REMEDIOS CUENCO VDA. DE BORROMEO, JOSE CUENCO BORROMEO, CRISPIN BORROMEO, VITALIANA BORROMEO, LILA MORRE DE TABOTABO, LAMBERTO MORRE, PATRICIA MORRE DE RANARIO, AURORA MORRE DE …

This is an original action for prohibition with a prayer for the
issuance of a
writ of preliminary injunction filed by Remedios
Cuenco Vda. de Borromeo and others against the Honor­able Mateo Canonoy as Judge of the Third Branch of the Court of First Instance of Cebu, and Tomas, Fortunato, and
Amelia, all surnamed Borromeo, for the purpose of
“prohibiting res­pondent judge from further proceeding with Civil Case No. R-7646″ of his Court. 
A supplement to the original petition was subsequently filed by
petitioners.

After hearing the parties on the question of whether a writ of
preliminary injunction should be issued, We granted the
petition for injunction but making the writ effective only until December 21, 1965, upon the filing
of a bond by petitioners.  Upon the latter’s
motion, however, our resolution on the matter was amended on December 22, 1965
so as to
make the preliminary injunction effective until a decision on the merits is rendered in this case.

The issues having been joined with the filing of an answer for respondents the case was set for hearing but, instead
of arguing the case orally, the parties prayed for and were allowed to submit,
as they did submit written memoranda.

The case at bar is intimately
related with G. R. No. L-18498 entitled “Testate Estate of Vito Borromeo, Jose H. Junquera,
Petitioner-Appellee vs. Crispin Borromeo, et al., Oppositors-Appellants and Republic of the Philippines, Inter­venor-Appellant,” in which the lower court,
besides denying probate to a document submitted as the last will of the deceased
Vito Borromeo, denied a motion filed on February 11, 1954 by Tomas, Amelia, and Fortunato Borromeo for the
exclusion from the inventory of the Estate submitted by the Special Adminis­trator
of thirteen lots or parcels of land mentioned in said motion, claiming that the
same had been sold by Vito Borromeo, during his
lifetime, to the Cebu Arcade, T. L. Borromeo y Cia.  Said
motion was first denied by the lower court in its order of July 16, 1954 and was reiterated in the decision
on the merits referred to above. 
Thereafter, Tomas, Fortunato and Amelia, all
surnamed Borromeo, commenced Civil Case No. R-7646 in
the Court of First Instance of Cebu against Jesus R. Gaboya, Special Administrator of the Estate of the deceased
Vito Borromeo, for the recovery of ownership and
possession of the thirteen lots already mentioned.  After issues
had been joined therein, the respondent judge set the case for trial,
but before the trial could be held the defendant filed a motion for a preliminary hearing on certain affirmative
defenses averred in his answer and, in effect, asked for the dismissal of the
case on the ground principally that the questions of ownership and right of
possession over the thirteen lots subjectmatter of
the action were already involved in G. R. No. L-18498 – the appeal inter­posed
by both parties from the decision rendered by the same Court in the special
proceeding for the probate of the will of the deceased Vito Borromeo.  This motion was denied and, as a result, the
present action for prohibition was instituted.

In our decision in G.R. No. L-18498 we said the follow­ing on the question of whether the Court of
First Instance of Cebu, exercising its jurisdiction as a probate court, had authority to determine the question of
ownership in relation to the thirteen lots mentioned heretofore:

“We shall now consider the appeal taken by the oppositors and the Republic of the Philippines from that
portion of the decision where the lower court declined to decide with finality
the question of who owns the thirteen parcels of land subjectmatter
of the confirmatory sale Exhibit F-1 and whether or not they should be included
in or excluded from the in­ventory of properties of the Estate of the deceased Vito Borromeo.

“It appears that on February 11, 1954 Tomas, Amelia, and Fortunato Borromeo, through
counsel, filed a motion for the exclusion from the inventory of the Estate of
the thirteen lots therein mentioned, with a total area of 2,348 square meters, claiming that the same had
been sold by the deceased Vito Bor­romeo during his
lifetime to the Cebu Arcade, T. L. Borromeo y Cia.  This motion for exclusion was denied by the
lower court in its order of July 16,
1954, and the ruling was reiterated in the appealed decision ‘for
the same reasons and considerations’ upon which it rejected the probate of the
will.  The ruling on the matter, however,
was expressly made provisional in nature.

“We believe, and so hold, that the resolution of the lower
court on this matter is correct because said court, acting in its capacity as a probate court, had no
jurisdiction to determine with finality the question of ownership
involved.  That such matter must be
litigated in a separate action has been the es­tablished jurisprudence in this
jurisdiction (Ongsinco vs. Borja,
G.R. No. L-7635, 1955; Mallari vs. Mallari, G.R. No. L-4656, February 23, 1953; Garcia vs.
Martin G. R. No. L-9233, June 29, 1957; Cordova vs. Ocampo,
73 Phil. 661; Pas­cual vs. Pascual, 73 Phil. 561 and others),
except where a party merely prays for the inclusion or ex­clusion from the
inventory of any particular property, in which
case the probate court may pass upon, provi­sionally, the question of
inclusion or exclusion, but without prejudice to its final determination in an
appropriate separate action (Garcia vs. Garcia, 67 Phil. 353; Marcelino vs. Antonio, 70 Phil. 388; Guin­guing
vs. Abuton, 48 Phil. 144, 147).”

In view of the pronouncement thus made in G. R. No. L-18498, it
is clear that the present action for prohibition can not stand.  Consequently, the writ prayed for in the
petition is denied, and the writ of preliminary injunction issued herein is hereby set aside.  With costs against
respondents except respondent judge.

Concepcion, C.J., Reyes, Regala, Makalintal, Bengzon, Zaldivar, Sanchez, and Castro, JJ., concur.