G.R. No.

L-56340 June 24, 1983

SPOUSES ALVARO PASTOR, JR. and MA. ELENA ACHAVAL DE

PASTOR, Petitioners, vs. THE COURT OF APPEALS, JUAN Y. REYES, JUDGE
OF BRANCH I, COURT OF FIRST INSTANCE OF CEBU and LEWELLYN
BARLITO QUEMADA, Respondents.

Pelaez, Pelaez, & Pelaez Law Office for petitioners. chanrob les vi rtua l law lib rary

Ceniza, Rama & Associates for private respondents.

PLANA, J.:

I. FACTS: chanrobles v irt ual law l ibra ry

This is a case of hereditary succession.

Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in Cebu City on June
5, 1966, survived by his Spanish wife Sofia Bossio (who also died on October
21, 1966), their two legitimate children Alvaro Pastor, Jr. (PASTOR, JR.) and
Sofia Pastor de Midgely (SOFIA), and an illegitimate child, not natural, by the
name of Lewellyn Barlito Quemada QUEMADA PASTOR, JR. is a Philippine
citizen, having been naturalized in 1936. SOFIA is a Spanish subject. QUEMADA
is a Filipino by his mother's citizenship. chanroblesvi rtua lawlib rary chanrob les vi rtua l law lib rary

On November 13, 1970, QUEMADA filed a petition for the probate and allowance
of an alleged holographic will of PASTOR, SR. with the Court of First Instance of
Cebu, Branch I (PROBATE COURT), docketed as SP No. 3128-R. The will
contained only one testamentary disposition: a legacy in favor of QUEMADA
consisting of 30% of PASTOR, SR.'s 42% share in the operation by Atlas
Consolidated Mining and Development Corporation (ATLAS) of some mining
claims in Pina-Barot, Cebu. chanroblesvi rt ualawlib ra ry chan robles v irt ual law l ibra ry

On November 21, 1970, the PROBATE COURT, upon motion of QUEMADA and
after an ex parte hearing, appointed him special administrator of the entire
estate of PASTOR, SR., whether or not covered or affected by the holographic
will. He assumed office as such on December 4, 1970 after filing a bond of P
5,000.00. chanroblesv irtualawli bra ry chan roble s virtual l aw lib rary

On December 7, 1970, QUEMADA as special administrator, instituted against

PASTOR, JR. and his wife an action for reconveyance of alleged properties of the
estate, which included the properties subject of the legacy and which were in
the names of the spouses PASTOR, JR. and his wife, Maria Elena Achaval de
Pastor, who claimed to be the owners thereof in their own rights, and not by
inheritance. The action, docketed as Civil Case No. 274-R, was filed with the
Court of First Instance of Cebu, Branch IX. chanrob lesvi rtualaw lib rary cha nrob les vi rtua l law lib rary

On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their opposition to
the petition for probate and the order appointing QUEMADA as special
administrator. chanroblesvi rtua lawlib rary cha nro bles vi rtua l law lib ra ry

On December 5, 1972, the PROBATE COURT issued an order allowing the will to
probate. Appealed to the Court of Appeals in CA-G.R. No. 52961- R, the order
was affirmed in a decision dated May 9, 1977. On petition for review, the
Supreme Court in G.R. No. L-46645 dismissed the petition in a minute
resolution dated November 1, 1977 and remanded the same to the PROBATE
COURT after denying reconsideration on January 11, 1978. chanroblesvi rtua lawlib rary c hanroble s virt ual law li bra ry

For two years after remand of the case to the PROBATE COURT, QUEMADA filed
pleading after pleading asking for payment of his legacy and seizure of the
properties subject of said legacy. PASTOR, JR. and SOFIA opposed these
pleadings on the ground of pendency of the reconveyance suit with another
branch of the Cebu Court of First Instance. All pleadings remained unacted upon
by the PROBATE COURT. chanrob lesvi rtua lawlib rary c hanro bles vi rt ual law li bra ry

