EMERITA SANTOS, IN HER BEHALF AND AS GUARDIAN OF THE PERSONS AND PROPERTY OF THE MINORS BIENVENIDO, APOLONIO1 MANUEL, JUANA AND NORBERTA, SURNAMED AZORES Y SANTOS, PETITIONER, V…

This is a petition for a writ of
certiorari to have this court declare null and void the order issued by
the respondent judge of the Court of First Instance of Laguna on
January 26, 1937, dismissing the petition docketed therein as case No.
3101. Said petition had been filed by the petitioner Emerita Santos, in
her behalf and as guardian of the minor acknowledged natural children
of the deceased Nicolas Azores, for the purpose of applying for the
probate of the will, Exhibit A, which she claims to be the expression
of the last will and testament of said Nicolas Azores, who died in the
municipality of San Pablo, Laguna, on January 5, 1937.

Two days after the petition in question had been docketed, the
petitioner filed a motion praying for the appointment of a special
administrator and commissioners on appraisal, of the properties of the
deceased Nicolas Azores. At the hearing of said motion which took place
on January 13th, the herein respondents Jose, Sinforosa and Antonio
Azores, legitimate children of said deceased, opposed the court’s
taking action thereon on the ground that it had not acquired
jurisdiction over the case, the allegations made in the petition being
insufficient to confer jurisdiction upon said court, because the
petitioner did not allege that she had the custody of the will and,
therefore, was not entitled to present it for probate; and furthermore
because the will that should be probated is the original and not a copy
thereof, as the one presented by the petitioner. Before the court
decided the incident relative to its lack of jurisdiction, the
petitioner, on January 16th, filed an amended petition with an
affidavit, adding to the original application the following paragraph:

“That four typewritten copies of said will Exhibit
A, all identically containing each and every provision thereof, were
made, which were at once signed and subscribed by the testator and the
instrumental witnesses, and that after the will had been made, the
testator Nicolas Azores designated nobody in particular as ‘custodian’ thereof
but instead he directed his nephew, Attorney Manuel Azores Concordia,
to deliver a copy to the petitioner Emerita Santos, to keep the other
copy in his (Manuel Azores Concordia’s) possession, and to deliver the
other two copies to his son Jose. Azores, with instructions to the
effect that if the herein petitioner Emerita Santos or his son Jose Azores failed to present said will for probate,
he (Manuel Azores Concordia) should take charge of presenting it to the
court for said purpose, as stated more particularly in the affidavit
Exhibit B. The copy Exhibit A belonged to the petitioner.”

In said amended petition, the petitioner prayed that Jose Azores
and Manuel Azores Concordia be required to present immediately, in said
case No. 3101, the copies of the will in ‘their possession as well as
any alleged codicil claimed by them to have been made by the testator.

On January 19th, the court issued an order which reads as follows:

“Considering the petition of Atty. Jesus E. Blanco
in representation of petitioner Emerita Santos, for the appointment of
a special administrator in this case, and the opposition filed thereto
by Atty. Claro M. Recto in representation of the children of the
deceased in his first marriage; and considering further the arguments
in favor of and against said petition given by the parties, as well as
the manifestation in open court made by Atty. Recto that the opponents
will present for probate the original last will and testament of the
deceased together with the codicil as soon as the novena for the deceased is through; and taking ‘into account the period of time that has elapsed since the death of Nicolas Azores;

“Said petition for the appointment of a special administrator is hereby
denied; and Jose Azores under whose custody the last will and testament
and all other documents having relation thereto are supposed to be, is
hereby ordered to deliver said papers to the court within ten (10) days
from notice hereof; * * *.”

On January 20th, the petitioner filed a motion praying that her
amended petition be admitted, that a special administrator -and
commissioners on appraisal be appointed and that Jose Azores and Manuel
Azores Concordia be required to present in said case the copies of the will and the codicil that they had in their possession. Before this
motion was decided, the respondents, on January 21st, that is, 16 days
after their father’s death, presented the original of the will and
codicil made by the deceased Nicolas Azores, with a petition docketed
as case No. 3104, praying for the probate of said will and codicil.

On the 23d of said month, the petitioner’s motion of January 20th
was heard. It was opposed by the respondents Azores on the ground that
as the jurisdiction of the court to pass upon the original petition for
probate filed by the petitioner is questioned, the amendment thereto
could not legally be considered until the previous question is decided
by the court. The respondents prayed that said original petition of the
petitioner be dismissed on the ground that as the originals of the will
and codicil of the deceased Azores had been presented together with a
petition for the probate thereof, the petitioner’s defective petition
was unfounded.

On the 26th of said month, the respondent Judge Modesto Castillo
issued the order in question, dismissing the petition filed by the
petitioner which gave rise to the proceeding docketed as case No. 3101
of the Court of First Instance of Laguna. The day following the
issuance of said order, the petitioner excepted thereto and filed a
motion for reconsideration which was denied by the court. The
petitioner excepted to the order denying her motion.

