majority opinion, to hold that "according to later and sounderdecisions, the probate, though conclusive until set aside of the disposition of

the property, does not protect the forger from punishment." This was reproducedin 28 R.C.L., p. 376, and quoted in Barry vs. Walker (103 Fla., 533; 137 So., 711, 715), and Thompson vs. Freeman (149 So., 740, 742), also cited in support ofthe majority opinion of the Court of Appeals. The dissenting opinion of the Court of Appeals in the instant case under review makes a cursory study of the statutes obtaining in England, Massachussetts and Florida, and comes to the conclusion that the decisions cited in the majority opinion do not appear to "have been promulgated in the face of statutes similar to ours." The dissenting opinion cites Whartons Criminal Evidence (11th ed., sec. 831), to show that the probate of a will in England is only prima facie proof of the validity of the will (Op. Cit. quoting Marriot vs. Marriot, 93 English Reprint, 770); and 21 L.R.A. (pp. 686689 and note), to show that in Massachussetts there is no statute making the probate of a will conclusive, and that in Florida the statute(sec. 1810, Revised Stat

utes) makes the probate conclusive evidence as to the validity of the will withregard to personal, and prima facie as to real estate. The cases decided by theSupreme Court of Florida cited by the majority opinion, supra, refer to wills of both personal and real estate.

The petitioner cites the case of State vs. McGlynn (20 Cal., 233, decided in 1862), in which Justice Norton of the Supreme Court of California, makes the following review of the nature of probate proceedings in England with respect to wills personal and real property.

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In England, the probate of wills of personal estate belongs to the Ecclesiastical Courts. No probate of a will relating to real estate is there necessary. The real estate, upon the death of the party seized, passes immediately to the devisee under the will if there be one; or if there be no will, to the heir at law. The person who thus becomes entitled takes possession. If one person claims to bethe owner under a will, and another denies the validity of the will and claims to be the owner as heir at law, an action of ejectment is brought against the party who may be in possession by the adverse claimant; and on the trial of such an action, the validity of the will is contested, and evidence may be given by the respective parties as to the capacity of the testator to make a will, or as toany fraud practiced upon him, or as to the actual execution of it, or as to anyother circumstance affecting its character as a valid devise of the real estatein dispute. The decision upon the validity of the will in such action becomes res adjudicata, and is binding and conclusive upon the parties to that action andupon any person who may subsequently acquire the title from either of those parties; but the decision has no effect upon other parties, and does not settle what may be called the status or character of the will, leaving it subject to be enforced as a valid will, or defeated as invalid, whenever other parties may have a contest depending upon it. A probate of a will of personal property, on the contrary, is a judicial determination of the character of the will itself. It doesnot necessarily or ordinarily arise from any controversy between adverse claimants, but is necessary in order to authorize a disposition of the personal estatein pursuance of its provisions. In case of any controversy between adverse claimants of the personal estate, the probate is given in evidence and is binding upo

n the parties, who are not at liberty to introduce any other evidence as to thevalidity of the will.

The intervenors, on the other hand, attempt to show that the English law on wills is different from that stated in the case of State vs. McGlynn, supra, citingthe following statutes.

1. The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26).

2. The Court of Probate Act, 1857 (20 and 21 Vict. c. 77).

3. The Judicature Act, 1873 (36 and 37 Vict. c. 66).

The Wills Act of 1837 provides that probate may be granted of "every instrumental purporting to be testamentary and executed in accordance with the statutory requirements . . . if it disposes of property, whether personal or real." The Ecclesiastical Courts which took charge of testamentary causes (Ewells Blackstone [1910], p. 460), were determined by the Court of Probate Act of 1857, and the Court of Probate in turn was, together with other courts, incorporated into the Supreme Court of Judicature, and transformed into the Probate Division thereof, by the Judicature Act of 1873. (Lord Halsbury, The Laws of England[1910], pp. 151156.) The intervenors overlook the fact, however, that the case of Rex vs. Butteryand Macnamarra, supra, upon which they rely in support of their theory that theprobate of a forged will does not protect the forger from punishment, was decided long before the foregoing amendatory statutes to the English law on wills were enacted. The case of State vs. McGlynn may be considered, therefore, as more or

less authoritative on the law of England at the time of the promulgation of the decision in the case of Rex vs. Buttery and Macnamarra.

In the case of State vs. McGlynn, the Attorney General of California filed an information to set aside the probate of the will of one Broderick, after the lapse of one year provided by the law of California for the review of an order probating a will, in order that the estate may be escheated to the State of California for the review of an probated will was forged and that Broderick therefore died intestate, leaving no heirs, representatives or devisees capable of inheritinghis estate. Upon these facts, the Supreme Court of California held.

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The fact that a will purporting to be genuine will of Broderick, devising his estate to a devisee capable of inheriting and holding it, has been admitted to probate and established as a genuine will by the decree of a Probate Court having jurisdiction of the case, renders it necessary to decide whether that decree, and the will established by it, or either of them, can be set aside and vacated bythe judgment of any other court. If it shall be found that the decree of the Probate Court, not reversed by the appellate court, is final and conclusive, and not liable to be vacated or questioned by any other court, either incidentally orby any direct proceeding, for the purpose of impeaching it, and that so long asthe probate stands the will must be recognized and admitted in all courts to bevalid, then it will be immaterial and useless to inquire whether the will in question was in fact genuine or forged. (State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 121.).

Although in the foregoing case the information filed by the State was to set aside the decree of probate on the ground that the will was forged, we see no difference in principle between that case and the case at bar. A subtle distinction could perhaps be drawn between setting aside a decree of probate, and declaring a probated will to be a forgery. It is clear, however, that a duly probated willcannot be declared to be a forgery without disturbing in a way the decree allowing said will to probate. It is at least anomalous that a will should be regarded as genuine for one purpose and spurious for another.

The American and English cases show a conflict of authorities on the question as to whether or not the probate of a will bars criminal prosecution of the alleged forger of the probate will. We have examined some important cases and have come to the conclusion that no fixed standard maybe adopted or drawn therefrom, inview of the conflict no less than of diversity of statutory provisions obtaining in different jurisdictions. It behooves us, therefore, as the court of last resort, to choose that rule most consistent with our statutory law, having in viewthe needed stability of property rights and the public interest in general. To be sure, we have seriously reflected upon the dangers of evasion from punishmentof culprits deserving of the severity of the law in cases where, as here, forgery is discovered after the probate of the will and the prosecution is had beforethe prescription of the offense. By and large, however, the balance seems inclined in favor of the view that we have taken. Not only does the law surround the e

xecution of the will with the necessary formalities and require probate to be made after an elaborate judicial proceeding, but section 113, not to speak of section 513, of our Code of Civil Procedure provides for an adequate remedy to any party who might have been adversely affected by the probate of a forged will, much in the same way as other parties against whom a judgment is rendered under the same or similar circumstances. (Pecson vs. Coronel, 43 Phil., 358.)The aggrieved party may file an application for relief with the proper court within a reasonable time, but in no case exceeding six months after said court has rendered the judgment of probate, on the ground of mistake, inadvertence, surprise or excusable neglect. An appeal lies to review the action of a court of first instance when that court refuses to grant relief. (Banco Español Filipino vs. Palanca, 37 Phil., 921; Philippine Manufacturing Co. vs. Imperial, 47 Phil., 810; Samia vs. Medina, 56 Phil., 613.) After a judgment allowing a will to be probated has become

final and unappealable, and after the period fixed by section 113 of the Code of Civil Procedure has expired, the law as an expression of the legislative wisdom goes no further and the case ends there.