On March 5, 1980, the PROBATE COURT set the hearing on the intrinsic validity
of the will for March 25, 1980, but upon objection of PASTOR, JR. and SOFIA on
the e ground of pendency of the reconveyance suit, no hearing was held on
March 25. Instead, the PROBATE COURT required the parties to submit their
respective position papers as to how much inheritance QUEMADA was entitled
to receive under the wig. Pursuant thereto, PASTOR. JR. and SOFIA submitted
their Memorandum of authorities dated April 10, which in effect showed that
determination of how much QUEMADA should receive was still premature.
QUEMADA submitted his Position paper dated April 20, 1980. ATLAS, upon order
of the Court, submitted a sworn statement of royalties paid to the Pastor Group
of tsn from June 1966 (when Pastor, Sr. died) to February 1980. The statement
revealed that of the mining claims being operated by ATLAS, 60% pertained to
the Pastor Group distributed as follows: chanrobles vi rtual law li bra ry

1. A. Pastor, Jr. ...................................40.5% chanroble s virtual law lib rary

2. E. Pelaez, Sr. ...................................15.0% chanroble s virtual law lib rary

3. B. Quemada .......................................4.5% chanrobles v irt ual law l ibra ry

On August 20, 1980, while the reconveyance suit was still being litigated in
Branch IX of the Court of First Instance of Cebu, the PROBATE COURT issued
the now assailed Order of Execution and Garnishment, resolving the question of
ownership of the royalties payable by ATLAS and ruling in effect that the legacy
to QUEMADA was not inofficious. [There was absolutely no statement or claim in
the Order that the Probate Order of December 5, 1972 had previously resolved
the issue of ownership of the mining rights of royalties thereon, nor the intrinsic
validity of the holographic will.] chanroble s virtual law l ibra ry

The order of August 20, 1980 found that as per the holographic will and a
written acknowledgment of PASTOR, JR. dated June 17, 1962, of the above
60% interest in the mining claims belonging to the Pastor Group, 42% belonged
to PASTOR, SR. and only 33% belonged to PASTOR, JR. The remaining 25%
belonged to E. Pelaez, also of the Pastor Group. The PROBATE COURT thus
directed ATLAS to remit directly to QUEMADA the 42% royalties due decedent's
estate, of which QUEMADA was authorized to retain 75% for himself as legatee
and to deposit 25% with a reputable banking institution for payment of the
estate taxes and other obligations of the estate. The 33% share of PASTOR, JR.
and/or his assignees was ordered garnished to answer for the accumulated
legacy of QUEMADA from the time of PASTOR, SR.'s death, which amounted to
over two million pesos. chanro blesvi rt ualawlib ra ry chan roble s virtual law l ibra ry

The order being "immediately executory", QUEMADA succeeded in obtaining a

Writ of Execution and Garnishment on September 4, 1980, and in serving the
same on ATLAS on the same day. Notified of the Order on September 6, 1980,
the oppositors sought reconsideration thereof on the same date primarily on the
ground that the PROBATE COURT gravely abused its discretion when it resolved
the question of ownership of the royalties and ordered the payment of
QUEMADA's legacy after prematurely passing upon the intrinsic validity of the
will. In the meantime, the PROBATE COURT ordered suspension of payment of
all royalties due PASTOR, JR. and/or his assignees until after resolution of
oppositors' motion for reconsideration. chanroblesvi rtua lawlib rary cha nro bles virtual law lib rary

Before the Motion for Reconsideration could be resolved, however, PASTOR, JR.,
this time joined by his wife Ma. ELENA ACHAVAL DE PASTOR, filed with the
Court of Appeals a Petition for certiorari and Prohibition with a prayer for writ of
preliminary injunction (CA-G.R. No. SP- 11373-R). They assailed the Order
dated August 20, 1980 and the writ of execution and garnishment issued
pursuant thereto. The petition was denied on November 18, 1980 on the
grounds (1) that its filing was premature because the Motion for
Reconsideration of the questioned Order was still pending determination by the
PROBATE COURT; and (2) that although "the rule that a motion for
reconsideration is prerequisite for an action for certiorari is never an absolute
rule," the Order assailed is "legally valid. " chanrob les vi rtua l law lib rary