It is alleged in the petitioner’s petition filed in this court that
the respondent judge exceeded his jurisdiction and acted arbitrarily
and irregularly in dismissing the petition for probate filed by her in
case No. 3101 as well as in ordering the publication of the notice of
the hearing of the probate of the will in case No. 3104 instituted by
the Azores brothers and sister before the order of January 26, 1937,
issued in said case No. 3101 became final. It is claimed that said
judge also exceeded his jurisdiction and acted arbitrarily and
irregularly in giving preference to the petition for probate filed by
the Azores brothers and sister, disregarding the petition filed by the
herein petitioner, instead of ordering said respondents Jose Azores et
al. to present their copies of the will and alleged codicil in case No.
3101.

First of all, it is advisable to separate in this case the
actuations of the respondent judge in case No. 3101 from his actuations
in case No. 3104. This court is of the opinion that the petitioner is
not entitled at all to interpose this appeal in connection with case
No. 3104 instituted by the legitimate children of the deceased Azores,
on the ground that she is not a party thereto and has not asked therein
for the reconsideration of the court’s order directing the publication
of the notice of the hearing of the probate of the will in said case
No. 3104.

With respect to case No. 3101, in order to decide the question
whether or not the respondent judge exceeded his jurisdiction in
dismissing the petitioner’s application, we should first coxnsider who
was entitled to apply for the probate of the will of Nicolas Azores. To
get to the bottom of this question, it is necessary to ascertain
beforehand who was bound by law to apply for the probate of the will.

Section 625 of the Code of Civil Procedure provides that no will
shall pass either the real or personal estate, unless it is proved and
allowed. For this purpose, section 626 provides that the person who has
the custody of a will shall, within thirty days after he knows of the
death of the testator, deliver the will into the court which has
jurisdiction, or to the executor named in the will, and sections 628
and 629 prescribe coercive means to compel a person having the custody
of a will to deliver it to the court having jurisdiction.

The petitioner alleges that the deceased Azores designated nobody as custodian
of his will but that he directed his nephew Manuel Azores Concordia to
deliver a copy thereof to the petitioner, to preserve the other copy in
his (Manuel Azores Concordia’s) possession, and to turn over the other
two copies to his son Jose Azores, with instructions to the effect that
if the petitioner or his Son Jose Azores failed to present said will
for probate, he (Manuel Azores Concordia) should take charge of
presenting it to the court for said purpose. Granting that the entire
paragraph in question were true, with the exception of the conclusion
that the testator designated nobody as custodian of his will, the
petitioner is silent as to the disposition made by the testator of the
original of his will. To whom was the original delivered? It is, of
course, evident that there must be an original of the will in question
even if four equal copies have been made thereof. Well, one of the two
copies of the will turned over to Jose Azores must be the original
because the respondents had the original of the will as well as the
codicil. The petitioner did not dispute this fact. Taking this into
account, we may conclude that it was Jose Azores, the son of the
deceased, who had the custody of the will because the original thereof
was turned over to him. If in addition to the foregoing it is
considered that the respondents Azores also had the original of the
codicil, it necessarily follows that, by provision of the testator, it
was said respondents who had the custody of his will and of his codicil.

For the sake of argument, however, let us admit that the testator
had designated nobody as custodian of his will in distributing the
copies thereof and in entrusting his nephew Manuel Azores Concordia, as
above-stated, with the presentation of a copy of said will to the court
for probate. Even so, it cannot be denied that as the testator had
subsequently made his codicil and had entrusted the custody thereof to
his legitimate children, his last will, as to the custody of his will
and codicil, was clearly modified in the sense of entrusting the
custody of both to his legitimate children and not to Manuel Azores
Concordia or to the petitioner.

Therefore, as the legitimate children of the deceased had custody
of the originals of the will and of the codicil, they alone could, had
the right and were bound by law to apply for the probate of their
father’s last will. Consequently, the respondent judge, in dismissing
the application presented by the petitioner, neither exceeded his
jurisdiction nor acted arbitrarily or irregularly, but reasonably made
use of his sound discretion.

The petitioner contends that instead of dismissing her application,
the respondent judge should have compelled the respondents Azores to
present the copy of the will and the alleged codicil in case No. 3101.
The court could not prudently do so: first, because in said case the
petitioner applied for the probate of the will and nothing more; and
second, because the petitioner has clearly stated that even if she had
had the codicil in her possession, she would not have presented it to
the court because said codicil was allegedly “marked”, not signed, by
the testator about fifteen days before his death, that is, on a date
when, according to the medical opinion of Doctors Manuel B. Calupitan
and Fortunato Manzanero, he was physically and mentally incapacitated
to govern his properties, thereby making it clearly understood that she
would oppose the probate of the codicil in question. If such is the
petitioner’s attitude and intention, were the codicil attached to case
No. 3101, there would be the anomaly of her being applicant and at the
same time oppositor therein. Who would be the applicant for the probate
of the codicil? Could the court, or rather, would the court have
authority to compel the legitimate children of the deceased Azores to
appear as applicants in case No. 3101 where they have precisely
questioned the jurisdiction of the court?

With respect to the court’s jurisdiction, this court finds that it
is a fact impliedly admitted by the petitioner, from the time she
presented an amended petition for the purpose of curing the
deficiencies of her application, that the allegations of said
application were insufficient to confer jurisdiction upon the court. As
said amendment had not been admitted by the court, the lack of
jurisdiction continued to be manifest upon the face of the proceedings.

