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[ GR No. L-5405, Jan 31, 1956 ]



98 Phil. 249

[ G.R. No. L-5405, January 31, 1956 ]




This is a petition for review by certiorari of a decision of  the  Court  of  Appeals.   The pertinent  facts are  set forth in said decision, from which we quote:
"This case being the sequel to, and aftermath of, a previous litigation between the parties that reached the  Supreme Court through the former Court of Appeal's,  it becomes necessary to restate the essential  antecedent facts to view the issues in proper perspective. For this purpose, it is important to recall that on "August 26, 1931, Victorino  L.  Guevara, a  resident of Bayambang, Pangasinan, executed  a will  (Exhibit A), distributing assorted movables and a residential lot  among his children, Rosario and Ernesto Guevara,  and his stepchildren, Vivencio, Eduvigis, Dionista, Candida, and Pio Guevara. To his second wife Augustia Posadas, the testator bequeathed, in addition to various movables, a portion of 25 hectares to lie .taken out of a 259 odd hectare parcel outlined in Plan Psu-68618, plus another five  (5) hectares in settlement, of her widow's usufruct. The balance of the 259 odd hectares ho distributed as follows:
100  hectares  reserved  for  disposal during the testator's lifetime and for payment of his  debts  and family expenses;

108.0854 hectares to  his legitimate son Ernesto  Guevara, including therein 43.2342 hectares by way of mejora;

21.6171 hectares to 'mi hija natural reconocida Rosario Guavara.' Ernesto Guevara was  appointed  executor  without bond.

On July  12, 1933, the  same testator executed  a deed  of  sale in favor of Ernesto  Guevara, conveying to the  latter the southern half of 'the 259-hectare lot heretofore mentioned, and expressly recognized Ernesto  Guevara  as  owner of the northern half.

Prior  to  this sale, oh November 1,  1932,  Victorino and his son Ernesto  had jointly applied for registration  of the big parcel  (case No. 15174), but in  view of the sale from the former to  the latter, the decree was issued  in the name of  Ernesto Guevara exclusively and for the whole tract a certificate of title  (No. 51691  of  Pangawnan) being issued in his sole  name on October 12, 1933.

Fifteen days previously,  i.e., on September 27, 1933,  Victorinc Guevara died,  but his ¦will was not filed  for probate.  About four years later,  Rbsario Guevara, claiming; to be a recognized natural child of the deceased Victorino,  and on the assumption that  he had died intestate,  brought'  suit against' Ernesto  Guevara  to recover. 423,492 square  meters of the  tract covered by  certificate of title No.  51691 as the portion that  should correspond to her  (Rosario). by way of  legitime.

The case  reached the former Court of Appeals  in due  course and was decided in Rosario  Guevara's  favor (Exhibit  E)';  but  upon certiorari, the  Supreme Court rnodified  the  judgment in  December, 1043, as follows (Exhibit F);
'Wherefore, that part of ,the  decision of the Court  of Appeals which declares in effect that notwithstanding exhibit  2 and the issuance of original  certificate of title No, 51691  in the name of Ernesto  M. Guevara;  one-half of the  land described in said 1 certificate of  title belongs to the estate of Victorino L. Guevara and: the other half to Ernesto M. Guevara in consideration  of the latter's assumption of the obligation to  pay all the debts of the  deceased, is hereby affirmed;  but the Judgment of said court insofar  as it awarded any relief  to the respondent Rosario Guevara, in this action is hereby reversed and set aside, and the parties  are hereby ordered to present the document Exhibit A to the proper) court for probate in accordance with law, without prejudice to such action as the provincial  fiscal Pangasinan may take against the responsible party or  parties under section 4 of Rule 76.  After the said document, is approve and allowed by  the  court as the last will  and testament of the deceased Victorino L. Guevara, the heirs and legatees herein named may take such action, judicial or extra judicial,  as necessary to partition the estate of the testator, taking  in consideration. the pronouncements  made in part II of this opinion No -finding as to costs  in  any of the three instances.' (Appellant's  Brief, pp. 13-14.)
Claiming to act pursuant to the foregoing decision Rosario Guevara commenced on October 5, 1945,  special proceedings No. 2646 in the Court  of First Instance of  Pangasinan for  the probate of the will of Victorino Guevara.   In paragraph 10 of the petition, it was alleged:
'10. Que dicho testamento, o sus disposiciones testanientarias, ha sido de,  jure revocado,  o revoeados, en  eua la parcela de terreno de 259 hectareas descrita  en  dicho testamento,  por haber el testador enajenado o dispuesto intervivos misma en la forma mencionada en  las  tres decisiones sup meneionadas; y  que la solieitante  pide  la  legalizacio testamento tan solo  para  los  efectos del reconocimiento  de hija natural  hecha en dicho testamento  a favor de la demandante y en obediencia al mandato de la Corte Suprema en su decision supra.'  (Record on Appeal, p.  5.)
Notice of the petition having been  duly  published pursuant to Rule of Court 77,. section 4,  Ernesto Guevara  appeared and opposed the  probate.  Pedro L.  Quinto,  counsel for Rosarioin theformer litigation,  was  allowed  to intervene in view  of  his recorded attorney's  lien.

