IN THE MATTER OF THE PETITION OF PURIFICACION M. JOSON AND EROTITA M. JOSON, PETITIONERS, VS. MARIANO NABLE, IN HIS CAPACITY AS JUDGE OF THE COURT OF FIRST INSTANCE OF NUEVA ECI…

This is a special civil action to set aside a decision rendered by
the respondent Court admitting to probate a will allegedly executed by
the deceased Tomas Joson.

Petitioners, Purificacion M. Joson and Erotita M. Joson, are the
daughters of the deceased, Tomas Joson, had with his second wife,
Pomposa Miguel, also deceased. The respondents, sumamed Joson, are the
children and grandchildren of the deceased, Tomas Joson, had with his
first wife, Eufemia de la Cruz, also deceased.

On July 19, 1945 a petition was filed with the Court of First
Instance of Nueva Ecija for the probate of a supposed will left by the
deceased Tomas Joson. In that petition the residence of petitioners
herein was given as Dagupan Street No.83, Manila. An order was issued
by the court notifying all interested parties that the hearing of the
petition would take place on August 22, 1945 at 9 o’clock in the
morning and said order was published in the Philippines Free Press
once a week for three consecutive weeks. The petition was called for
hearing on the date and time above mentioned, and nobody appeared to
contest the will. Evidence was introduced to prove the authenticity and
due execution of said will by the deceased Tomas Joson, and on August
22, 1945 a decision was rendered finding the will to have been executed
by Tomas Joson in accordance with law. Felicisimo C. Joson, one of the
respondents, was appointed executor thereof with a bond of P5,000. No
appeal was taken from this decision and the regular course of the
proceedings was followed for the liquidation and distribution of all
the properties left by the deceased.

More than three years later, or on December 7, 1948, petitioners
filed a motion to set aside the decision rendered on August 22, 1945,
upon the ground, among others, that petitioners had not been notified
of the hearing of the petition for probate. The court granted the
motion, but upon reconsideration, the decision of August 22, 1945 was
restored into full force and effect. Hence this petition for
certiorari, instead of an appeal.^[1]

As to whether or not petitioners were duly informed of the petition
for probate, hearing for several days had been held before the
respondent court, where evidence was presented by both parties, which
is not now before this Court. Had an appeal been taken from the order
complained of, it would have been taken to the Court of Appeals, where
the evidence could be examined fully for the purpose of ascertaining
whether or not petitioners were informed of the petition for probate.

But petitioners maintain that the respondent court acted without
absolutely any jurisdiction in admitting the will to probate. They rely
on Rule 77, section 4 which reads as follows:

“Sec. 4. Heirs, devisees, legatees, and executors to be notified by mail or personally.—The
Court shall also cause copies of the notice of the time and place fixed
for proving the will to be addressed to the known heirs, legatees, and
devisees of the testator resident in the Philippines at their places of
residence, and deposited in the post office with the postage thereon
prepaid at least twenty days before the hearing, if such places of
residence be known. A copy of the notice must in like manner be mailed
to the person named as executor, if he be not the petitioner; also, to
any person named as co-executor not petitioning, if their places of
residence be known. Personal service of copies of the notice at least
ten days before the day of hearing shall be equivalent to mailing.”

Petitioners maintain that no notice was received by them partly
because their residence was not Dagupan Street No.83 as alleged in the
petition for probate. If the allegation of the petition was wrong and
the true residence of petitioners was not known, then notice upon them
individually was not necessary. Under the provision above quoted,
individual notice upon heirs, legatees and devisees is necessary only
when they are known or when their places of residence are known. In
other instances, such notice is not necessary and the court may acquire
and exercise jurisdiction simply upon the publication of the notice in
a newspaper of general circulation. What is, therefore, indispensable
to the jurisdiction of the court is the publication of the notice in a
newspaper of general circulation, and the notice on individual heirs,
legatees and devisees is merely a matter of procedural convenience to
better satisfy in some instances the requirements of due process.

There is indeed a great difference between the consequences of lack
of jurisdiction and the effects of a mere procedural error. In the
first instance, the proceedings are null and void unconditionally,
while in the second, the proceedings are also null and void if and when
the error is shown to have caused harm.^[2] In the instant case, the supposed lack of notice upon petitioners,
without a showing that they were thereby prejudiced, would be
considered a harmless error which -is not reversible on appeal.^[3]

This is the reason why it is provided that a motion for relief under Rule 33 should be accompanied by affidavits of merits^[4]
which are intended as a means of evincing that, in case the relief
prayed for is granted, it is not granted uselessly, for petitioner
possesses sufficient evidence to establish the merits of his case.
There are no such affidavits of merits accompanied to the motion filed
by petitioners before the respondent court. There are conclusions
stated in said motion and also a general averment of fraud. But facts,
not conclusions, should be stated in an affidavit of merit,^[5] and fraud must always be averred with particularity.^[6]

Petitioners are furthermore guilty of laches. There is sufficient
data in the record to show that petitioners had knowledge of the
proceedings since August 19, 1945 and yet, without any justification
whatsoever, they failed to take any move, for more than three years,
against the decision of August 22, 1945.

From all the foregoing, petition is denied with costs against the petitioners.

Ozaeta, Paras, Bengzon, Tuason, Montemayor, and Reyes, JJ., concur.

---

^[1] Monteverde vs. Jaranilla, (60 Phil. 297).

^[2] Banco Español Filipino vs. Palanca, (37 Phil. 921) Perkins vs. Dizon, (69 Phil., 186)..

^[3] Rule 53, sec.3.

^[4] Rule 38, sec.3.

^[5] Estrella vs. Zamora, (5 Phil. 415); Coombs vs. Santos, (24 Phil. 446).

^[6] Rule 15, see.12.