On December 9, 1980, PASTOR, JR. and his wife moved for reconsideration of
the Court of Appeal's decision of November 18, 1980, calling the attention of
the appellate court to another order of the Probate Court dated November 11,
1980 (i.e., while their petition for certiorari was pending decision in the
appellate court), by which the oppositors' motion for reconsideration of the
Probate Court's Order of August 20, 1980 was denied. [The November 11 Order
declared that the questions of intrinsic validity of the will and of ownership over
the mining claims (not the royalties alone) had been finally adjudicated by the
final and executory Order of December 5, 1972, as affirmed by the Court of
Appeals and the Supreme Court, thereby rendering moot and academic the suit
for reconveyance then pending in the Court of First Instance of Cebu, Branch
IX. It clarified that only the 33% share of PASTOR, JR. in the royalties (less
than 7.5% share which he had assigned to QUEMADA before PASTOR, SR. died)
was to be garnished and that as regards PASTOR, SR.'s 42% share, what was
ordered was just the transfer of its possession to the custody of the PROBATE
COURT through the special administrator. Further, the Order granted QUEMADA
6% interest on his unpaid legacy from August 1980 until fully paid.]
Nonetheless, the Court of Appeals denied reconsideration. chanroble svirtualawl ibra ry ch anroble s virtual law l ib rary

Hence, this Petition for Review by certiorari with prayer for a writ of pre y
injunction, assailing the decision of the Court of Appeals dated November 18,
1980 as well as the orders of the Probate Court dated August 20, 1980,
November 11, 1980 and December 17, 1980, Med by petitioners on March 26,
1981, followed by a Supplemental Petition with Urgent Prayer for Restraining
Order.chanroblesvi rt ualawlib ra ry chan robles v irt ual law l ibra ry

In April 1981, the Court (First Division) issued a writ of preliminary injunction,
the lifting of which was denied in the Resolution of the same Division dated
October 18, 1982, although the bond of petitioners was increased from
P50,000.00 to P100,000.00. chanroble svirtualawl ibra ry cha nrob les vi rtual law lib rary

Between December 21, 1981 and October 12, 1982, private respondent filed
seven successive motions for early resolution. Five of these motions expressly
prayed for the resolution of the question as to whether or not the petition
should be given due course. chanrob lesvi rtualaw lib rary cha nro bles vi rtua l law lib ra ry
On October 18, 1982, the Court (First Division) adopted a resolution stating that
"the petition in fact and in effect was given due course when this case was
heard on the merits on September 7, (should be October 21, 1981) and concise
memoranda in amplification of their oral arguments on the merits of the case
were filed by the parties pursuant to the resolution of October 21, 1981 . . . "
and denied in a resolution dated December 13, 1982, private respondent's
"Omnibus motion to set aside resolution dated October 18, 1982 and to submit
the matter of due course to the present membership of the Division; and to
reassign the case to another ponente." chanrobles v irt ual law l ibra ry

Upon Motion for Reconsideration of the October 18, 1982 and December 13,
1982 Resolutions, the Court en banc resolved to CONFIRM the questioned
resolutions insofar as hey resolved that the petition in fact and in effect had
been given due course. chanro blesvi rt ualawlib ra ry chan robles v irt ual law l ibra ry

II. ISSUES: chanrobles v irt ual law li bra ry

Assailed by the petitioners in these proceedings is the validity of the Order of

execution and garnishment dated August 20, 1980 as well as the Orders
subsequently issued allegedly to implement the Probate Order of December 5,
1972, to wit: the Order of November 11, 1980 declaring that the Probate Order
of 1972 indeed resolved the issues of ownership and intrinsic validity of the will,
and reiterating the Order of Execution dated August 20, 1980; and the Order of
December 17, 1980 reducing to P2,251,516.74 the amount payable to
QUEMADA representing the royalties he should have received from the death of
PASTOR, SR. in 1966 up to February 1980. chanrob lesvi rtua lawlib rary c han robles vi rt ual law li bra ry

The Probate Order itself, insofar as it merely allowed the holographic will in
probate, is not questioned. But petitioners denounce the Probate Court for
having acted beyond its jurisdiction or with grave abuse of discretion when it
issued the assailed Orders. Their argument runs this way: Before the provisions
of the holographic win can be implemented, the questions of ownership of the
mining properties and the intrinsic validity of the holographic will must first be
resolved with finality. Now, contrary to the position taken by the Probate Court
in 1980 - i.e., almost eight years after the probate of the will in 1972 - the
Probate Order did not resolve the two said issues. Therefore, the Probate Order
could not have resolved and actually did not decide QUEMADA's entitlement to
the legacy. This being so, the Orders for the payment of the legacy in alleged
implementation of the Probate Order of 1972 are unwarranted for lack of
basis.
chanroble svirtualawl ibra ry chan rob les vi rtual law lib rary