On January 31, 1946,  Ernesto. Guevara, through counsel, filed a motion to  dismiss the petition on' the grounds that (a petition itself alleged that the will was revoked;   (b) that 'whatever right to probate the parties may have has  already  prescribe (Record on Appeal,, p. 14);  and  (c)  that the purpose  of  th probate was, solely  to have petitioner Rosario declared  an acknowledged  natural child of the deceased.

By order  of  December 9, 1946, Judge Sotero  Rodas denied  the motion, to  dismiss; but upon motion of reconsideratio Judge Mainalac of the same  court, on June 23, 1937, reconsidaration set aside the previous resolution  and ordered the petition dismissed on the  ground that Rosario Guevara's petition  did  not for  the probate  in toto of the will,  contrary to the order of Supreme Court;  that her  right to petition for the probate  o testament . of  Victorino L. Guevara had  prescribed; and that  her  action for judicial declaration of acknowledgment had likewise prescribed.

An  amended petition for the probate of the will  in toto and another petition to reconsider the previous order were subsequently denied; the former on the ground, that there  was a radical change of  theory  from that embodied  in  the  original petition,  and the second for the same reasons stated  in the order of June, 23,  1947. Rosario L,  Guevara and  Pedro L. Quinto thereupon brought the case-on appeal to this Court,  assigning no less than  twenty  (20) alleged errors committed by the court below."  (Guevara  vs.  Guevara, C.A. G. R.  No. 5416-R, promulgated December 26, 1951; see Appendix to brief  for the petitioner-appellant, pp. 1-6.)
The dispositive  part of the  decision  of  the  Court  of Appeals reads as follows:
"The order of dismissal of the petition  for probate is reversed and the  court of origin ordered to reinstate the  petition,  and to  hear and decide whether the will of Victorino Guevara, deceased, should be allowed to probate.  Costs  against appellees in  both  instances." (Ibid.)
In  his appeal therefrom, petitioner  Ernesto  M. Guevara raises the following questions, to wit:  (a) Did respondents herein'duly  perfect their  appeal from the decision of. the , Court of  First  Instance  of Fangasinan?  (b)  Did the Court qf Appeals  have jurisdiction to  entertain said appeal?   (c) Is the petition for probate of the alleged will of the deceased Victorino L,  Guevara barred by  the  statute of limitations?

