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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 1439 March 19, 1904

ANTONIO CASTAEDA, plaintiff-appellee,vs.JOSE E. ALEMANY, defendant-appellant.

Ledesma, Sumulong and Quintos for appellant.

The court erred in holding that all legal formalities had been compliedwith in the execution of the will of Doa Juana Moreno, as the proof

shows that the said will was not written in the presence of under theexpress direction of the testratrix as required by section 618 of the Code

of Civil Procedure.

Antonio V. Herrero for appellee.

The grounds upon which a will may be disallowed are limited to those

mentioned in section 634 of the Code of Civil Procedure.

WILLARD, J.:

(1) The evidence in this case shows to our satisfaction that the will ofDoa Juana Moreno was duly signed by herself in the presence of three

witnesses, who signed it as witnesses in the presence of the testratrix andof each other. It was therefore executed in conformity with law.

There is nothing in the language of section 618 of the Code of CivilProcedure which supports the claim of the appellants that the will must bewritten by the testator himself or by someone else in his presence andunder his express direction. That section requires (1) that the will be inwriting and (2) either that the testator sign it himself or, if he does sign it,

that it be signed by some one in his presence and by his express direction.

Who does the mechanical work of writing the will is a matter ofindifference. The fact, therefore, that in this case the will was typewrittenin the office of the lawyer for the testratrix is of no consequence. TheEnglish text of section 618 is very plain. The mistakes in translation

found in the first Spanish edition of the code have been corrected in thesecond.

(2) To establish conclusively as against everyone, and once for all, the

facts that a will was executed with the formalities required by law andthat the testator was in a condition to make a will, is the only purpose of

the proceedings under the new code for the probate of a will. (Sec. 625.)The judgment in such proceedings determines and can determine nothingmore. In them the court has no power to pass upon the validity of any

provisions made in the will. It can not decide, for example, that a certainlegacy is void and another one valid. It could not in this case make any

decision upon the question whether the testratrix had the power to appointby will a guardian for the property of her children by her first husband, orwhether the person so appointed was or was not a suitable person todischarge such trust.

All such questions must be decided in some other proceeding. Thegrounds on which a will may be disallowed are stated the section 634.Unless one of those grounds appears the will must be allowed. They all

have to do with the personal condition of the testator at the time of itsexecution and the formalities connected therewith. It follows that neither

this court nor the court below has any jurisdiction in his proceedings topass upon the questions raised by the appellants by the assignment of

error relating to the appointment of a guardian for the children of thedeceased.

It is claimed by the appellants that there was no testimony in the courtbelow to show that the will executed by the deceased was the same wil

presented to the court and concerning which this hearing was had. It itrue that the evidence does not show that the document in court was

presented to the witnesses and identified by them, as should have beendone. But we think that we are justified in saying that it was assumed byall the parties during the trial in the court below that the will about whichthe witnesses were testifying was the document then in court. Nosuggestion of any kind was then made by the counsel for the appellantsthat it was not the same instrument. In the last question put to the witness

Gonzales the phrase "this will" is used by the counsel for the appellants

In their argument in that court, found on page 15 of the record, they treathe testimony of the witnesses as referring to the will probate they werethen opposing.

The judgment of the court below is affirmed, eliminating therefromhowever, the clause "el cual debera ejecutarse fiel y exactamente en todas

sus partes." The costs of this instance will be charged against theappellants.

Arellano, C. J., Torres, Cooper, Mapa, McDonough and Johnson

JJ., concur.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. 45629 September 22, 1938

ANTILANO G. MERCADO, petitioner,vs.ALFONSO SANTOS, Judge of First Instance ofPampanga, 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 FGabino, one of the attesting witnesses, the probate court, on June

27,1931, admitted the will to probate. Almost three years later, on Apri11, 1934, the five intervenors herein moved ex parte to reopen the

proceedings, alleging lack of jurisdiction of the court to probate the wiland to close the proceedings. Because filed ex parte, the motion wadenied. The same motion was filed a second time, but with notice to theadverse party. The motion was nevertheless denied by the probate couron May 24, 1934. On appeal to this court, the order of denial wasaffirmed on July 26, 1935. (Basa vs. Mercado, 33 Off. Gaz., 2521.)

It appears that on October 27, 1932, i. e., sixteen months after the probatof the will of Ines Basa, intervenor Rosario Basa de Leon filed with the

justice of the peace court of San Fernando, Pampanga, a complain

against the petitioner herein, for falsification or forgery of the willprobated as above indicated. The petitioner was arrested. He put up abond in the sum of P4,000 and engaged the services of an attorney toundertake his defense. Preliminary investigation of the case wascontinued twice upon petition of the complainant. The complaint wasfinally dismissed, at the instance of the complainant herself, in an orderdated December 8, 1932. Three months later, or on March 2, 1933, the

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same intervenor charged the petitioner for the second time with the sameoffense, presenting the complaint this time in the justice of the peace

court of Mexico, Pampanga. The petitioner was again arrested, again putup a bond in the sum of P4,000, and engaged the services of counsel todefend him. This second complaint, after investigation, was alsodismissed, again at the instance of the complainant herself who allegedthat the petitioner was in poor health. That was on April 27, 1933. Somenine months later, on February 2, 1934, to be exact, the same intervenoraccused the same petitioner for the third time of the same offense. Theinformation was filed by the provincial fiscal of Pampanga in the justice

of the peace court of Mexico. The petitioner was again arrested, again put

up a bond of P4,000, and engaged the services of defense counsel. Thecase was dismissed on April 24, 1934, after due investigation, on theground that the will alleged to have been falsified had already been

probated and there was no evidence that the petitioner had forged the

signature of the testatrix appearing thereon, but that, on the contrary, theevidence 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 andengaged the services of counsel to handle his defense. The reinvestigation

dragged on for almost a year until February 18, 1934, when the Court ofFirst Instance ordered that the case be tried on the merits. The petitioner

interposed a demurrer on November 25, 1935, on the ground that the willalleged 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. Themotion for reconsideration and the proposed appeal were denied onJanuary 14, 1936. The case proceeded to trial, and forthwith petitionermoved to dismiss the case claiming again that the will alleged to have

been forged had already been probated and, further, that the orderprobating the will is conclusive as to the authenticity and due executionthereof. The motion was overruled and the petitioner filed with the Courtof Appeals a petition forcertiorari with preliminary injunction to enjointhe trial court from further proceedings in the matter. The injunction wasissued and thereafter, on June 19, 1937, the Court of Appeals denied the

petition forcertiorari, 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 orfinal order in an action or special proceeding before a court or

judge of the Philippine Islands or of the United States, or ofany State or Territory of the United States, having jurisdictionto pronounce the judgment or order, may be as follows.

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

respect to the probate of a will, or the administration of theestate of a deceased person, or in respect to the personal,

political, or legal condition or relation of a particularperson, the judgment or order is conclusive upon the title ofthe thing, the willor administration, or the condition or relation

of the personProvided, That the probate of a will or grantingof letters of administration shall only 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 toExecution. No will shall pass either the real or persona

estate, unless it is proved and allowed in the Court of FirsInstance, or by appeal to the Supreme Court; and theallowance 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 thegrounds authorized by law, except that of fraud, in any

separate or independent action or proceeding. Sec. 625, Codeof Civil Procedure; Castaeda vs. Alemany, 3 Phil., 426

Pimentel vs.Palanca, 5 Phil., 436; Sahagun vs. De Gorostiza, 7Phil., 347; Limjuco vs. Ganara, 11 Phil., 393

Montaanovs. Suesa, 14 Phil., 676; in re Estate of Johnson, 39Phil, 156; Riera vs. Palmaroli, 40 Phil., 105Austria vs.Ventenilla, 21 Phil., 180; Ramirez vs. Gmur, 42Phil., 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 testatowas of sound and disposing mind at the time when he executedthe 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 CivilProcedure aforequoted, was taken almost bodily from the Statutes ofVermont, the decisions of the Supreme Court of the State relative to theeffect of the probate of a will are of persuasive authority in this

jurisdiction. The Vermont statute as to the conclusiveness of the dueexecution of a probated will reads as follows.