. . . The court of chancery has no capacity, as the authorities have settled, to judge or decide whether a will is or is not a forgery; and hence there would be an incongruity in its assuming to set aside a probate decree establishing a will, on the ground that the decree was procured by fraud, when it can only arriveat the fact of such fraud by first deciding that the will was a forgery. There seems, therefore, to be a substantial reason, so long as a court of chancery is n

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ot allowed to judge of the validity of a will, except as shown by the probate, for the exception of probate decrees from the jurisdiction which courts of chancery exercise in setting aside other judgments obtained by fraud. But whether theexception be founded in good reason or otherwise, it has become too firmly established to be disregarded. At the present day, it would not be a greater assumption to deny the general rule that courts of chancery may set aside judgments procured by fraud, than to deny the exception to that rule in the case of probate decrees. We must acquiesce in the principle established by the authorities, if weare unable to approve of the reason. Judge Story was a staunch advocate for themost enlarged jurisdiction of courts of chancery, and was compelled to yield tothe weight of authority. He says "No other excepted case is known to exist; andit is not easy to discover the grounds upon which this exception stands, in point of reason or principle, although it is clearly settled by authority. (1 Storys Eq. Jur. sec. 440.)" (State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 129. See, also, Tracy vs. Muir, 121 American State Reports, 118, 125.)

We hold, therefore, that in view of the provisions of sections 306, 333 and 625of our Code of Civil Procedure, criminal action will not lie in this jurisdiction against the forger of a will which had been duly admitted to probate by a court of competent jurisdiction.

The resolution of the foregoing legal question is sufficient to dispose of the case. However, the other legal question with reference to the denial to the accused of his right to a speedy trial having been squarely raised and submitted, we

shall proceed to consider the same in the light of cases already adjudicated bythis court.

2. The Constitution of the Philippines provides that "In all criminal prosecutions the accused . . . shall enjoy the right . . . to have a speedy . . . trial. . . . (Art. III, sec. 1, par. 17. See, also, G.O. No. 58, sec. 15, No. 7.) Similar provisions are to be found in the Presidents Instructions to the Second Philippine Commission (par. 11), the Philippine Bill of July 1, 1902 (sec. 5, par. 2) and the Jones Act of August 29, 1916 (sec. 3, par. 2). The provisions in the foregoing organic acts appear to have been taken from similar provisions in the Constitution of the United States (6th Amendment) and those of the various states of the American Union. A similar injunction is contained in the Malolos Constitution (art. 8, Title IV), not to speak of other constitutions. More than once

this court had occasion to set aside the proceedings in criminal cases to giveeffect to the constitutional injunction of speedy trial. (Conde vs. Judge of First Instance and Fiscal of Tayabas [1923], 45 Phil., 173; Conde vs. Rivera and Unson[1924], 45 Phil., 650; People vs. Castañeda and Fernandez[1936]), 35 Off. Gaz., 1269; Kalaw vs. Apostol, Oct. 15, 1937, G.R. No. 45591; Esguerra vs. De la Costa, Aug. 30,1938, G.R. No. 46039.).

In Conde vs. Rivera and Unson, supra, decided before the adoption of our Constitution, we said.

Philippine organic and statutory law expressly guarantee that in all criminal prosecutions the accused shall enjoy the right to have a speedy trial. Aurelia Conde, like all other accused persons, has a right to a speedy trial in order that

if innocent she may go free, and she has been deprived of that right in defiance of law. Dismissed from her humble position, and compelled to dance attendance on courts while investigations and trials are arbitrarily postponed without her consent, is palpably and openly unjust to her and a detriment to the public. By the use of reasonable diligence, the prosecution could have settled upon the appropriate information, could have attended to the formal preliminary examination,and could have prepared the case for a trial free from vexatious, capricious, and oppressive delays.

In People vs. Castañeda and Fernandez, supra, this court found that the accused ha

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d not been given a fair and impartial trial. The case was to have been remandedto the court a quo for a new trial before an impartial judge. This step, however, was found unnecessary. A review of the evidence convinced this court that a judgment of conviction for theft, as charged, could not be sustained and, having in view the right to a speedy trial guaranteed by the Constitution to every person accused of crime, entered a judgment acquitting the accused, with costs de oficio. We said.

. . . The Constitution, Article III, section 1, paragraph 17, guarantees to every accused person the right to a speedy trial. This criminal proceeding has beendragging on for almost five years now. The accused have twice appealed to this court for redress from the wrong that they have suffered at the hands of the trial court. At least one of them, namely Pedro Fernandez alias Piro, had been con-fined in prison from July 20, 1932 to November 27, 1934, for inability to post the required bond of P3,000 which was finally reduced to P300. The Government should be the last to set an example of delay and oppression in the administration of justice and it is the moral and legal obligation of this court to see that the criminal proceedings against the accused come to an end and that they be immediately dis-charged from the custody of the law. (Conde vs. Rivera and Unson, 45 Phil., 651.)

In Kalaw vs. Apostol, supra, the petitioner invoked and this court applied and gave effect to the doctrines stated in the second Conde case, supra. In grantingthe writs prayed for, this court, after referring to the constitutional and stat

utory provisions guaranteeing to persons accused of crime the right to a speedytrial, said:

Se infiere de los preceptos legales transcritos que todo acusado en causa criminal tiene derecho a ser juzgado pronta y publicamente. Juicio rapido significa un juicioque se celebra de acuerdo con la ley de procedimiento criminal y los reglamentos, libre de dilaciones vejatorias, caprichosas y opersivas (Burnett vs. State, 76 Ark., 295; 88S. W., 956; 113 AMSR, 94; Stewart vs. State, 13 Ark., 720;Peo. vs. Shufelt, 61 Mich., 237; 28 N. W., 79; Nixon vs. State, 10 Miss., 497; 41 AMD., 601; State vs. Cole, 4 Okl. Cr., 25; 109 P., 736; State vs. Caruthers, 1 Okl. Cr., 428; 98 P., 474; State vs. Keefe, 17 Wyo., 227, 98 p., 122;22 IRANS,896; 17 Ann. Cas., 161). Segun los hechos admitidos resulta que al recurrente se le concedio vista parcial del asunto, en el Juzgado de Primera Instancia de Sam

ar, solo despues de haber transcurrido ya mas de un año y medio desde la presentacion de la primera querella y desde la recepcion de la causa en dicho Juzgado, ydespues de haberse transferido dos veces la vista delasunto sin su consentimiento. A esto debe añadirse que laprimera transferencia de vista era claramente injustificadaporque el motivo que se alego consistio unicamente en laconveniencia personal del ofendido y su abogado, no habiendose probado suficientemente la alegacion del primero de quese hallaba enfermo. Es cierto que el recurrente habia pedido que, en vez de señalarse a vista el asunto para el mayo de 1936, lo fuera para el noviembre del mismo año; pero,aparte de que la razon que alego era bastante fuerte porquesu abogado se oponia a comparecer por compromisos urgentes contraidos con anterioridad y en tal circunstancia hubiera quedado indefenso si hubiese sido obligado a entraren juicio, aparece que la vista se pospuso por el Juzgado amotu proprio, por haber cancelado todo el calendario judicial preparado por el Escr

ibano para el mes de junio. Declaramos, con visto de estos hechos, que al recurrents se leprivo de su derecho fundamental de ser juzgado prontamente.