(1) With reference to  the first  question, petitioner has submitted the following statement[1] of the steps taken since June  23, 1947,  date of the resolution of Judge  Manalac, dismissing the  petition for probate  of  the last  will and testament of Victoriano L. Guevara:
"June 23, 1947-
Date of Resolution appealed from.
July. 14, 1947-
Date of Joint Petition for Reconsideration filed by  appellants.
July 25, 1947-
Date of Amended petition for probate of will.
July 25, 1947-
Motion  for admission of Amended Petition.
August 2, 1947-
Appellants' motion  to  postpone  hearing on petition for reconsideration and motion for admission of Amended Petition.
August 10, 1947-
Appellants' urgent  motion for continuance of hearing joint petition  for  Reconsideration  as  well  as  Motion  Admit Amended Petition.
August 25,  1947
Motion  for extension of time  to  file memorandum.
September 1, 1947
Memorandum' for appellants submitted.
October 7, 1947
Memorandum for appellee submitted
October 14,  1947
Appellants' petition for ten (10)  days to file reply memorandum.
November 1, 1947
Appellants' petition to file reply memorandum  on or before November 9,  1947.
November 8, 1947                              
Appellants petition for extension to  file reply memorandum.
November 18,  1947
Verified reply of .appellant  Rosario Ciuevara.
November 24,  1947
Reply memorandum of' Pedro C; Quinto filed.
January 12, 1948
Court denies both petitions of July 14 and 25, 1947.
January 24,, 1947   
Notice of  appeal to Supreme  Court and petition for thirty (30) days'  extension by appellant Rosario Guevara.
 January 29, 1948
Order granting petition for extension.
February 1, 1948
Another notice of appeal  to Supreme Court and  motion for thirty (30) days extension by appeliant Eosario Guevara.
February 28, 1948
Appellants' ex-parte  petition for further  extension'.
March 6, 1948
Original joint Record on Appeal filed.  (This was so defective and incomplete it consisted of mere disjointed sheets of paper intercalated with one another and was  a mere token  record on appeal.)
March 8, 1948
Another joint petition for reconsideration  of appellants.
March. 11, 1948
Appellee's objection to record on appeal.
Marfili 17, 1948
Verified reply of appellants to objection.
March 18,, 1948  
Appellee's objection to joint  petition for  reconsideration.
June 19,  1948
Appellants' memorandum in support of the  joint petition  for reconsideration.
July 23, 194S
Order  of  denial of, Joint Petition and  disapproving original record oh  appeal as incomplete and giving appellants  within 10 days from notice.
July 26,  1948
Amended Notice of Appeal f,o  the  Court  of  Appeals instead  of to  the Supreme  Court.
July 28,  and 29, 1948
Appellants received copy of order of July 23, 1948.
August 1, 1948
Petition for five (5)  days extension  to file amended Record onAppeal filed by appellant Pedro C. Quinto.
August 10, 1948
Appellants' Joint Petition for  last extension of two  (2) days.
August 10,  1948
Filing of amended joint record on appeal,   (This  is also again so  defective and  incomplete as to  constitute  another mere token record on appeal as required by the Rules.)
August 24,  1948
Appellants petition  for ten (10)  days  period to reply to objection,  if any was to be  filed.
August 27,  1948
Appellee's objection  to amended record on  appeal.
September 8, 1948
Appellants'  reply to objection,
October 20, 1948
Court order sustaining  objection and  gives appellants  fifteen (15)  days from notice  to redraft record  on appeal.
November 3, 1948
Appellants'  joint petition to  reconsider order of disapproval of Amended  Record on. Appeal.
November 3, 1948
Appellants file re-amended joint record  on appeal,   (This again disregarded the orders of the  court regarding  the contents of the record on appeal.)
November 22, 1948
Appellee objected to approval  of re-amended  joint record  on appeal and prayed that order appealed from be declared final.
March 22, 1949
Court sustains appellee's  objection to record on appeal denying petition for reconsideration and appellants given fifteen (15) days  from notice to satisfy  requirements  of  court's previous order.
April 8, 1949
Appellants  file in Supreme  Court petition  for certiorari and mandamus attacking order of June 23, 1947.
April 11,  1949
Appellant Quinto's petition for fifteen  (15)  days  extension  to file  Re-amended Record on Appeal.
April 12,  1949
Supreme Court denies petition off-hand.
April 16, 1949
Appellant Rosario Guevara's motion for fifteen (15)  days extension  for the same purpose.
April 21, 1949
Court granted extension prayed for to expire May 1,  1948.
April 21, 1949
Second Re-Amended Record on Appeal filed.
June 11, 1949
Appellee's opposition to Second Re-Amended  Record on Appeal'.             
June 29, 1949
Appellants' joint notice of hearing on Second Re-Amended Recordon Appeal  for July 12,  1949.
July 10,  1949
Appellants' joint reply  to opposition.
July 12,  1949
Action on record on appeal deferred on petition  of Atty. Quinto.
September  3, 1949
Appellant  Quinto's  notice  of  hearing on Second Re-Amended Record on  Appeal for September  28, 1949.
September  28, 1949
Order of court  approving  same.
December 8,  1949
Clerk of lower  court sends records  to appellate court.
December 10, 1949
Appellant Quinto's motion ex-parte to have  records sent up to appellate court."

