IN THE MATTER OF THE PETITION TO APPROVE WILL OF SEGUNDA VDA. DE GAMIR. CONSUELO G. DIAZ, PETITIONER AND APPELLANT, VS. THELMA G. SAWAMOTO, IN HER CAPACITY AS ADMINISTRATRIX OF …

Segunda Vda. de Gamir died on September 5, 1955, survived by two
legitimate children, Consuelo Gamir Diaz and Jose Gamir. On April 16,
1956 her will, dated July 22, 1955, was submitted for probate in the
Court of First Instance of Davao. Said probate court allowed the will
on April 18, 1956.

As administrator of the deceased’s estate, Jose Gamir petitioned on
May 6, 1958 for approval of final accounts and of the project of
partition. The next day—May 7, 1958—the final accounts and the project
of partition were approved by the court. It was stated in paragraph 6
at page 6 of said project of partition:

“6. That although in the will of the late Segunda
Vda. de Gamir, Lot No. 10-G (Annex “E”) pertains to Jose Gamir and Lots
No. 44-C and 44-A (Annex “D”) to Consuelo Gamir Diaz, by virtue of a
mutual agreement between the abovenamed heirs and on the basis of their
mutual understanding, an interchange of ownership of the aforementioned
Lots was effected;” (Exh. “H”; p. 22 Record on Appeal).

Jose Gamir thereafter died and Consuelo Gamir Diaz was made administratrix in his place.

Subsequently, on July 20, 1962, more than four years after the final
accounts and the project of partition were approved, Consuelo Gamir
Diaz moved to amend the project of partition to include in paragraph 6
at page 6 a stipulation as to a perpetual right of way allegedly
verbally agreed upon in the exchange of the lots between the heirs; or,
in lieu thereof, to delete said paragraph 6 altogether and allow the
parties to execute a formal deed of exchange so that all terms agreed
upon will be incorporated therein. Said motion was opposed on July 25,
1962 by the heirs of Jose Gamir. In addition, the administratrix of the
estate of Jose Gamir (Thelma G. Sawamoto) moved on November 8, 1962 to
close the estate of Segunda Vda. de Gamir.

The probate court, resolving the motion, stated in its order of
November 28, 1962 that it had no jurisdiction to amend the project of
partition in the manner prayed for by the movant Consuelo Gamir Diaz,
because the order approving it had long become final. For purposes of
appeal, however, evidence was allowed to be adduced on the matter.
Thereafter, an amended motion for amendment of the project of partition
was filed by the same movant and admitted into the records. Reiterating
in another order, dated January 12, 1963, that the order approving the
project of partition had long become final and adding that there was
opposition to its amendment, the probate court again ruled that it has
no jurisdiction to allow amendment and therefore denied the motion to
amend. From said order Consuelo Gamir Diaz appealed to this Court to
raise a question purely of law.

The single issue is whether the lower court erred in declaring
itself without jurisdiction to amend the project of partition as prayed
for.

A right of way is an encumbrance upon real estate (Art. 613, New
Civil Code). A probate court has no jurisdiction to make a
pronouncement regarding the existence or non-existence of an
encumbrance on real property (Register of Deeds of Pampanga vs.
Philippine National Bank, 84 Phil., 600; 47 Off. Gaz., 1157). It is
clear therefore that, as aptly observed by the court below, the
existence or non-existence of the aforesaid encumbrance, consisting in
a permanent right of way, being a controverted matter, the probate
court has no jurisdiction to resolve and pass upon said dispute.

Accordingly, there is no further need to rule on whether the probate
court’s order approving the project of partition had become final,
which point, at any rate, is apt to raise factual questions, not proper
herein, as to whether the distribution and closure of the estate have
actually been carried out.

Wherefore, the order appealed from is affirmed with costs against appellant. So ordered.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, and Sanchez, JJ., concur.