ZONIA ANA T. SOLANO, PETITIONER, VS. THE COURT OF APPEALS, BIENVENIDO S. GARCIA, AND EMETERIA S. GARCIA, RESPONDENTS.

A Petition for Review on Certiorari of the Decision of the
then Court of Appeals affirming the judgment rendered by the former Court of
First Instance of Albay, Branch II, in Civil Case No.
3956, an action for Recognition.

On July 7, 1969,
Bienvenido Garcia and Emeteria
Garcia (GARCIAS), claiming to be illegitimate children of Dr. Meliton SOLANO, filed an action for recognition against
him.  In his Answer, SOLANO denied
paternity.  On February 3, 1970, during the pendency
of the suit, SOLANO died.  Petitioner
ZONIA Ana Solano was ordered substituted for the DECEDENT as the only surviving
heir mentioned in his Last Will and Testament probated on March 10,1969, or prior to his death, in Special
Proceedings No. 842 of the same Court. 
ZONIA entered her formal appearance as a “substitute
defendant” on March 4, 1970 claiming additionally that she was the sole
heir of her father, SOLANO, and asking that she be allowed to assume her duties
as executrix of the probated Will with the least interference from the GARCIAS
who were “mere pretenders to be illegitimate children of SOLANO”.

On April 6, 1970, the GARCIAS filed their “Reply to ZONIA’s Appearance and Supplemental Cause of Action”
impugning the recognition of ZONIA as an acknowledged natural child with the
prayer that she be declared instead, like them, as an adulterous child of the
DECEDENT.  ZONIA did not file any
responsive pleading and the case proceeded to trial. The GARCIAS further moved
for the impleading of the SOLANO estate in addition
to ZONIA, which was opposed by the latter, but which the Trial Court granted in
its Order dated April 15, 1970.^[1]

In the hearing of May
13, 1970, the Trial Court specified the legal issues to be treated
in the parties’ respective Memoranda as: 
1) the question of recognition of the GARCIAS; 2) the correct status of
ZONIA, and 3) the hereditary share of each of them in view of the probated
Will.^[2]

On July 14, 1970,
the Trial Court, presided by Judge Ezequiel S. Grageda, rendered judgment the dispositive
portion of which decrees:

“WHEREFORE, judgment is hereby rendered declaring the
plaintiffs Bienvenido S. Garcia and Emeteria S. Garcia and the defendant Sonia Ana Tuagnon as the illegitimate children of the late Dr. Meliton Solano under the class of ADULTEROUS CHILDREN, with
all the rights granted them by law.  The
institution of Sonia Ana Solano as sole and universal heir of the said deceased
in the will is hereby declared null and void and the three (3) children shall
share equally the estate or one-third (1/3) each, without prejudice to the
legacy given to Trinidad Tuagnon and the tight of any
creditors of the estate.  No
pronouncement as to costs.”

Appealed to the Court of Appeals by ZONIA, said Court af­firmed
the judgment in toto (CA-G.R. No.
49018).

ZONIA seeks a reversal of that affirmance
in this petition, which was given due course.

At the outset, we should state that we are bound by the findings
of fact of both the Trial Court and the Appellate Court, particularly, the
finding that the GARCIAS and ZONIA are, in fact, illegitimate children of the
DECEDENT. The oral testimony and the documentary evidence of record inevitably
point to that conclusion, as may be gleaned from the following background
facts:  SOLANO, a resident of Tabaco, Albay, married Pilar Riosa.  The latter died.  On a world tour he met a French woman, Lilly Gorand, who became his second wife in 1928.  The union was short lived as she left him in
1929.  In the early part of 1930, SOLANO
started having amorous relations with Juana Garcia, out of which affair was
born Bienvenido Garcia on March 24, 1931 (Exhibits “A” &
“3”); and on November 3,
1935, Emeteria Garcia was born, (Exhibits
“B” & “2”). Their birth certificates and baptismal
certificates mention only the mother’s name without the father’s name.  The facts establish, however, that SOLANO
during his lifetime recognized the GARCIAS as his children by acts of support
and provisions for their education.

 In 1935, SOLANO started
living with Trinidad Tuagnon.  Three children were born out of this relation
but only petitioner ZONIA Ana Tuagnon, born on July 26, 1941, is living.  In her Birth Certificate, her status was
listed as “illegitimate”; her mother as Trinidad Tuagnon;
her father as “P.N.C.” (Exhibit “V”), or “padre no conocido“.