(Petitioner-appellant's Brief, pp, 41-47.)

Based upon the foregoing, oppositor and appellee Ernesto M. Guevara  filed,  with the  Court  of  Appeals, a motion praying that the appeal be dismissed:
"(a) Because due to the  appellant's  many and repeated dilatory tactics, the prosecution of their appeal  has been  unduly and  unreasonably delayed for a period  which should strike anyone  as  totally without justification.  The resolution appealed from was dictated by the lower  court  on  June 23,  1947, so  that  a  period of over two (2) years and nine (9)  months until the date of this writing has elapsed, thus  establishing a record-holding delay which should not be sanctioned by  the  Courts  as  prejudicial to the: administration of justice.

"(b) Because appellants, in violation of Rule  48, section  3, did not diligently prosecute their appeal by failing to  have the  record sent Up to this  Honorable Court within thirty (30) days from the time their Second Re-amended Record on  Appeal was approved on September 28, 1949; and it was only so transmitted on December  8, 1949, that is after the lapse of two (2)  months and ten (10)  days.

" (c) Because, at  any  rate, the first Amended  Joint Record on Appeal was filed beyond the extension granted by the Court and, consequently, the appellants' right to appeal has lapsed."   (Exhibit A, pp. 1-2).
The Court of Appeals denied said motion to  dismiss for the following reasons:
"A  preliminary  question was posed by  the appellee who prayed for the dismissal of the appeal on the ground that petitioners-appellants had unreasonably delayed the  perfection of the appeal,  as the Second Re-amended  Joint Record  on Appeal was  not certified to this Court until December, 1949.  After considering the voluminous record, and the arguments of both parties, "we are of the  opinion that both parties have contributed to the delay with lengthy  memoranda, and repeated motions and objections.  Moreover, the  points in question are important enough to deserve adequate  consideration upon the merits.  Wherefore, the motion to dismiss the  appeal should be, and is hereby, overruled and denied."   (Appendix  to  Brief for the Petitioner-Appellant, pp. 6-7.)
It is urged by petitioner herein that respondents' appeal from the decision of the Court  of First Instance of Panga sinan had not been duly perfected because:  (a) the original of the record on appeal did  not comply  with the  Rules of Court;  (b)  the record  on  appeal was filed after the lapse of the reglementary period; (c) there has  been an unprecedented delay in the filing of a satisfactory record on appeal;  and  (d) the appeal should be deemed  abandoned for violation of Rule 48,  section 3, of the Rules of Court.

The first  ground is predicated upon the  fact that, instead  of transcribing the  motions,  petitions,   orders and resolutions incorporated in the original record on appeal, respondents  herein  merely attached to the original  copy of said record on appeal,  filed  with the Court  of First Instance of Pangasinan, their own copies of said motions, petitions, orders and resolutions.   Accordingly, the copy of said record on appeal  furnished to  petitioner  herein did not contain  or enclose the aforementioned parts  of the record.  It appears, however, that the respondents  were given  several extensions  of time within which to comply with the pertinent provisions of the Rules of Court and that respondents eventually did so.   There  being no  question about  the authority of the court of first instance  to grant said extensions of time, it is clear that the" first ground, relied  upon by petitioner herein, is untenable.

In support of the second ground, it is alleged:  (a)  that the original record on appeal was filed by Pedro C.  Quinto only, and  does not inure to the benefit of Rosario Guevara; and  (b) that respondents had lost their right to  appeal by the lapse of the  reglementary period.  As regards the first proposition,  petitioner asserts that respondent Pedro C. Quinto  had withdrawn his appearance as  counsel for respondent Rosario  Guevara; that Quinto had, thereafter, intervened in the' case in his own behalf, in  order  to enforce  his  attorney's lien,  as  former counsel  for Rosario Guevara;  that, consequently, the  original record on  appeal and the petitions for extension of time to file an amended record on  appeal, filed by Pedro C. Quinto, were good  only insofar as he is concerned, and cannot profit Rosario  Guevara,  she having  ceased to be his client  long before the filing  of said original record on  appeal and petitions for extension of time; that this interest in the case arises from his rights as former attorney for respondent Rosario  Guevara, and, as such, is subordinate to, and dependent upon, the  interest therein  of said Rosario Guevara and  the  success of her claim therein; and that, her  appeal not having been duly perfected, his appeal  must be  deemed  to have no legal effect.  There is no merit in this pretense, for it appears, at the foot of Said record on  appeal, that Pedro C. Quinto had filed the same,  "for himself as  appellant and in behalf of Rosario Guevara, who authorized him to perfect the appeal for both appellants," and that similar statements were  made in the body and at the foot of said petitions for extension of time.  It is clear, therefore, that the aforementioned record on  appeal and motions should be deemed submitted, also, by respondent Rosario Guevara. The  position then  hela by Pedro  C.  Quinto, as special ( prosecutor in the office of the  Solicitor General, did not nullify hia aforesaid acts on  behalf of Rosario  Guevara. Besides,  said acts  would seem to  have been performed by him, more as attorney-in-fact  than as counsel for Rosario Guevara,  and this  merely  in connection  with  the perfection of her appeal.  We do not find therein anything objectionable, either legally or  morally, in the light of the circumstances surrounding the case.

