SECOND DIVISION
G.R. No. 237133, January 20, 2021
MIGDONIO RACCA AND MIAM GRACE DIANNE RACCA, PETITIONERS, V. MARIA LOLITA A. ECHAGUE, RESPONDENT.
D E C I S I O N
GESMUNDO, J.:
Personal notice to the heirs whose places of residence are known is mandatory. Trial courts cannot simply abdicate their duty under Section 4, Rule 76 of the 1997 Revised Rules of Court by indiscriminately applying the rule on publication. To do so would render nugatory the procedure laid down in Sec. 4 and the purpose for which it was intended.
This is an appeal by certiorari under Rule 45 of the 1997 Revised Rules of Civil Procedure seeking to reverse and set aside the twin orders of the Regional Trial Court, Palawan and Puerto Princesa City, Branch 51 (RTC), issued on August 16, 20171 and November 20, 20172 in SPL. PROC. No. 2391. The August 16, 2017 Order declared petitioners in default while the November 20, 2017 Order denied their Motion to Lift Order of General Default.
Petitioners argue that being compulsory heirs, they have an interest in the probate of the will; that there are clear grounds to question the will, such as the subject of the devise being a conjugal property, as well as the mental condition of the deceased prior to her death;13 that posting of the notice and its publication does not bar the lifting of the order of general default; that the order of general default may be lifted after a good and reasonable cause is shown;14 that the order of general default should be lifted because their failure to appear during the jurisdictional hearing is due to excusable negligence; and that substantial justice requires the relaxation of the rules in their favor.15I
THE HONORABLE COURT ERRED WHEN IT RULED THAT PUBLICATION AND POSTING BAR THE PARTICIPATION OF (SIC) HEREIN PETITIONERS;II
THE HONORABLE COURT ERRED IN DENYING THE HEREIN COMPULSORY HEIR[S] WITH THE RIGHT TO OPPOSE THE PROBATE OF THE WILL.12
A petition for review under Rule 45 raising a pure question of law is the appropriate remedy |
x x x A party declared in default loses his standing in court. As a result of his loss of standing, a party in default cannot appear in court, adduce evidence, be heard, or be entitled to notice. A party in default cannot even appeal from the judgment rendered by the court, unless he flies a motion to set aside the order of default under the grounds provided in what is now Sec. 3, Rule 9 of the 1997 Rules of Civil Procedure.32By virtue of the assailed orders of the RTC, herein petitioners, who claim to be the husband and the daughter of Amparo, had been barred from participating in the allowance of her alleged last will and testament. Their non-participation in the probate proceeding would prevent them from raising matters that may cast serious doubts on the genuineness and authenticity of Amparo's will. By reason of the default order, they cannot participate in the proceedings, oppose the probate of the will which they believe to be unauthentic, or even appeal the judgment of the trial court thereon. As such, the August 16, 2017 and November 20, 2017 Orders of the trial court are final and, therefore, proper subjects of an appeal under Rule 45.
An Order of General Default does not apply in probate proceedings |
However, Sec. 3, Rule 9 does not apply in probate proceedings. A careful reading of Sec. 3 reveals that an order of default avails only in litigious proceedings. Thus, it cannot be validly issued in a special proceeding such as the probate of a will. The Court already made this clarification in the early case of Riera v. Palmaroli34 as follows: ChanRoblesVirtualawlibraryRULE 9
Effect of Failure to Plead
Section 3. Default; declaration of. - If the defending party rails to answer within the time allowed there for, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court.
Now what is the meaning of "judgment rendered upon default." as used in section 513? The reference is of course to the default mentioned in section 128 of the Code of Civil Procedure. x x x A default, such as is there intended, can only arise in contentious litigation where a party who has been impleaded as a defendant and served with process fails to appear at the time required in the summons or to answer at the time provided by the rules of the court. The proceeding to probate a will is not a contentious litigation in any sense, because nobody is impleaded observed with process. It is a special proceeding, and although notice of the application is published, nobody is bound to appeal and no order for judgment by default, is ever entered. If the application is not opposed, the court may allow the will on the testimony of one of the subscribing witnesses only (sec. 631, Code Civ. Proc.), provided none of the reasons specified in section 634 of the Code of Civil Procedure for disallowing the will are found to exist. If any interested person opposes the probate, the court hears the testimony and allows or disallows the will accordingly. From such judgment any interested person may appeal to the Supreme Court within twenty days. (Sec. 781, Code Civ. Proc.) Though the action taken by a Court of First Instance in thus allowing or disallowing a will is properly denominated a judgment, it is not a judgment rendered upon default even though no person appears to oppose the probate.35 (emphases supplied)It should be emphasized that in probate proceedings, the court's area of inquiry is limited to an examination and resolution of the extrinsic validity of the will.36 By extrinsic validity, the testamentary capacity and the compliance with the formal requisites or solemnities prescribed by law are the only questions presented for the resolution of the court.37 Due execution of the will or its extrinsic validity pertains to whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by Articles 805 and 806 of the New Civil Code.38 These matters do not necessitate the issuance of an order of default against parties who failed to appear in the proceedings despite the publication of the notice of hearing. After all, the probate of a will is mandatory39 and cannot be left to the discretion of the persons interested in the estate of the deceased.