During the Japanese occupation, SOLANO obtained a divorce from
Lilly Gorand on November 29, 1943 (Exhibits “R-1” and
“S-1”).  On December 22, 1943, SOLANO and
Trinidad Tuagnon executed an “Escritura de Reconocimiento de Una Hija Natural” (Exhibit
“Q”; “7”), acknowledging Zonia as
a “natural child” and giving her the right, to use the name ZONIA Ana
Solano y Tuagnon. 
The document was registered with the Local Civil Registrar on the same
date.

On January 18, 1969, SOLANO executed his “Ultima Voluntad y Testamento” (Exhibit “11”), instituting
ZONIA as his universal heir to all his personal and real properties in Camalig, Tabaco and Malinao, all in the province of Albay,
except for five parcels of land in Bantayan, Tabaco, Albay, which were given
to Trinidad Tuagnon in usufruct.  Upon SOLANO’s
petition (Exhibit “10”), the Will was duly probated on March 10, 1969
in Special Proceedings No. 842 of the Court of First Instance of Albay, Branch II, in a Decision also rendered by Judge Ezequiel S. Grageda (Exhibit
“12”).

As above stated, these facts are not in question.

Petitioner maintains, however, that:

I.

“The Court of Appeals, as well as the trial Court, acted
without jurisdiction or in excess of jurisdiction in declaring substitute
defendant Zonia Ana Solano, now petitioner, an
illegitimate child of the late Dr. Meliton Solano in
an action where private respondents, as plaintiffs in the Court below, sought
recognition as natural children of Dr. Meliton
Solano.

II.

“The Court of Appeals, as well as the trial Court, acted
without jurisdiction or in excess of jurisdiction in ordering the division of
the estate of Dr. Meliton Solano between the
petitioner and private respondents, when said estate is under the jurisdiction
and control of the probate Court in Special Proceedings No. 842.

III

“The Court of Appeals, as well as the trial Court, acted
without jurisdiction or in excess of jurisdiction in declaring null and void
the institution of heir in the last will and tes­tament of Dr. Meliton Solano, which was duly probated in special
proceedings No. 842 of the Court of First Instance of Albay,
and in concluding that total intestacy resulted therefrom.”^[3]

Directly challenged is the jurisdiction of the lower Court, in an
action for recognition:  1) to declare
ZONIA as an illegitimate child of SOLANO; 2) to order the division of the
estate in the same action despite the pendency of
Special Proceedings No. 842; and 3) to declare null and void the institution of
heir in the Last Will and Testament of SOLANO, which was duly probated in the
same Special Proceedings No. 842, and concluding that total intestacy resulted.

It is true that the action below was basically one for
recognition.  However, upon notice of SOLANO’s death, the Trial Court ordered his substitution by
ZONIA, “the only surviving heir x x x as of now”^[4]
In her “Appearance of Substitute Defendant Zonia
Ana T. Solano x x x Sole
and Universal Heir”, ZONIA specifically prayed that she be “allowed
to assume her duties as executrix and administratrix
of the probated will and testament of the late Dr. Meliton
Solano, under Special Proceedings No. 842, which is already final and executory, with least interference from the plaintiffs
(GARCIAS) who may be classified for the moment as only pretenders to be
illegitimate children”.  In other
words, ZONIA did not only rely upon SOLANO’s Answer
already of record but asserted new rights in her capacity as sole and universal
heir, “executrix and administratrix,” and
challenged the right of the GARCIAS to recognition.  Thus, she was not defending the case as a
mere representative of the deceased but asserted rights and defenses in her own
personal capacity.  So it was that the
GARCIAS filed a “Reply to Appearance of ZONIA x x
x and Supplemental Cause of Action x x x ” vigorously denying
that ZONIA was SOLANO’s sole and universal heir; that
ZONIA could not legally be considered as SOLANO’s
acknowledged natural child because of a legal impediment; that the admission to
probate of SOLANO’s Will was merely conclusive as to
its due execution; that the supposed recognition under a notarial
instru­ment of ZONIA as an acknowledged natural child was fraudulent and a
product of misrepresentation; that ZONIA’s
recognition in the Will as an acknowledged natural child is subject to
nullification and that at most ZONIA is, like them, an adulterous child of
SOLANO with Trinidad Tuagnon.

