FRANCISCO SALAZAR, PETITIONER, VS. THE COURT OF FIRST INSTANCE OF LAGUNA AND SABINA RIVERA, RESPONDENTS.

The petitioner instituted special proceeding
No. 3109 in the Court of First Instance of Laguna and, in the petition
filed by him, prayed for the probate of the will allegedly made on May
13, 1924, by his deceased mother Damiana Capistrano, who died in the
municipality of Pagsanjan, Laguna, on December 21, 1936. The petition
was opposed by the respondent Sabina Rivera, who filed a pleading
entitled “Opposition and Counter-Petition.” In her pleading the
respondent, after opposing the probate of said will for the reasons
stated therein, prayed for the probate of the will of the deceased
allegedly made on May 11, 1930, copy of which was attached thereto, and
for the issuance, to that effect, of the order setting the hearing
thereof and directing such publications as required by law. The court
denied the motion for publication and ordered the respondent to
institute another proceeding and apply separately for the probate of
the alleged will. The respondent filed a motion for reconsideration and
the court, on March 31, 1937, issued an order setting aside the former
one and directing that the will presented by the respondent be set for
hearing, that the publications required by law be made and that said
will be heard jointly with the will presented by the petitioner in the
same proceeding instituted by the tatter. Sometime later, the court
ordered that the expenses for the publications made in the newspapers
be defrayed by the respondent. The petitioner filed two motions for
reconsideration which were denied and, finally, instituted this
certiorari proceeding. In order that the hearing and publications
ordered by the court may be carried out, the respondent, on July 20,
1937, deposited P24 and filed the original of the will the probate of
which had been sought by her.

I. The petitioner raises only one question of law, to wit: that
the court acquired no jurisdiction to take cognizance of the
counter-petition for the probate of the second will, or to set the same
for hearing and to order, as it did, the publications to be made and
the hearing of said will to be held in the same proceeding jointly with
the first will, on the ground that the respondent had not previously
filed her pleading nor paid the fees of the clerk of court fixed by
section 788 of the Code of Civil Procedure, as amended by Act No. 3395.
The pertinent part of said section, as amended, reads as follows:

“SEC. 788. Fees of clerks of Court of First Instance.— Fees shall be assessed in accordance with the following schedule:

* * * * * * *

“(g) For all clerical services in the allowance of
wills, granting letters of administration, appointment of guardians,
trustees, settlement of the accounts of executors, administrators,
guardians, trustees, and recording final and interlocutory orders,
judgments, and decrees therein, filing all inventories and
appraisements, and for all other work as clerk pertaining to any one
estate, fees payable out of the. estate shall be collected in
accordance with the value of the property involved in each proceeding,
as follows:”

* * * * * * *

The jurisdiction of the Courts of First Instance in probate matters
is determined in the following sections of the above-cited Code:

“SEC. 599. Jurisdiction.—Courts of First
Instance shall have jurisdiction in all matters relating to the
settlement of estates and probate of wills of deceased persons, the
appointment and removal of guardians and trustees, and the powers,
duties, and rights of guardians and wards, trustees, and cestuis que trust. This jurisdiction shall be called probate jurisdiction.

“SEC. 600. Where resident’s estate settled.—If
an inhabitant of the Philippine Islands dies, whether a citizen or
alien, his will shall be proved, or letters of administration granted,
and his estate settled, in the Court of First Instance in the province
in which he resided at the time of his death.

“Sec. 601. Where nonresident’s estate settled.—If
a person resided out of the Philippine Islands at the time of his
death, his will shall be allowed and recorded, and letters testamentary
or of administration shall be granted in the Court of First Instance of
any province in which he had estate.”

* * * * * * *

“SEC 6265. Custodian of will to deliver.—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.

“SEC. 627. Executor to present will and accept or refuse trust.—A
person named as executor in a will, shall 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, present such will to the court
which has jurisdiction, unless the will has been otherwise returned to
said court, and shall, within such period, signify to the court his
acceptance of the trust, or make known in writing his refusal to accept
it.”

