[ G. R. No. 45463. March 18, 1937 ] 64 Phil. 211
[ G. R. No. 45463. March 18, 1937 ]
EMERITA SANTOS, IN HER BEHALF AND AS GUARDIAN OF THE PERSONS AND PROPERTY OF THE MINORS BIENVENIDO, APOLONIO1 MANUEL, JUANA AND NORBERTA, SURNAMED AZORES Y SANTOS, PETITIONER, VS. MODESTO CASTILLO, JUDGE OF FIRST INSTANCE OF LAGUNA, AND JOSE, SINFOROSA, AND ANTONIO AZORES, RESPONDENTS. D E C I S I O N
CONCEPCION, J.:
This is a petition for a writ of certiorari to have this court declare null and void the order issued by the respondent judge of the Court of First Instance of Laguna on January 26, 1937, dismissing the petition docketed therein as case No. 3101. Said petition had been filed by the petitioner Emerita Santos, in her behalf and as guardian of the minor acknowledged natural children of the deceased Nicolas Azores, for the purpose of applying for the probate of the will, Exhibit A, which she claims to be the expression of the last will and testament of said Nicolas Azores, who died in the municipality of San Pablo, Laguna, on January 5, 1937.
Two days after the petition in question had been docketed, the petitioner filed a motion praying for the appointment of a special administrator and commissioners on appraisal, of the properties of the deceased Nicolas Azores. At the hearing of said motion which took place on January 13th, the herein respondents Jose, Sinforosa and Antonio Azores, legitimate children of said deceased, opposed the court’s taking action thereon on the ground that it had not acquired jurisdiction over the case, the allegations made in the petition being insufficient to confer jurisdiction upon said court, because the petitioner did not allege that she had the custody of the will and, therefore, was not entitled to present it for probate; and furthermore because the will that should be probated is the original and not a copy thereof, as the one presented by the petitioner. Before the court decided the incident relative to its lack of jurisdiction, the petitioner, on January 16th, filed an amended petition with an affidavit, adding to the original application the following paragraph:
“That four typewritten copies of said will Exhibit A, all identically containing each and every provision thereof, were made, which were at once signed and subscribed by the testator and the instrumental witnesses, and that after the will had been made, the testator Nicolas Azores designated nobody in particular as ‘custodian’ thereof but instead he directed his nephew, Attorney Manuel Azores Concordia, to deliver a copy to the petitioner Emerita Santos, to keep the other copy in his (Manuel Azores Concordia’s) possession, and to deliver the other two copies to his son Jose. Azores, with instructions to the effect that if the herein petitioner Emerita Santos or his son Jose Azores failed to present said will for probate, he (Manuel Azores Concordia) should take charge of presenting it to the court for said purpose, as stated more particularly in the affidavit Exhibit B. The copy Exhibit A belonged to the petitioner.”
In said amended petition, the petitioner prayed that Jose Azores and Manuel Azores Concordia be required to present immediately, in said case No. 3101, the copies of the will in ’their possession as well as any alleged codicil claimed by them to have been made by the testator.
On January 19th, the court issued an order which reads as follows:
“Considering the petition of Atty. Jesus E. Blanco in representation of petitioner Emerita Santos, for the appointment of a special administrator in this case, and the opposition filed thereto by Atty. Claro M. Recto in representation of the children of the deceased in his first marriage; and considering further the arguments in favor of and against said petition given by the parties, as well as the manifestation in open court made by Atty. Recto that the opponents will present for probate the original last will and testament of the deceased together with the codicil as soon as the novena for the deceased is through; and taking ‘into account the period of time that has elapsed since the death of Nicolas Azores;
“Said petition for the appointment of a special administrator is hereby denied; and Jose Azores under whose custody the last will and testament and all other documents having relation thereto are supposed to be, is hereby ordered to deliver said papers to the court within ten (10) days from notice hereof; * * *.”
On January 20th, the petitioner filed a motion praying that her amended petition be admitted, that a special administrator -and commissioners on appraisal be appointed and that Jose Azores and Manuel Azores Concordia be required to present in said case the copies of the will and the codicil that they had in their possession. Before this motion was decided, the respondents, on January 21st, that is, 16 days after their father’s death, presented the original of the will and codicil made by the deceased Nicolas Azores, with a petition docketed as case No. 3104, praying for the probate of said will and codicil.
On the 23d of said month, the petitioner’s motion of January 20th was heard. It was opposed by the respondents Azores on the ground that as the jurisdiction of the court to pass upon the original petition for probate filed by the petitioner is questioned, the amendment thereto could not legally be considered until the previous question is decided by the court. The respondents prayed that said original petition of the petitioner be dismissed on the ground that as the originals of the will and codicil of the deceased Azores had been presented together with a petition for the probate thereof, the petitioner’s defective petition was unfounded.
On the 26th of said month, the respondent Judge Modesto Castillo issued the order in question, dismissing the petition filed by the petitioner which gave rise to the proceeding docketed as case No. 3101 of the Court of First Instance of Laguna. The day following the issuance of said order, the petitioner excepted thereto and filed a motion for reconsideration which was denied by the court. The petitioner excepted to the order denying her motion.
It is alleged in the petitioner’s petition filed in this court that the respondent judge exceeded his jurisdiction and acted arbitrarily and irregularly in dismissing the petition for probate filed by her in case No. 3101 as well as in ordering the publication of the notice of the hearing of the probate of the will in case No. 3104 instituted by the Azores brothers and sister before the order of January 26, 1937, issued in said case No. 3101 became final. It is claimed that said judge also exceeded his jurisdiction and acted arbitrarily and irregularly in giving preference to the petition for probate filed by the Azores brothers and sister, disregarding the petition filed by the herein petitioner, instead of ordering said respondents Jose Azores et al. to present their copies of the will and alleged codicil in case No. 3101.