Closely related to the foregoing is the issue raised by QUEMADA The Probate
Order of 1972 having become final and executory, how can its implementation
(payment of legacy) be restrained? Of course, the question assumes that
QUEMADA's entitlement to the legacy was finally adjudged in the Probate
Order. chanroblesvi rt ualawlib ra ry chan robles v irt ual law l ibra ry

On the merits, therefore, the basic issue is whether the Probate Order of
December 5, 1972 resolved with finality the questions of ownership and intrinsic
validity. A negative finding will necessarily render moot and academic the other
issues raised by the parties, such as the jurisdiction of the Probate Court to
conclusively resolve title to property, and the constitutionality and repercussions
of a ruling that the mining properties in dispute, although in the name of
PASTOR, JR. and his wife, really belonged to the decedent despite the latter's
constitutional disqualification as an alien. chanroble svirtualawlib ra ry chan robles v irt ual law l ibra ry
On the procedural aspect, placed in issue is the propriety of certiorari as a
means to assail the validity of the order of execution and the implementing
writ.
chanroble svirtualawl ibra ry chan rob les vi rtual law lib rary

III. DISCUSSION: chanrobles v irt ual law li bra ry

1. Issue of Ownership -

(a) In a special proceeding for the probate of a will, the issue by and large is
restricted to the extrinsic validity of the will, i.e., whether the testator, being of
sound mind, freely executed the will in accordance with the formalities
prescribed by law. (Rules of Court, Rule 75, Section 1; Rule 76, Section 9.) As a
rule, the question of ownership is an extraneous matter which the Probate Court
cannot resolve with finality. Thus, for the purpose of determining whether a
certain property should or should not be included in the inventory of estate
properties, the Probate Court may pass upon the title thereto, but such
determination is provisional, not conclusive, and is subject to the final decision
in a separate action to resolve title. [3 Moran, Comments on the Rules of Court
(1980 ed.), p. 458; Valero Vda. de Rodriguez vs. Court of Appeals, 91 SCRA
540.] chanrobles vi rtua l law lib ra ry

(b) The rule is that execution of a judgment must conform to that decreed in
the dispositive part of the decision. (Philippine-American Insurance Co. vs.
Honorable Flores, 97 SCRA 811.) However, in case of ambiguity or uncertainty,
the body of the decision may be scanned for guidance in construing the
judgment. (Heirs of Presto vs. Galang, 78 SCRA 534; Fabular vs. Court of
Appeals, 119 SCRA 329; Robles vs. Timario. 107 Phil. 809.) chanrobles vi rt ual law li bra ry

The Order sought to be executed by the assailed Order of execution is the

Probate Order of December 5, 1972 which allegedly resolved the question of
ownership of the disputed mining properties. The said Probate Order
enumerated the issues before the Probate Court, thus:

Unmistakably, there are three aspects in these proceedings: (1) the probate of
the holographic will (2) the intestate estate aspect; and (3) the administration
proceedings for the purported estate of the decedent in the Philippines. chanroblesvi rtua lawlib rary c han robles v irt ual law li bra ry

In its broad and total perspective the whole proceedings are being impugned by
the oppositors on jurisdictional grounds, i.e., that the fact of the decedent's
residence and existence of properties in the Philippines have not been
established. chanroblesvi rt ualawlib ra ry chan robles v irt ual law l ibra ry

Specifically placed in issue with respect to the probate proceedings are: (a)
whether or not the holographic will (Exhibit "J") has lost its efficacy as the last
will and testament upon the death of Alvaro Pastor, Sr. on June 5, 1966, in
Cebu City, Philippines; (b) Whether or not the said will has been executed with
all the formalities required by law; and (c) Did the late presentation of the
holographic will affect the validity of the same? chanro bles vi rtua l law lib ra ry