Notice to the designated and known heirs, devisees and legatees under Section 4, Rule 76 of the Rules of Court is mandatory; Publication of notice of hearing is not sufficient when the places of residence of the heirs, legatees and devisees are known |
Notable that Secs. 3 and 4 prescribe two (2) modes of notification of the hearing: (1) by publication in a newspaper of general circulation or the Official Gazette, and (2) by personal notice to the designated or known heirs, legatees and devisees. Under Sec. 3, publication of the notice of hearing shall be done upon the delivery of the will, or filing of the petition for allowance of the will in the court having jurisdiction. On the other hand, personal notice under Sec. 4 shall be served to the designated or known heirs, legatees and devisees, and the executor or co-executor, at their residence, if such are known.Rule 76
Allowance or Disallowance of Will
Section 3. Court to appoint time for proving will. Notice thereof to be published. - When a will is delivered to, or a petition for the allowance or a will is filed in, the court having jurisdiction, such court shall fix a time and place for proving the will when all concerned may appear to contest the allowance thereof, and shall cause notice of such time and place to be published three (3) weeks successively, previous to the time appointed, in a newspaper of general circulation in the province.
But no newspaper publication shall be made where the petition for probate has been filed by the testator himself.
Section 4. Heirs, devisees, legatees, and executors to be notified by mail or personally. - The court shall also cause copies of the notice of the time and place fixed for proving the will to be addressed to the designated or other known heirs, legatees, and devisees of the testator resident in the Philippines at their places or residence, and deposited in the post office with the postage thereon prepaid at least twenty (20) days before the hearing, if such places of residence be known. A copy of the notice must in like manner be mailed to the person named as executor, if he be not the petitioner; also, to any person named as co-executor not petitioning, if their places of residence be known. Personal service of copies of the notice at [least] (10) days before the day of hearing shall be equivalent to mailing.
If the testator asks for the allowance of his own will notice shall be sent only to his compulsory heirs.
SECTION 630. Court to Appoint Hearing on Will. - When a will is delivered to a court having jurisdiction of the same, the court shall appoint a time and place when all concerned may appear to contest the allowance of the will, and shall cause public notice thereof to be given by publication in such newspaper or newspapers as the court directs of general circulation in the province, three weeks successively, previous to the time appointed, and no will shall be allowed until such notice has been given. At the hearing all testimony shall be taken under oath, reduced to writing and signed by the witnesses. (emphases supplied)As may be observed, Sec. 630 only identified publication of the notice of hearing in a newspaper of general circulation as the mode of notifying interested parties to the allowance of the will. Sec. 630 was mandatory as it provided that a will shall not be probated without publication of the notice of hearing.