First of all, it is advisable to separate in this case the actuations of the respondent judge in case No. 3101 from his actuations in case No. 3104. This court is of the opinion that the petitioner is not entitled at all to interpose this appeal in connection with case No. 3104 instituted by the legitimate children of the deceased Azores, on the ground that she is not a party thereto and has not asked therein for the reconsideration of the court’s order directing the publication of the notice of the hearing of the probate of the will in said case No. 3104.
With respect to case No. 3101, in order to decide the question whether or not the respondent judge exceeded his jurisdiction in dismissing the petitioner’s application, we should first coxnsider who was entitled to apply for the probate of the will of Nicolas Azores. To get to the bottom of this question, it is necessary to ascertain beforehand who was bound by law to apply for the probate of the will.
Section 625 of the Code of Civil Procedure provides that no will shall pass either the real or personal estate, unless it is proved and allowed. For this purpose, section 626 provides that the person who has the custody of a will shall, within thirty days after he knows of the death of the testator, deliver the will into the court which has jurisdiction, or to the executor named in the will, and sections 628 and 629 prescribe coercive means to compel a person having the custody of a will to deliver it to the court having jurisdiction.
The petitioner alleges that the deceased Azores designated nobody as custodian of his will but that he directed his nephew Manuel Azores Concordia to deliver a copy thereof to the petitioner, to preserve the other copy in his (Manuel Azores Concordia’s) possession, and to turn over the other two copies to his son Jose Azores, with instructions to the effect that if the petitioner or his Son Jose Azores failed to present said will for probate, he (Manuel Azores Concordia) should take charge of presenting it to the court for said purpose. Granting that the entire paragraph in question were true, with the exception of the conclusion that the testator designated nobody as custodian of his will, the petitioner is silent as to the disposition made by the testator of the original of his will. To whom was the original delivered? It is, of course, evident that there must be an original of the will in question even if four equal copies have been made thereof. Well, one of the two copies of the will turned over to Jose Azores must be the original because the respondents had the original of the will as well as the codicil. The petitioner did not dispute this fact. Taking this into account, we may conclude that it was Jose Azores, the son of the deceased, who had the custody of the will because the original thereof was turned over to him. If in addition to the foregoing it is considered that the respondents Azores also had the original of the codicil, it necessarily follows that, by provision of the testator, it was said respondents who had the custody of his will and of his codicil.
For the sake of argument, however, let us admit that the testator had designated nobody as custodian of his will in distributing the copies thereof and in entrusting his nephew Manuel Azores Concordia, as above-stated, with the presentation of a copy of said will to the court for probate. Even so, it cannot be denied that as the testator had subsequently made his codicil and had entrusted the custody thereof to his legitimate children, his last will, as to the custody of his will and codicil, was clearly modified in the sense of entrusting the custody of both to his legitimate children and not to Manuel Azores Concordia or to the petitioner.
Therefore, as the legitimate children of the deceased had custody of the originals of the will and of the codicil, they alone could, had the right and were bound by law to apply for the probate of their father’s last will. Consequently, the respondent judge, in dismissing the application presented by the petitioner, neither exceeded his jurisdiction nor acted arbitrarily or irregularly, but reasonably made use of his sound discretion.
The petitioner contends that instead of dismissing her application, the respondent judge should have compelled the respondents Azores to present the copy of the will and the alleged codicil in case No. 3101. The court could not prudently do so: first, because in said case the petitioner applied for the probate of the will and nothing more; and second, because the petitioner has clearly stated that even if she had had the codicil in her possession, she would not have presented it to the court because said codicil was allegedly “marked”, not signed, by the testator about fifteen days before his death, that is, on a date when, according to the medical opinion of Doctors Manuel B. Calupitan and Fortunato Manzanero, he was physically and mentally incapacitated to govern his properties, thereby making it clearly understood that she would oppose the probate of the codicil in question. If such is the petitioner’s attitude and intention, were the codicil attached to case No. 3101, there would be the anomaly of her being applicant and at the same time oppositor therein. Who would be the applicant for the probate of the codicil? Could the court, or rather, would the court have authority to compel the legitimate children of the deceased Azores to appear as applicants in case No. 3101 where they have precisely questioned the jurisdiction of the court?
With respect to the court’s jurisdiction, this court finds that it is a fact impliedly admitted by the petitioner, from the time she presented an amended petition for the purpose of curing the deficiencies of her application, that the allegations of said application were insufficient to confer jurisdiction upon the court. As said amendment had not been admitted by the court, the lack of jurisdiction continued to be manifest upon the face of the proceedings.
Wherefore, this court holds in conclusion that in order that the court may acquire jurisdiction over the case for the probate of a will and for the administration of the properties left by a deceased person, the application must allege, in addition to the residence of the deceased and other indispensable facts or circumstances, that the applicant is the executor named in the will or is the person who had the custody of the will to be probated. The original of said document must be presented or sufficient reasons given to justify the nonpresentation of said original and the acceptance of the copy or duplicate thereof. Inasmuch as these requisites had not been complied with in the application filed by the petitioner, the respondent judge did not exceed his jurisdiction in dismissing the application in question.
The petition is denied, with the costs to the petitioner.
So ordered.
Avancena, C. J., Villa-Real, and Abad Santos, JJ., concur.