Esguerra vs. De la Costa, supra, was a petition for mandamus to compel the respondent judge of the Court of First Instance of Rizal to dismiss the complaint filed in a criminal case against the petitioner, to cancel the bond put up by the said petitioner and to declare the costs de oficio. In accepting the contention that the petitioner had been denied speedy trial, this court said:

Consta que en menos de un año el recurrente fue procesado criminalmente por el ale

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gado delito de abusos deshonestos, en el Juzgado de Paz del Municipio de Cainta, Rizal. Como consecuencia de las denuncias que contra el se presentaron fue arrestado tres veces y para gozar de libertad provisional, en espera de los juicios, se vio obligado a prestartres fianzas por la suma de P1,000 cada una. Si no seda fin al proceso que ultimamente se ha incoado contra el recurrente la incertidumbre continuara cerniendose sobre el y las consiguientes molestias y preocupaciones continuaran igualmente abrumandole. El Titulo III, articulo 1, No. 17,de la Constitucion preceptua que en todo proceso criminalel acusado tiene derecho deser juzgado pronta y publicamente. El Articulo 15, No. 7, de la Orden General No. 58 dispone asimismo que en las causas criminales el acusado tendra derecho a ser juzgado pronta y publicamente. Si el recurrente era realmente culpable del delito que se le imputo, tenia de todos modos derechos a que fuera juzgado prontay publicamente y sin dilaciones arbitrarias y vejatorias. Hemos declarado reiteradamente que existe un remedio positivo para los casos en que se viola el derecho constitucional del acusado de ser juzgado prontamente. El acusado que esprivado de su derecho fundomental de ser enjuiciado rapidamente tiene derecho a pedirque se le ponga en libertad, si estuviese detenido, o a que la causa que pende contra el sea sobreseida definitivamente. (Conde contra Rivera y Unson, 45 Jur. Fil., 682; In the matter of Ford [1911], 160 Cal., 334; U. S. vs. Fox [1880], 3 Mont., 512; Kalaw contra Apostol, R. G. No. 45591, Oct. 15, 1937; Pueblo contra Castañeda y Fernandez, 35 Gac. Of., 1357.)

We are again called upon to vindicate the fundamental right to a speedy trial. The facts of the present case may be at variance with those of the cases hereinab

ove referred to. Nevertheless, we are of the opinion that, under the circumstances, we should consider the substance of the right instead of indulging in more or less academic or undue factual differentiations. The petitioner herein has been arrested four times, has put up a bond in the sum of P4,000 and has engaged the services of counsel to undertake his defense an equal number of times. The first arrest was made upon a complaint filed by one of the intervenors herein for alleged falsification of a will which, sixteen months before, had been probated in court. This complaint, after investigation, was dismissed at the complainant's own request. The second arrest was made upon a complaint charging the same offense and this complaint, too, was dismissed at the behest of the complainant herself who alleged the quite startling ground that the petitioner was in poor health. The third arrest was made following the filing of an information by the provincial fiscal of Pampanga, which information was dismissed, after due investigati

on, because of insufficiency of the evidence. The fourth arrest was made when the provincial fiscal secured a reinvestigation of the case against the petitioner on the pretext that he had additional evidence to present, although such evidence does not appear to have ever been presented.

It is true that the provincial fiscal did not intervene in the case until February 2, 1934, when he presented an information charging the petitioner, for the third time, of the offense of falsification. This, however, does not matter. The prosecution of offenses is a matter of public interest and it is the duty of thegovernment or those acting in its behalf to prosecute all cases to their termination without oppressive, capricious and vexatious delay. The Constitution does not say that the right to a speedy trial may be availed of only where the prosecution for crime is commenced and undertaken by the fiscal. It does not exclude fr

om its operation cases commenced by private individuals. Where once a person isprosecuted criminally, he is entitled to a speedy trial, irrespective of the nature of the offense or the manner in which it is authorized to be commenced. In any event, even the actuations of the fiscal himself in this case is not entirely free from criticism. From October 27, 1932, when the first complaint was filedin the justice of the peace court of San Fernando, to February 2, 1934, when the provincial fiscal filed his information with the justice of the peace of Mexico, one year, three months and six days transpired; and from April 27, 1933, whenthe second criminal complaint was dismissed by the justice of the peace of Mexico, to February 2, 1934, nine months and six days elapsed. The investigation foll

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owing the fourth arrest, made after the fiscal had secured a reinvestigation ofthe case, appears also to have dragged on for about a year. There obviously hasbeen a delay, and considering the antecedent facts and circumstances within theknowledge of the fiscal, the delay may not at all be regarded as permissible. In Kalaw vs. Apostol, supra, we observed that the prosecuting officer all prosecutions for public offenses (secs. 1681 and 2465 of the Rev. Adm. Code), and that it is his duty to see that criminal cases are heard without vexatious, capricious and oppressive delays so that the courts of justice may dispose of them on themerits and determine whether the accused is guilty or not. This is as clear an admonition as could be made. An accused person is entitled to a trial at the earliest opportunity. (Sutherland on the Constitution, p. 664; United States vs. Fox, 3 Mont., 512.) He cannot be oppressed by delaying he commencement of trial for an unreasonable length of time. If the proceedings pending trial are deferred,the trial itself is necessarily delayed. It is not to be supposed, of course, that the Constitution intends to remove from the prosecution every reasonable opportunity to prepare for trial. Impossibilities cannot be expected or extraordinary efforts required on the part of the prosecutor or the court. As stated by theSupreme Court of the United States, "The right of a speedy trial is necessarilyrelative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice." (Beavers vs. Haubert [1905], 198 U. S., 86; 25 S. Ct., 573; 49 Law. ed., 950, 954.).

It may be true, as seems admitted by counsel for the intervenors, in paragraph 8

, page 3 of his brief, that the delay was due to "the efforts towards reaching an amicable extrajudicial compromise," but this fact, we think, casts doubt instead upon the motive which led the intervenors to bring criminal action against the petitioner. The petitioner claims that the intention of the intervenors was to press upon settlement, with the continuous threat of criminal prosecution, notwithstanding the probate of the will alleged to have been falsified. Argument ofcounsel for the petitioner in this regard is not without justification. Thus after the filing of the second complaint with the justice of the peace court of Mexico, complainant herself, as we have seen, asked for dismissal of the complaint, on the ground that "el acusado tenia la salud bastante delicada," and, apparently because of failure to arrive at any settlement, she decided to renew her complaint.

Counsel for the intervenors contend and the contention is sustained by the Court of Appeals that the petitioner did not complain heretofore of the denial of his constitutional right to a speedy trial. This is a mistake. When the petitioner, for the fourth time, was ordered arrested by the Court of First Instance of Pampanga, he moved for reconsideration of the order of arrest, alleging, among other things, "Que por estas continuas acusaciones e investigaciones, el acusado compareciente no obstante su mal estado de salud desde el año 1932 en que tuvo que ser operado por padecer de tuberculosis ha tenido que sostener litigios y ha sufrido la mar de humiliaciones y zozobras y ha incudo en enormes gastos y molestiasy ha desatendido su quebrantada salud." The foregoing allegation was inserted on page 6 of the amended petition for certiorari presented to the Court of Appeals. The constitutional issue also appears to have been actually raised and considered in the Court of Appeals. In the majority opinion of that court, it is stated

:

Upon the foregoing facts, counsel for the petitioner submits for the consideration of this court the following questions of law: First, that the respondent court acted arbitrarily and with abuse of its authority, with serious damage and prejudice to the rights and interests of the petitioner, in allowing that the latter be prosecuted and arrested for the fourth time, and that he be subjected, also for the fourth time, to a preliminary investigation for the same offense, hereby converting the court into an instrument of oppression and vengeance on the part of the alleged offended parties, Rosario Basa et al.; . . . .

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t in the fire. Thus, on January 2, 1985, private respondent filed a Petition for Reconstitution[10] of the said records.

Due to the delay caused by the fire and the reconstitution of the records, it was only on April 30, 1985 that the Regional Trial Court of Manila, Branch 4 issued an Order[11] denying Marias June 6, 1981 Motion for Reconsideration.

Sometime thereafter, Maria died and her testate estate also became the subject of settlement proceedings. Atty. Marcial F. Lopez was appointed as interim special administrator and engaged the services of the Siguion Reyna Montecillo and Ongsiako Law Offices on Behalf of the estate.

On August 21, 1996, the law firm was allegedly made aware of and given notice of the April 30, 1985 Order when its associate visited Branch 4 of the Regional Trial Court of Manila to inquire about the status of the case. The associate checked the records if there was proof of service of the April 30, 1985 Order to the former counsel of Maria, Atty. Marcial F. Lopez, but he discovered that there was none.[12] He was able to secure a certification[13] from the Clerk of Court of the Regional Trial Court of Manila, Branch 4 which stated that there was no proof of service of the Order dated April 30, 1985 contained in the records of SP. Proc. No. 98037.

