Subject: Special Proceedings

Doctrine: A proceeding for the probate of a will is one in rem, such that with the corresponding
publication of the petition the court's jurisdiction extends to all persons interested in said will or
in the settlement of the estate of the decedent.
Topic: Chapter IV – Production of Will
Sub-Topic: Nature of probate proceedings
Digester: Cañedo, PL.
_____________________________________________________________________________________
G.R. No. 156021 September 23, 2005
Alaban v. CA
Tinga, J.:

SUMMARY:
Petitioners maintain that they were not made parties and were not notified to the probate of the will of the
decedent. They claim that they are the intestate heirs of the decedent and the RTC did not acquire jurisdiction
over the petition due to non-payment of the correct docket fees, defective publication, and lack of notice to the
other heirs.

Whether or not the allowance of the will to probate should be annulled for failure to mention the petitioners as
parties and lack of notice to them. (NO)

A proceeding for the probate of a will is one in rem, such that with the corresponding publication of the petition
the court's jurisdiction extends to all persons interested in said will or in the settlement of the estate of the
decedent. It is the publication of such notice that brings in the whole world as a party in the case and vests the
court with jurisdiction to hear and decide it.
Thus, even though petitioners were not mentioned in the petition for probate, they eventually became parties
thereto as a consequence of the publication of the notice of hearing.

Facts:

1. Respondent Francisco Provido filed a petition for the probate of the Last Will and Testament of the late
Soledad Provido Elevencionado who died on 26 October 2000 in Janiuay, Iloilo. Respondent alleged that
he was the heir of the decedent and the executor of her will. The RTC of Dumangas, Iloilo allowed the
probate of the will of the decedent and directing the issuance of letters testamentary to respondent.

2. More than four (4) months later, or on 4 October 2001, herein petitioners filed a motion for the
reopening of the probate proceedings. Likewise, they filed an opposition to the allowance of the will of
the decedent, as well as the issuance of letters testamentary to respondent.

a. They claim that they are the intestate heirs of the decedent and the RTC did not acquire
jurisdiction over the petition due to non-payment of the correct docket fees, defective
publication, and lack of notice to the other heirs.
 3. RTC dismissed the motion. The petitioners were deemed notified of the hearing by publication. The
RTC’s decision was already final and executory even before the petitioner’s filing of the motion to
reopen.

4. Before the CA, petitioners claimed that:

a. They allegedly drafted a compromise agreement to implement the division of the estate but
respondent refused to sign and return the same.

b. They learnt of the probate proceedings only in July of 2001, as a result of which they filed their
motion to reopen the proceedings and admit their opposition to the probate of the will only on
4 October 2001.

c. They seek to set aside on the ground of extrinsic fraud and lack of jurisdiction on the part of the
RTC.

5. CA dismissed the petition.

Issue:
1. Whether or not the allowance of the will to probate should be annulled for failure to mention the petitioners
as parties. (NO)
2. Whether or not the petitioners were notified of the petition for probate of will. (YES)

Ruling:
1. No. Petitioners are mistaken in asserting that they are not or have not become parties to the probate
proceedings.

A proceeding for the probate of a will is one in rem, such that with the corresponding publication of
the petition the court's jurisdiction extends to all persons interested in said will or in the settlement of the
estate of the decedent.

Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might
be minded to make an objection of any sort against the right sought to be established. It is the publication of
such notice that brings in the whole world as a party in the case and vests the court with jurisdiction to hear and
decide it. In this case, even though petitioners were not mentioned in the petition for probate, they eventually
became parties thereto as a consequence of the publication of the notice of hearing.

2. Yes, petitioners were notified.

 According to the Rules, notice is required to be personally given to known heirs, legatees, and
devisees of the testator.

In this case, 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, are 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.

Besides, assuming arguendo that petitioners are entitled to be so notified, the purported infirmity is cured by
the publication of the notice. 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.
FULL TEXT

Republic of the Philippines

SUPREME COURT

SECOND DIVISION

G.R. No. 156021 September 23, 2005

CYNTHIA C. ALABAN, FRANCIS COLLADO, JOSE P. COLLADO, JUDITH PROVIDO, CLARITA

PROVIDO, ALFREDO PROVIDO, MANUEL PROVIDO, JR., LORNA DINA E. PROVIDO, SEVERO
ARENGA, JR., SERGIO ARENGA, EDUARDO ARENGA, CAROL ARENGA, RUTH BABASA, NORMA
HIJASTRO, DOLORES M. FLORES, ANTONIO MARIN, JR., JOSE MARIN, SR., and MATHILDE
MARIN, Petitioners,
vs.
COURT OF APPEALS and FRANCISCO H. PROVIDO, Respondent.