Wherefore, this court holds in conclusion that in order that the
court may acquire jurisdiction over the case for the probate of a will
and for the administration of the properties left by a deceased person,
the application must allege, in addition to the residence of the
deceased and other indispensable facts or circumstances, that the
applicant is the executor named in the will or is the person who had
the custody of the will to be probated. The original of said document
must be presented or sufficient reasons given to justify the
nonpresentation of said original and the acceptance of the copy or
duplicate thereof. Inasmuch as these requisites had not been complied
with in the application filed by the petitioner, the respondent judge
did not exceed his jurisdiction in dismissing the application in
question.

The petition is denied, with the costs to the petitioner.

So ordered.

Avancena, C. J., Villa-Real, and Abad Santos, JJ., concur.

---

CONCURRING

IMPERIAL, J.,

In my opinion, the question to be determined is not who had the
custody of the will and was bound to deliver it to the court for
probate, but which will, according to law, should be presented for said
purpose? Sections 614, 618, 619, 625, 626, 627, 628, 629, and 630 of
the Code of Civil Procedure, which treat of the will and the
presentation thereof to the court for probate, refer to the original of
the will and not to the duplicates or copies which may be made thereof.
If the delivery has for its purpose the probate of the will, the
question of who is the custodian, holder or possessor thereof is merely
secondary, particularly because such capacity, according to law, only
gives rise to the duty of presenting it to the court for probate,
within the statutory period.

Much importance is given to the custodian of the will because there
seems to be an attempt to convey the idea that it is he who should
apply for the probate thereof, but the above-cited sections confer no
such right upon said custodian. Section 630 expressly provides that it
is the court that must appoint hearing for the probate of the will. The
proposition can better be illustrated by the case of a custodian who
has a will in his possession but has no interest whatsoever in the
property of the testator because he is not a creditor and has not been
appointed executor thereof. Would there be any doubt that he cannot ask
for the probate of the will and that the duty imposed upon him by law
ceases from the moment he delivers or presents the will to the court?

It being alleged and admitted that there are four copies of the
will, the logical and unavoidable conclusion is that an original exists
and that the other three are either duplicates or copies thereof. If my
foregoing opinion is correct, as I understand it to be, it is the
original that must be presented and consequently, the will presented by
the respondents is the one that should be published and probated if it
has all the conditions required by law.

I concur in the conclusion that the extraordinary remedy of
certiorari does not lie in this case. Inasmuch as the original of the
will has been presented together with the codicil, there should be only
one testamentary proceeding of the deceased in court and, therefore,
the court did not abuse its sound discretion in dismissing the first
case arising from the application filed by the petitioner. The
jurisdiction of the court in a testamentary proceeding is not separable
and divisible into several cases. All proceedings having for their
purpose the probate of the will, payment of 1;he debts and other
expenses of administration and distribution of the estate among the
heirs instituted, should be embodied in only one case, the only
exception thereto being an ancillary proceeding. (Fraser vs. Jennison, 106 U. S., 131; People vs. Wayne Cir, Judge, 39 Mich., 198; Glos vs. Glos, 173 N. E., 604; In re Christensen’s Estate, 68 P., 112; In re Taggart’s Estate, 16 N. Y. S., 514; Austin First Nat. Bank vs. Sharpe, 33 S. W., 676.)

---

LAUREL, J.,

I regret that I find myself compelled to dissent from the opinion of my brethren in this case.

At the risk of repetition, I desire to give a more comprehensive statement of the facts for the purposes of this dissent.

Nicolas Azores, a wealthy resident of San Pablo, Laguna, died in
the aforesaid municipality on January 5, 1937. His forced heirs were
his legitimate children named Jose, Sinforosa, and Antonio Azores, all
of legal age and residents of San Pablo, Laguna, and his acknowledged
natural children had by Emerita Santos, named Bienvenido, Apolonia,
Manuel, Juana, and Roberta Azores y Santos, all minors and also
residents of San Pablo, Laguna.

On January 7, 1937, Emerita Santos, as legal guardian of the
aforementioned natural children, filed with the Court of First Instance
of Laguna a petition for the probate of a document attached thereto and
marked Exhibit A, as the last will and testament of Nicolas Azores. She
also prayed for the appointment of a special administrator. This
petition was registered as case No. 3101 of said court, the petitioner
being authorized by the court to litigate as a pauper.

On January 9, 1937, herein petitioner filed a motion for the
appointment of Tomas Dizon as special administrator, the appointment of
a committee on claims and appraisals, and for the determination of the
monthly pension to which her children were entitled, which motion was
set for hearing on January 13, 1937.

On January 12, 1937, the petitioner filed the corresponding
affidavit in support of her motion for the appointment of a special
administrator alleging inter alia that the property of the deceased
produced a monthly income of around P5,000; that such produce as well
as around P150,000 in cash, and jewelry and evidences of credit, were
in the possession of the legitimate children, and were in imminent
danger of being lost or abstracted in view of the manifest hostility of
said legitimate children to the children of the herein petitioner.