The second proposition is based upon the following reasons ;

(a) The aforementioned  record on appeal and motions for extension of  time filed by Quinto on behalf of Rosario Guevara did not inure to her benefit, for which reason the reglementary period to appeal had expired before the perfection of her appeal.  For the reasons already  adverted to, this argument ia clearly untenable.

(b) The petition for reconsideration filed by respondents on July 14, 1947, did not suspend the running of the period to perfect the record on appeal, because said petition did not comply with the provisions of  Rule 37, section  1, of the Rules of Court, reading as  follows:
"Within  thirty days  after notice  of the judgment in  an  action, the aggrieved party  may move the trial court to set  aside the judgment and grant a new trial for one or more of the following causes materially affecting the substantial rights of said party:

(a) Fraud,  accident, mistake or excusable  negligence which ordinary prudence could  not have guarded against and by  reason of which such aggrieved party has probably been impaired in his rights;

(b) Newly discovered evidence, -which he could not, with reasonable diligence, have discovered, and produced at the trial, and which if presented would  probably alter the result;

(c)  Because excessive damages have been awarded, or the evidence was insufficient to justify the decision, or it is against the law."
Said petition for reconsideration appears, however,  to be predicated, in effect, upon the ground that the evidence is insufficient to justify the decision of the court of first instance, and that  said decision is contrary to law.  It partakes, therefore, of the nature of a  motion for new trial, stating specifically the  reasons in support thereof, and,  hence,  it suspended the  period to appeal  until the determination of said motion.

Relative to the alleged unprecedented delay in the filing of a  satisfactory record on  appeal, we agre'C. with the finding  of the Court of Appeals to the effect that the delay was  due to the acts of  the  respondents, as well  as of the petitioner herein, for both had asked several postponements and extensions of time, filed memoranda and  reply  memoranda, and raised or provoked a number of  other issues or incidents which  necessarily delayed the perfection  of the appeal.   Obviously,  petitioner should not be allowed to profit by said delay, to which he had actively contributed,[1] Lastly, petitioner  maintains that, although the  record on appeal  had been approved on  September  28, 1949,  it was  not forwarded  to the Court of Appeals until December 8, 1949.  Section 3 of Rule  48 of the Rules of Court provides:
"If the record on appeal  is not received by  the Court of Appeals within thirty days after the approval  thereof, the appellee may, upon notice to the  appellant, move the court to grant an order directing the clerk of  the  lower court forthwith to  transmit such record on appeal or to declare  the same abandoned  for failure to prosecute."
Considering that respondents  herein were not notified of the approval of the record on appeal until  December 8, 1949, on which date the record  on appeal was  forwarded to the  Court of  Appeals, and that  the aforementioned provision of the  Rules of Court does impose upon  said court the mandatory duty to declare the appeal abandoned for failure to prosecute, we  believe  that no  error  was committed in giving due  course to the appeal and that the same has been duly perfected.

(2)  Did the Court of  Appeals have jurisdiction to try the case, on appeal from the decision of the court of first instance?  Petitioner  maintains  the  negative,  upon the ground that the  appeal  involved only questions  of  law. This is not correct, for the very motion for reconsideration adverted to above, indicated that the appeal raised some issues of fact, such as, for instance, whether or not the will in question was  in the possession of respondent  Rosario Guevara and whether respondent Quinto had been authorized by her to perfect the appeal on her behalf.  At any rate, the case is now before us and, upon examination of the record and consideration of all the issues therein raised, we are of the opinion that, had the appeal been forwarded directly to this Court, we would have disposed of it in the manner set forth in the  decision of the Court of Appeals, the review of which is sought by herein appellant.