DECISION

Tinga, J.:

This is a petition for review of the Resolutions1 of the

Court of Appeals (CA) in CA-G.R. SP No. 69221, 2 dismissing petitioners’ petition for annulment of judgment.

On 8 November 2000, respondent Francisco Provido (respondent) filed a petition, docketed as SP Proc. No.
00-135, for the probate of the Last Will and Testament3 of the late Soledad Provido Elevencionado
("decedent"), who died on 26 October 2000 in Janiuay, Iloilo.4 Respondent alleged that he was the heir of
the decedent and the executor of her will. On 30 May 2001, the Regional Trial Court (RTC), Branch 68, in
P.D. Monfort North, Dumangas, Iloilo, rendered its Decision,5 allowing the probate of the will of the decedent
and directing the issuance of letters testamentary to respondent.6

More than four (4) months later, or on 4 October 2001, herein petitioners filed a motion for the reopening of
the probate proceedings.7 Likewise, they filed an opposition to the allowance of the will of the decedent, as
well as the issuance of letters testamentary to respondent, 8 claiming that they are the intestate heirs of the
decedent. Petitioners claimed that the RTC did not acquire jurisdiction over the petition due to non-payment
of the correct docket fees, defective publication, and lack of notice to the other heirs. Moreover, they
alleged that the will could not have been probated because: (1) the signature of the decedent was forged;
(2) the will was not executed in accordance with law, that is, the witnesses failed to sign below the
attestation clause; (3) the decedent lacked testamentary capacity to execute and publish a will; (4) the will
was executed by force and under duress and improper pressure; (5) the decedent had no intention to make
a will at the time of affixing of her signature; and (6) she did not know the properties to be disposed of,
having included in the will properties which no longer belonged to her. Petitioners prayed that the letters
testamentary issued to respondent be withdrawn and the estate of the decedent disposed of under intestate
succession.9

On 11 January 2002, the RTC issued an Order10 denying petitioners’ motion for being unmeritorious.
Resolving the issue of jurisdiction, the RTC held that petitioners were deemed notified of the hearing by
publication and that the deficiency in the payment of docket fees is not a ground for the outright dismissal of
the petition. It merely required respondent to pay the deficiency.11 Moreover, the RTC’s Decision was already
final and executory even before petitioners’ filing of the motion to reopen. 12

Petitioners thereafter filed a petition13 with an application for preliminary injunction with the CA, seeking the
annulment of the RTC’s Decision dated 30 May 2001 and Order dated 11 January 2002. They claimed that
after the death of the decedent, petitioners, together with respondent, held several conferences to discuss
the matter of dividing the estate of the decedent, with respondent agreeing to a one-sixth (1/6) portion as his
share. Petitioners allegedly drafted a compromise agreement to implement the division of the estate.
Despite receipt of the agreement, respondent refused to sign and return the same. Petitioners opined that
respondent feigned interest in participating in the compromise agreement so that they would not suspect his
intention to secure the probate of the will.14 They claimed that they learnt of the probate proceedings only in
July of 2001, as a result of which they filed their motion to reopen the proceedings and admit their opposition
to the probate of the will only on 4 October 2001. They argued that the RTC Decision should be annulled
and set aside on the ground of extrinsic fraud and lack of jurisdiction on the part of the RTC.15

In its Resolution16 promulgated on 28 February 2002, the CA dismissed the petition. It found that there was
no showing that petitioners failed to avail of or resort to the ordinary remedies of new trial, appeal, petition
for relief from judgment, or other appropriate remedies through no fault of their own. 17 Moreover, the CA
declared as baseless petitioners’ claim that the proceedings in the RTC was attended by extrinsic fraud.
Neither was there any showing that they availed of this ground in a motion for new trial or petition for relief
from judgment in the RTC, the CA added.18 Petitioners sought reconsideration of the Resolution, but the
same was denied by the CA for lack of merit.19

Petitioners now come to this Court, asserting that the CA committed grave abuse of discretion amounting to
lack of jurisdiction when it dismissed their petition for the alleged failure to show that they have not availed of
or resorted to the remedies of new trial, appeal, petition for relief from judgment or other remedies through
no fault of their own, and held that petitioners were not denied their day in court during the proceedings
before the RTC.20 In addition, they assert that this Court has yet to decide a case involving Rule 47 of the
Rules of Court and, therefore, the instant petition should be given due course for the guidance of the bench
and bar.21