At the hearing of the foregoing motion on January 13, 1937, the
legitimate children of the deceased entered their special appearance
and objected to the jurisdiction of the court on the ground that the
petitioner failed to allege that she was the custodian of the will of
the deceased. They further contended that the petitioner had no
personality to petition for the probate of the will of the deceased
because she was not the custodian of said will; that the will presented
by her for probate was not the original but only a carbon copy of the
same; and that said will did not express the last will and testament of
the deceased because a codicil had been executed subsequently by the
testator, and hence said will cannot be probated without the codicil.
Counsel further manifested to the court their intention to file the
original of the will and the codicil for probate as soon as the novenaire for deceased shall have been terminated.

On January 16, 1937, the petitioner filed an amended petition for
the probate of the will of the deceased substantially reproducing the
allegations of her original petition with the additional allegation
that the will Exhibit A was executed and signed in quadruplicate and
delivered by the deceased to his nephew, Attorney Manuel Azores
Concordia, who was instructed to keep one copy for himself and to give
one copy to Emerita Santos, and turn over the rest to Jose Azores, with
the advertence that in case both Emerita Santos and Jose Azores should
fail to present the will for probate, said Attorney Concordia was to
present said will for probate, which facts were particularly set forth
in the affidavit of Attorney Concordia attached to the amended petition
and marked Exhibit B. It was also prayed that a special administrator
be appointed after hearing all the-heirs, and that Jose Azores and
Manuel Azores Concordia be ordered to submit to the court the copies of
the will in their possession as well as any codicil which might have
been posteriorly executed by the deceased.

On January 19, 1937, the respondent judge denied the petitioner’s
motion for the appointment of a special administrator and at the same
time ordered that Jose Azores, deliver the will and codicil in his
possession to the court within a peremptory period of ten days, as
follows:

“Considering the petition of Atty. Jesus E. Blanco
in representation of petitioner Emerita Santos, for the appointment of
a special administrator in this case, and the opposition filed thereto
by Atty. Claro M. Recto in representation of the children of the
deceased in his first marriage; and considering further the arguments
in favor of and against said petition given by the parties, as well as
the manifestation in open court made by Atty. Recto that the opponents
will present for probate the original last will and testament of the
deceased together with the codicil as soon as the novena. for the deceased is through; and taking into account the period of time that has elapsed since the death of Nicolas Azores;

“Said petition for the appointment of a special administrator is hereby
denied; and Jose Azores, under whose custody the last will and
testament and all other documents having relation thereto are supposed
to be, is hereby ordered to deliver said papers to the court within ten
(10) days from notice hereof; and the clerk of court ordered to send by
registered mail copies of this order to the attorneys of both parties
and also to Jose Azores for his information and all legal consequences.
It is so ordered.

“Santa Cruz, Laguna, January 19, 1937.
	(Sgd.) “MODESTO CASTILLO
		“Judge”

On January 20, 1937, the petitioner filed another motion asking for
the admission of her amended petition for the probate of the will of
the deceased, which motion was set for hearing on January 23, 1937.

On January 21, 1937, Jose Azores delivered to the court the
original copy of the will and the codicil together with a petition for
the probate of the same, subscribed by himself and his legitimate
brother and sister, which petition was registered as case No. 3104.

On January 26, 1937, the respondent judge issued the following
order dismissing the proceedings in case No. 3101 instituted by the
herein petitioner:

“Upon due consideration of the various petitions
filed in this case by Atty. Blanco and of the petition of Atty. Recto
dated January 21, 1937 wherein it appears that the originals of the
last will and testament and of the codicil of the deceased Nicolas
Azores have already been presented to this court, together with a
petition signed by Jose Azores, Antonio Azores and Sinforosa Azores de
Gomez, praying for the probate of the said last will and codicil; and
it appearing further that the aforementioned petition of Atty. Recto
was in fact filed on January 21, 1937 under special proceedings No.
3104, entitled In re Testate Estate of the Deceased Nicolas Azores;

“Without
passing upon the merits of the various petitions filed by Atty. Blanco
and as the court is of the opinion that this case cannot stand alone
without the codicil filed thereto, nor can the court oblige the
petitioners in special proceedings No. 3104 to abandon their petition
duly filed with all the requisites of the law in order to give way to
the , petition filed by Emerita Santos, nor can this court allow these
two proceedings Nos. 3101 and 3104 to remain pending in the dockets,
dealing as they are with the same subject matter; ,

“It is,
therefore, ordered, that this case No. 3101 be and is hereby dismissed
without prejudice on the part of Atty. Blanco, in representation of
Emerita Santos, to file similar petitions in special proceedings No.
3104 as to the appointment of a special administrator, the appointment
of commissioners on claims and appraisal, and the payment of allowance
to the natural children of the deceased pending the settlement of the
estate.

“Let the exception interposed by Atty. Blanco to the
order of this court dated January 19, 1937 be made of record; and the
petition for the reconsideration of said order not being well founded,
it is hereby denied. It is so ordered.

“Santa Cruz, Laguna, January 26, 1937.
	(Sgd.) “MODESTO CASTILLO
		“Judge”

Simultaneously with the issuance of the foregoing order the
respondent judge on January 26, 1937, dictated another order in case
No. 3104. setting it for hearing on February 18, 1937 and ordering
publication of the corresponding notice of hearing in the Philippines
Herald.