As already stated in the foregoing statement of facts, the decree allowing the will of the deceased Samuel Murray, and declaring Henry Reissmann & Company, London merchants, as the sole "legatees" of the said deceased in accordance with the terms of his will, was issued on January 20, 1926. It does not appear that the applicant and appellee, Margaret Stewart Mitchell McMaster, was personally noticed of said decree, or on what date the notice was served. if she was notified thereof. Whether she was notified or not of said decree is or no consequence, however, for the purpose of determining whether or not she knew of the issuance of said decree. The testate or intestate proceedings of deceased person partake of the nature of proceedings in rem and, as such, the publication in the newspapers of the filing of the corresponding application and of the date set for the hearing of the same, in the manner prescribed by law, is a notice to the whole world of the existence of the proceedings and of the hearing on the date and time indicated in the publication. x x x Therefore, by reason of the publication of the testamentary proceedings of the deceased James Mitchell, as well as those of the deceased Samuel Murray, the applicant-appellee is presumed to have knowledge of the respective proceedings in said cases, as well as of all the orders and decrees issued therein, including that on January 20, 1926, allowing the will of Samuel Murray to probate and declaring Henry Reissmann & Company as his sole "legatee", and, according to section 781 of the Code of Civil Procedure, as amended by section 2 of Act No. 3403, if she did not concur in said decree, she should have appealed therefrom within the period of twenty-five days, that is, on February 14, 1926, inasmuch as she failed to do so, said decree automatically became final and conclusive and the probate court that heard the case lost all jurisdiction to continue hearing the same.47 (emphasis supplied).Clearly, the notion that publication of the notice of hearing is sufficient notification to interested parties to the will was not solely based on Sec. 630 of the Code of Civil Procedure. By large, it can be attributed to the in rem nature of probate proceedings. In Our jurisdiction, a proceeding in rem, dealing with a tangible res, may be instituted and carried to judgment without personal service upon the claimants within the State or notice by name to those outside of it. Jurisdiction is secured by the power of the court over the res.48
The notification requirement under Secs. 3 and 4 of Rule 77 remained in the 1964 Rules of Court, which became effective on January 1, 1964, although Sec. 77 was renumbered as Sec. 76 and amendments were introduced to the two sections. Significantly, the 1964 Rules of Court added in Sec. 4 the "designated" heirs, legatees or devisees as those entitled to receive the notice of hearing. Secs. 3 and 4 of Rule 76 were later reproduced verbatim in the 1997 Rules of Court.Rule 77
Allowance or Disallowance or Will
SECTION 3. Court to Appoint Time for Proving Will. Notice Thereof to Be Published. - When a will is delivered to, or a petition for the allowance of a will is filed in, the court having jurisdiction, such court shall fix a time and place for proving the will when all concerned may appear to contest the allowance thereof, and shall cause notice of such time and place to be published three weeks successively, previous to the time appointed, in a newspaper of general circulation in the province, or in the Official Gazette, as the court shall deem best.
SECTION 4. Heirs, devisees, legatees, and executors to be notified by mail or personally. - The court shall also cause copies or the notice of the time and place fixed for proving the will to be addressed to the known heirs, legatees, and devisees of the testator resident in the Philippines at their places of residence, and deposited in the post office with the postage thereon prepaid at least twenty days before the hearing, if such places of residence be known. A copy of the notice must in like manner be mailed to the person named as executor, if he be not the petitioner; also, to any person named as co-executor not petitioning, if their places of residence be known. Personal service of copies of the notice at least ten days before the day or hearing shall be equivalent to mailing. (emphases supplied)
But petitioners maintain that the respondent court acted without absolutely any jurisdiction in admitting the will to probate. They rely on Rule 77, Section 4 which reads as follows: ChanRoblesVirtualawlibraryNotable that Joson was the first to characterize the notice on individual heirs, legatees and devisees as being "a matter of procedural convenience," and that publication was sufficient to notify all the interested parties to the will.SEC. 4. Heirs, devisees, legatees, and executors to be notified by mail or personally. - The court shall also cause copies of the notice of the time and place fixed for proving the will to he addressed to the known heirs, legatees, and devisees of the testator resident in the Philippines at their places of residence, and deposited in the post office with the postage thereon prepaid at least twenty days before the hearing, if such places of residence be known. A copy or the notice must in like manner be mailed to the person named as executor, if he be not the petitioner; also, to any person named as co-executor not petitioning, if their places of residence be known. Personal service of copies of the notice at least ten days before the day of hearing shall be equivalent to mailing.Petitioners maintain that no notice was received by them partly because their residence was not Dagupan Street No. 83 as alleged in the petition for probate. If the allegation of the petition was wrong and the true residence of petitioners was not known, then notice upon them individually was not necessary. Under the provision above-quoted, individual notice upon heirs, legatees and devisees is necessary only when they are known or when their places of residence are known. In other instances, such notice is not necessary and the court may acquire and exercise jurisdiction simply upon the publication of the notice in a newspaper of general circulation. What is, therefore, indispensable to the jurisdiction of the court is the publication of the notice in a newspaper or general circulation, and the notice on individual heirs, legatees and devisees is merely a matter of procedural convenience to better satisfy in some instances the requirements of due process.50 (emphasis supplied)
x x x In the absence of proof that the municipal district court of Amoy is a probate court and on the Chinese law of procedure in probate matters, it may be presumed that the proceedings in the matter of probating or allowing a will in the Chinese courts are the same as those provided for in our laws on the subject. It is a proceedings in rem and for the validity of such proceedings personal notice or by publication or both to all interested parties must be made. The interested parties in the case were known to reside in the Philippines. The evidence shows that no such notice was received by the interested parties residing in the Philippines x x x. The proceedings had in the municipal district court of Amoy, China, may be likened to a deposition or to a perpetuation of testimony, and even if it were so it does not measure or come up to the standard of such proceedings in the Philippines for lack of notice to all interested parties and the proceedings were held at the back of such interested parties.52 (emphasis supplied)Noteworthy that Suntay placed importance on the requirement under Sec. 4 to personally notify all the interested parties whose residence were known.
