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156021

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Republic of the Philippines

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

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 Petitioners prayed that the letters testamentary issued to respondent be withdrawn and the estate of the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
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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. 118126 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

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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 heirs49 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.

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HILARIO G. DAVIDE, JR.

Chief Justice

Footnotes
1Dated 8 February 2002 and 12 November 2002.

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

3Rollo, pp. 47-52.

4Entitled "In Re: Petition for Probate of Will of Decedent Soledad Provido Elevencionado, Francisco H.
Provido, Petitioner"; Id. at 31-32.

5Id. at 34-37.

6Ibid.

7Id. at 38-39.

8Id. at 41-45.

9Id. at 42-44.

10Id. at 53-56.

11Id. at 55, 56.

12Id. at 55.

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

14Rollo, pp. 58-59.

15Id. at 62.

16Id. at 69.

17Ibid.

18Id. at 70.

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

20Id. at 15.

21Id. at 15.

22Id. at 103.

23Id. at 107.

24Id. at 108

25Id. at 109.

26Entitled "In the Matter of the Issuance of Letters of Administration in the Intestate Estate of Soledad
Provido-Elevencionado, Dolores M. Flores, Petitioner."
27Rollo, pp. 109-110.

28Id. at 126.

29CA Rollo, p.78.

30Id. at 79.

31Id. at 21.

32Sec. 1, Rule 37.

33Sec. 1, Rule 38.

34Section 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:

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

37Sec. 3, Rule 76, id.

38Sec. 4, Rule 76, id.

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

40Barco v. Court of Appeals, G.R. No. 120587, 20 January 2004, 420 SCRA 162, 174, citing Adez Realty v.
Court of Appeals, G.R. No. 100643, 14 August 1992, 22 SCRA 623, 628.
41Manipor, et al. v. Spouses Ricafort, G.R. No. 150159, 25 July 2003, 407 SCRA 298, 303.

42Islamic Da’Wah Council of the Philippines v. Court of Appeals, G.R. No. 80892, 29 September 1989, 178
SCRA 185, 184.

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

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

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

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

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

48Sec. 3, Rule 76, Rules of Court.

49Art. 842, Civil Code.

50F.D. Regalado, Remedial Law Compendium, Vol. II (2001 ed.) p. 27, citing In Re Estate of 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).
51J. Feria & M.C.S. Noche, Civil Procedure Annotated Vol. 1 (2001) p. 297.

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

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