On January 30, 1937 the petitioner moved for a reconsideration of
the order of the respondent judge of January 26, 1937, in case No.
3101, and the said motion was denied on February 1, 1937. Petitioner
also moved for the suspension of the publication ordered in case No.
3104, on the ground that the order dismissing case No. 3101 had not yet
become final, but said motion was not acted upon by the respondent
judge.

Herein petitioner now comes before this court and asks for the
issuance of a writ of certiorari directing the respondent judge to
elevate to this court the records of cases Nos. 3101 and 3104 of the
Court of First Instance of Laguna, that meanwhile the said court be
ordered to refrain from taking further proceedings in case No. 3104
pending the resolution of the present petition, and that thereafter
this court declare the order of the respondent judge of January 26,
1937 dismissing case No. 3101, as Well as his order of the same date
setting case No. 3104 for hearing on February 18, 1937 and ordering
publication of notice of said hearing, null and void because they were
issued without or in excess of his jurisdiction, and further requiring
the respondent judge to reinstate case No. 3101 and continue taking
cognizance of the said case. Petitioner alleges that she has no plain,
speedy and adequate remedy at law by appeal or otherwise; she also
prays for such other equitable relief to which she might be entitled in
the premises.

Herein respondents in their answer reproduce all their arguments
advanced in the lower court against giving due course to the petition
for probate filed by herein petitioner in case No. 3101. As first
special defense, respondents allege that herein petitioner does not
posit any question of jurisdiction which would serve as a basis for the
issuance of a writ of certiorari; that if the lower court committed an
error in dismissing petitioner’s petition for probate prematurely
presented, the same does not affect the jurisdiction of the lower
court; that if the petitioner has the right, and the lower court has
the duty, to continue the proceedings in case No. 3101, the remedy
available is the issuance of a writ of mandamus and not that of
certiorari prayed for.

As second special defense, respondents allege that as legitimate
heirs they are the ones entitled to present the will and codicil of the
deceased within thirty days after the latter’s death as in fact they
exercised such right before the expiration of said period; that before
the expiration of said period of thirty days no other person can
supplant said respondents who had actual custody of the will and
codicil, in their exercise of the right to present the same for
probate; that said respondents are willing to concede the right of any
other person to compel them to produce said will and codicil before the
court only in the eventuality that said respondents refuse or fail to
produce such will and codicil within said period of thirty days, which
is not the case in the instant proceedings, that the lower court,
therefore, committed no error in dismissing case No. 3101 and in giving
due course to case No. 3104 for the reason that the jurisdiction of
Courts of First Instance in probate proceedings is special and limited
and the petitioner in any probate case is bound to comply with all the
legal requisites necessary to confer such jurisdiction upon the court,
and that such requisites have not been complied with by the petitioner
herein: because she has not and as a matter of fact she cannot allege
that she is the custodian of the will of the deceased; because the will
which must be probated is the original thereof and not a mere copy like
that presented by the herein petitioner unless such original copy has
been lost or destroyed which has not been alleged by the petitioner;
because admitting that the will submitted by the petitioner for probate
is a duplicate and not a mere copy the incontrovertible fact still
remains that there is a codicil modifying the will which codicil was
not presented by the petitioner, and inasmuch as the will and the
codicil jointly express the last will and testament of the deceased,
the will presented by the petitioner cannot be admitted to probate
without the codicil; and because sections 626 and 627 of our Code of
Civil Procedure recognize only the custodian of the will or the
executor named therein as the only persons entitled to submit the will
for probate.

As third special defense, respondents contend that the questions
herein submitted by the petitioner are purely academic; that there is
no practical difference between continuing the proceedings in case No.
3101 and continuing the proceedings in case No. 3104 and that if the
lower court chose the latter procedure it was because the codicil to
the will was presented in case No. 3104 which was not done in case No.
3101; and that inasmuch as case No. 3104 has already been given due
course by the lower court, the present petition has become a moot case.

The supplementary petition of the petitioner for the issuance of
preliminary injunction against the herein respondents ordering them to
refrain from further proceedings in case No. 3104, dated February 11,
1937 was denied by order of this court on February 13, 1937.

Upon the merits, this court now denies the petition for certiorari. Its
conclusion is expressed as follows: (Paragraph before the last on p.
10.)

“Wherefore, this court holds in conclusion that in
order that the court may acquire jurisdiction over the case for the
probate of a will and for the administration of the properties left by
a deceased person, the application must allege, in addition to the
residence of the deceased and other indispensable facts or
circumstances, that the applicant is the executor named in the will or
is the person who had the custody of the will to be probated. The
original of said document must be presented or sufficient reasons given
to justify the nonpresentation of said original and the acceptance of
the copy or duplicate thereof. Inasmuch as these requisites had not
been complied with in the/application filed by the petitioner, the
respondent judge did not exceed his jurisdiction in dismissing the
application in question.”

The above conclusion seems sound viewed in the abstract and
detached from the pleadings, but considered in the light of the facts
and authorities hereinbelow referred to, it is, in my humble opinion,
erroneous. It is predicated on what I consider is a wrong premise as to
the character of the document presented by the petitioner for probate
in the proceedings of the court below.