According to the Rules, notice is required to be personally given to known heirs, legatees, and devisees of the testator. A perusal of the will shows that respondent was instituted as the sole heir of the decedent. Petitioners, as nephews and nieces of the decedent, arc neither compulsory nor testate heirs who are entitled to be notified of the probate proceedings under the Rules. Respondent had no legal obligation to mention petitioners in the petition for probate, or to personally notify them of the same.To be sure, the precedent cases of Joson, Perez and Abut did not blindly apply the rule on publication. The Court in Joson denied personal notice to the known heirs because their residence appeared to be unknown. Perez also did not apply the requirement of personal notice because it concerned oppositors-appellants who were not forced heirs and an heir to whom a notice of the hearing was sent to at her last known residence. In Abut, the Court denied the requirement of personal notification in an amended petition for probate. Clearly, none of these cases called for the proper application of Sec. 4 of Rule 76.
Besides, assuming arguendo that petitioners are entitled to be so notified, the purported infirmity is cured by the publication of the notice. After all, personal notice upon the heirs is a matter of procedural convenience and not a jurisdictional requisite.
The non-inclusion of petitioners' names in the petition and the alleged failure to personally notify them of the proceedings do not constitute extrinsic fraud. Petitioners were not denied their day in court, as they were not prevented from participating in the proceedings and presenting their case before the probate court.60 (citations omitted, emphases supplied)
It is clear from [Section 4 of rule 76] that notice of the time and place of the hearing for the allowance of a will shall be forwarded to the designated or other known heirs, legatees, and devisees residing in the Philippines at their places of residence, if such places of residence be known. There is no question that the residences of herein petitioners legatees and devisees were known to the probate court. The petition for the allowance of the will itself indicated the names and addresses of the legatees and devisees of the testator. But despite such knowledge, the probate court did not cause copies of the notice to be sent to petitioners. The requirement of the law for the allowance of the will was not satisfied by mere publication of the notice of hearing for three (3) weeks in a newspaper or general circulation in the province.It should be emphasized that De Aranz does not disregard the rule in proceedings in rem that publication serves as constructive notice to the whole world.62De Aranz merely upholds the additional requirement under Sec. 4 that personal notice be served to the interested parties to the will on the condition that their places of residence are known. Otherwise, personal notification is not required even though the oppositors to the will are the compulsory heirs or named legatees and devisees.
The case of Joson vs. Nable cited by the Court of Appeals in its assailed decision to support its theory is not applicable in the present case. In that case, petitioners Purificacion Joson and Erotita Joson failed to contest the will of Tomas Joson because they had not been notified of the hearing of the petition for probate. While the petition included the residence of petitioners as Dagupan Street No. 83, Manila, petitioners claimed that their residence was not Dagupan Street No. 83, Manila. There the Court said: ChanRoblesVirtualawlibraryPetitioners maintain that no notice was received by them partly because their residence was not Dagupan Street No. 83 as alleged in the petition for probate. If the allegation of the petition was wrong and the true residence of petitioners was not known, then notice upon them individually was not necessary. Under the provision abovequoted, individual notice upon heirs, legatees and devisees is necessary only when they are known or when their places of residence are known. In other instances, such notice is not necessary and the court may acquire and exercise jurisdiction simply upon the publication of the notice in a newspaper of general circulation . . .In Re: Testate Estate of Suntay, the Court, speaking thru Mr. Justice Sabino Padilla, said: ChanRoblesVirtualawlibraryx x x It is a proceedings in rem and for the validity of such proceedings personal notice or by publication or both to all interested parties must be made. The interested parties in the case were known to reside in the Philippines. The evidence shows that no such notice was received by the interested parties residing in the Philippines (pp. 474, 476, 481, 503-4, t.s.n., hearing of 24 February 1948). The proceedings had in the municipal district court or Amoy, China, may be likened to a deposition or to a perpetuation of testimony, and even if it were so it does not measure or come up to the standard of such proceedings in the Philippines for lack or notice to all interested parties and the proceedings were held at the back of such interested parties.61 (citations omitted)
The notice sent to Migdonio failed to comply with the procedural requirements under Section 4 of Rule 76 |
Endnotes:
1Rollo, pp. 56-57; penned by Presiding Judge Ambrosio B. De Luna.