SEC. 2356. No will shall pass either real or personal estateunless it is proved and allowed in the probate court, or by

appeal in the county or supreme court; and the probate of a willof real or personal estate shall be conclusive as to its dueexecution. (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 probatecourt having jurisdiction thereof, upon the due notice, is conclusive as to

its due execution against the whole world. (Vt. St., sec. 2336; FosterExrs. vs. Dickerson, 64 Vt., 233.)"

The probate of a will in this jurisdiction is a proceeding in rem. Theprovision of notice by Publication as a prerequisite to the allowance of awill is constructive notice to the whole world, and when probate isgranted, the judgment of the court is binding upon everybody, evenagainst the State. This court held in the case ofManalo 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 the court acquires jurisdiction over all the person

interested, through the publication of the notice prescribed bysection 630 of the Code of Civil Procedure, and any order thamay be entered therein is binding against all of them.

Through the publication of the petition for the probate of thewill, the court acquires jurisdiction over all such persons as areinterested in said will; and any judgment that may be rendered

after said proceeding is binding against the whole world.

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

In this State the probate of a will is a proceeding in rem beingin form and substance upon the will itself to determine itsvalidity. The judgment determines the status of the instrument,whether it is or is not the will of the testator. When the propersteps required by law have been taken the judgment is bindingupon everybody, and makes the instrument as to all the world

just what the judgment declares it to be. (Woodruffvs. Taylor,

20 Vt., 65, 73; Burbeckvs. Little, 50 Vt., 713, 715; Missionary

Society vs. Eells, 68 Vt., 497, 504; 35 Atl., 463.) Theproceedings before the probate court are statutory and are notgoverned 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.) No

process is issued against anyone in such proceedings, but all

persons interested in determining the state or conditions of theinstrument are constructively notified by the publication of

notice as required by G. L. 3219.(Woodruffvs. Taylor,supra;In re Warners Estate 98 Vt., 254;

271; 127 Atl., 362.)

Section 333, paragraph 4, of the Code of Civil Procedure establishes anincontrovertible presumption in favor of judgments declared by it to beconclusive.

SEC. 333. Conclusive Presumptions. The followingpresumptions or deductions, which the law expressly directs to

be made from particular facts, are deemed conclusive.

xxx xxx xxx

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

Conclusive presumptions are inferences which the law makes soperemptory that it will not allow them to be overturned by any contraryproof 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 acompetent 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 probateis binding upon the whole world as to the due execution and genuineness

of the will insofar as civil rights and liabilities are concerned, but not forthe purpose of punishment of a crime." The cases of Dominus

Rex vs. Vincent, 93 English Reports, Full Reprint, 795, the first casebeing decided in 1721, were cited to illustrate the earlier Englishdecisions to the effect that upon indictment for forging a will, the

probating of the same is conclusive evidence in the defendants favor ofits genuine character. Reference is made, however, to the cases ofRex vs. Gibson, 168 English Reports, Full Reprint, 836, footnote (a),

decided in 1802, and Rex vs. Buttery and Macnamarra, 168 EnglishReports, Full Reprint, 836, decided in 1818, which establish a contraryrule. Citing these later cases, we find the following quotation from Blackon Judgments, Vol. II, page 764.

A judgment admitting a will to probate cannot be attackedcollaterally although the will was forged; and a payment to the

executor named therein of a debt due the decedent willdischarge the same, notwithstanding the spurious character of

the instrument probated. It has also been held that, upon anindictment for forging a will, the probate of the paper in

question is conclusive evidence in the defendants favor of itsgenuine character. But this particular point has lately beenruled otherwise.

It was the case of Rex vs. Buttery,supra, which induced the SupremeCourt of Massachussetts in the case of Waters vs. Stickney (12 Allen 1

90 Am. Dec., 122) also cited by the majority opinion, to hold tha"according to later and sounder decisions, the probate, though conclusiveuntil set aside of the disposition of the property, does not protect theforger from punishment." This was reproduced in 28 R.C.L., p. 376, andquoted in Barry vs. Walker (103 Fla., 533; 137 So., 711, 715), andThompson vs. Freeman (149 So., 740, 742), also cited in support of themajority opinion of the Court of Appeals. The dissenting opinion of theCourt 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 opiniondo not appear to "have been promulgated in the face of statutes similar toours." The dissenting opinion cites Whartons Criminal Evidence (11thed., sec. 831), to show that the probate of a will in England is only prima

facieproof of the validity of the will (Op. Cit. quoting Marriot vs.Marriot93 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 willconclusive, and that in Florida the statute(sec. 1810, Revised Statutes

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 bythe Supreme Court of Florida cited by the majority opinion, supra, refe

to wills of both personal and real estate.

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

In England, the probate of wills of personal estate belongs tothe Ecclesiastical Courts. No probate of a will relating to realestate is there necessary. The real estate, upon the death of the

party seized, passes immediately to the devisee under the wilif there be one; or if there be no will, to the heir at law. The

person who thus becomes entitled takes possession. If oneperson claims to be the owner under a will, and another denie

the validity of the will and claims to be the owner as heir alaw, an action of ejectment is brought against the party who

may be in possession by the adverse claimant; and on the trialof such an action, the validity of the will is contested, andevidence may be given by the respective parties as to the

capacity of the testator to make a will, or as to any fraud

practiced upon him, or as to the actual execution of it, or as toany other circumstance affecting its character as a valid deviseof the real estate in dispute. The decision upon the validity ofthe will in such action becomes res adjudicata, and is bindingand conclusive upon the parties to that action and upon any

person who may subsequently acquire the title from either othose parties; but the decision has no effect upon othe

parties, and does not settle what may be called the status orcharacter of the will, leaving it subject to be enforced as avalid will, or defeated as invalid, whenever other parties mayhave a contest depending upon it. A probate of a will o

personal property, on the contrary, is a judicial determinationof the character of the will itself. It does not necessarily orordinarily arise from any controversy between adverse

claimants, but is necessary in order to authorize a dispositionof the personal estate in pursuance of its provisions. In case o

any controversy between adverse claimants of the personaestate, the probate is given in evidence and is binding upon the

parties, who are not at liberty to introduce any other evidenceas to the validity of the will.

The intervenors, on the other hand, attempt to show that the English lawon wills is different from that stated in the case ofState vs. McGlynn,supra, citing the 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).

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

The Wills Act of 1837 provides that probate may be granted of "everyinstrumental purporting to be testamentary and executed in accordancewith the statutory requirements . . . if it disposes of property, whether

personal or real." The Ecclesiastical Courts which took charge oftestamentary causes (Ewells Blackstone [1910], p. 460), were determined

by the Court of Probate Act of 1857, and the Court of Probate in turnwas, together with other courts, incorporated into the Supreme Court ofJudicature, 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 ofRex vs. Buttery and Macnamarra,supra, upon which they rely in supportof their theory that the probate of a forged will does not protect the forger

from punishment, was decided long before the foregoing amendatorystatutes to the English law on wills were enacted. The case ofState vs. McGlynn may be considered, therefore, as more or less

authoritative on the law of England at the time of the promulgation of thedecision 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, afterthe lapse of one year provided by the law of California for the review ofan order probating a will, in order that the estate may be escheated to theState of California for the review of an probated will was forged and thatBroderick therefore died intestate, leaving no heirs, representatives or

devisees capable of inheriting his estate. Upon these facts, the SupremeCourt of California held.

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 agenuine will by the decree of a Probate Court having

jurisdiction of the case, renders it necessary to decide whetherthat decree, and the will established by it, or either of them,can be set aside and vacated by the 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, eitherincidentally or by any direct proceeding, for the purpose ofimpeaching it, and that so long as the probate stands the will

must be recognized and admitted in all courts to be valid, thenit will be immaterial and useless to inquire whether the will inquestion was in fact genuine or forged. (State vs. McGlynn, 20Cal., 233; 81 Am. Dec., 118, 121.).

Although in the foregoing case the information filed by the State was toset 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. Asubtle distinction could perhaps be drawn between setting aside a decreeof probate, and declaring a probated will to be a forgery. It is clear,however, that a duly probated will cannot be declared to be a forgerywithout 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 onepurpose and spurious for another.