A Notice of Appeal[14] dated April 22, 1996 was filed by petitioner from the Orders dated April 2, 1981 and April 30, 1985 of the trial court. While the said n

otice of appeal was dated April 22, 1996, the stamp of the trial court on the first page of the notice clearly indicated that the same was received by the trial court on September 20, 1996. A Record of Appeal[15] dated September 20, 1996 was likewise filed by petitioner.

On October 22, 1996, the trial court issued an Order[16] denying petitioners appeal on the ground that the appeal was filed out of time. The trial court ruled that the April 2, 1981 Order which was the subject of the appeal already became final as the Motion for Reconsideration thereof was filed sixty-five (65) days after petitioner received the same. In addition, the court ruled that the noticeof appeal itself was filed manifestly late as the same was filed more than 11 years after the issuance of the June 11, 1985 Order denying petitioners Motion forReconsideration. The Motion for Reconsideration dated November 13, 1996 of peti

tioner was likewise denied by the trial court in an Order[17] dated February 12, 1997.

Not satisfied with this decision, petitioner filed a Petition for Certiorari with Prayer for Mandatory Injunction[18] with the Court of Appeals questioning theOctober 12, 1996 and February 12, 1997 Orders of the Regional Trial Court.

In a Decision[19] dated February 16, 1999, the First Division of the Court of Appeals denied the petition for certiorari of petitioner. Petitioners Motion for Reconsideration was likewise denied by the appellate court in a Resolution[20] dated May 18, 1999.

Hence, this Petition for Review on Certiorari where petitioner sets forth the fo

llowing ground for the reversal of the decision of the appellate court:

THE FIRST DIVISION OF THE COURT OF APPEALS (REVIEWING COURT) HAS SANCTIONED THE DEPARTURE BY THE REGIONAL TRIAL COURT OF MANILA BRANCH 4 (TRIAL COURT) FROM THE USUAL COURSE OF JUDICIAL PROCEEDING IN ISSUING THE ASSAILED 16 FEBRUARY 1999 DECISION AND THE 18 MAY 1999 RESOLUTION WHEN IT AFFIRMED THE ERRONEOUS FINDING OF THE TRIAL COURT THAT THE ORDER DATED APRIL 2, 1981 BECAME FINAL AND EXECUTORY DESPITE THE FACT THAT NO OPPOSITION ON ITS TIMELINESS WAS FILED AND MOREOVER NO RULING AS REGARDS ITS TIMELINESS WAS MADE.[21]

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There is no merit in the petition.

Section 1, Rule 109 of the Rules of Court enumerates the orders and judgments in special proceedings which may be the subject of an appeal. Thus:

Section 1. Orders or judgments from which appeals may be taken. An interested person may appeal in a special proceeding from an order or judgment rendered by aRegional Trial Court or a Juvenile and domestic Relations Court, where such order or judgment:

(a) Allows or disallows a will;

(b) Determines who are the lawful heirs of a deceased person, or the distributive shares of the estate to which such person is entitled;

(c) Allows, or disallows, in whole or in part, any claim against the estate of a deceased person, or any claim presented on behalf of the estate in offset to a claim against it;

(d) Settles the account of an executor, administrator, trustee or guardian;

(e) Constitutes, in proceedings relating to the settlement of the estate of a deceased person, or the administration of a trustee or guardian, a final d

etermination in the lower court of the rights of the party appealing, except that no appeal shall be allowed from the appointment of a special administrator; and

(f) Is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing, unless it be an order granting ordenying a motion for new trial or for reconsideration.

An appeal is allowed in these aforesaid cases as these orders, decrees or judgments issued by a court in a special proceeding constitute a final determination of the rights of the parties so appealing.[22] In contrast, interlocutory ordersare not appealable as these are merely incidental to judicial proceedings. In these cases, the court issuing such orders retains control over the same and may

thus modify, rescind, or revoke the same on sufficient grounds at any time before the final judgment.[23]

In the instant case, the Order dated April 2, 1981 of the trial court decreed, among others, that Maria Manuel Vda. De Biascan, the lawful wife of the deceasedFlorencio Biascan, private respondent Rosalina Biascan and her brother, German Biascan, are entitled to participate in the settlement proceedings. Moreover, the said Order likewise denied Marias motion to set aside the order appointing private respondent as regular administratrix of the estate. These rulings of the trial court were precisely questioned by Maria in her Motion for Reconsideration dated June 6, 1981.

The ruling of the trial court that Maria, private respondent Rosalina Biascan an

d German Biascan were entitled to participate in the settlement proceedings falls squarely under paragraph (b), Section 1, Rule 109 of the Rules of Court as a proper subject of appeal. By so ruling, the trial court has effectively determined that the three persons are the lawful heirs of the deceased. As such, the same may be the proper subject of an appeal.

Similarly, the ruling of the trial court denying petitioners motion to set asidethe order appointing private respondent as the regular administratrix of the estate of Florencio Bisacan is likewise a proper subject of an appeal. We have previously held that an order of the trial court appointing a regular administrator

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of a deceased persons estate is a final determination of the rights of the parties thereunder, and is thus, appealable.[24] This is in contrast with an order appointing a special administrator who is appointed only for a limited time and for a specific purpose. Because of the temporary character and special characterof this appointment, the Rules deem it not advisable for any party to appeal from said temporary appointment.[25] Considering however that private respondent has aleready been appointed as regular administratrix of the estate of Florencio Biascan, her appointment as such may be questioned before the appellate court byway of appeal.

It is thus clear that the Order dated April 2, 1981 may be the proper subject of an appeal in a special proceeding. In special proceedings, such as the instant proceeding for settlement of estate, the period of appeal from any decision orfinal order rendered therein is thirty (30) days, a notice of appeal and a record on appeal being required.[26] The appeal period may only be interrupted by the filing of a motion for new trial or reconsideration. Once the appeal period expires without an appeal or a motion for reconsideration or new trial being perfected, the decision or order becomes final.

With respect to the Order dated April 2, 1981 issued by the trial court, petitioner admits that Maria Manuel Vda. De Biascan, its predecessor-in-interest, received a copy of the same of April 9, 1981. Applying these rules, Maria or her counsel had thirty (30) days or until May 9 within which to file a notice of appeal with record on appeal. She may also file a motion for reconsideration, in whic

h case the appeal period is deemed interrupted.Considering that it was only June 6, 1981, or a full fifty-eight (58) days after receipt of the order, that a motion for reconsideration was filed, it is clearthat the same was filed out of time. As such, when the said motion for reconsideration was filed, there was no more appeal period to interrupt as the Order had already become final.

Petitioner insists, however, that the order dated April 2, 1981 of the trial court did not become final and executory as no opposition on its timeliness was filed and no ruling as regards its timeliness was made. Petitioner argues that although its motion for reconsideration was denied in the Order dated April 30, 1985, the denial was made on grounds other than its failure to ask for a reconsider

ation within the period prescribed by law. As such, petitioner concludes, any procedural defect attending the Motion for Reconsideration was deemed cured whenthe trial court, in its Order dated April 30, 1985, took cognizance of the sameand rendered its ruling thereon.

There is no merit in this argument.

It is well-settled that judgment or orders become final and executory by operation of law and not by judicial declaration. Thus, finality of a judgment becomes a fact upon the lapse of the reglementary period of appeal if no appeal is perfected[27] or motion for reconsideration or new trial is filed. The trial courtneed not even pronounce the finality of the order as the same becomes final by operation of law. In fact, the trial court could not even validly entertain a mo

tion for reconsideration filed after the lapse of the period for taking an appeal.[28] As such, it is of no moment that the opposing party failed to object to the timeliness of the motion for reconsideration or that the court denied the same on grounds other than timeliness considering that at the time the motion was filed, the Order dated April 2, 1981 had already become final and executory. Being final and executory, the trial court can no longer alter, modify, or reversethe questioned order.[29] The subsequent filing of the motion for reconsideration cannot disturb the finality of the judgment or order.[30]

Even if we assume that the Motion for Reconsideration filed by petitioner had th

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e effect of suspending the running of the appeal period for the April 2, 1981 Order, it is clear that petitioners notice of appeal of the orders of the trial court was still filed out of time.