Issues In the Administration Proceedings are as follows: (1) Was the ex- parte
appointment of the petitioner as special administrator valid and proper? (2) Is
there any indispensable necessity for the estate of the decedent to be placed
under administration? (3) Whether or not petition is qualified to be a special
administrator of the estate; and (4) Whether or not the properties listed in the
inventory (submitted by the special administrator but not approved by the
Probate Court) are to be excluded.
Then came what purports to be the dispositive portion:

Upon the foregoing premises, this Court rules on and resolves some of the
problems and issues presented in these proceedings, as follows: chanrobles v irt ual law l ibra ry

(a) The Court has acquired jurisdiction over the probate proceedings as
it hereby allows and approves the so-called holographic will of testator Alvaro
Pastor, Sr., executed on July 31, 1961 with respect to its extrinsic validity, the
same having been duly authenticated pursuant to the requisites or solemnities
prescribed by law. Let, therefore, a certificate of its allowance be prepared by
the Branch Clerk of this Court to be signed by this Presiding Judge, and attested
by the seal of the Court, and thereafter attached to the will, and the will and
certificate filed and recorded by the clerk. Let attested copies of the will and of
the certificate of allowance thereof be sent to Atlas Consolidated Mining &
Development Corporation, Goodrich Bldg., Cebu City, and the Register of Deeds
of Cebu or of Toledo City, as the case may be, for recording. chanroble svi rtualaw li brary c hanro bles vi rtu al law li bra ry

(b) There was a delay in the granting of the letters testamentary or of

administration for as a matter of fact, no regular executor and/or administrator
has been appointed up to this time and - the appointment of a special
administrator was, and still is, justified under the circumstances to take
possession and charge of the estate of the deceased in the Philippines
(particularly in Cebu) until the problems causing the delay are decided and the
regular executor and/or administrator appointed. chanroble svirtualawl ibra ry chan rob les vi rtual law lib rary

(c) There is a necessity and propriety of a special administrator and later on an

executor and/or administrator in these proceedings, in spite of this Court's
declaration that the oppositors are the forced heirs and the petitioner is merely
vested with the character of a voluntary heir to the extent of the bounty given
to him (under) the will insofar as the same will not prejudice the legitimes of
the oppositor for the following reasons:

1. To submit a complete inventory of the estate of the decedent-testator Alvaro

Pastor, Sr.chanroblesvi rt ualawlib ra ry chan roble s virtual law l ibra ry

2. To administer and to continue to put to prolific utilization of the properties of

the decedent; chanroble s virtual law lib rary

3. To keep and maintain the houses and other structures and belonging to the
estate, since the forced heirs are residing in Spain, and prepare them for
delivery to the heirs in good order after partition and when directed by the
Court, but only after the payment of estate and inheritance taxes;

(d) Subject to the outcome of the suit for reconveyance of ownership and
possession of real and personal properties in Civil Case No. 274-T before Branch
IX of the Court of First Instance of Cebu, the intestate estate administration
aspect must proceed, unless, however, it is duly proven by the oppositors that
debts of the decedent have already been paid, that there had been an
extrajudicial partition or summary one between the forced heirs, that the legacy
to be given and delivered to the petitioner does not exceed the free portion of
the estate of the testator, that the respective shares of the forced heirs have
been fairly apportioned, distributed and delivered to the two forced heirs of
Alvaro Pastor, Sr., after deducting the property willed to the petitioner, and the
estate and inheritance taxes have already been paid to the Government thru
the Bureau of Internal Revenue. chanroble svirtualawl ibra ry cha nrob les vi rtual law lib rary
The suitability and propriety of allowing petitioner to remain as special
administrator or administrator of the other properties of the estate of the
decedent, which properties are not directly or indirectly affected by the
provisions of the holographic will (such as bank deposits, land in Mactan etc.),
will be resolved in another order as separate incident, considering that this
order should have been properly issued solely as a resolution on the issue of
whether or not to allow and approve the aforestated will. (Emphasis supplied.)