The American and English cases show a conflict of authorities on thequestion as to whether or not the probate of a will bars criminal

prosecution of the alleged forger of the probate will. We have examinedsome important cases and have come to the conclusion that no fixedstandard maybe adopted or drawn therefrom, in view of the conflict noless than of diversity of statutory provisions obtaining in different

jurisdictions. It behooves us, therefore, as the court of last resort, tochoose 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

punishment of culprits deserving of the severity of the law in caseswhere, as here, forgery is discovered after the probate of the will and the

prosecution is had before the prescription of the offense. By and large,however, the balance seems inclined in favor of the view that we havetaken. Not only does the law surround the execution of the will with the

necessary formalities and require probate to be made after an elaboratejudicial proceeding, but section 113, not to speak of section 513, of ou

Code of Civil Procedure provides for an adequate remedy to any partywho might have been adversely affected by the probate of a forged willmuch in the same way as other parties against whom a judgment isrendered under the same or similar circumstances. (Pecson vs.Coronel, 43Phil., 358.)The aggrieved party may file an application for relief with the

proper court within a reasonable time, but in no case exceeding sixmonths after said court has rendered the judgment of probate, on theground of mistake, inadvertence, surprise or excusable neglect. An appeal

lies to review the action of a court of first instance when that cour

refuses to grant relief. (Banco Espaol Filipino vs. Palanca, 37 Phil., 921Philippine Manufacturing Co. vs. Imperial, 47 Phil., 810Samia 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 anexpression of the legislative wisdom goes no further and the case ends

there.

. . . The court of chancery has no capacity, as the authoritiehave settled, to judge or decide whether a will is or is not a

forgery; and hence there would be an incongruity in itassuming to set aside a probate decree establishing a will, onthe ground that the decree was procured by fraud, when it canonly arrive at the fact of such fraud by first deciding that thewill was a forgery. There seems, therefore, to be a substantiareason, so long as a court of chancery is not allowed to judgeof the validity of a will, except as shown by the probate, for theexception of probate decrees from the jurisdiction which courtof chancery exercise in setting aside other judgments obtained

by fraud. But whether the exception be founded in good reasonor otherwise, it has become too firmly established to bedisregarded. At the present day, it would not be a greaterassumption to deny the general rule that courts of chancery

may set aside judgments procured by fraud, than to deny theexception to that rule in the case of probate decrees. We mustacquiesce in the principle established by the authorities, if weare unable to approve of the reason. Judge Story was a staunchadvocate for the most enlarged jurisdiction of courts o

chancery, and was compelled to yield to the weight oauthority. He says "No other excepted case is known to exist

and it is not easy to discover the grounds upon which this

exception stands, in point of reason or principle, although it isclearly settled by authority. (1 Storys Eq. Jur. sec. 440.)"(State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 129. Seealso, Tracy vs. Muir, 121 American State Reports, 118, 125.)

We hold, therefore, that in view of the provisions of sections 306, 333and 625 of our Code of Civil Procedure, criminal action will not lie inthis jurisdiction against the forger of a will which had been duly admittedto 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 tothe accused of his right to a speedy trial having been squarely raised andsubmitted, we shall proceed to consider the same in the light of cases

already adjudicated by this court.

2. The Constitution of the Philippines provides that "In all criminalprosecutions 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 11902 (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 takenfrom similar provisions in the Constitution of the United States (6thAmendment) and those of the various states of the American Union. Asimilar injunction is contained in the Malolos Constitution (art. 8, TitleIV), not to speak of other constitutions. More than once this court hadoccasion to set aside the proceedings in criminal cases to give effect tothe constitutional injunction of speedy trial. (Conde vs. Judge of Firs

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Instance and Fiscal of Tayabas [1923], 45 Phil., 173; Conde vs. Riveraand Unson[1924], 45 Phil., 650; People vs. Castaeda 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 ourConstitution, we said.

Philippine organic and statutory law expressly guarantee that

in all criminal prosecutions the accused shall enjoy the right tohave a speedy trial. Aurelia Conde, like all other accused

persons, has a right to a speedy trial in order that if innocentshe may go free, and she has been deprived of that right in

defiance of law. Dismissed from her humble position, andcompelled to dance attendance on courts while investigations

and trials are arbitrarily postponed without her consent, ispalpably and openly unjust to her and a detriment to the public.By the use of reasonable diligence, the prosecution could havesettled upon the appropriate information, could have attendedto the formal preliminary examination, and could have

prepared the case for a trial free from vexatious, capricious,and oppressive delays.

InPeople vs. Castaeda and Fernandez, supra, this court found that theaccused had not been given a fair and impartial trial. The case was to

have been remanded to the court a quo for a new trial before an impartialjudge. This step, however, was found unnecessary. A review of theevidence convinced this court that a judgment of conviction for theft, as

charged, could not be sustained and, having in view the right to a speedytrial 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 been dragging on for almost fiveyears now. The accused have twice appealed to this court forredress from the wrong that they have suffered at the hands ofthe trial court. At least one of them, namely PedroFernandez alias Piro, had been con-fined in prison from July20, 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 delayand oppression in the administration of justice and it is themoral and legal obligation of this court to see that the criminal

proceedings against the accused come to an end and that theybe immediately dis-charged from the custody of the law.(Conde vs.Rivera and Unson, 45 Phil., 651.)

InKalaw vs. Apostol, supra, the petitioner invoked and this court applied

and gave effect to the doctrines stated in the second Conde case,supra. Ingranting the writs prayed for, this court, after referring to the

constitutional and statutory provisions guaranteeing to persons accused ofcrime the right to a speedy trial, said:

Se infiere de los preceptos legales transcritos que todo acusado

en causa criminal tiene derecho a ser juzgado pronta ypublicamente. Juicio rapido significa un juicioque se celebra deacuerdo con la ley de procedimiento criminal y losreglamentos, libre de dilaciones vejatorias, caprichosas yopersivas (Burnett vs.State, 76 Ark., 295; 88S. W., 956; 113AMSR, 94; Stewart vs. State, 13 Ark., 720; Peo. vs. Shufelt, 61Mich., 237; 28 N. W., 79; Nixon vs. State, 10 Miss., 497; 41AMD., 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 PrimeraInstancia de Samar, solo despues de haber transcurrido ya masde un ao y medio desde la presentacion de la primera querellay desde la recepcion de la causa en dicho Juzgado, y despues

de haberse transferido dos veces la vista delasunto sin suconsentimiento. A esto debe aadirse que laprimera

transferencia de vista era claramente injustificadaporque emotivo que se alego consistio unicamente en laconveniencia

personal del ofendido y su abogado, no habiendose probadosuficientemente la alegacion del primero de quese hallabaenfermo. Es cierto que el recurrente habia pedido que, en vezde sealarse a vista el asunto para el mayo de 1936, lo fuera

para el noviembre del mismo ao; pero,aparte de que la razonque alego era bastante fuerte porquesu abogado se oponia a

comparecer por compromisos urgentes contraidos con

anterioridad y en tal circunstancia hubiera quedado indefensosi hubiese sido obligado a entraren juicio, aparece que la vistase pospuso por el Juzgado amotu proprio, por haber canceladotodo el calendario judicial preparado por el Escribano para e

mes de junio. Declaramos, con visto de estos hechos, que arecurrents se leprivo de su derecho fundamental de ser juzgado

prontamente.