Under Section 3, Rule 41 of the Rules of Court then applicable, the time duringwhich a motion to set aside the judgment or order or for a new trial shall be deducted from the period from which to make an appeal. The rule further states that where the motion was filed during office hours of the last day of the appealperiod, the appeal must be perfected within the day following that in which theparty appealing received notice of the denial of said motion.

The Order of the trial court denying petitioners Motion for Reconsideration of the April 2, 1981 Order was issued on April 30, 1985. Allegedly, petitioner was only made aware of this April 30, 1985 Order on August 21, 1996 when it inquiredfrom the trial court about the status of the case. Giving petitioner the benefit of the doubt that it had indeed received notice of the order denying its motion for reconsideration on August 21, 1996, it follows that petitioner only had until the following day or on August 22, 1996 within which to perfect the appeal.

At this point, we note with disapproval petitioners attempt to pass off its Notice of Appeal as having been filed on August 22, 1996. In all its pleadings before this Court and the Court of Appeals, petitioner insists that its Notice of Appeal was filed the day after it secured the August 21, 1996 Certification from the trial court. While the Notice of Appeal was ostensibly dated August 22, 1996,

it is clear from the stamp[31] of the trial court that the same was received only on September 20, 1996. Moreover, in the Order dated October 22, 1996 of thetrial court denying petitioners appeal, the court clearly stated that the Noticeof Appeal with accompanying Record on Appeal was filed on September 20, 1996.

Considering that it is clear from the records that petitioners notice of appeal was filed on September 20, 1996, the same was clearly filed out of time as it only had until August 22, 1996 within which to file the said pleading. And while the rules on special proceedings recognize that a motion for extension of time to file the notice of appeal and record of appeal may be granted,[32]

WHEREFORE, premises considered, we hereby DISMISS the petition for lack of merit. The decision dated February 16, 1999 and the Resolution dated May 18, 1999 of

the Court of Appeals are hereby AFFIRMED.

SO ORDERED.==G.R. No. L-23445 June 23, 1966

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

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

SANCHEZ, J.:

Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo, Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid.

On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a holographic will allegedly executed by Rosario Nuguid on November 17

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, 1951, some 11 years before her demise. Petitioner prayed that said will be admitted to probate and that letters of administration with the will annexed be issued to her.

On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and mother of the deceased Rosario Nuguid, entered their opposition to the probate of her will. Ground therefor, inter alia, is that by the institutionof petitioner Remedios Nuguid as universal heir of the deceased, oppositors whoare compulsory heirs of the deceased in the direct ascending line were illegally preterited and that in consequence the institution is void.

On August 29, 1963, before a hearing was had on the petition for probate and objection thereto, oppositors moved to dismiss on the ground of absolute preterition.

On September 6, 1963, petitioner registered her opposition to the motion to dismiss.1äwphï1.ñët

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

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

1. Right at the outset, a procedural aspect has engaged our attention. The caseis for the probate of a will. The court's area of inquiry is limited to an examination of, and resolution on, the extrinsic validity of the will. The due execution thereof, the testatrix's testamentary capacity, and the compliance with therequisites or solemnities by law prescribed, are the questions solely to be presented, and to be acted upon, by the court. Said court at this stage of the proceedings is not called upon to rule on the intrinsic validity or efficacy of the provisions of the will, the legality of any devise or legacy therein.1

A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or not the will should be allowed probate. For them, the meat ofthe case is the intrinsic validity of the will. Normally, this comes only after

the court has declared that the will has been duly authenticated.2 But petitioner and oppositors, in the court below and here on appeal, travelled on the issueof law, to wit: Is the will intrinsically a nullity?

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation will be protracted. And for aught that appears in the record, in the event of probate or if the court rejects the will, probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief that we might as well meet head-on the issue of the validity of the provisions of the will in question.3 After all, there exists a justiciable controversy crying for solution.

2. Petitioner's sole assignment of error challenges the correctness of the conclusion below that the will is a complete nullity. This exacts from us a study ofthe disputed will and the applicable statute.

Reproduced hereunder is the will:

Nov. 17, 1951

I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed

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a certain amount of property, do hereby give, devise, and bequeath all of the property which I may have when I die to my beloved sister Remedios Nuguid, age 34, residing with me at 38-B Iriga, Q.C. In witness whereof, I have signed my namethis seventh day of November, nineteen hundred and fifty-one.

(Sgd.) Illegible

T/ ROSARIO NUGUID

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

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

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

Art. 814. The preterition of one or all of the forced heirs in the direct line,whether living at the time of the execution of the will or born after the death

of the testator, shall void the institution of heir; but the legacies and betterments4 shall be valid, in so far as they are not inofficious. ...

A comprehensive understanding of the term preterition employed in the law becomes a necessity. On this point Manresa comments:

La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera o aun nombrandole como padre, hijo, etc., no se le instituya heredero ni se le deshereda expresamente ni se le asigna parte alguna de los bienes, resultando privado de un modo tacito de su derecho a legitima.

Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita el testador a uno cualquiera de aquellos a quienes por su muerte corr

esponda la herencia forzosa.

Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision sea completa; que el heredero forzoso nada reciba en el testamento.

It may now appear trite bat nonetheless helpful in giving us a clear perspective of the problem before us, to have on hand a clear-cut definition of the word annul:

To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343, 204 Pa. 484.6

The word "annul" as used in statute requiring court to annul alimony provisions

of divorce decree upon wife's remarriage means to reduce to nothing; to annihilate; obliterate; blot out; to make void or of no effect; to nullify; to abolish.N.J.S.A. 2:50 38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132.7

ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771, 774.8

And now, back to the facts and the law. The deceased Rosario Nuguid left no desc

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endants, legitimate or illegitimate. But she left forced heirs in the direct ascending line her parents, now oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will completely omits both of them: They thus received nothing by the testament; tacitly, they were deprived of their legitime; neither were they expressly disinherited. This is a clear case of preterition. Such preterition in the words of Manresa "anulara siempre la institucion de heredero, dando caracter absoluto a este ordenamiento referring to the mandate of Article 814, now 854 of the Civil Code.9 The one-sentence will here institutes petitioner as the sole, universal heir nothing more. No specific legacies or bequests are therein provided for. It is in this posture that we say that the nullity is complete. Perforce, Rosario Nuguid died intestate. Says Manresa:

En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o en parte? No se añade limitacion alguna, como en el articulo 851, enel que se expresa que se anulara la institucion de heredero en cuanto prejudique a la legitima del deseheredado Debe, pues, entenderse que la anulacion es completa o total, y que este articulo como especial en el caso que le motiva rige con preferencia al 817. 10

The same view is expressed by Sanchez Roman:

La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de uno, varios o todos los forzosos en linea recta, es la apertura de la sucesion intestada total o parcial. Sera total, cuando el testador que comete l

a pretericion, hubiese dispuesto de todos los bienes por titulo universal de herencia en favor de los herederos instituidos, cuya institucion se anula, porque asi lo exige la generalidad del precepto legal del art. 814, al determinar, comoefecto de la pretericion, el de que "anulara la institucion de heredero." ... 11

Really, as we analyze the word annul employed in the statute, there is no escaping the conclusion that the universal institution of petitioner to the entire inheritance results in totally abrogating the will. Because, the nullification of such institution of universal heir without any other testamentary disposition inthe will amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 offers no leeway for inferential interpretation. Giving it an expansive meaning will tear up by the roots the fabric of thestatute. On this point, Sanchez Roman cites the "Memoria annual del Tribunal Sup

reme, correspondiente a 1908", which in our opinion expresses the rule of interpretation, viz:

... El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de heredero, no consiente interpretacion alguna favorable a la persona instituida en el sentido antes expuesto aun cuando parezca, y en algun caso pudiera ser, mas o menos equitativa, porque una nulidad no significa en Derecho sino la suposicion de que el hecho o el acto no se ha realizado, debiendo por lo tanto procederse sobre tal base o supuesto, y consiguientemente, en un testamentodonde falte la institucion, es obligado llamar a los herederos forzosos en todocaso, como habria que llamar a los de otra clase, cuando el testador no hubiesedistribudo todos sus bienes en legados, siendo tanto mas obligada esta consecuencia legal cuanto que, en materia de testamentos, sabido es, segun tiene declarad

o la jurisprudencia, con repeticion, que no basta que sea conocida la voluntad de quien testa si esta voluntad no aparece en la forma y en las condiciones que la ley ha exigido para que sea valido y eficaz, por lo que constituiria una interpretacion arbitraria, dentro del derecho positivo, reputar como legatario a un heredero cuya institucion fuese anulada con pretexto de que esto se acomodaba mejor a la voluntad del testador, pues aun cuando asi fuese, sera esto razon para modificar la ley, pero no autoriza a una interpretacion contraria a sus terminosy a los principios que informan la testamentifaccion, pues no porque parezca mejor una cosa en el terreno del Derecho constituyente, hay razon para convereste juicio en regla de interpretacion, desvirtuando y anulando por este procedimiento

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lo que el legislador quiere establecer. 12

3. We should not be led astray by the statement in Article 854 that, annullmentnotwithstanding, "the devises and legacies shall be valid insofar as they are not inofficious". Legacies and devises merit consideration only when they are so expressly given as such in a will. Nothing in Article 854 suggests that the mereinstitution of a universal heir in a will void because of preterition would give the heir so instituted a share in the inheritance. As to him, the will is inexistent. There must be, in addition to such institution, a testamentary disposition granting him bequests or legacies apart and separate from the nullified institution of heir. Sanchez Roman, speaking of the two component parts of Article 814, now 854, states that preterition annuls the institution of the heir "totalmente por la pretericion"; but added (in reference to legacies and bequests) "pero subsistiendo ... todas aquellas otras disposiciones que no se refieren a la institucion de heredero ... . 13 As Manresa puts it, annulment throws open to intestate succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtud de legado, mejora o donacion. 14

As aforesaid, there is no other provision in the will before us except the institution of petitioner as universal heir. That institution, by itself, is null and void. And, intestate succession ensues.

4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than one of preterition". 15 From this, petitioner draws the conclu

sion that Article 854 "does not apply to the case at bar". This argument fails to appreciate the distinction between pretention and disinheritance.

Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited." 16 Disinheritance, in turn, "is a testamentary disposition depriving any compulsory heir of his share in the legitime for a cause authorized by law. " 17 In Manresa's own words: "La privacion expresa de la legitima constituye la desheredacion. La privacion tacita de la misma se denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that disinheritance "es siempre voluntaria"; preterition, upon the other hand, is presumed to be "involuntaria". 19 Expressas disinheritance should be, the same must be supported by a legal cause specifi

ed in the will itself. 20

The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits their names altogether. Said will rather than be labeled ineffective disinheritance is clearly one in which the said forced heirs suffer from preterition.

On top of this is the fact that the effects flowing from preterition are totally different from those of disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall annul the institution of heir". This annulment is in toto, unless in the will there are, in addition, testamentary dispositions in the form of devises or legacies. In ineffective disinheritance under Article 918of the same Code, such disinheritance shall also "annul the institution of heirs

", put only "insofar as it may prejudice the person disinherited", which last phrase was omitted in the case of preterition. 21 Better stated yet, in disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been illegally deprived. Manresa's expressive language, in commenting on the rights of the preterited heirs in the case of preterition on the one hand and legal disinheritance on the other, runs thus: "Preteridos, adquiren el derecho a todo; desheredados, solo les corresponde un tercio o dos tercios, 22el caso. 23

5. Petitioner insists that the compulsory heirs ineffectively disinherited are e

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ntitled to receive their legitimes, but that the institution of heir "is not invalidated," although the inheritance of the heir so instituted is reduced to theextent of said legitimes. 24

This is best answered by a reference to the opinion of Mr. Chief Justice Moran in the Neri case heretofore cited, viz:

But the theory is advanced that the bequest made by universal title in favor ofthe children by the second marriage should be treated as legado and mejora and,accordingly, it must not be entirely annulled but merely reduced. This theory, if adopted, will result in a complete abrogation of Articles 814 and 851 of the Civil Code. If every case of institution of heirs may be made to fall into the concept of legacies and betterments reducing the bequest accordingly, then the provisions of Articles 814 and 851 regarding total or partial nullity of the institution, would. be absolutely meaningless and will never have any application at all. And the remaining provisions contained in said article concerning the reduction of inofficious legacies or betterments would be a surplusage because they would be absorbed by Article 817. Thus, instead of construing, we would be destroying integral provisions of the Civil Code.

The destructive effect of the theory thus advanced is due mainly to a failure to distinguish institution of heirs from legacies and betterments, and a general from a special provision. With reference to article 814, which is the only provision material to the disposition of this case, it must be observed that the insti

tution of heirs is therein dealt with as a thing separate and distinct from legacies or betterments. And they are separate and distinct not only because they are distinctly and separately treated in said article but because they are in themselves different. Institution of heirs is a bequest by universal title of property that is undetermined. Legacy refers to specific property bequeathed by a particular or special title. ... But again an institution of heirs cannot be taken as a legacy. 25

The disputed order, we observe, declares the will in question "a complete nullity". Article 854 of the Civil Code in turn merely nullifies "the institution of heir". Considering, however, that the will before us solely provides for the institution of petitioner as universal heir, and nothing more, the result is the same. The entire will is null.

Upon the view we take of this case, the order of November 8, 1963 under review is hereby affirmed. No costs allowed. So ordered.==he Incompetent, CARMEN CAÑIZA, represented by her legal guardian, AMPARO EVANGELISTA, petitioner, vs. COURT OF APPEALS (SPECIAL FIRST DIVISION), PEDRO ESTRADA and his wife, LEONORA ESTRADA, respondents.D E C I S I O NNARVASA, C.J.:

On November 20, 1989, being then ninety-four (94) years of age, Carmen Cañiza, a spinster, a retired pharmacist, and former professor of the College of Chemistryand Pharmacy of the University of the Philippines, was declared incompetent by j

udgment[1] of the Regional Trial Court of Quezon City, Branch 107,[2] in a guardianship proceeding instituted by her niece, Amparo A. Evangelista.[3] She was so adjudged because of her advanced age and physical infirmities which included cataracts in both eyes and senile dementia. Amparo A. Evangelista was appointed legal guardian of her person and estate.

Cañiza was the owner of a house and lot at No. 61 Tobias St., Quezon City. On September 17, 1990, her guardian Amparo Evangelista commenced a suit in the Metropolitan Trial Court (MetroTC) of Quezon City (Branch 35) to eject the spouses Pedro and Leonora Estrada from said premises.[4] The complaint was later amended to i

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dentify the incompetent Cañiza as plaintiff, suing through her legal guardian, Amparo Evangelista.

The amended Complaint[5] pertinently alleged that plaintiff Cañiza was the absolute owner of the property in question, covered by TCT No. 27147; that out of kindness, she had allowed the Estrada Spouses, their children, grandchildren and sons-in-law to temporarily reside in her house, rent-free; that Cañiza already had urgent need of the house on account of her advanced age and failing health, "so funds could be raised to meet her expenses for support, maintenance and medical treatment;" that through her guardian, Cañiza had asked the Estradas verbally and inwriting to vacate the house but they had refused to do so; and that "by the defendants' act of unlawfully depriving plaintiff of the possession of the house inquestion, they ** (were) enriching themselves at the expense of the incompetent, because, while they ** (were) saving money by not paying any rent for the house, the incompetent ** (was) losing much money as her house could not be rented by others." Also alleged was that the complaint was "filed within one (1) year from the date of first letter of demand dated February 3, 1990."