During the trial, the GARCIAS presented evidence to prove their
allegations not only in their main complaint but also in their “Reply to
Appearance and Supplemental Cause of Action”.  ZONIA presented no objection to the
presentation by the GARCIAS of their oral and documentary evidence and even
cross-examined their witnesses.  ZONIA,
for her part, presented her own testi­monial and documentary evidence, denied
the relationship of the GARCIAS’ to SOLANO and presented the notarial recognition in her favor as an acknowledged
natural child by SOLANO and Trinidad Tuagnon (exhibit
“Q”).  Thus, as raised by the
parties in their own pleadings and pursuant to their respective evidence during
the trial, the litigation was converted into a contest between the GARCIAS and
ZONIA precisely as to their correct status as heirs and their respective rights
as such.  No error was commit­ted by
either the Trial Court or the Appellate Court, therefore, in resolving the
issue of ZONIA’s status.

ZONIA additionally assails the jurisdiction of the Trial Court in
declaring null and void the institution of heir in SOLANO’s
will; in concluding that total intestacy resulted therefrom;
and distributing the shares of the parties in SOLANO’s
estate when said estate was under the jurisdiction and control of the Probate
Court in Special Proceedings No. 842.

Normally, this would be the general rule.  However, a peculiar situation is thrust upon
us here.  It should be recalled that
SOLANO himself instituted the petition for probate of the Will during his
lifetime.  That proceeding was not one to
settle the estate of a deceased person that would be deemed terminated only
upon the final distribution of the residue of the hereditary estate.  With the Will allowed to probate, the case
would have terminated except that it appears that the parties, after SOLANO’s death, continued to file pleadings therein.  Secondly, upon motion of the GARCIAS, and
over the objection of ZONIA, the Trial Court ordered the impleading
of the estate of SOLANO and proceeded on that basis.  In effect, therefore, the two cases were
consolidated.  The records further
disclose that the action for recognition (Civil Case No. 3956) and Spec. Procs. No. 842 were pending before the same Branch of the
Court and before the same Presiding Judge. 
Thirdly, it is settled that the allowance of a Will is conclusive only
as to its due execution.^[5] A
probate decree is not concerned with the intrinsic validity or legality of the
provisions of the Will.^[6]

Thus, the Trial Court and the Appellate Court had jurisdiction to
conclude that, upon the facts, the GARCIAS and ZONIA were in the same category
as illegitimate children; that ZONIA’s acknowledgment
as a “natural child” in a notarial document
exe­cuted by SOLANO and Trinidad Tuagnon on December
22, 1943 was erroneous because at the time of her birth in 1941, SOLANO was
still married to Lilly Gorand, his divorce having
been obtained only in 1943, and, therefore, did not have the legal capacity to
contract marriage at the time of ZONIA’s conception^[7],
that being compulsory heirs, the GARCIAS were, in fact, preterited
from SOLANO’s Last Will and Testament; and that as a
result of said preterition, the institution of ZONIA
as sole heir by SOLANO is null and void pursuant to Article 854 of the Civil Code.

“The  preterition
or omission of one, some, or all of the compulsory heirs in the direct line,
whether living at the time of the execution of the will or born after the death
of the testator, shall annul the institution of heir; but the devises and legacies
shall be valid insofar as they are not inofficious.

x x x “^[8]

As provided in the foregoing provision, the disposition in the
Will giving the usufruct in favor of Trinidad Tuagnon
over the five parcels of land in Bantayan, Tabaco, Albay, is a legacy, recognized
in Article 563 of the Civil Code^[9],
and should be respected in so far as it is not inofficious.^[10]

So also did the Trial Court have jurisdiction in resolving the
issue of the hereditary shares of the GARCIAS and ZONIA.  However, contrary to the conclusions of the
Courts below, holding that the entire Will is void and intestacy ensues, the preterition of the GARCIAS should annul the institution of
ZONIA as heir only insofar as the legitime of the
omitted heirs is impaired.  The Will,
therefore, is valid subject to that limitation.^[11]  It is plain that the intention of the
testator was to favor ZONIA with certain portions of his property, which, under
the law, he had a right to dispose of by Will, so that the disposition in her
favor should be upheld as to the one-half (½) portion of the property that the
testator could freely dispose of.^[12]
Since the legitime of illegitimate children consists
of one-half (½) of the hereditary estate^[13],
the GARCIAS and ZONIA each have a right to participation therein in the proportion
of one-third (1/3) each.  ZONIA’s hereditary share will, therefore, be 1/2 + (1/3 of
1/2) or 4/6 of the estate, while the GARCIAS will respectively be entitled to
1/3 of 1/2 or 1/6 of the value of the estate.