* * * * * * *

“SEC. 630. Court to appoint hearing on will.—When
a will is delivered to a court having jurisdiction of the same, the
court shall appoint a time and place when all concerned may appear to
contest the allowance of the will, and shall cause public notice
thereof to be given by publication in such newspaper or newspapers as
the court directs of general circulation in the province, three weeks
successively, previous to the time appointed, and no will shall be
allowed until such notice has been given. (At the hearing all testimony
shall be taken under oath, reduced to writing and signed by the
witnesses.”

Under the foregoing provisions, a Court of First Instance acquires
jurisdiction to probate a will when it is shown by evidence before it:
(1) That a person has died leaving a will; (2) in the case of a
resident of this country, that he died in the province where the court
exercises territorial jurisdiction; (3) in the case of a nonresident,
that he has left a estate in the province where the court is situated,
and (4) that the testament or last will of the deceased has been
delivered to the court and is in the possession thereof.

The law is silent as to the specific manner of bringing the
jurisdictional allegations before the court, but practice and
jurisprudence have established that they should be made in the form of
an application and filed with the original of the will attached
thereto. It has been the practice in some courts to permit attachment
of a mere copy of the will to the application, without prejudice to
producing the original thereof at the hearing or when the court so
requires. This precaution has been adopted by some attorneys to
forestall its disappearance, which has taken place in certain cases.

According to the facts alleged and admitted by the parties, it is
evident that the court has acquired jurisdiction to probate the second
will, in view of the presence of all the jurisdictional facts
above-stated. The respondent’s counter-petition should, in this case,
be considered as a petition for the probate of the second will, the
original of which was filed by her on July 20, 1937.

II. The payment of the fees of the clerk of court for all services
to ‘be rendered by him in connection with the probate of the second
will and for the successive proceedings to be conducted and orders to
be issued, in accordance with section 788, as amended, is not
jurisdictional in the sense that its omission does not deprive the
court of its authority to proceed with the probate of a will, as
expressly provided for by section 630. It is the inevitable duty of the
court, when a will is presented to it, to appoint hearing for its
allowance and to cause notices thereof to be given by publication. The
duty imposed by said section is imperative and noncompliance therewith
would be a mockery at the law and at the last will of the testator.
Section 785 (a) of the Code of Civil Procedure, as amended
recently by Act No. 3250, permits the remission or postponement of the
payment of the clerk’s fees in cases of poverty, at the discretion of
the court, and if this were done in one case and the payment of the
fees for filing the application were jurisdictional, as claimed, then
the court, in admitting the will to probate and in allowing it, would
have acted entirely without jurisdiction. Finally, it should be taken
into consideration that the court, in this case, did not exempt the
respondents from paying the fees in question but merely failed to make
provision therefor.

III. When the court ordered that the second will be set for
hearing, that publication be made thereof and that said will be heard
in the same proceeding jointly with the first will, it merely ordered
the consolidation! of the two applications and the two hearings on the
probate of both wills, instead of conducting separate hearings,
undoubtedly because it understood that the form so chosen was the most
convenient for the parties and their attorneys.

There are three ways of consolidating actions or special
proceedings where the questions at issue and the parties in interest
are the same. The first consists in recasting the cases already
instituted, conducting only one hearing and rendering only one
decision; the second takes place when the existing cases are
consolidated, only one hearing held and only one decision rendered; and
the third takes place when, without recasting or consolidating the
cases, the principal one is heard, the hearing on the others being
suspended until judgment has been rendered in the first case. The
court, in the exercise of its sound discretion, may adopt any of these
three forms of consolidation whenever in its opinion the proceeding is
beneficial to and convenient for the parties. The power so exercised is
discretionary.) In the case under consideration, the court acquired
jurisdiction from the moment the counter-petition was presented and the
second will came to its possession and under its control and,
consequently, it likewise had full discretion to order, as it did, the
probate thereof in the proceeding already instituted for the purpose of
rendering later only one decision. It should furthermore be taken into
consideration that the consolidation so ordered was the form most
convenient for and beneficial to the parties as well as to the court,
because if the first will were opposed on the ground that it was
revoked by the second will, the best evidence of the revocation would
be said second will and once the publications are made, if the second
will was executed with the formalities prescribed by law, the court
could order the probate thereof, without the necessity of multiplying
the proceedings.