Nowhere in the dispositive portion is there a declaration of ownership of specific

properties. On the contrary, it is manifest therein that ownership was not
resolved. For it confined itself to the question of extrinsic validity of the win, and
the need for and propriety of appointing a special administrator. Thus it allowed
and approved the holographic win "with respect to its extrinsic validity, the
same having been duly authenticated pursuant to the requisites or solemnities
prescribed by law." It declared that the intestate estate administration aspect
must proceed " subject to the outcome of the suit for reconveyance of
ownership and possession of real and personal properties in Civil Case 274-T
before Branch IX of the CFI of Cebu." [Parenthetically, although the statement
refers only to the "intestate" aspect, it defies understanding how ownership by
the estate of some properties could be deemed finally resolved for purposes
of testate administration, but not so for intestate purposes. Can the estate be
the owner of a property for testate but not for intestate purposes?] Then again,
the Probate Order (while indeed it does not direct the implementation of the
legacy) conditionally stated that the intestate administration aspect must
proceed "unless . . . it is proven . . . that the legacy to be given and delivered to
the petitioner does not exceed the free portion of the estate of the testator,"
which clearly implies that the issue of impairment of legitime (an aspect of
intrinsic validity) was in fact not resolved. Finally, the Probate Order did not rule
on the propriety of allowing QUEMADA to remain as special administrator of
estate properties not covered by the holographic will, "considering that this
(Probate) Order should have been properly issued solely as a resolution on the
issue of whether or not to allow and approve the aforestated will. " chanrobles vi rtual law lib rary

(c) That the Probate Order did not resolve the question of ownership of the
properties listed in the estate inventory was appropriate, considering that the
issue of ownership was the very subject of controversy in the reconveyance suit
that was still pending in Branch IX of the Court of First Instance of Cebu. chanroblesvi rtualaw lib rary cha nrob les vi rtua l law lib rary

(d) What, therefore, the Court of Appeals and, in effect, the Supreme Court
affirmed en toto when they reviewed the Probable Order were only the matters
properly adjudged in the said Order. chanroblesv irt ualawli bra ry chan roble s virtual law l ibra ry

(e) In an attempt to justify the issuance of the Order of execution dated August
20, 1980, the Probate Court in its Order of November 11, 1980 explained that
the basis for its conclusion that the question of ownership had been formally
resolved by the Probate Order of 1972 are the findings in the latter Order that
(1) during the lifetime of the decedent, he was receiving royalties from ATLAS;
(2) he had resided in the Philippines since pre-war days and was engaged in the
mine prospecting business since 1937 particularly in the City of Toledo; and (3)
PASTOR, JR. was only acting as dummy for his father because the latter was a
Spaniard. chanroblesvi rtua lawlib rary c hanrobles vi rt ual law li bra ry

Based on the premises laid, the conclusion is obviously far-fetched. chanroble svirtualawl ibra ry chan roble s vi rtual law lib rary

(f) It was, therefore, error for the assailed implementing Orders to conclude
that the Probate Order adjudged with finality the question of ownership of the
mining properties and royalties, and that, premised on this conclusion, the
dispositive portion of the said Probate Order directed the special administrator
to pay the legacy in dispute. chanroblesv irt ualawli bra ry chan roble s virtual law l ibra ry

2. Issue of Intrinsic Validity of the Holographic Will - chanrobles vi rtual law lib rary

(a) When PASTOR, SR. died in 1966, he was survived by his wife, aside from his
two legitimate children and one illegitimate son. There is therefore a need to
liquidate the conjugal partnership and set apart the share of PASTOR, SR.'s wife
in the conjugal partnership preparatory to the administration and liquidation of
the estate of PASTOR, SR. which will include, among others, the determination
of the extent of the statutory usufructuary right of his wife until her
death. * When the disputed Probate order was issued on December 5, 1972,
there had been no liquidation of the community properties of PASTOR, SR. and
his wife. chanroblesvi rt ualawlib ra ry chan roble s virtual law l ibra ry

(b) So, also, as of the same date, there had been no prior definitive
determination of the assets of the estate of PASTOR, SR. There was an
inventory of his properties presumably prepared by the special administrator,
but it does not appear that it was ever the subject of a hearing or that it was
judicially approved. The reconveyance or recovery of properties allegedly owned
but not in the name of PASTOR, SR. was still being litigated in another
court.chanroble svirtualawl ibra ry chan rob les vi rtual law lib rary

(c) There was no appropriate determination, much less payment, of the debts of
the decedent and his estate. Indeed, it was only in the Probate Order of
December 5, 1972 where the Probate Court ordered that-

... a notice be issued and published pursuant to the provisions of Rule 86 of the
Rules of Court, requiring all persons having money claims against the decedent
to file them in the office of the Branch Clerk of this Court."