Esguerra vs. De la Costa, supra, was a petition formandamus to compethe respondent judge of the Court of First Instance of Rizal to dismiss th

complaint filed in a criminal case against the petitioner, to cancel thebond put up by the said petitioner and to declare the costs de oficio. Inaccepting the contention that the petitioner had been denied speedy trialthis court said:

Consta que en menos de un ao el recurrente fue procesadocriminalmente por el alegado delito de abusos deshonestos, enel Juzgado de Paz del Municipio de Cainta, Rizal. Como

consecuencia de las denuncias que contra el se presentaron fuearrestado tres veces y para gozar de libertad provisional, enespera de los juicios, se vio obligado a prestartres fianzas porla suma de P1,000 cada una. Si no se da fin al proceso queultimamente se ha incoado contra el recurrente la

incertidumbre continuara cerniendose sobre el y laconsiguientes molestias y preocupaciones continuaran

igualmente abrumandole. El Titulo III, articulo 1, No. 17,de laConstitucion preceptua que en todo proceso criminalel acusado

tiene derecho de ser juzgado pronta y publicamente. EArticulo 15, No. 7, de la Orden General No. 58 disponeasimismo 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 detodos modos derechos a que fuera juzgado pronta y

publicamente y sin dilaciones arbitrarias y vejatorias. Hemodeclarado reiteradamente que existe un remedio positivo paralos casos en que se viola el derecho constitucional del acusadode ser juzgado prontamente. El acusado que esprivado de suderecho fundomental de ser enjuiciado rapidamente tienederecho a pedir que se le ponga en libertad, si estuviesedetenido, o a que la causa que pende contra el sea sobreseidadefinitivamente. (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. 45591Oct. 15, 1937; Pueblo contra Castaeda y Fernandez, 35 GacOf., 1357.)

We are again called upon to vindicate the fundamental right to a speedytrial. The facts of the present case may be at variance with those of thecases hereinabove referred to. Nevertheless, we are of the opinion that

under the circumstances, we should consider the substance of the rightinstead of indulging in more or less academic or undue factuadifferentiations. The petitioner herein has been arrested four times, has

put up a bond in the sum of P4,000 and has engaged the services ocounsel to undertake his defense an equal number of times. The firsarrest was made upon a complaint filed by one of the intervenors hereinfor alleged falsification of a will which, sixteen months before, had been

probated in court. This complaint, after investigation, was dismissed athe complainant's own request. The second arrest was made upon acomplaint charging the same offense and this complaint, too, wasdismissed at the behest of the complainant herself who alleged the quitestartling ground that the petitioner was in poor health. The third arres

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was made following the filing of an information by the provincial fiscalof Pampanga, which information was dismissed, after due investigation,

because of insufficiency of the evidence. The fourth arrest was madewhen 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 untilFebruary 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 the government or those acting in itsbehalf 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 forcrime is commenced and undertaken by the fiscal. It does not excludefrom its operation cases commenced by private individuals. Where once a

person is prosecuted 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 thefiscal himself in this case is not entirely free from criticism. From

October 27, 1932, when the first complaint was filed in the justice of thepeace court of San Fernando, to February 2, 1934, when the provincialfiscal filed his information with the justice of the peace of Mexico, oneyear, three months and six days transpired; and from April 27, 1933,when the 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 following the fourth arrest, made after the fiscal hadsecured a reinvestigation of the case, appears also to have dragged on forabout a year. There obviously has been a delay, and considering theantecedent facts and circumstances within the knowledge of the fiscal, thedelay may not at all be regarded as permissible. InKalaw vs. Apostol,

supra, we observed that the prosecuting officer all prosecutions for publicoffenses (secs. 1681 and 2465 of the Rev. Adm. Code), and that it is his

duty to see that criminal cases are heard without vexatious, capriciousand oppressive delays so that the courts of justice may dispose of them onthe merits and determine whether the accused is guilty or not. This is asclear an admonition as could be made. An accused person is entitled to atrial at the earliest opportunity. (Sutherland on the Constitution, p. 664;

United States vs. Fox, 3 Mont., 512.) He cannot be oppressed by delayinghe 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 intendsto remove from the prosecution every reasonable opportunity to preparefor trial. Impossibilities cannot be expected or extraordinary effortsrequired on the part of the prosecutor or the court. As stated by theSupreme Court of the United States, "The right of a speedy trial isnecessarily relative. It is consistent with delays and depends upon

circumstances. It secures rights to a defendant. It does not preclude therights 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, inparagraph 8, page 3 of his brief, that the delay was due to "the effortstowards 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 thatthe intention of the intervenors was to press upon settlement, with the

continuous threat of criminal prosecution, notwithstanding the probate ofthe will alleged to have been falsified. Argument of counsel for the

petitioner in this regard is not without justification. Thus after the filingof 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 bastantedelicada," and, apparently because of failure to arrive at any settlement,

she decided to renew her complaint.

Counsel for the intervenors contendand the contention is sustained bythe Court of Appealsthat the petitioner did not complain heretofore ofthe denial of his constitutional right to a speedy trial. This is a mistake.When the petitioner, for the fourth time, was ordered arrested by theCourt of First Instance of Pampanga, he moved for reconsideration of the

order of arrest, alleging, among other things, "Que por estas continuasacusaciones e investigaciones, el acusado compareciente no obstante su

mal estado de salud desde el ao 1932 en que tuvo que ser operado porpadecer de tuberculosis ha tenido que sostener lit igios y ha sufrido lamar de humiliaciones y zozobras y ha incudo en enormes gastos ymolestias y ha desatendido su quebrantada salud." The foregoingallegation was inserted on page 6 of the amended petitionforcertiorari presented to the Court of Appeals. The constitutional issuealso appears to have been actually raised and considered in the Court oAppeals. In the majority opinion of that court, it is stated:

Upon the foregoing facts, counsel for the petitioner submits fothe consideration of this court the following questions of lawFirst, that the respondent court acted arbitrarily and with abuse

of its authority, with serious damage and prejudice to the rightsand 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 preliminaryinvestigation for the same offense, hereby converting the cour

into an instrument of oppression and vengeance on the part othe alleged offended parties, Rosario Basa et al.; . . . .

And in the dissenting opinion, we find the following opening paragraph:

We cannot join in a decision declining to stop a prosecutionthat has dragged for about five years and caused the arrest on

four different occasions of a law abiding citizen for the allegedoffense of falsifying a will that years be competent jurisdiction

From the view we take of the instant case, the petitioner is entitled tohave the criminal proceedings against him quashed. The judgment of the

Court of Appeals is hereby reversed, without pronouncement regardingcosts. So ordered.

Avancea, C.J., Villa-Real, Imperial, Diaz and Concepcion, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-6620 January 11, 1912

ALEJANDRA AUSTRIA, petitioner-appellee,vs.RAMON VENTENILLA, ET AL., opponents-appellants.

Addison B. Ritchey, for appellants.

Pedro Ma. Sison, for appellee.

JOHNSON, J.:

It appears from the record that one Antonio Ventenilla, died on the 13thof March, 1909, in the municipality of Mangatarem, Province o

Pangasinan, leaving a will which, after due notice in accordance with theprovisions of the law, was duly admitted to probate on the 14th of April1909, and the said Doa Alejandra Austria was appointed administratrixof his estate, by order of the Honorable James C. Jenkins, judge of theCourt of First Instance of the Province of Pangasinan.

On the 30th day of July, 1909, the said administratrix (Doa AlejandraAustria) with will annexed, presented a report of her administration osaid estate, petitioned the court, after due notification to all of the partieinterested, to distribute the estate in accordance with the will and the law

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So far as the record show no action was taken upon said petition until the5th day of October, 1910.

On the 6th day of August, 1910, the said opponents, through theirattorney, A. B. Ritchey, presented the following petition, asking that thewill of the said Antonio Ventenilla be annulled:

PETITION FOR ANNULMENT OF A WILL.

Now come Don Ramon Ventenilla, Eulalio Soriano V.,

Domingo Soriano, Carmen Rosario, Maria Ventenilla, andOliva Dizon to impugn the instrument to this court, said to bethe last will and testament of the said deceased, on thefollowing grounds:

That before his death the deceased always intended todistribute his property in equal shares among his wife and his

brothers and their representatives, and often expressed suchintention before executing the instrument herein submitted, andafter executing it often declared that he had distributed thesame in the manner and aforesaid;

That the deceased could not read or write Spanish and thattherefore on the date of executing said instrument he did not

know what the same contained except through translation;

That the said instrument was not translated to the testator, or ifso, it was not correctly translated, and that said deceased never

intended to execute it as his last will and testament in themanner and form of the instrument herein submitted, and that

at the time of his death he thought that the instrument executedclearly ordered the distribution in the manner aforesaid;

That by reason of the fraud and deceit practiced upon thetestator and a lack of a good translation, the herein submitted isnull and void;

That the tenthparagraph of said instrument is null because of

its obscurity and ambiguity and is in plain contradiction to the

proceeding paragraphs, and that the other paragraph have moreforce and weight;

Therefore, the petitioners pray the court:

(1) That the testamentary provisions of the will ofthe deceased Antonio Ventenilla be declared nulland void; that the inheritance of the said deceased bedeclared intestate; that his window and DonHemorgenes Mendoza be appointed administratorsunder sufficient bond to protect the interest of theheirs and the other interest parties;

(2) That the will be amended, in case the court doesnot see fit to annul it, by declaring

the tenthparagraph null;

(3) That they be further granted any other reliefwhich appear just and equitable to the court.