For his part, respondent claims that petitioners were in a position to avail of the remedies provided in Rules
37 and 38, as they in fact did when they filed a motion for new trial. 22 Moreover, they could have resorted to
a petition for relief from judgment since they learned of the RTC’s judgment only three and a half months
after its promulgation.23 Respondent likewise maintains that no extrinsic fraud exists to warrant the
annulment of the RTC’s Decision, since there was no showing that they were denied their day in court.
Petitioners were not made parties to the probate proceedings because the decedent did not institute them
as her heirs.24 Besides, assuming arguendo that petitioners are heirs of the decedent, lack of notice to them
is not a fatal defect since personal notice upon the heirs is a matter of procedural convenience and not a
jurisdictional requisite.25 Finally, respondent charges petitioners of forum–shopping, since the latter have a
pending suit involving the same issues as those in SP No. 00-135, that is SP No. 1181 26 filed before Branch
23, RTC of General Santos City and subsequently pending on appeal before the CA in CA-G.R. No.74924. 27
It appears that one of the petitioners herein, Dolores M. Flores ("Flores"), who is a niece of the decedent,
filed a petition for letters of administration with the RTC of General Santos City, claiming that the decedent
died intestate without any issue, survived by five groups of collateral heirs. Flores, armed with a Special
Power of Attorney from most of the other petitioners, prayed for her appointment as administratrix of the
estate of the decedent. The RTC dismissed the petition on the ground of lack of jurisdiction, stating that the
probate court in Janiuay, Iloilo has jurisdiction since the venue for a petition for the settlement of the estate
of a decedent is the place where the decedent died. This is also in accordance with the rule that the first
court acquiring jurisdiction shall continue hearing the case to the exclusion of other courts, the RTC
added.28 On 9 January 2002, Flores filed a Notice of Appeal 29 and on 28 January 2002, the case was
ordered forwarded to the CA.30

Petitioners maintain that they were not made parties to the case in which the decision sought to be annulled
was rendered and, thus, they could not have availed of the ordinary remedies of new trial, appeal, petition
for relief from judgment and other appropriate remedies, contrary to the ruling of the CA. They aver that
respondent’s offer of a false compromise and his failure to notify them of the probate of the will constitute
extrinsic fraud that necessitates the annulment of the RTC’s judgment. 31

The petition is devoid of merit.

Section 37 of the Rules of Court allows an aggrieved party to file a motion for new trial on the ground of
fraud, accident, mistake, or excusable negligence. The same

Rule permits the filing of a motion for reconsideration on the grounds of excessive award of damages,
insufficiency of evidence to justify the decision or final order, or that the decision or final order is contrary to
law.32 Both motions should be filed within the period for taking an appeal, or fifteen (15) days from notice of
the judgment or final order.

Meanwhile, a petition for relief from judgment under Section 3 of Rule 38 is resorted to when a judgment or
final order is entered, or any other proceeding is thereafter taken, against a party in any court through fraud,
accident, mistake, or excusable negligence. Said party may file a petition in the same court and in the same
case to set aside the judgment, order or proceeding. It must be filed within sixty (60) days after the petitioner
learns of the judgment and within six (6) months after entry thereof.33

A motion for new trial or reconsideration and a petition for relief from judgment are remedies available only
to parties in the proceedings where the assailed judgment is rendered. 34 In fact, it has been held that a
person who was never a party to the case, or even summoned to appear therein, cannot avail of a petition
for relief from judgment.35

However, petitioners in this case are mistaken in asserting that they are not or have not become parties to
the probate proceedings.

Under the Rules of Court, any executor, devisee, or legatee named in a will, or any other person interested
in the estate may, at any time after the death of the testator, petition the court having jurisdiction to have the
will allowed.36 Notice of the time and place for proving the will must be published for three (3) consecutive
weeks, in a newspaper of general circulation in the province, 37 as well as furnished to the designated or
other known heirs, legatees, and devisees of the testator.38 Thus, it has been held that a proceeding for the
probate of a will is one in rem, such that with the corresponding publication of the petition the court's
jurisdiction extends to all persons interested in said will or in the settlement of the estate of the decedent.39

Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might
be minded to make an objection of any sort against the right sought to be established. It is the publication of
such notice that brings in the whole world as a party in the case and vests the court with jurisdiction to hear
and decide it.40 Thus, even though petitioners were not mentioned in the petition for probate, they eventually
became parties thereto as a consequence of the publication of the notice of hearing.