2 Id. at 66-67.
3 Id. at 33-35.
4 Id. at 34.
5 Id. at 46.
6 Id. at 15.
7 Id. at 47-54.
8 Id. at 55.
9 Id. at 56-57.
10 Id. at 58-65.
11 Id. at 66-67.
12 Id. at 16.
13 Id. at 17-18.
14 Id. at 19-20.
15 Id. at 20-21.
16 Id. at 82-95.
17 Id. at 83.
18 Id.
19 Id. at 87-92.
20 Id. at 93-94.
21 Id. at 92-94.
22 Id. at 89.
23 Id. at 88.
24 Id. at 112-120.
25 Id. at 114.
26 Id. at 115-116.
27 507 Phil. 682, 689-690 (2005).
28Rollo, pp. 116-119.
29 RULES OF COURT, Rule 45, Sec. 1.
30Republic v. Heirs of Oribello, Jr., 705 Phil. 614, 624 (2013).
31 490 Phil. 74, 93 (2005).
32 Id. at 93; citing Lim Toco v. Go Fay, 80 Phil. 166, 169 (1948).
33 Supra note 29.
34 40 Phil. 105 (1919).
35 Id. at 114-115.
36Nepomuceno v. Court of Appeals, 213 Phil. 418, 423 (1985).
37Sumilang v. Ramagosa, 129 Phil. 636, 639 (1967), citing Nuguid v. Nuguid, 123 Phil. 1305, 1308 (1966).
38Baltazar v. Laxa, 685 Phil. 484, 498 (2012).
39Alejandra Arado Heirs v. Alcoran, 763 Phil. 205, 223 (2015); Roberts v. Leonidas, 214 Phil. 30, 36 (1984).
40Section 5. Proof at hearing What sufficient in absence of contest. - At the hearing compliance with the provisions of the last two preceding sections must be shown before the introduction or testimony in support of the will. All such testimony shall be taken under oath and reduced to writing. If no person appears to contest the allowance of the will, the court may grant allowance thereof on the testimony of one or the subscribing witnesses only, if such witness testify that the will was executed as is required by law.
In the case of a holographic will, it shall be necessary that at least one witness who knows the hand writing and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. In the absence of any such competent witness, and if the court deem it necessary, expert testimony may be resorted to.
41 139 Phil. 156 (1918).
42 Id. at 162.
43 47 Phil. 938 (1925).
44 Id. at 942-943.
45 66 Phil. 215 (1938).
46 68 Phil. 142 (1939), citing Everett v. Wing (103 Vt., 488, 492).
47 Id. at 144.
48Sepagan v. Dacillo, 63 Phil. 412, 417 (1936).
49 87 Phil. 337 (1950).
50 Id. at 339-340.
51 95 Phil. 500 (1954).
52 Id. at 510-511.
53 105 Phil. 1132 (1959).
54 Id. at 1134.
55 150-A Phil. 679 (1972).
56 507 Phil. 682 (2005).
57 519 Phil. 292 (2006).
58 G.R. No. 203923, October 8, 2018.
59 244 Phil. 645 (1988).
60Alaban v. Court of Appeals, supra note 56 at 695.
61De Aranz v. Judge Galing, supra note 59 at 648-650.
62Alaban v. Court of Appeals, supra note 56 at 693; Mercado v. Santos, 66 Phil. 215, 221 (1938).
63Enriquez v. Court of Appeals, 444 Phil. 419, 428 (2003).
64Id. at 428-429.
65Spouses Magtoto v. Court of Appeals, 699 Phil. 84, 98 (2012).
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