Lingayen, P. I., August 6, 1910.

(Sgd.) A. B. Ritchey,Attorney for petitioners.

It will be noted that the opponents made no effort to question the legality

of he will, even though legal notice had been given in accordance with

the law, until more than fifteen months had expired from the date onwhich the lower court duly admitted said will to probate.

Section 625 of the Code of Procedure in Civil Actions provides that:

No will shall either the real or personal estate unless it iproved and allowed in the Court of First Instance or by appea

to the Supreme Court; and the allowance by the court of a wilof real and personal estate shall be conclusive as to its dueexecution.

This court has held, under the provision of this section, that "the probatof a will is conclusive as to its due execution, and as to the testamentarycapacity of the testator." (Castaeda vs. Alemany, 3 Phil. Rep., 426Pimentel vs. Palanca, 5 Phil. Rep., 436; Sahagun vs. Gorostiza, 7 PhilRep., 347; Chiong Joc-Soy vs. Vao, 8 Phil. Rep., 119

Sanches vs. Pascual, 11 Phil. Rep., 395; Montaano vs. Suesa, 14 PhilRep., 676.)

When no appeal is taken from an order probating a will, the heirs can notin subsequent litigation in the same proceedings, raise question relating toits due execution. (Chong Joc-Soy vs. Vao et al., 8 Phil. Rep., 119.)

The opponents not having appealed from the order admitting the will to

probate, as they had a right to do, that order is final and conclusive

(Pimentel vs. Palanca,supra) unless some fraud sufficient to vitiate theproceedings is discovered. In the present case, however, the allegedfraud, in view of all the facts contained in the record, in our opinion, is

not sufficiently proved to justify a reopening of the probate of the will inquestion, especially in view of the long delay of the parties interested.

The said section 625 was evidently taken from section 2356 of theStatutes of Vermont. In most of the states of the United States certainnumber of months is given to the interested parties to appeal from anorder of the court admitting to probate a will. (In the matter of the estateof Giovanni Sbarboro, 63 Cal., 5; Thompson vs. Samson, 64 Cal., 330; In

the matter of the estate of Richard T. Maxell, 74 Cal., 387; Wetherbee etal. vs. Chase, 57 Vt., 347.)

Under said section 625 and the decisions of the court, it seems that the

only time given the parties who are displeased with the order admitting awill to probate, is the time given for appeals in ordinary actions. Withoutdeciding whether or not the order admitting a will to probate can be open

for fraud, after the time allowed for an appeal has expired, we hold in thepresent case simply that the showing as to fraud is not sufficient to justify

a reopening of the proceedings. The judgment of the lower court istherefore, hereby affirmed with costs.

Torres, Mapa, Moreland and Trent, JJ., concur.

Republic of the PhilippinesSUPREME COURT

ManilaEN BANC

G.R. No. 38050 September 22, 1933In the matter of the will of Donata Manahan. TIBURCIAMANAHAN, petitioner-appellee,vs.ENGRACIA MANAHAN, opponent-appellant.J. Fernando Rodri go for appell ant.

Heraclio H . del Pil ar f or appellee.

IMPERIAL, J.:This is an appeal taken by the appellant herein, Engracia Manahan, fromthe order of the Court of the First Instance of Bulacan dated July 1, 1932in the matter of the will of the deceased Donata Manahan, special

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proceedings No. 4162, denying her motion for reconsideration and newtrial filed on May 11, 1932.

The fact in the case are as follows:On August 29, 1930, Tiburcia Manahan instituted special proceedings

No. 4162, for the probate of the will of the deceased Donata Manahan,who died in Bulacan, Province of Bulacan, on August 3, 1930. The

petitioner herein, niece of the testatrix, was named the executrix in saidwill. The court set the date for the hearing and the necessary noticerequired by law was accordingly published. On the day of the hearing ofthe petition, no opposition thereto was filed and, after the evidence was

presented, the court entered the decree admitting the will to probate as

prayed for. The will was probated on September 22, 1930. The trial courtappointed the herein petitioner executrix with a bond of P1,000, andlikewise appointed the committed on claims and appraisal, whereupon thetestamentary proceedings followed the usual course. One year and seven

months later, that is, on My 11, 1932, to be exact, the appellant hereinfiled a motion for reconsideration and a new trial, praying that the order

admitting the will to probate be vacated and the authenticated willdeclared null and void ab initio. The appellee herein, naturally filed her

opposition to the petition and, after the corresponding hearing thereof, thetrial court erred its over of denial on July 1, 1932. Engracia Manahan,under the pretext of appealing from this last order, likewise appealed

from the judgment admitting the will to probate.In this instance, the appellant assigns seven (7) alleged errors as

committed by the trial court. Instead of discussing them one by one, webelieve that, essentially, her claim narrows down to the following: (1)That she was an interested party in the testamentary proceedings and, as

such, was entitled to and should have been notified of the probate of thewill; (2) that the court, in its order of September 22, 1930, did not really

probate the will but limited itself to decreeing its authentication; and (3)that the will is null and void ab initio on the ground that the externalformalities prescribed by the Code of Civil Procedure have not beencomplied with in the execution thereof.The appellant's first contention is obviously unfounded and untenable.She was not entitled to notification of the probate of the will and neitherhad she the right to expect it, inasmuch as she was not an interested party,not having filed an opposition to the petition for the probate thereof. Herallegation that she had the status of an heir, being the deceased's sister,did not confer on her the right to be notified on the ground that the

testatrix died leaving a will in which the appellant has not been institutedheir. Furthermore, not being a forced heir, she did not acquire any

successional right.The second contention is puerile. The court really decreed the

authentication and probate of the will in question, which is the onlypronouncement required of the trial court by the law in order that the willmay be considered valid and duly executed in accordance with the law. In

the phraseology of the procedural law, there is no essential differencebetween the authentication of a will and the probate thereof. The words

authentication and probate are synonymous in this case. All the lawrequires is that the competent court declared that in the execution of thewill the essential external formalities have been complied with and that,in view thereof, the document, as a will, is valid and effective in the eyesof the law.

The last contention of the appellant may be refuted merely by stating that,once a will has been authenticated and admitted to probate, questions

relative to the validity thereof can no more be raised on appeal. Thedecree of probate is conclusive with respect to the due execution thereofand it cannot impugned on any of the grounds authorized by law, except

that of fraud, in any separate or independent action or proceedings (sec.625, Code of Civil Procedure; Castaeda vs. Alemany, 3 Phil., 426;Pimentel vs. Palanca, 5 Phil., 436; Sahagun vs. De Gorostiza, 7 Phil., 347;

Limjuco vs. Ganara, 11 Phil., 393; Montaano vs. Suesa, 14 Phil., 676;Inre Estate of Johnson, 39 Phil., 156; Riera vs. Palmaroli, 40 Phil., 105;Austria vs. Ventenilla, 21 Phil., 180; Ramirez vs. Gmur, 42 Phil., 855;and Chiong Joc-Soy vs. Vao, 8 Phil., 119).But there is another reason which prevents the appellant herein from

successfully maintaining the present action and it is that inasmuch as theproceedings followed in a testamentary case are in rem, the trial court's

decree admitting the will to probate was effective and conclusive againsther, in accordance with the provisions of section 306 of the said Code of

Civil Procedure which reads as follows:SEC. 306. EFFECT OF JUDGMENT.. . . .