As well observed in another portion of the majority opinion (p. 6),
the law governing the institution of probate proceedings in this
jurisdiction is found in our Code of Civil Procedure (sees. 625 to
630). It is clear from the provisions of this Code that an obligation
is imposed on the custodian of the will, within thirty days after he
knows of the death of the testator, to deliver the will into
the court which has jurisdiction, or to the executor named in the will
(sec. 626, Code of Civil Procedure). The executor named in the will is
also charged with the duty to present such will to the court which has
jurisdiction, unless the will has otherwise been returned to said
court, within thirty days after he knows of the death of the testator,
or within thirty days after he knows that he is named executor, if he
obtained such knowledge after knowing of the death of the testator, and
within such period to signify to the court his acceptance of the trust
or make known in writing his refusal to accept it (sec. 627, Code of
Civil Procedure). For neglect of such duties without satisfactory
excuse, the person so defaulting is liable to a fine not exceeding one
thousand dollars (sec. 628, Code of Civil Procedure); moreover, the
custodian of the will is further subject to commitment in prison in
close confinement until he delivers the will, in case he neglects to
deliver the same to the court having jurisdiction, after notice by the
court so to do (sec. 629, Code of Civil Procedure).

It behooves us to inquire, therefore, whether the petitioner was
bound to produce the will of the deceased in her possession as required
by section 626 of the Code of Civil Procedure aforementioned. This
brings us to the question as to whether the will Exhibit A in case No.
3101 is the will required by said section 626 to be delivered to the
court having jurisdiction. In 22 Corpus Juris, p. 1024, sec, 1314, we
find the following rule:

“Several Copies Produced at Same Time.—Where several
copies of a writing are made at the same time by the same mechanical
operation, each is regarded as an original and is admissible as such.
The most usual application of this rule is found in the case of carbon
copies, which are usually admitted as duplicate originals, but a
distinction has been drawn with respect to instruments requiring
signature, such as contracts, it being considered that where several
carbon copies are made, all the copies are originals until signed, and
when one is signed the other become copies with the signature missing.”

It is to be observed that the will submitted by the petitioner,
although apparently a carbon copy only, is signed by the testator and
the attesting witnesses as required by law, and is therefore as much an
original document as the first copy. So long as the duplicate original
of the will presented by the petitioner fulfills the requisites
prescribed by section 618 of the Code of Civil Procedure as amended by
section 1 of Act No. 2645, therefore, it is perfectly admissible to
probate, unless of course it has been revoked. The majority of the
court hold the contrary. Apparently, it accepts the citations offered
from 68 C. J., sec. 615, p. 886 which says:

“Copies or Duplicates.—Except in the case of lost wills
and wills already probated in another jurisdiction, and of a will of a
resident made in a foreign jurisdiction and which cannot be produced in
the local court, probate of a copy or duplicate of a will, as a general
rule, is neither necessary nor permissible, unless the other is
produced or its absence satisfactorily explained. But it has been held
that two holographic wills, of even date and identical provisions,
having the same subscribing witnesses, and one marked ‘duplicate’,
should both be admitted to probate.”

Examining the cases cited in support of the foregoing rule, however, we find their ratio decidendi to
be that where a will is executed in duplicate, only one of the
duplicates need be probated, but that the other must be produced in
court, that it may be seen whether there has been any revocation, as a
revocation of one part is a revocation of both, and whether each
completely contains the will of the testator. (Crossman vs. Crossman, 95 N. Y., 145, 150; Roche vs.
Nason, 185 N. Y., 128; 77 N. E,, 1007, 1008; In re Field’s Will, 178 N.
Y. S., 778; In re Schofield’s Will, 129 N. Y. S., 190, 193.) Upon the
other hand, and as Professor Wigmore observes in his unprecedented
treatise on Evidence, ” ‘original’ is a relative term only”
and that “in order to state the rule, then, in terms which will
indicate in the rule itself what documents are included in its scope,
it must be noted that the production required is the production of the
document whose contents are to be proved in the state of the issues.” (Vol. II, 2d ed., par. 1232, p. 830.)

That the petitioner had custody of the will submitted by her for
probate is presumed from her physical possession of the same which made
possible its introduction in court. Moreover, the amended petition
filed by the petitioner on January 16, 1937, in case No. 3101
incorporates the affidavit of Attorney Manuel Azores Concordia who
apparently prepared the will in question, stating that Nicolas Azores
executed and signed his will in quadruplicate and instead of
designating a particular person to keep said will, said Nicolas Azores
instructed the affiant to deliver one copy to herein petitioner, to
keep one copy for himself and turn over the rest of the copies to Jose
Azores, and in the event that herein petitioner or Jose Azores should
fail to present said will for probate after the testator’s death, said
affiant was to institute the proper proceedings for such probate. The
amended petition further prays for the issuance of an order directing
Manuel Azores Concordia and Jose Azores to deliver to the court the
copies of the will and the alleged codicil in their possession.