In their Answer with Counterclaim, the defendants declared that they had been living in Cañiza's house since the 1960's; that in consideration of their faithful service they had been considered by Cañiza as her own family, and the latter had in fact executed a holographic will on September 4, 1988 by which she "bequeathed" to the Estradas the house and lot in question.

Judgment was rendered by the MetroTC on April 13, 1992 in Cañiza's favor,[6] the Estradas being ordered to vacate the premises and pay Cañiza P5,000.00 by way of attorney's fees.

But on appeal,[7] the decision was reversed by the Quezon City Regional Trial Court, Branch 96.[8] By judgment rendered on October 21, 1992,[9] the RTC held that the "action by which the issue of defendants' possession should be resolved is accion publiciana, the obtaining factual and legal situation ** demanding adjudication by such plenary action for recovery of possession cognizable in the first instance by the Regional Trial Court."

Cañiza sought to have the Court of Appeals reverse the decision of October 21, 1992, but failed in that attempt. In a decision[10] promulgated on June 2, 1993, th

e Appellate Court[11] affirmed the RTC's judgment in toto. It ruled that (a) the proper remedy for Cañiza was indeed an accion publiciana in the RTC, not an accion interdictal in the MetroTC, since the "defendants have not been in the subject premises as mere tenants or occupants by tolerance, they have been there as a sort of adopted family of Carmen Cañiza," as evidenced by what purports to be the holographic will of the plaintiff; and (b) while "said will, unless and until ithas passed probate by the proper court, could not be the basis of defendants' claim to the property, ** it is indicative of intent and desire on the part of Carmen Cañiza that defendants are to remain and are to continue in their occupancy and possession, so much so that Cañiza's supervening incompetency can not be said to have vested in her guardian the right or authority to drive the defendants out."[12]

Through her guardian, Cañiza came to this Court praying for reversal of the Appellate Court's judgment. She contends in the main that the latter erred in (a) holding that she should have pursued an accion publiciana, and not an accion interdictal; and in (b) giving much weight to "a xerox copy of an alleged holographic will, which is irrelevant to this case."[13]

In the responsive pleading filed by them on this Court's requirement,[14] the Estradas insist that the case against them was really not one of unlawful detainer; they argue that since possession of the house had not been obtained by them by any "contract, express or implied," as contemplated by Section 1, Rule 70 of th

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e Rules of Court, their occupancy of the premises could not be deemed one "terminable upon mere demand (and hence never became unlawful) within the context of the law." Neither could the suit against them be deemed one of forcible entry, they add, because they had been occupying the property with the prior consent of the "real owner," Carmen Cañiza, which "occupancy can even ripen into full ownership once the holographic will of petitioner Carmen Cañiza is admitted to probate." They conclude, on those postulates, that it is beyond the power of Cañiza's legal guardian to oust them from the disputed premises.

Carmen Cañiza died on March 19, 1994,[15] and her heirs -- the aforementioned guardian, Amparo Evangelista, and Ramon C. Nevado, her niece and nephew, respectively -- were by this Court's leave, substituted for her.[16]

Three issues have to be resolved: (a) whether or not an ejectment action is theappropriate judicial remedy for recovery of possession of the property in dispute; (b) assuming desahucio to be proper, whether or not Evangelista, as Cañiza's legal guardian had authority to bring said action; and (c) assuming an affirmative answer to both questions, whether or not Evangelista may continue to representCañiza after the latter's death.

I

It is axiomatic that what determines the nature of an action as well as which court has jurisdiction over it, are the allegations of the complaint and the chara

cter of the relief sought.[17] An inquiry into the averments of the amended complaint in the Court of origin is thus in order.[18]

The amended Complaint alleges:[19]

"6. That the plaintiff, Carmen Cañiza, is the sole and absolute owner of a house and lot at No. 61 Scout Tobias, Quezon City, which property is now the subject of this complaint;

** ** **

9. That the defendants, their children, grandchildren and sons-in-law, were allowed to live temporarily in the house of plaintiff, Carmen Cañiza, for free,

out of her kindness;

10. That the plaintiff, through her legal guardian, has duly notified the defendants, for them to vacate the said house, but the two (2) letters of demand were ignored and the defendants refused to vacate the same. **

11. That the plaintiff, represented by her legal guardian, Amparo Evangelista, made another demand on the defendants for them to vacate the premises, before Barangay Captain Angelina A. Diaz of Barangay Laging Handa, Quezon City, but after two (2) conferences, the result was negative and no settlement was reached.A photocopy of the Certification to File Action dated July 4, 1990; issued by said Barangay Captain is attached, marked Annex "D" and made an integral part hereof;

12. That the plaintiff has given the defendants more than thirty (30) days to vacate the house, but they still refused to vacate the premises, and they areup to this time residing in the said place;

13. That this complaint is filed within one (1) year from the date of firstletter of demand dated February 3, 1990 (Annex "B") sent by the plaintiff to the defendants, by her legal guardian -- Amparo Evangelista;

14. By the defendants' act of unlawfully depriving the plaintiff of the poss

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ession of the house in question, they are enriching themselves at the expense of the incompetent plaintiff, because, while they are saving money by not paying any rent for the house, the plaintiff is losing much money as her house could not be rented by others;

15. That the plaintiff's health is failing and she needs the house urgently, so that funds could be raised to meet her expenses for her support, maintenance and medical treatment;

16. That because of defendants' refusal to vacate the house at No. 61 ScoutTobias, Quezon City, the plaintiff, through her legal guardian, was compelled to go to court for justice, and she has to spend P10,000.00 as attorney's fees."

Its prayer[20] is quoted below:

"WHEREFORE, in the interest of justice and the rule of law, plaintiff, Carmen Cañiza, represented by her legal guardian. Amparo Evangelista, respectfully prays to this Honorable Court, to render judgment in favor of plaintiff and against thedefendants as follows:

1. To order the defendants, their children, grandchildren, sons-in-law and other persons claiming under them, to vacate the house and premises at No. 61 Scout Tobias, Quezon City, so that its possession can be restored to the plaintiff, Carmen Cañiza: and

2. To pay attorney's fees in the amount of P10,000.00;

3. To pay the costs of the suit."

In essence, the amended complaint states:

1) that the Estradas were occupying Cañiza's house by tolerance -- having been "allowed to live temporarily ** (therein) for free, out of ** (Cañiza's) kindness;"

2) that Cañiza needed the house "urgently" because her "health ** (was) failing and she ** (needed) funds ** to meet her expenses for her support, maintenanc

e and medical treatment;"

3) that through her general guardian, Cañiza requested the Estradas several times, orally and in writing, to give back possession of the house;

4) that the Estradas refused and continue to refuse to give back the houseto Cañiza, to her continuing prejudice; and

5) that the action was filed within one (1) year from the last demand to vacate.

Undoubtedly, a cause of action for desahucio has been adequately set out. It issettled that in an action for unlawful detainer, it suffices to allege that the

defendant is unlawfully withholding possession from the plaintiff is deemed sufficient,[21] and a complaint for unlawful detainer is sufficient if it alleges that the withholding of possession or the refusal to vacate is unlawful without necessarily employing the terminology of the law.[22]

The Estradas' first proffered defense derives from a literal construction of Section 1, Rule 70 of the Rules of Court which inter alia authorizes the institution of an unlawful detainer suit when "the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied." They contend that since

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they did not acquire possession of the property in question "by virtue of any contract, express or implied" -- they having been, to repeat, "allowed to live temporarily ** (therein) for free, out of ** (Cañiza's) kindness" -- in no sense could there be an "expiration or termination of ** (their) right to hold possession, by virtue of any contract, express or implied." Nor would an action for forcible entry lie against them, since there is no claim that they had "deprived (Cañiza) of the possession of ** (her property) by force, intimidation, threat, strategy, or stealth."