1. In case of a judgment or order against a specific thing, or in respect tothe probate of a will, or the administration of the estate of a deceased

person, or in respect to the personal, political, or legal condition orelation of a particular person the judgment or order is conclusive uponthe title of the thing, the will or administration, or the condition orrelation of the person:Provided, That the probate of a will or granting oletters of administration shall only be prima facie evidence of the death othe testator or intestate; . . . .On the other hand, we are at a loss to understand how it was possible fothe herein appellant to appeal from the order of the trial court denying he

motion for reconsideration and a new trial, which is interlocutory in

character. In view of this erroneous interpretation, she succeeded inappealing indirectly from the order admitting the will to probate whichwas entered one year and seven months ago.Before closing, we wish to state that it is not timely to discuss herein the

validity and sufficiency of the execution of the will in question. As wehave already said, this question can no more be raised in this case on

appeal. After due hearing, the court found that the will in question wasvalid and effective and the order admitting it to probate, thus

promulgated, should be accepted and respected by all. The probate of thwill in question now constitutes res judicata.Wherefore, the appeal taken herein is hereby dismissed, with costs

against the appellant. So ordered.Avancea, C.J., Malcolm, Villa-Real, and Hull, JJ., concur.

Republic of the Philippines

SUPREME COURTManila

EN BANC

G.R. No. L-48840 December 29, 1943ERNESTO M. GUEVARA, petitioner-appellant,vs.ROSARIO GUEVARA and her husband PEDROBUISON, respondent-appellees.Primacias, Abad, Mencias & Castill o for appellant.

Pedro C. Quin to for appell ees.

OZAETA, J.:Ernesto M. Guevarra and Rosario Guevara, ligitimate son and natura

daughter, respectively, of the deceased Victorino L. Guevara, arelitigating here over their inheritance from the latter. The action wacommenced on November 12, 1937, by Rosario Guevara to recover fromErnesto Guevara what she claims to be her strict ligitime as anacknowledged natural daughter of the deceased to wit, a portion o423,492 square meters of a large parcel of land described in originalcertificate of title No. 51691 of the province of Pangasinan, issued in thename of Ernesto M. Guervaraand to order the latter to pay her P6,000

plus P2,000 a year as damages for withholding such legitime from her

The defendant answered the complaint contending that whatever right orights the plaintiff might have had, had been barred by the operation of

law.

It appears that on August 26, 1931, Victorino L. Guevara executed a wil

(exhibit A), apparently with all the formalities of the law, wherein hemade the following bequests: To his stepdaughter Candida Guevara, a

pair of earrings worth P150 and a gold chain worth P40; to his sonErnesto M. Guevara, a gold ring worth P180 and all the furniture

pictures, statues, and other religious objects found in the residence of thetestator in Poblacion Sur, Bayambang, Pangasinan; "a mi hija RosarioGuevara," a pair of earrings worth P120; to his stepson Piuo Guevara, aring worth P120; and to his wife by second marriage, Angustia Posadasvarious pieces of jewelry worth P1,020.

He also made the following devises: "A mis hijos Rosario Guevara yErnesto M. Guevara y a mis hijastros, Vivencio, Eduviges, DionisiaCandida y Pio, apellidados Guevara," a residential lot with itsimprovements situate in the town of Bayambang, Pangasinan, having anarea of 960 square meters and assessed at P540; to his wife AngustiaPosadas he confirmed the donation propter nuptias theretofore made byhim to her of a portion of 25 hectares of the large parcel of land of 259

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odd hectares described in plan Psu-66618. He also devised to her aportion of 5 hectares of the same parcel of land by way of complete

settlement of her usufructurary right.1awphil.netHe set aside 100 hectares of the same parcel of land to be disposed ofeither by him during his lifetime or by his attorney-in-fact Ernesto M.Guevara in order to pay all his pending debts and to degray his expensesand those of his family us to the time of his death.

The remainder of said parcel of land his disposed of in the followingmanner:

(d). Toda la porcion restante de mi terreno arriba descrito, de la

extension superficial aproximada de ciento veintinueve (129) hectareassetenta (70) areas, y veiticinco (25) centiares, con todas sus mejorasexistentes en la misma, dejo y distribuyo, pro-indiviso, a mis siguientesherederos como sigue:

A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas,ocho (8) areas y cincuenta y cuatro (54) centiareas, hacia la parte que

colinda al Oeste de las cien (100) hectareas referidas en el inciso (a) deeste parrafo del testamento, como su propiedad absoluta y exclusiva, en la

cual extension superficial estan incluidas cuarenta y tres (43) hectareas,veintitres (23) areas y cuarenta y dos (42) centiareas que le doy enconcepto de mejora.

A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas,sesenta y un (61) areas y setenta y un (71) centiareas, que es la parte

restante.Duodecimo. Nombro por la presente como Albacea Testamentario ami hijo Ernesto M. Guevara, con relevacion de fianza. Y una vez

legalizado este testamento, y en cuanto sea posible, es mi deseo, que losherederos y legatarios aqui nombrados se repartan extrajudicialmente mis

bienes de conformidad con mis disposiciones arriba consignadas.

Subsequently, and on July 12, 1933, Victorino L. Guevarra executedwhereby he conveyed to him the southern half of the large parcel of landof which he had theretofore disposed by the will above mentioned,inconsideration of the sum of P1 and other valuable considerations,among which were the payment of all his debts and obligationsamounting to not less than P16,500, his maintenance up to his death, andthe expenses of his last illness and funeral expenses. As to the northernhalf of the same parcel of land, he declared: "Hago constar tambien que

reconozco a mi referido hijo Ernesto M. guevara como dueo de la mitadnorte de la totalidad y conjunto de los referidos terrenos por haberlos

comprado de su propio peculio del Sr. Rafael T. Puzon a quien habiavendido con anterioridad."

On September 27, 1933, final decree of registration was issued in landregistration case No. 15174 of the Court of First Instance of Pangasinan,

and pursuant thereto original certificate of title No. 51691 of the sameprovince was issued on October 12 of the same year in favor of Ernesto

M. Guevara over the whole parcel of land described in the deed of saleabove referred to. The registration proceeding had been commenced on

November 1, 1932, by Victorino L. Guevara and Ernesto M. Guevara asapplicants, with Rosario, among others, as oppositor; but before the trialof the case Victorino L. Guevara withdrew as applicant and Rosario

Guevara and her co-oppositors also withdrew their opposition, therebyfacilitating the issuance of the title in the name of Ernesto M. Guevara

alone.

On September 27, 1933, Victorino L. Guevarra died. His last will and

testament, however, was never presented to the court for probate, nor hasany administration proceeding ever been instituted for the settlement ofhis estate. Whether the various legatees mentioned in the will have

received their respective legacies or have even been given due notice ofthe execution of said will and of the dispositions therein made in theirfavor, does not affirmatively appear from the record of this case. Eversince the death of Victorino L. Guevara, his only legitimate son ErnestoM. Guevara appears to have possessed the land adjudicated to him in the

registration proceeding and to have disposed of various portions thereoffor the purpose of paying the debts left by his father.

In the meantime Rosario Guevara, who appears to have had her father'slast will and testament in her custody, did nothing judicially to invoke the

testamentary dispositions made therein in her favor, whereby the testatoracknowledged her as his natural daughter and, aside from certain legacies

and bequests, devised to her a portion of 21.6171 hectares of the large

parcel of land described in the will. But a little over four years after thtestor's demise, she (assisted by her husband) commenced the present

action against Ernesto M. Guevara alone for the purpose hereinbeforeindicated; and it was only during the trial of this case that she presentedthe will to the court, not for the purpose of having it probated but only to

prove that the deceased Victirino L. Guevara had acknowledged her ahis natural daughter. Upon that proof of acknowledgment she claimed heshare of the inheritance from him, but on the theory or assumption that hedied intestate, because the will had not been probated, for which reasonshe asserted, the betterment therein made by the testator in favor of his

legitimate son Ernesto M. Guevara should be disregarded. Both the trial

court and the Court of appeals sustained that theory.Two principal questions are before us for determination: (1) the legalityof the procedure adopted by the plaintiff (respondent herein) RosarioGuevara; and (2) the efficacy of the deed of sale exhibit 2 and the effect

of the certificate of title issued to the defendant (petitioner hereinErnesto M. Guevara.

