TESTATE ESTATE OF THE DECEASED TOMASA DAYO. PATRICIO DAYO AND HIPOLITO DAYO, PETITIONERS AND APPELLANTS, VS. FILEMON, AGAPITA, CANDIDO, AMADO, JULIO, LAURA, CRISPINA, FELIX, ADR…

Dayo versus Dayo

The Case

This is the testate estate of the deceased Tomasa Dayo. The petitioners, Patricio Dayo and Hipolito Dayo, sought to have the decedent's will admitted to probate, while the private oppositors, among them Filemon, Agapita, Candido, Amado, Julio, Laura, Crispina, and Felix, resisted the petition as persons claiming by intestate succession. The action is a special proceeding for the probate of a will, and the question that reaches us is not who inherits, but whether the trial court may slam the door of the probate court shut on the proponents merely because their lawyer failed to appear on the day of trial. The case matters because it fixes the standard for dismissing special proceedings: dismissal is not a penalty for the neglect of counsel, but an extreme remedy reserved for the clearest cases.

Procedural History

The petition for probate was filed in the Court of First Instance of Quezon, presided over by Judge Vicente Santiago. Three oppositions were lodged against it. At the initial hearing the original will and a duplicate were presented, and two attesting witnesses testified. The deposition of the third attesting witness was later taken and certified to the court. After a long series of postponements, most of them sought by the oppositors and granted, the case was set for hearing on December 21, 1949. On that day the petitioners were present but their counsel was absent, and a motion for postponement supported by a medical certificate was denied. The trial court dismissed the petition for probate with prejudice. A motion for reconsideration was denied in March 1950, and the petitioners appealed to the Supreme Court.

Facts

Tomasa Dayo died leaving a will disposing of her properties. On May 28, 1947, the petitioners filed a petition for probate, and the hearing was set for June 24, 1947. At that hearing the original will and a duplicate were presented, and two attesting witnesses gave their testimony. The third attesting witness was a lawyer in Manila, and his deposition was taken in January 1948 and certified to the court in May 1948.

The record then shows a long stretch of postponements. In 1949 the petitioners twice moved to set the case for continuation of hearing. The oppositors' counsel sought postponements on the ground that he was busy attending sessions of Congress, and later by telegraphic petition. A further postponement was sought by other oppositors' counsel because he was to act as sponsor in a wedding. The petitioners themselves never asked for a postponement; it was always the oppositors who asked, and their requests were always granted.

The case was finally set for December 21, 1949. On that day the petitioners appeared without their lawyer. Their counsel moved for postponement, alleging that he was recovering from a recent attack of rheumatic fever and could not undertake the trip by train or automobile from Manila to Lucena, Quezon, a claim supported by a medical certificate. The court denied the postponement and dismissed the petition for probate with prejudice. The motion for reconsideration was denied, and the oppositors pointed out that counsel had appeared in Manila at a hearing of the Electoral Tribunal on that same day.

Issues

• Whether or not the trial court erred in dismissing the petition for probate on the ground of the absence of counsel for the petitioners.
• Whether or not the provisions on failure to prosecute in ordinary actions may be applied to dismiss a special proceeding for the probate of a will.

Applicable Provisions

Section 3 of Rule 30 of the Rules of Court, on failure to prosecute, provides:

SEC. 3. Failure to prosecute.—When plaintiff fails to appear at thie time of the trial, or to prosecute Iris action for an unreasonable length of time, or to comply with these rules or any order of the court, the action may be dismissed upon motion of the defendant or upon the court's own motion. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise provided by court.

This is the very rule invoked to justify the dismissal, and the Court measures the trial court's order against its terms.

Ruling

On the first issue, the Court held that the trial court erred. The rule does not provide for dismissal on the ground of the absence of counsel. What the rule contemplates is the failure of the plaintiff to appear, and here the petitioners were present in court; only their lawyer was absent. The Court distinguished its earlier ruling in the case of Lourdes del Prado de Alegre versus Jose Nespral, where there is failure to prosecute when the plaintiff, being present, is unwilling to proceed with the scheduled trial, as when he or his attorney made no appearance at all. Neither could the petitioners be said to have failed to prosecute their action for an unreasonable length of time, for it was always the oppositors who asked for postponements, and these were always granted. The most the trial judge could have done was to grant the petitioners an hour or two to engage the services of a new lawyer so as to complete the formal presentation of the deposition of the last attesting witness.

On the second issue, the Court held that although the Rules do not expressly provide for the application of Rule 30 to special proceedings, the same general considerations should apply, with the added circumstance that special proceedings are not contentious suits depending upon the will of an actor but upon a state or condition of things or persons not entirely within the control of the parties interested. Dismissals should therefore be ordered not as a penalty for the neglect of the petitioners, but only in extreme cases where termination by dismissal is the only remedy consistent with equity and justice. The oppositors are in court voluntarily, claiming by intestate succession, and their right should not be considered paramount to that of the deceased owner who had tried to dispose of her properties. Every opportunity should be afforded to those who seek to have the will carried out before the oppositors' claims are considered.

The Court also rejected the suggestion that counsel had acted in bad faith in claiming illness, since the medical certificate supported his statement that his condition prevented the trip to Lucena.

Doctrine

A special proceeding for the probate of a will is not a contentious suit dependent on the will of an actor, but rests on a state or condition of things or persons not entirely within the control of the parties. Dismissal of such a proceeding is not a penalty for the neglect of the petitioners; it is proper only in extreme cases where dismissal is the only remedy consistent with equity and justice. Under Section 3 of Rule 30, the absence of counsel is not a ground for dismissal where the parties themselves are present in court and ready to proceed. The proponents of a will must be given every opportunity to have it admitted to probate before the claims of intestate heirs may be considered.

Disposition

The petitioners won. The Supreme Court reversed the order of dismissal and ordered the case reinstated for further proceedings, without costs.

Remember This

Memorize this line: in special proceedings, dismissal is not a penalty for the neglect of counsel but an extreme remedy, and the absence of a lawyer is not the absence of the party. Examiners use this case to test the application of the failure to prosecute rule to probate proceedings and the preferential opportunity owed to the proponents of a will.