The argument is arrant sophistry. Cañiza's act of allowing the Estradas to occupyher house, rent-free, did not create a permanent and indefeasible right of possession in the latter's favor. Common sense, and the most rudimentary sense of fairness clearly require that act of liberality be implicitly, but no less certainly, accompanied by the necessary burden on the Estradas of returning the house to Cañiza upon her demand. More than once has this Court adjudged that a person whooccupies the land of another at the latter's tolerance or permission without any contract between them is necessarily bound by an implied promise that he will vacate upon demand, failing which a summary action for ejectment is the proper remedy against him.[23] The situation is not much different from that of a tenantwhose lease expires but who continues in occupancy by tolerance of the owner, in which case there is deemed to be an unlawful deprivation or withholding of possession as of the date of the demand to vacate.[24] In other words, one whose stay is merely tolerated becomes a deforciant illegally occupying the land or property the moment he is required to leave.[25] Thus, in Asset Privatization Trust v

s. Court of Appeals,[26] where a company, having lawfully obtained possession of a plant upon its undertaking to buy the same, refused to return it after failing to fulfill its promise of payment despite demands, this Court held that "(a)fter demand and its repudiation, ** (its) continuing possession ** became illegaland the complaint for unlawful detainer filed by the ** (plant's owner) was itsproper remedy."

It may not be amiss to point out in this connection that where there had been more than one demand to vacate, the one-year period for filing the complaint for unlawful detainer must be reckoned from the date of the last demand,[27] the reason being that the lessor has the option to waive his right of action based on previous demands and let the lessee remain meanwhile in the premises.[28] Now, the complaint filed by Cañiza's guardian alleges that the same was "filed within one

(1) year from the date of the first letter of demand dated February 3, 1990." Although this averment is not in accord with law because there is in fact a second letter of demand to vacate, dated February 27, 1990, the mistake is inconsequential, since the complaint was actually filed on September 17, 1990, well withinone year from the second (last) written demand to vacate.

The Estradas' possession of the house stemmed from the owner's express permission. That permission was subsequently withdrawn by the owner, as was her right; and it is immaterial that the withdrawal was made through her judicial guardian, the latter being indisputably clothed with authority to do so. Nor is it of any consequence that Carmen Cañiza had executed a will bequeathing the disputed property to the Estradas; that circumstance did not give them the right to stay in thepremises after demand to vacate on the theory that they might in future become o

wners thereof, that right of ownership being at best inchoate, no transfer of ownership being possible unless and until the will is duly probated.

Thus, at the time of the institution of the action of desahucio, the Estradas had no legal right to the property, whether as possessors by tolerance or sufferance, or as owners. They could not claim the right of possession by sufferance, that had been legally ended. They could not assert any right of possession flowing from their ownership of the house; their status as owners is dependent on the probate of the holographic will by which the property had allegedly been bequeathed to them -- an event which still has to take place; in other words; prior to t

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he probate of the will, any assertion of possession by them would be premature and inefficacious.

In any case, the only issue that could legitimately be raised under the circumstances was that involving the Estradas' possession by tolerance, i.e., possession de facto, not de jure. It is therefore incorrect to postulate that the proper remedy for Cañiza is not ejectment but accion publiciana, a plenary action in the RTC or an action that is one for recovery of the right to possession de jure.

II

The Estradas insist that the devise of the house to them by Cañiza clearly denotes her intention that they remain in possession thereof, and legally incapacitated her judicial guardian, Amparo Evangelista, from evicting them therefrom, sincetheir ouster would be inconsistent with the ward's will.

A will is essentially ambulatory; at any time prior to the testator's death, itmay be changed or revoked;[29] and until admitted to probate, it has no effect whatever and no right can be claimed thereunder, the law being quite explicit: "No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court" (ART. 838, id.).[30] An owner's intention to confer title in the future to persons possessing property by his tolerance, is not inconsistent with the former's taking back possession in the meantimefor any reason deemed sufficient. And that in this case there was sufficient cau

se for the owner's resumption of possession is apparent: she needed to generateincome from the house on account of the physical infirmities afflicting her, arising from her extreme age.

Amparo Evangelista was appointed by a competent court the general guardian of both the person and the estate of her aunt, Carmen Cañiza. Her Letters of Guardianship[31] dated December 19, 1989 clearly installed her as the "guardian over the person and properties of the incompetent CARMEN CAÑIZA with full authority to takepossession of the property of said incompetent in any province or provinces in which it may be situated and to perform all other acts necessary for the management of her properties ** "[32] By that appointment, it became Evangelista's dutyto care for her aunt's person, to attend to her physical and spiritual needs, to assure her well-being, with right to custody of her person in preference to rel

atives and friends.[33] It also became her right and duty to get possession of,and exercise control over, Cañiza's property, both real and personal, it being recognized principle that the ward has no right to possession or control of his property during her incompetency.[34] That right to manage the ward's estate carries with it the right to take possession thereof and recover it from anyone who retains it,[35] and bring and defend such actions as may be needful for this purpose. [36]

Actually, in bringing the action of desahucio, Evangelista was merely discharging the duty to attend to "the comfortable and suitable maintenance of the ward" explicitly imposed on her by Section 4, Rule 96 of the Rules of Court, viz.:

"SEC. 4. Estate to be managed frugally, and proceeds applied to maintenan

ce of ward. A guardian must manage the estate of his ward frugally and without waste, and apply the income and profits thereof, so far as maybe necessary, to the comfortable and suitable maintenance of the ward and his family, if there be any; and if such income and profits be insufficient for that purpose, the guardian may sell or encumber the real estate, upon being authorized by order to do so, and apply to such of the proceeds as may be necessary to such maintenance."

Finally, it may be pointed out in relation to the Estradas's defenses in the ejectment action, that as the law now stands, even when, in forcible entry and unlawful detainer cases, the defendant raises the question of ownership in his plead

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ings and the question of possession cannot be resolved without deciding the issue of ownership, the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts nevertheless have the undoubted competence to resolve. "the issue of ownership ** only to determine the issue of possession."[37]

III

As already stated, Carmen Cañiza passed away during the pendency of this appeal. The Estradas thereupon moved to dismiss the petition, arguing that Cañiza's death automatically terminated the guardianship, Amaparo Evangelista lost all authority as her judicial guardian, and ceased to have legal personality to represent her in the present appeal. The motion is without merit.

While it is indeed well-established rule that the relationship of guardian and ward is necessarily terminated by the death of either the guardian or the ward,[38] the rule affords no advantage to the Estradas. Amparo Evangelista, as niece of Carmen Cañiza, is one of the latter's only two (2) surviving heirs, the other being Cañiza's nephew, Ramon C. Nevado. On their motion and by Resolution of this Court[39] of June 20, 1994, they were in fact substituted as parties in the appeal at bar in place of the deceased, in accordance with Section 17, Rule 3 of the Rules of Court, viz.:[40]

"SEC. 18. Death of a party. After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representati

ve of the deceased to appear and be substituted for the deceased within a period of thirty (30) days, or within such time as may be granted. If the legal representative fails to appear within said time, the court may order the opposing party to procure the appointment of a legal representative of the deceased within atime to be specified by the court, and the representative shall immediately appear for and on behalf of the interest of the deceased. The court charges involved in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint guardian ad litem for the minor heirs.

To be sure, an ejectment case survives the death of a party. Cañiza's demise did not extinguish the desahucio suit instituted by her through her guardian.[41] Tha

t action, not being a purely personal one, survived her death; her heirs have taken her place and now represent her interests in the appeal at bar.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals promulgated on June 2, 1993 -- affirming the Regional Trial Court's judgment and dismissing petitioner's petition for certiorari -- is REVERSED and SET ASIDE, and theDecision dated April 13, 1992 of the Metropolitan Trial Court of Quezon City, Branch 35, in Civil Case No. 3410 is REINSTATED and AFFIRMED. Costs against private respondents.

SO ORDERED.

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