I

We cannot sanction the procedure adopted by the respondent RosarioGuevara, it being in our opinion in violation of procedural law and anattempt to circumvent and disregard the last will and testament of the

decedent. The Code of Civil Procedure, which was in force up to the timethis case was decided by the trial court, contains the following pertinent

provisions:Sec. 625.Allowance Necessary, and Conclusive as to Execution. Nowill 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 Courtand the allowance by the court of a will of real and personal estate shal

be conclusive as to its due execution.Sec. 626. Custodian of Will to Deliver. The person who has thecustody of a will shall, within thirty days after he knows of the death ofthe testator, deliver the will into the court which has jurisdiction, or to theexecutor named in the will.Sec. 627.Executor to Present Will and Accept or Refuse Trust. A

person named as executor in a will, shall within thirty days after heknows of the death of the testor, or within thirty days after he knows thahe is named executor, if he obtained such knowledge after knowing of thedeath of the testor, present such will to the court which has jurisdiction

unless the will has been otherwise returned to said court, and shall, withinsuch period, signify to the court his acceptance of the trust, or make

known in writing his refusal to accept it.Sec. 628.Penalty.A person who neglects any of the duties required in

the two proceeding sections, unless he gives a satisfactory excuse to thecourt, shall be subject to a fine not exceeding one thousand dollars.Sec. 629.Person Retaining Will may be Committed.If a person having

custody of a will after the death of the testator neglects withoureasonable cause to deliver the same to the court having jurisdiction, after

notice by the court so to do, he may be committed to the prison of theprovince by a warrant issued by the court, and there kept in closeconfinement until he delivers the will.

The foregoing provisions are now embodied in Rule 76 of the new Rules

of Court, which took effect on July 1, 1940.

The proceeding for the probate of a will is one in rem, with notice bypublication to the whole world and with personal notice to each of theknown heirs, legatees, and devisees of the testator (section 630, C. c. P.

and sections 3 and 4, Rule 77). Altho not contested (section 5, Rule 77)the due execution of the will and the fact that the testator at the time of itsexecution was of sound and disposing mind and not acting under duress

menace, and undue influence or fraud, must be proved to the satisfactionof the court, and only then may the will be legalized and given effect bymeans of a certificate of its allowance, signed by the judge and attested

by the seal of the court; and when the will devises real property, attestedcopies thereof and of the certificate of allowance must be recorded in the

register of deeds of the province in which the land lies. (Section 12, Rule77, and section 624, C. C. P.)

It will readily be seen from the above provisions of the law that the

presentation of a will to the court for probate is mandatory and itallowance by the court is essential and indispensable to its efficacy. To

assure and compel the probate of will, the law punishes a person who

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neglects his duty to present it to the court with a fine not exceedingP2,000, and if he should persist in not presenting it, he may be committed

to prision and kept there until he delivers the will.

The Court of Appeals took express notice of these requirements of thelaw and held that a will, unless probated, is ineffective. Nevertheless itsanctioned the procedure adopted by the respondent for the followingreasons:The majority of the Court is of the opinion that if this case is dismissedordering the filing of testate proceedings, it would cause injustice,

incovenience, delay, and much expense to the parties, and that therefore,

it is preferable to leave them in the very status which they themselveshave chosen, and to decide their controversy once and for all, since, in asimilar case, the Supreme Court applied that same criterion(Leao vs. Leao,supra), which is now sanctioned by section 1 of Rule

74 of the Rules of Court. Besides, section 6 of Rule 124 provides that, ifthe procedure which the court ought to follow in the exercise of its

jurisdiction is not specifically pointed out by the Rules of Court, anysuitable process or mode of procedure may be adopted which appears

most consistent to the spirit of the said Rules. Hence, we declare theaction instituted by the plaintiff to be in accordance with law.

Let us look into the validity of these considerations. Section 1 of Rule 74provides as follows:

Section 1.Extrajudicial settlement by agreement between heirs.If thedecedent left no debts and the heirs and legatees are all of age, or theminors are represented by their judicial guardians, the parties may,

without securing letters of administration, divide the estate amongthemselves as they see fit by means of a public instrument filed in theoffice of the register of deeds, and should they disagree, they may do soin an ordinary action of partition. If there is only one heir or one legatee,he may adjudicate to himself the entire estate by means of an affidavitfiled in the office of the register of deeds. It shall be presumed that thedecedent left no debts if no creditor files a petition for letters ofadministration within two years after the death of the decedent.

That is a modification of section 596 of the Code of Civil Procedure,which reads as follows:Sec. 596. Settlement of Certain Intestates Without Legal Proceedings.

Whenever all the heirs of a person who died intestate are of lawful ageand legal capacity and there are no debts due from the estate, or all the

debts have been paid the heirs may, by agreement duly executed inwriting by all of them, and not otherwise, apportion and divide the estate

among themselves, as they may see fit, without proceedings in court.The implication is that by the omission of the word "intestate" and the useof the word "legatees" in section 1 of Rule 74, a summary extrajudicial

settlement of a deceased person's estate, whether he died testate orintestate, may be made under the conditions specified. Even if we give

retroactive effect to section 1 of Rule 74 and apply it here, as the Court ofAppeals did, we do not believe it sanctions the nonpresentation of a willfor probate and much less the nullification of such will thru the failure ofits custodian to present it to the court for probate; for such a result is

precisely what Rule 76 sedulously provides against. Section 1 of Rule 74

merely authorizes the extrajudicial or judicial partition of the estate of adecedent "without securing letter of administration." It does not say that

in case the decedent left a will the heirs and legatees may divide theestate among themselves without the necessity of presenting the will tothe court for probate. The petition to probate a will and the petition to

issue letters of administration are two different things, altho both may bemade in the same case. the allowance of a will precedes the issuance ofletters testamentary or of administration (section 4, Rule 78). One can

have a will probated without necessarily securing letters testamentary orof administration. We hold that under section 1 of Rule 74, in relation toRule 76, if the decedent left a will and no debts and the heirs and legateesdesire to make an extrajudicial partition of the estate, they must first

present that will to the court for probate and divide the estate in

accordance with the will. They may not disregard the provisions of thewill unless those provisions are contrary to law. Neither may they so

away with the presentation of the will to the court for probate, becausesuch suppression of the will is contrary to law and public policy. The law

enjoins the probate of the will and public policy requires it, becauseunless the will is probated and notice thereof given to the whole world,

the right of a person to dispose of his property by will may be rendered

nugatory, as is attempted to be done in the instant case. Absent legateesand devisees, or such of them as may have no knowledge of the will

could be cheated of their inheritance thru the collusion of some of theheirs who might agree to the partition of the estate among themselves tothe exclusion of others.

In the instant case there is no showing that the various legatees other thanthe present litigants had received their respective legacies or that they hadknowledge of the existence and of the provisions of the will. Their rightunder the will cannot be disregarded, nor may those rights be obliterated

on account of the failure or refusal of the custodian of the will to present

it to the court for probate.

Even if the decedent left no debts and nobdy raises any question as to theauthenticity and due execution of the will, none of the heirs may sue for

the partition of the estate in accordance with that will without firssecuring its allowance or probate by the court, first, because the law

expressly provides that "no will shall pass either real or personal estateunless it is proved and allowed in the proper court"; and, second, because

the probate of a will, which is a proceeding in rem, cannot be dispensedwith the substituted by any other proceeding, judicial or extrajudicialwithout offending against public policy designed to effectuate the

testator's right to dispose of his property by will in accordance with lawand to protect the rights of the heirs and legatees under the will thru the

means provided by law, among which are the publication and thepersonal notices to each and all of said heirs and legatees. Nor may thecourt approve and allow the will presented in evidence in such an action

for partition, which is one in personam, any more than it could decree theregistration under the Torrens system of the land involved in an ordinaryaction forreinvindicacion or partition.

We therefore believe and so hold that section 1 of Rule 74, relied upon bythe Court of Appeals, does not sanction the procedure adopted by therespondent.