The decisions inserted hereinbelow are in support of the
consolidation of special proceedings in the cases where more than one
will of a deceased person has been presented:

“The question involved in the two cases is, which,
if either, of the instruments presented for probate is the last will of
Margaret Rouleti. The trial of one case would not necessarily determine
the other, as a verdict in one for the caveat would not establish the
instrument propounded in the other, and a verdict in Roulett’s case,
finding that the paper offered by him was the last will of Margaret
Roulett, would not be binding upon Mulherin, because he is not a party
to Roulett’s proceeding. We are, therefore, of the opinion, in view of
the complications that might arise from separate trials and the
facility with which the whole matter may be determined by consolidating
the cases, that the trial judge might, in his discretion, pass an order
directing that the two cases be consolidated and heard together, and in
this manner have all the issues disposed of by a judgment binding and
conclusive upon all the parties before the court. In such trial the
person who filed the first application in the court of ordinary would
be entitled to open and conclude.” (Roulett vs. Mulherin, 100 Ga., 694.)

“In probate proceedings it was a proper course to try the validity of
two alleged wills, the latest of which had been lost or destroyed at
the same time, and evidence as to the revoking clause in the lost will
was admissible, but its effect on the earlier will must be determined
in view of the admissibility of the latter will to probate as a will.”
(In re Thompson’s Estate, 198 Pac, 795.)

“Where two wills
axe offered for probate and applications consolidated, submission of
both for determination as to whether one, or if not that the other, is
true will, held not erroneous.” (Lillard vs. Tolliver, 285 S, W., 576.)

“Where two instruments are propounded by different parties as wills,
and several applications are made for probate, they will be
consolidated and tried together as one proceeding.” (In re Potter’s Will, 155 N. Y. S., 939.)

“The question of consolidation is discretionary with the court. In both
of the above-entitled proceedings, the parties are identical. No issues
have been tried in either proceeding. It therefore would be an
unnecessary expense to both the parties in interest and the county, and
an unnecessary delay in the determination of both proceedings, not to
consolidate them. I am therefore of the opinion that a seasonable
demand was made for a jury trial of the issues raised by the objections
filed to the probate of the wll dated May 8, 1912, and that the
proceedings should be consolidated, and also that the issues raised in
said proceedings can be more speedily and conveniently tried before the
acting surrogate and a jury.” {In re Potter’s Will, 158 N. Y. S., 1001.)

“Where separate scripts are propounded for probate as the last will and
testament of an alleged testator, the probate proceedings in a proper
case may be consolidated for trial.” {Jn re Martin’s Will, 141 N. Y.
S., 784.)

“Consolidation of proceedings.—At common
law the court could order all testamentary papers to be produced in
court in a proceeding to probate any one of them, and now, under the
statutory procedure in effect in the various jurisdictions, the
validity of two or more papers claimed to be the last will and
testament of deceased may be tried at the same time, or a consolidation
of separate proceedings to probate or contest various testamentary
papers purported to be by the same testator may be made. A motion for
such a consolidation, however, is addressed to the surrogate presiding
at the trial and should be made when the trial of the probate
proceeding comes on for the hearing and not prior thereto, or before
the surrogate sitting for the dispatch of chambers business.” (68 C.
J., 1038, 1039, sec. 830.)

“The court may, in its
discretion, consolidate proceedings instituted by different persons for
the purpose of having different instruments each probated as the last
will and testament of decedent. Separate contests of a will and. a
codicil, or of two wills, each claimed to be the last will of testator,
may be consolidated by the court and heard together.” (Page on Wills,
page 375, paragraph 323.)