As parties to the probate proceedings, petitioners could have validly availed of the remedies of motion for
new trial or reconsideration and petition for relief from judgment. In fact, petitioners filed a motion to reopen,
which is essentially a motion for new trial, with petitioners praying for the reopening of the case and the
setting of further proceedings. However, the motion was denied for having been filed out of time, long after
the Decision became final and executory.

Conceding that petitioners became aware of the Decision after it had become final, they could have still filed
a petition for relief from judgment after the denial of their motion to reopen. Petitioners claim that they
learned of the Decision only on 4 October 2001, or almost four (4) months from the time the Decision had
attained finality. But they failed to avail of the remedy.

For failure to make use without sufficient justification of the said remedies available to them, petitioners
could no longer resort to a petition for annulment of judgment; otherwise, they would benefit from their own
inaction or negligence.41

Even casting aside the procedural requisite, the petition for annulment of judgment must still fail for failure to
comply with the substantive requisites, as the appellate court ruled.

An action for annulment of judgment is a remedy in law independent of the case where the judgment sought
to be annulled was rendered. 42 The purpose of such action is to have the final and executory judgment set
aside so that there will be a renewal of litigation. It is resorted to in cases where the ordinary remedies of
new trial, appeal, petition for relief from judgment, or other appropriate remedies are no longer available
through no fault of the petitioner, 43 and is based on only two grounds: extrinsic fraud, and lack of jurisdiction
or denial of due process.44 A person need not be a party to the judgment sought to be annulled, and it is only
essential that he can prove his allegation that the judgment was obtained by the use of fraud and collusion
and he would be adversely affected thereby.45

An action to annul a final judgment on the ground of fraud lies only if the fraud is extrinsic or collateral in
character.46 Fraud is regarded as extrinsic where it prevents a party from having a trial or from presenting his
entire case to the court, or where it operates upon matters pertaining not to the judgment itself but to the
manner in which it is procured. The overriding consideration when extrinsic fraud is alleged is that the
fraudulent scheme of the prevailing litigant prevented a party from having his day in court. 47

To sustain their allegation of extrinsic fraud, petitioners assert that as a result of respondent’s deliberate
omission or concealment of their names, ages and residences as the other heirs of the decedent in his
petition for allowance of the will, they were not notified of the proceedings, and thus they were denied their
day in court. In addition, they claim that respondent’s offer of a false compromise even before the filing of
the petition prevented them from appearing and opposing the petition for probate.

The Court is not convinced.

According to the Rules, notice is required to be personally given to known heirs, legatees, and devisees of
the testator.48 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, are neither compulsory nor testate heirs 49 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.
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. 50

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.

One other vital point is the issue of forum-shopping against petitioners. Forum-shopping consists of filing
multiple suits in different courts, either simultaneously or successively, involving the same parties, to ask the
courts to rule on the same or related causes and/or to grant the same or substantially same reliefs, 51 on the
supposition that one or the other court would make a favorable disposition. 52 Obviously, the parties in the
instant case, as well as in the appealed case before the CA, are the same. Both cases deal with the
existence and validity of the alleged will of the decedent, with petitioners anchoring their cause on the state
of intestacy. In the probate proceedings, petitioners’ position has always been that the decedent left no will
and if she did, the will does not comply with the requisites of a valid will. Indeed, that position is the bedrock
of their present petition. Of course, respondent maintains the contrary stance. On the other hand, in the
petition for letters of administration, petitioner Flores prayed for her appointment as administratrix of the

estate on the theory that the decedent died intestate. The petition was dismissed on the ground of lack of
jurisdiction, and it is this order of dismissal which is the subject of review in CA-G.R. No. 74924. Clearly,
therefore, there is forum-shopping.

Moreover, petitioners failed to inform the Court of the said pending case in their certification against forum-
shopping. Neither have they done so at any time thereafter. The Court notes that even in the petition for
annulment of judgment, petitioners failed to inform the CA of the pendency of their appeal in CA-G.R. No.
74924, even though the notice of appeal was filed way before the petition for annulment of judgment was
instituted.

WHEREFORE, the petition is DENIED. Costs against petitioners.

SO ORDERED.

DANTE O. TINGA

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Associate Justice

Chairman

MA. ALICIA AUSTRIA-MARTINEZ, ROMEO J. CALLEJO, SR.

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO
 Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO

Associate Justice
Chairman, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairman’s Attestation, it is hereby
certified that the conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

HILARIO G. DAVIDE, JR.