The case ofLeao vs. Leao (25 Phil., 180), cited by the Court ofAppeals, like section 1 of Rule 74, sanctions the extrajudicial partition bythe heirs of the properties left by a decedent, but not the nonpresentationof a will for probate. In that case one Paulina Ver executed a will on

October 11, 1902, and died on November 1, 1902. Her will was presentedfor probate on November 10, 1902, and was approved and allowed by the

Court on August 16, 1904. In the meantime, and on November 10, 1902the heirs went ahead and divided the properties among themselves and

some of them subsequently sold and disposed of their shares to thirdpersons. It does not affirmatively appear in the decision in that case thathe partition made by the heirs was not in accordance with the will or that

they in any way disregarded the will. In closing the case by its ordedated September 1, 1911, the trial court validated the partition, and one o

the heirs, Cunegunda Leao, appealed. In deciding the appeal this Courtsaid:The principal assignment of error is that the lower court committed anerror in deciding that the heirs and legatees of the estate of Da. PaulinaVer had voluntarily divided the estate among themselves.

In resolving that question this Court said:

In view of the positive finding of the judge of the lower court that therehad been a voluntary partition of the estate among the heirs and legateesand in the absence of positive proof to the contrary, we must conclude

that the lower court had some evidence to support its conclusion.

Thus it will be seen that as a matter of fact no question of law was raised

and decided in that case. That decision cannot be relied upon as anauthority for the unprecedented and unheard of procedure adopted by therespondent whereby she seeks to prove her status as an acknowledgednatural child of the decedent by his will and attempts to nullify andcircumvent the testamentary dispositions made by him by not presenting

the will to the court for probate and by claiming her legitime as anacknowledged natural child on the basis of intestacy; and that in the face

of express mandatory provisions of the law requiring her to present thewill to the court for probate.

In the subsequent case ofRiosa vs. Rocha (1926), 48 Phil. 737, this Cour

departed from the procedure sanctioned by the trial court and impliedly

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approved by this Court in the Leao case, by holding that an extrajudicialpartition is not proper in testate succession. In the Riosa case the Court,

speaking thru Chief Justice Avancea, held:

1. EXTRAJUDICIAL PARTITION; NOT PROPER INTESTATE SUCCESSION. Section 596 of the Code ofCivil Procedure, authorizing the heirs of a person who diesintestate to make extrajudicial partition of the property of thedeceased, without going into any court of justice, makesexpress reference to intestate succession, and therefore

excludes testate succession.

2. ID.; EFFECTS OF; TESTATE SUCCESSION. In the instant case,which is a testate succession, the heirs made an extrajudicial partition ofthe estate and at the same time instituted proceeding for the probate of the

will and the administration of the estate. When the time came for makingthe partition, they submitted to the court the extrajudicial partition

previously made by them, which the court approved.Held: That for thepurposes of the reservation and the rights and obligations created thereby,

in connection with the relatives benefited, the property must not bedeemed transmitted to the heirs from the time the extrajudicial partitionwas made, but from the time said partition was approved by the court.

(Syllabus.)

The Court of Appeals also cites section 6 of Rule 124, which providesthat if the procedure which the court ought to follow in the exercise of its

jurisdiction is not specifically pointed out by the Rules of Court, any

suitable process for mode of proceeding may be adopted which appearsmost conformable to the spirit of the said Rules. That provision is notapplicable here for the simple reason that the procedure which the courtought to follow in the exercise of its jurisdiction is specifically pointedout and prescribed in detail by Rules 74, 76, and 77 of the Rules of Court.The Court of Appeals also said "that if this case is dismissed, ordering thefiling of testate proceedings, it would cause injustice, inconvenience,delay, and much expense to the parties." We see no injustice in requiringthe plaintiff not to violate but to comply with the law. On the contrary, aninjustice might be committed against the other heirs and legateesmentioned in the will if the attempt of the plaintiff to nullify said will bynot presenting it to the court for probate should be sanctioned. As to the

inconvenience, delay, and expense, the plaintiff herself is to blamebecause she was the custodian of the will and she violated the duty

imposed upon her by sections 2, 4, and 5 of Rule 76, which command herto deliver said will to the court on pain of a fine not exceeding P2,000

and of imprisonment for contempt of court. As for the defendant, he isnot complaining of inconvenience, delay, and expense, but on thecontrary he is insisting that the procedure prescribed by law be followed

by the plaintiff.

Our conclusion is that the Court of Appeals erred in declaring the actioninstituted by the plaintiff to be in accordance with law. It also erred inawarding relief to the plaintiff in this action on the basis of intestacy ofthe decedent notwithstanding the proven existence of a will left by himand solely because said will has not been probated due to the failure of

the plaintiff as custodian thereof to comply with the duty imposed uponher by the law.

It is apparent that the defendant Ernesto M. Guevara, who was namedexecutor in said will, did not take any step to have it presented to thecourt for probate and did not signify his acceptance of the trust or refusal

to accept it as required by section 3 of Rule 76 (formerly section 627 ofthe Code of Civil Procedure), because his contention is that said will,insofar as the large parcel of land in litigation is concerned, has been

superseded by the deed of sale exhibit 2 and by the subsequent issuanceof the Torrens certificate of title in his favor.

IIThis brings us to the consideration of the second question, referring to the

efficacy of the deed of sale exhibit 2 and the effect of the certificate oftitled issued to the defendant Ernesto M. Guevara. So that the parties may

not have litigated here in vain insofar as that question is concerned, wedeem it proper to decide it now and obviate the necessity of a new action.

The deed of sale exhibit 2 executed by and between Victorino L. Guevaraand Ernesto M. Guevara before a notary public on July 12, 1933, may be

divided into two parts: (a) insofar as it disposes of and conveys to Ernesto

M. Guevara the southern half of Victorino L. Guevara's hacienda of 259odd hectares in consideration of P1 and other valuable consideration

therein mentioned; and (b) insofar as it declares that Ernesto M. Guevarabecame the owner of the northern half of the same hacienda byrepurchasing it with his own money from Rafael T. Puzon.

A. As to the conveyance of the southern half of the hacienda toErnesto M. Guevara in consideration of the latter's assumptionof the obligation to pay all the debts of the deceased, the Courtof Appeals found it to be valid and efficacious because: "(a) i

has not been proven that the charges imposed as a condition is

[are] less than the value of the property; and (b) neither has ibeen proven that the defendant did not comply with theconditions imposed upon him in the deed of transfer." As amatter of fact the Court of Appeals found" "It appears that the

defendant has been paying the debts left by his father. Toaccomplish this, he had to alienate considerable portions of the

above-mentioned land. And we cannot brand such alienation asanomalous unless it is proven that they have exceeded the

value of what he has acquired by virtue of the deed of July 121933, and that of his corresponding share in the inheritance."The finding of the Court of Appeals on this aspect of the case

is final and conclusive upon the respondent, who did noappeal therefrom.

B. With regard to the northern half of the hacienda, the findings of facand of law made by the Court of Appeals are as follows:

The defendant has tried to prove that with his own money, he boughfrom Rafael Puzon one-half of the land in question, but the Court a quoafter considering the evidence, found it not proven; we hold that suchconclusion is well founded. The acknowledgment by the deceasedVictorino L. Guevara, of the said transactions, which was insertedincidentally in the document of July 12, 1933, is clearly belied by the factthat the money paid to Rafael Puzon came from Silvestre P. Coquia, towhom Victorino L. Guevara had sold a parcel of land with the right orepurchase. The defendant, acting for his father, received the money anddelivered it to Rafael Puzon to redeem the land in question, and instead oexecuting a deed of redemption in favor of Victorino L. Guevara, thelatter executed a deed of sale in favor of the defendant.

The plaintiff avers that she withdrew her opposition to the registration o

the land in the name of the defendant, because of the latter's promise thaafter paying all the debt of their father, he would deliver to her and to the

widow their corresponding shares. As their father then was still alivethere was no reason to require the delivery of her share and that was whyshe did not insist on her opposition, trusting on the reliability and

sincerity of her brother's promise. The evidence shows that such promisewas really made. The registration of land under the Torrens system does

not have the effect of altering the laws of succession, or the rights ofp