It was not necessary for the petitioner to allege the fact that she
had custody of the will submitted by her for probate in order to confer
jurisdiction upon the probate court to consider her petition, for the
delivery of the will to the court is the operative act which confers
upon the probate court the jurisdiction to conduct a hearing on the
allowance of said will (sec. 630, Code of Civil Procedure), the only
restriction being that the will shall be delivered and probed in the
Court of First Instance in the province in which the testator resided
at the time of his death (sec. 6,00, Code of Civil Procedure) which
fact was sufficiently alleged in the petition for probate registered as
case No, 3101 of the Court of First Instance of Laguna and which fact
is no less emphasized in the conclusion of the majority opinion (p. 10,
decision).

It is to be observed that while the law imposes the duty of
presenting the will of a deceased person for probate primarily upon the
executor named therein and also upon the custodian of the will, there
is nothing in our law which prohibits the heirs, or legatees of the
deceased or any other interested person, from themselves filing a
petition for the probate of his will. As a matter of fact it is
immaterial as far as practice is concerned, by whom a will is presented
for probate (68 C. J., sec. 605, p. 879), the only restriction being
“that before any person may intervene in proceedings had in the Courts
of First Instance for the probate of a will, he should be required to
show an interest in the will or in the property affected thereby either
as executor or otherwise; and that strangers should not be permitted,
over the objection of the real parties in interest, to embarrass the
proceedings by meddling or intruding themselves in matters with which
they have no concern.” (Paras vs. Narciso, 35 Phil., 244,
246.) And no one can gainsay that herein petitioner as legal guardian
and in behalf of the acknowledged natural children of the deceased, had
sufficient interest to intervene in proceedings for the probate of the
will of the deceased, apart from her duty to so present the duplicate
original of said will in her possession for probate.

It is to be further observed that to present a will for probate is
one thing, and proving said will is another thing. By order of the
court dated January 19, 1937, Jose Azores actually delivered to the
court the “original” of the will and the codicil in his possession. A
codicil, as I understand it, is necessarily a modification,
qualification, addition or supplement to an existing last will or
testament. It does not supersede the will as an after-made will but,
logically and legally, is a part of it to be considered with it as one
instrument and cannot, as a rule, be authenticated independently of the
will. The codicil should therefore follow the principal instrument. But
independently of the question of whether a will can be proved without
the codicil, the delivery of said codicil has given the lower court
sufficient jurisdiction to allow or disallow the same in connection
with the probate of the will as petitioned in case No. 3101.

That the lower court acquired jurisdiction over the estate of the
deceased Nicolas Azores is fully demonstrated by its order of January
19, 1937 denying petitioner’s motion for the appointment of a special
administrator and ordering Jose Azores to deliver his copy of the will
to the court with the codicil alleged to have been made by the deceased
subsequent to the execution of the will. An order to produce a will
before the court under section 629 of the Code of Civil Procedure can
not be made by the court motu proprio except in the exercise of its
jurisdiction over the administration of the estate of deceased persons
(U. S. vs. Chiu Guimco, 36 Phil, 917, 921), and inasmuch as,
on January 19, 1937, when the order under discussion was issued, the
only petition for the probate of the will of Nicolas Azores and the
administration of his estate before the court was filed by herein
petitioner in case No. 3101, the logical inference is that said order
was issued by the lower court in the exercise of its probate
jurisdiction in case No. 3101.

The lower court having acquired and exercised jurisdiction over
case No. 3101, has it exceeded its jurisdiction in ordering the
dismissal of said case in order to give way to the hearing of another
petition for the probate of the said will (Case No. 3104) which was
filed only on January 21, 1937 or two weeks after the institution of
proceedings in case No. 3101? The respondent judge reasons out that he
cannot compel the legitimate children to abandon their petition for
probate registered as case No. 3104. And, apparently, to So justice to
them, the respondent judge had to do an injustice to herein petitioner
and to compel her to abandon her petition for probate registered as
case No. 3101. We find no warrant in law for such an irregular
procedure.

This court has held in the case of Dais vs. Court of First
Instance of Capiz (51 PhiL, 396, 401) that an answer in a cadastral
proceeding, which partakes of the nature of a complaint in an ordinary
action, can only be dismissed by a failure to prosecute, by default, by
abandonment, or by defects provided by law as grounds for a demurrer
(sees. 100 and 127, Code of Civil Procedure) ; and therefore a motion
for dismissal that is not based on any of said grounds does not confer
jurisdiction on the court to dismiss the complaint, and if it does so,
it exceeds its powers. This court also held in the aforesaid case:

“In ordering the dismissal of the answers presented
by the judicial administrator of the intestate estate of Serapion Dais,
in the name of the latter’s heirs, notwithstanding their opposition and
for a cause not provided by law as a ground for dismissal, the
respondent court did really exceed its jurisdiction; because it is
not enough that a court have jurisdiction over the subject matter in
litigation and the parties, but it is necessary that it have authority
in and over each and every one of the essential particulars of the case.

“In the case of Larrobis vs. Wislizenus and Smith, Bell & Co. (42 Phil., 401), this court laid down the doctrine that the erroneous exercise of interlocutory powers is irregular and justifies the institution of certiorari proceedings.” (Italics mine.)

“And on page 104 of volume 11 of Corpus Juris, the following rule may be found:

“* * * But it has been held that ‘any
departure from the recognized and established requirements of law,
however close the apparent adherence to mere form in method of
procedure which has the effect to deprive one of a constitutional right
is as much an excess of jurisdiction as where, there is an inceptive
lack of power.”‘ (51 Phil., 396,402) (Italics mine.)