As heretofore stated, the usufruct in favor of Trinidad Tuagnon over the properties indicated in the Will is valid
and should be respected.

The case of Nuguid vs. Nuguid, et al.,^[14]
reiterating the ruling in Neri, et al. vs. Akutin, et al.,^[15]
which held that where the institution of a universal heir is null and void due
to preterition, the Will is a complete nullity and
intestate succession ensues, is not applicable herein because in the Nuguid case, only a one-sentence Will was involved with no
other provi­sion except the institution of the sole and universal heir; there
was no specification of individual property; there were no speci­fic legacies
or bequests.  It was upon that factual
setting that this Court declared:

“The disputed order, we observe, declares the will in question
a complete nullity.  Article 854 of the
Civil Code in turn merely nullifies ‘the institution of heir’.  Considering, however, that the will before us
solely provides for the institution of peti­tioner as universal heir, and
nothing more, the result is the same. 
The entire will is null.” (at p. 459)

In contrast, in the case at bar, there is
a specific bequest or legacy so that Article 854 of the Civil Code, supra,
applies merely annulling the “institution of heir”.

Lastly, it should be pointed out that the jurisdiction of the
Trial Court and the Appellate Court was never questioned before either
Court.  ZONIA herself had gone, without
objection, to trial on the issues raised and as defined by the Trial Court.  Neither had ZONIA assigned lack of
jurisdiction of the Trial Court as an error before the Appellate Court.  She should now be held estopped
to repudiate that jurisdiction to which she had voluntarily submitted, after
she had received an unfavorable judgment. 
The leading case of Tijam vs. Sibonghanoy^[16],
on this point, declared:

“A party cannot invoke the juris­diction of a court to secure
affirmative relief against his opponent and after failing to obtain such
relief, repudiate or question the same jurisdiction.  The question whether the court has
jurisdiction either of the subject matter of the action or of the parties is
not because the judgment or order of the court is valid and conclusive as an
adjudication but for the reason that such practice cannot be tolerated
obviously for reasons of public policy. 
After voluntarily submitting a cause and encountering an adverse
decision on the merits, it is too late for the loser to question the
jurisdiction or power of the court.”

WHEREFORE, the judgment under review is hereby modified in
that the hereditary share in the estate of the decedent of petitioner Zonia Ana T. Solano is hereby declared to be (1/2 + (1/3 of
1/2) or 4/6 of said estate, while that of private respondents, Bienvenido S. Garcia and Emeteria
S. Garcia, shall each be (1/3 of 1/2) or (1/6) of the estate.  The usufruct in favor of Trinidad Tuagnon shall be respected. 
The judgment is affirmed in all other respects.

No costs.

SO ORDERED.

Plana, Relova,
and Gutierrez, Jr., JJ., concur.

Teehankee, J., (Chairman) files a brief concurrence.

^[1] Annex
“H”, Petition, p. 64, Rollo.

^[2] T.s.n., May 13,
1970, pp. 27-29, Decision, p. 18.

^[3]
pp. A-C, Petitioner’s Brief.

^[4]
Annex “D”, Petition, p. 55, Rollo.

^[5]
Article 838, Civil Code; Rule 75, Sec. 1, Rules of Court.

^[6] Teotico vs. Del Val, 13 SCRA 406 (1965); Fernandez vs.
Dimagiba, 21 SCRA 428 (1967).

^[7]
Article 277, Civil Code.

^[8]
Article 854, ibid.

^[9]
“Art. 563.  Usufruct is constituted by
law, by the will of private persons expressed in acts inter vivos or in a last will and testament, and by
prescription.”

^[10] Neri vs. Akutin, 74 Phil.
185, (1943).

^[11] Escuin vs. Escuin, 11
Phil. 332 (1908); Eleazar vs. Eleazar, 67 Phil. 497 (1939).

^[12] ibid.

^[13]
Art. 895, Civil Code.

^[14]
17 SCRA 449 (1966).

^[15]
74 Phil. 185 (1943).

^[16]
23 SCRA 29 (1968).

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