IN THE MATTER OF THE ESTATE OF CANDELARIA BENGUAN, DECEASED. SUSANA ABAY DE ARROYO, PETITIONER AND APPELLANT VS. FRANCISCO ABAY, ET AL., OPPONENTS AND APPELLEES.

On 5 January 1956 Susana Abay de Arroyo filed in the Court of First
Instance of Negros Occidental a petition for the probate of the will of
her deceased first-degree cousin Candelaria Benguan (special
proceedings No. 3883). On 28 May, the Court ordered that the petition
be published once a week for three consecutive weeks in Civismo,
a newspaper of general circulation in Negros Occidental, setting the
date of hearing thereof for the 23rd day of June 1956. On the date and
time set for the hearing of the petition attorney Rolando Medalla,
representing some of the heirs hereinafter referred to as opponents,
moved for the postponement of the hearing to give him time and
opportunity to file a written objection to the petition. Whereupon, the
hearing was postponed to 30 June 1956. On 28 June, the opponents filed
a motion to dismiss, on the ground that a petition for the probate of
the same last will and testament had been dismissed by the same Court
in a previous special proceedings No. 3628 and constitutes a bar to the
present proceedings (No. 3883). On 7 July, the petitioner answered the
motion to dismiss. By an order entered on 14 July, the Court dismissed
the petition. After considering the motion for reconsideration filed by
the petitioner on 31 July 1956 and the answer thereto filed by the
opponents on 3 August 1956, the Court denied the motion for
reconsideration. The petitioner appealed to the Court of Appeals which
certified the appeal to this Court, for only questions of law are
raised.

The previous proceedings invoked by the opponents to bar the present
is special proceedings No. 3628 filed in the Court of First Instance of
Negros Occidental on 27 September 1955 by one Felix Abay, a brother of
Susana Abay de Arroyo, the herein petitioner and appellant. The last
will and testament involved therein is the same invoked herein.
However, upon failure of Felix Abay and his counsel Pio B. Japitana to
appear at the hearing on 5 November 1955, despite due notice, the Court
there dismissed the petition, without stating that it was a dismissal
with prejudice. Two motions for reconsideration were filed, the first
on 15 November 1955 and the second on 28 November 1955, but both were
denied, the last for lack of merit.

The issue now hinges on whether or not the petition for the probate
of a will filed in this special proceedings is barred by a previous
special proceedings No. 3628, the petition of which was dismissed for
failure of the petitioner and his counsel to appear on the date set for
the hearing thereof.

The appellant contends that the dismissal of the petition in the
previous case (spec. proc. No. 3628) does not bar the present (spec.
proc. No, 3883), both for the probate of the same last will and
testament of the late Candelaria Benguan, because the dismissal for
failure of the petitioner and his counsel to appear at the hearing set
by the Court was not an adjudication on the merits of the case and is
not res judicata, because the parties in the previous and present proceedings are not the same.

The appellant’s contention that the dismissal of the petition for
probate in the previous special proceedings due to failure of the then
petitioner and his counsel to appear on the date and time set for the
hearing thereof is not an adjudication on the merits must be upheld. In
arriving at this conclusion the Court has not overlooked the provisions
of sections 3 and 4, Rule 30, and section 2, Rule 73, of the Rules of
Court. The probate of a will may be the concern of one person or
several persons as usually is the case. The fault of one such person
may be imputed to him alone who must suffer the consequences of his
act. Such fault cannot be imputed to other persons. Hence the failure
of Felix Abay and his counsel to appear on the date and time set for
the hearing of the petition for the probate of a will claimed to have
been executed by the late Candelaria Benguan during her lifetime which
brought about the dismissal of the petition filed in that special
proceedings (No. 3628) cannot prejudice the right of Susana Abay de
Arroyo, the petitioner in a subsequent petition filed for the probate
of the same will and last testament. So the provisions of the Rules
cited and invoked by the opponents-appellees cannot be made to apply to
proceedings for the probate of wills, because as already stated other
parties interested in the probate of a will for transmission of
property rights to them should not be prejudiced by the act or fault of
another and because it is the policy of the State to have such last
wills and testaments submitted to Court for their probate or
legalization, as shown or indicated or evidenced by or in the
punishment provided for persons who are in possession of last wills and
testaments of deceased persons and fail or neglect to deliver or
present them to Court for probate or to deliver them to the executor
named in the will within twenty days after they know of the death of
the testators or within the same period of time after they know that
they were named executors of the will (sections 2 to 5, Rule 76). The
underlying reason for the rule that a dismissal of an action or
complaint in a civil case may be a bar to a subsequent action unless
the dismissal is without prejudice is lack of interest or inaction of
the one who brought the action in court by his complaint and for such
lack of interest or inaction he should be made to suffer.

The order of dismissal appealed from is set aside and the petition
for probate of a will filed in special proceedings No. 3883 remanded to
the Court of First Instance of Negros Occidental for further
proceedings as provided for in the Rules of Court, without special
pronouncement as to costs.

Bengzon, C. J., Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Barrera, Paredes, Dizon, and De Leon, JJ., concur.