In granting the remedy of certiorari in the case of Conde vs. Judge of First Instance and Fiscal of Tayabas (45 Phil.,173), this court also held:

“* * * Without attempting to deny the facts, the contention of the law
officer of the government is, that the trial judge had jurisdiction of
the proceedings, and consequently said jurisdiction should not be
interfered with. What was said by this court in the case of Herrera vs.
Barretto and Joaquin ([1913], 25 Phil., 245), to the effect that the
appellate court will not issue a writ of certiorari unless it clearly
appears that the court to which it was directed acted without or in
excess of jurisdiction, is a good rule. In one sense, it is correct to
say that the Court of, First Instance of Tayabas had jurisdiction of
this case. In another sense, it is likewise correct to say that the
writ of certiorari and prohibition will issue when necessary to the
accomplishment of justice in the particular case. There is here
more than mere error in procedure. There is an abuse of discretion in
the application of the law. The discretion vested in the fiscal and
trial judge is not an arbitrary power and must be exercised wisely and
impartially, in accordance with the law. Errors in the proceedings
prejudicial to defendant’s substantial rights which would, if the case
were to proceed and appeal were to be taken, constitute ground for
reversal, exist in this case.” (45 Phil, 173, 177.) (Italics mine.)

Moreover, in. the case of Salvador Campos y Cia vs.
Del Rosario (41 Phil., 45), this court clearly enunciated the office of
the writ of certiorari as correcting an irregular exercise by a court
of its authority or jurisdiction in a particular case, as follows:

“Section 220 of Act No. 190 provides, in certiorari proceedings, that
the court shall hear the parties and determine whether the inferior
tribunal, board, or officer has regularly pursued its authority; and if
it (the court) finds that said inferior tribunal, board, or officer has
not regularly pursued its authority, it shall thereupon give final
judgment, either affirming, or annulling, or modifying the proceedings
below, as the law requires. Said section, applying to certiorari
proceedings, directs the superior court, when an inferior court, board,
or officer has not regularly followed the law, to annul the proceedings
and direct the inferior tribunal, etc., etc., to follow the law.

“The doctrine has been frequently announced that although a court may
have unquestioned jurisdiction over the principal cause of action, it
may nevertheless act irregularly or in excess of its jurisdiction
during the course of the proceedings in granting an auxiliary remedy.
In such a case the party aggrieved may prosecute a proceeding by the
writ of certiorari in the Supreme Court (Herrera vs.
Barretto and Joaquin, 25 Phil., 245; Leung Ben m. O’Brien, 38 Phil.,
182.)” (41 Phil, 45, 48.) (Italics mine.) While certiorari as an
extraordinary legal remedy is therefore generally restricted to the
correction of excess and defects of jurisdiction, it has been extended
to the correction of abuse of discretion in appropriate cases.

In the case at bar, the lower court had jurisdiction over the subject
matter, and the persons in case No. 3101; in fact, and as already
observed hereinabove, it did exercise that jurisdiction by issuing the
order of January 19, 1937 by requiring the production of the copy of
the will and the codicil alleged to be in the possession of Jose
Azores. Having exercised that jurisdiction and proceeded to take
cognizance of the case, the dismissal thereof must be based on some
legal ground. The subsequent filing of another petition in case No.
3104 on the allegation that the applicant therein had the “original,”
which in reality is but one of the quadruplicates and the codicil, is
not a legal ground for the dismissal of the case. This seems very clear
to me.

From another angle, it is reasonable to presume that the petitioner
has incurred some expenses in connection with the preparation of her
petition, for which she has engaged the services of counsel, and the
hardship which the petitioner had to suffer to protect the interests of
her minor children is made more apparent when we consider that the
petitioner was allowed by the lower court to litigate as a pauper. Time
and again we have spoken of social justice! Needless to say, all the
trouble undergone by her will be set to naught, at least in so far as
the prosecution of the case originally filed by her is concerned, if
the order of the lower court dismissing her petition in case No. 3101,
is allowed to stand. Why permit this result? Why make a technical and
irrelevant distinction between expediente No. 3101 and 3104
(pp. 5-6, decision) for the purposes of the remedy sought in this case?
Why refer to the immaterial objection of the petitioner being applicant
and oppositor in case No. 3104 (p. 9, decision) and overlook the
irregularity and substantial injustice to the petitioner? Moreover, if
the petitioner is compelled to abandon her petition in case No. 3101,
she will play a secondary role in the probate of the will of the
deceased, which would not be the case if case No. 3101 is continued for
in the latter case she has the role of principal actor. And this is of
no mean practical importance in the prosecution of her case. And, apart
from the material damage, does she not—as anybody else would in her
place—suffer a moral injury which is incapable of pecuniary estimation,
that of undeserved humiliation consequent upon the dismissal of her
case without any valid legal ground? To say the least, strong reasons
of public policy demand that the administration of justice should be a
matter of legal right and conscientious application of legal principles.

In view of the foregoing, I am of the opinion that the writ of certiorari should be granted.

DIAZ J.:

I concur in the preceding dissenting opinion of Justice Laurel