(d) Nor had the estate tax been determined and paid, or at least provided for,
as of December 5, 1972. chanrob lesvi rtua lawlib rary c hanro bles vi rtua l law li bra ry

(e) The net assets of the estate not having been determined, the legitime of the
forced heirs in concrete figures could not be ascertained. chanroblesvi rtualaw lib rary cha nro bles vi rtua l law lib rary

(f) All the foregoing deficiencies considered, it was not possible to determine
whether the legacy of QUEMADA - a fixed share in a specific property rather
than an aliquot part of the entire net estate of the deceased - would produce an
impairment of the legitime of the compulsory heirs. chanroblesv irtualawli bra ry chan roble s virtual law lib rary

(g) Finally, there actually was no determination of the intrinsic validity of the
will in other respects. It was obviously for this reason that as late as March 5,
1980 - more than 7 years after the Probate Order was issued the Probate Court
scheduled on March 25, 1980 a hearing on the intrinsic validity of the will. chanroble svirtualawl ibra ry cha nrob les vi rtual law lib rary

3. Propriety of certiorari - chanrobles vi rtual law lib rary

Private respondent challenges the propriety of certiorari as a means to assail

the validity of the disputed Order of execution. He contends that the error, if
any, is one of judgment, not jurisdiction, and properly correctible only by
appeal, not certiorari. chanro blesvi rtua lawlib rary c han robles v irt ual law l ibra ry
Under the circumstances of the case at bar, the challenge must be rejected.
Grave abuse of discretion amounting to lack of jurisdiction is much too evident
in the actuations of the probate court to be overlooked or condoned. chanroblesv irtualawl ibra ry chan roble s virtual law lib rary

(a) Without a final, authoritative adjudication of the issue as to what properties

compose the estate of PASTOR, SR. in the face of conflicting claims made by
heirs and a non-heir (MA. ELENA ACHAVAL DE PASTOR) involving properties not
in the name of the decedent, and in the absence of a resolution on the intrinsic
validity of the will here in question, there was no basis for the Probate Court to
hold in its Probate Order of 1972, which it did not, that private respondent is
entitled to the payment of the questioned legacy. Therefore, the Order of
Execution of August 20, 1980 and the subsequent implementing orders for the
payment of QUEMADA's legacy, in alleged implementation of the dispositive part
of the Probate Order of December 5, 1972, must fall for lack of basis. chanroblesvi rtua lawlib rary c han robles v irt ual law l ibra ry

(b) The ordered payment of legacy would be violative of the rule requiring prior
liquidation of the estate of the deceased, i.e., the determination of the assets of
the estate and payment of all debts and expenses, before apportionment and
distribution of the residue among the heirs and legatees. (Bernardo vs. Court of
Appeals, 7 SCRA 367.) chanrobles v irt ual law li bra ry

(c) Neither has the estate tax been paid on the estate of PASTOR, SR. Payment
therefore of the legacy to QUEMADA would collide with the provision of the
National Internal Revenue Code requiring payment of estate tax before delivery
to any beneficiary of his distributive share of the estate (Section 107 [c]) chanrobles vi rt ual law li bra ry

(d) The assailed order of execution was unauthorized, having been issued
purportedly under Rule 88, Section 6 of the Rules of Court which reads:

Sec. 6. Court to fix contributive shares where devisees, legatees, or heirs have
been in possession. - Where devisees, legatees, or heirs have entered into
possession of portions of the estate before the debts and expenses have been
settled and paid and have become liable to contribute for the payment of such
debts and expenses, the court having jurisdiction of the estate may, by order
for that purpose, after hearing, settle the amount of their several liabilities, and
order how much and in what manner each person shall contribute, and may
issue execution as circumstances require.

The above provision clearly authorizes execution to enforce payment of debts of

estate. A legacy is not a debt of the estate; indeed, legatees are among those
against whom execution is authorized to be issued.