Chief Justice

Footnotes

1
Dated 8 February 2002 and 12 November 2002.

2
Cynthia C. Alaban, et al. v. Gerardo D. Diaz, et al.

3
Rollo, pp. 47-52.

Entitled "In Re: Petition for Probate of Will of Decedent Soledad Provido Elevencionado, Francisco
4

H. Provido, Petitioner"; Id. at 31-32.

5
Id. at 34-37.

6
Ibid.

7
Id. at 38-39.

8
Id. at 41-45.

9
Id. at 42-44.

10
Id. at 53-56.

11
Id. at 55, 56.
12
Id. at 55.

13
Docketed as CA-G.R. SP No. 69221.

14
Rollo, pp. 58-59.

15
Id. at 62.

16
Id. at 69.

17
Ibid.

18
Id. at 70.

19
Resolution dated 12 November 2002, Id. at 92.

20
Id. at 15.

21
Id. at 15.

22
Id. at 103.

23
Id. at 107.

24
Id. at 108

25
Id. at 109.

Entitled "In the Matter of the Issuance of Letters of Administration in the Intestate Estate of Soledad
26

Provido-Elevencionado, Dolores M. Flores, Petitioner."

27
Rollo, pp. 109-110.

28
Id. at 126.

29
CA Rollo, p.78.

30
Id. at 79.

31
Id. at 21.

32
Sec. 1, Rule 37.

33
Sec. 1, Rule 38.

34
Section 1 of Rule 37 of the Rules of Court provides:

Section 1. Grounds of and period for filing motion for new trial or reconsideration.- Within the period
for taking an appeal, the aggrieved party may move the trial court to set aside the judgment or final
order and grant a new trial for one or more of the following causes materially affecting the substantial
rights of said party:

....

Meanwhile, Sections 1 and 2 of Rule 38 state:

Section 1. Petition for relief from judgment, order, or other proceedings.- When a judgment or final
order is entered, or any other proceeding is thereafter taken against a party in any court through
fraud, accident, mistake or excusable negligence, he may file a petition in such court and in the
same case praying that the judgment, order or proceeding be set aside.

Section 2. Petition for relief from denial of appeal.- When a judgment or final order is rendered by
any court in a case, and a party thereto, by fraud, accident, mistake, or excusable negligence, has
been prevented from taking an appeal, he may file a petition in such court and in the same case
praying that the appeal be given due course.

35
(Emphasis supplied.)

[35]Metropolitan Bank and Trust Co. v. Alejo, G.R. No. 141970, 10 September 2001, 364 SCRA 812,
817.

36
Sec. 1, Rule 76, Rules of Court.

37
Sec. 3, Rule 76, id.

38
Sec. 4, Rule 76, id.

39
Abut v. Abut, 150-A Phil. 679, 683 (1972).

Barco v. Court of Appeals, G.R. No. 120587, 20 January 2004, 420 SCRA 162, 174, citing Adez
40

Realty v. Court of Appeals, G.R. No. 100643, 14 August 1992, 22 SCRA 623, 628.

41
Manipor, et al. v. Spouses Ricafort, G.R. No. 150159, 25 July 2003, 407 SCRA 298, 303.

Islamic Da’Wah Council of the Philippines v. Court of Appeals, G.R. No. 80892, 29 September
42

1989, 178 SCRA 185, 184.

43
Sec. 1, Rule 47, Rules of Court.

44
Pinlac v. Court of Appeals, G.R. No. 91486, 19 January 2001, 349 SCRA 635, 650.

45
Islamic Da’Wah Council of the Philippines v. Court of Appeals, supra note 42 at 187.

46
Bobis et al. v. Court of Appeals, et al., G.R. No. 113796, 14 December 2000, 348 SCRA 23, 27-28.

47
Teodoro v. Court of Appeals, 437 Phil. 336, 345 (2002).

48
Sec. 3, Rule 76, Rules of Court.
49
Art. 842, Civil Code.

F.D. Regalado, Remedial Law Compendium, Vol. II (2001 ed.) p. 27, citing In Re Estate of
50

Johnson, 39 Phil 156; In Re Testate Estate of Deceased Jose B. Suntay, 95 Phil 500; Abut v. Abut,
et al., 150-A Phil. 679 (1972).

51
J. Feria & M.C.S. Noche, Civil Procedure Annotated Vol. 1 (2001) p. 297.

52
Gatmaytan v. Court of Appeals, 335 Phil. 155, 167 (1997).