It is the conclusion of this court, therefore, that the respondent
court did not act in excess of its sound discretion in issuing the
order of March 31,1937, and for the foregoing reasons, the remedy
applied for is hereby denied, with costs to the petitioner. So ordered.

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

Writ denied.

RESOLUTION

October 13, 1937

IMPERIAL, J.:

The attorney for the petitioner seeks permission to file a second
motion for reconsideration already attached to his petition. With the
motion for reconsideration before it, this court will now take up the
same for decision on its merits.

It is alleged that the interpretation of paragraph (g) of
section 788 of the Code of Civil Procedure, as amended by section 1 of
Act No. 3395, was one of the questions raised by the petition for
certiorari, but that both in the decision and in the resolution of the
motion for reconsideration this court has neither given nor interpreted
the meaning and scope of the phrase “in each proceeding” appearing at
the end of the legal provision in question.

On page 2 of the decision, this court stated that the only question
of law raised by the petition was whether or not the court had acquired
jurisdiction when it provided in its orders that the counter-petition
and the second will be heard in the proceeding already instituted at
the initiative of the petitioner and that the expenses of publication
of the hearing be defrayed by the respondent. This court then said:
“The petitioner raises only one question of law, to wit: that the court
acquired no jurisdiction to take cognizance of the counter-petition for
the probate of the secon will, or to set the same for hearing and to
order, as it did, the publications to be made and the hearing of said
will to be held in the same proceeding jointly with the first will, on
the ground that the respondent had not previously filed her pleading
nor paid the fees of the clerk of court fixed by section 788 of the
Code of Civil Procedure, as amended by Act No. 3395.”

In connection with the fees of the clerk of court prescribed by section 788 (g)
of the Code of Civil Procedure, as amended, this court, on pages 6 and
7 of the decision, said: “The payment of the fee3 of the clerk of court
for all services to be rendered by him in connection with the probate
of the second will and for the successive proceedings to be conducted
and orders to be issued, in accordance with section 788, as amended, is
not jurisdictional in the sense that its omission does not deprive the
court of its authority to proceed with the probate of a will, as
expressly provided for by section 630. It is the inevitable duty of the
court, when a will is presented to it, to appoint hearing for its
allowance and to cause notices thereof to be given by publication. The
duty imposed by said section is imperative and noncompliance therewith
would be a mockery at the law and at the last will of the testator.
Section 785 (a) of the Code of Civil Procedure, as amended
recently by Act No. 3250, permits the remission or postponement of the
payment of the clerk’s fees in cases of poverty, at the discretion of
the court, and if this were done in one case and the payment of the
fees for filing the application were jurisdictional, as claimed, then
the court, in admitting the will to probate and in allowing it, would
have acted entirely without jurisdiction. Finally, it should be taken
into consideration that the court, in this case, did not exempt the
respondents from paying the fees in question but merely failed to make
provision therefor.”

It having been decided that the payment of said fees is not
jurisdictional, this court, in fact, determined the principal and only
question of law raised by the petition and there was no necessity of
interpreting said legal provision for the purpose of laying down
another unnecessary conclusion.

In the second motion for reconsideration, however, the attorney for
the petitioner asks this court to interpret expressly the phrase “in
each proceeding” to determine whether or not the respondent was and is
obliged to pay said clerk’s fees. If the interpretation asked for is to
determine the question of jurisdiction, that is, whether or not the
court acquired jurisdiction in issuing its orders appealed from, it has
already been done and it was said that the payment of said fees is not
jurisdictional. If the interpretation sought to be obtained is for the
purpose of having this court decide now whether the respondent should,
or should not, pay the clerk’s fees, then this court holds that such
pronouncement is unnecessary and improper for the following reasons:
(1) Because to decide whether or not the petition is meritorious, there
is no necessity of determining whether or not the respondent ii obliged
to pay the clerk’s fees, and (2) because it behooves the lower court to
decide this question in the first instance and it is improper for this
appellate court to exercise the functions belonging to the former.

In view of the foregoing, the second motion for reconsideration is denied.

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