... there is merit in the petitioners' contention that the probate court generally
cannot issue a writ of execution. It is not supposed to issue a writ of execution
because its orders usually refer to the adjudication of claims against the estate
which the executor or administrator may satisfy without the necessity of
resorting to a writ of execution. The probate court, as such, does not render any
judgment enforceable by execution. chanroblesv irtualawli bra ry chan roble s virtual law lib rary

The circumstances that the Rules of Court expressly specifies that the probate
court may issue execution (a) to satisfy (debts of the estate out of) the
contributive shares of devisees, legatees and heirs in possession of the
decedent's assets (Sec. 6. Rule 88), (b) to enforce payment of the expenses of
partition (Sec. 3, Rule 90), and (c) to satisfy the costs when a person is cited
for examination in probate proceedings (Sec. 13, Rule 142) may mean, under
the rule of inclusion unius est exclusion alterius, that those are the only
instances when it can issue a writ of execution. (Vda. de Valera vs. Ofilada, 59
SCRA 96, 108.)

(d) It is within a court's competence to order the execution of a final judgment;

but to order the execution of a final order (which is not even meant to be
executed) by reading into it terms that are not there and in utter disregard of
existing rules and law, is manifest grave abuse of discretion tantamount to lack
of jurisdiction. Consequently, the rule that certiorari may not be invoked to
defeat the right of a prevailing party to the execution of a valid and final
judgment, is inapplicable. For when an order of execution is issued with grave
abuse of discretion or is at variance with the judgment sought to be enforced
(PVTA vs. Honorable Gonzales, 92 SCRA 172), certiorari will lie to abate the
order of execution. chanroble svirtualawl ibra ry chanrob les vi rtual law lib rary

(e) Aside from the propriety of resorting to certiorari to assail an order of

execution which varies the terms of the judgment sought to be executed or
does not find support in the dispositive part of the latter, there are
circumstances in the instant case which justify the remedy applied for. chanroble svi rtualawl ib rary cha nrob les vi rtua l law lib rary

Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of PASTOR, JR., is the holder
in her own right of three mining claims which are one of the objects of
conflicting claims of ownership. She is not an heir of PASTOR, SR. and was not a
party to the probate proceedings. Therefore, she could not appeal from the
Order of execution issued by the Probate Court. On the other hand, after the
issuance of the execution order, the urgency of the relief she and her co-
petitioner husband seek in the petition for certiorari states against requiring her
to go through the cumbersome procedure of asking for leave to intervene in the
probate proceedings to enable her, if leave is granted, to appeal from the
challenged order of execution which has ordered the immediate transfer and/or
garnishment of the royalties derived from mineral properties of which she is the
duly registered owner and/or grantee together with her husband. She could not
have intervened before the issuance of the assailed orders because she had no
valid ground to intervene. The matter of ownership over the properties subject
of the execution was then still being litigated in another court in a reconveyance
suit filed by the special administrator of the estate of PASTOR, SR. chanroblesvi rtual awlib rary cha nro bles vi rtua l law lib ra ry

Likewise, at the time petitioner PASTOR, JR. Med the petition for certiorari with
the Court of Appeals, appeal was not available to him since his motion for
reconsideration of the execution order was still pending resolution by the
Probate Court. But in the face of actual garnishment of their major source of
income, petitioners could no longer wait for the resolution of their motion for
reconsideration. They needed prompt relief from the injurious effects of the
execution order. Under the circumstances, recourse to certiorari was the
feasible remedy. chanroblesvi rt ualawlib ra ry chan roble s virtual law libra ry

WHEREFORE, the decision of the Court of Appeals in CA G.R. No. SP-11373-R is

reversed. The Order of execution issued by the probate Court dated August 20,
1980, as well as all the Orders issued subsequent thereto in alleged
implementation of the Probate Order dated December 5, 1972, particularly the
Orders dated November 11, 1980 and December 17, 1980, are hereby set
aside; and this case is remanded to the appropriate Regional Trial Court for
proper proceedings, subject to the judgment to be rendered in Civil Case No.
274-R. chanroblesvi rtua lawlib rary c han robles v irt ual law li bra ry

SO ORDERED.
Teehankee (Chairman), Melencio-Herrera Vasquez and Relova JJ., concur. chanroblesvirtualawlibrary chanrobles virtual law library

Gutierrez, J., took no part.