(3)  The last question  for determination in  this case is whether or not  the petition for probate of  the will  of Victorino L. Guevara is barred by  the statute  of limitations, considering that the testator died on September 27, 19S3, and that the petition for probate  of  said will was filed twelve (12) years later, or, to be exact, on October 5, 1945.  The Court of Appeals resolved the question in the negative, upon the following grounds:
"We  are of the opinion that the Court  below was in  error  when it  declared that the petition  for  probate of the will of  Victorino Guevara was barred by prescription.  The provision of  Article 756 of the old Civil  Code (1042 of the New) and of Rule 76 of the Rules of Court, reiterating those of the old Code of Civil Procedure (Act 190), point out that the presentation  of a decedent's will to the competent court has  always been deemed by our law as  more of a duty than a right,  and the neglect  of such obligation carries with it the  corresponding penalty;  and it is inconsistent with that policy that the court should refuse to admit wills to probate, without inquiry into their validity.  The authority given  to testators  to dispose freely  of a portion  of their  estate  would  be imperfectly safeguarded, unless adequate measures were provided by the state to assure that the  wishes of  the  deceased  would  be carried out. Because the  decedent  may no longer act to have  his testamentary dispositions  duly executed, the state  authority  must  take over  the opposite vigilance and supervision,  so that free testamentary disposition does not remain a delusion and a dream.   This was expressly recognized by  the  Supreme  Court  in its  previous decision, G.  R. No. 48840 '(Exhibit  E) when it said:

*  *  *  we hold that under section 1  of  Rule  74, in  relation to Rule 76,  if  the decedent left a will  and no  debts 'and the heirs and legatees  desire to  make an extra-judicial  partition of the estate, they must first present that will to  the court for probate and divide the estate in accordance with  the  will.  They may  not  disregard the provisions  of the  will unless those provisions are contrary  to law.  Neither may they do away with the presentation of the will to the  court for probate,  because such suppression  of the will  is contrary to  law  and  public  policy. The  law  enjoins the  probate of the  will and public policy  requires it, because unless the will  is probated and notice thereof given to  the  whole world, the right  of ¦a person to dispose of his property by will may be rendered nugatory, as is  attempted  to  be done  in the instant case.  Absent legatees and devisees, or  such of them as  may have no knowledge of the will, could be cheated of their inheritance thru the collusion of some of the  heirs who might agree to the  partition  of the estate among themselves to the exclusion of  others.'  (Italics  supplied)

"In  holding  the statute of limitations  applicable to the  probate of wills,  the  court  below  failed , to  notice  that its doctrine  was destructive of the right of testamentary disposition and violative  of the owner's  right to  control  his property within  the legal  limits. The appealed order in fact  leaves wills  at the mercy  and whim of custodians and heirs interested in  their suppression.  The lower court would  in  effect abdicate the tutelary power that passed to the Republic from the former sovereigns, that 'potestad suprcma que  en ml reside  para velar  por el  puntual cumplimiento de las  ultimas ¦voluntaries',  asserted as one of the  royal  prerogatives in  the  'Real Cedula'  of March 18, 1776.

"It is not without purpose  that Rule  of  Court 77 prescribes that any 'person interested in  the  estate  may, at  any time  after the death of the  testator, petition the court having  jurisdiction to have the will allowed'. Taken from the Code of Procedure of  California, this provision has  been interpreted as meaning that the statute of limitations has  no  application to probate of wills.  In case of In  re  Hume's Estate,  179  Calif. 338,  176 Pac. 681, th California Supreme Court  ruled that:

'The chapter  of  the  Code  relating to the probate of wills does not provide for  opposition to such  probate  on the ground of the bar of  the  statute  of  limitations, but, in effect, exclude it from the category of grounds allowed  as a  basis for such opposition. Section 1299 declares that  any person  interested in  the estate 'may at any time after the death of the testator, petition the court having jurisdiction  to  have the will proved. This implies  tha is no arbitrary time limit.'

As  additional reasons,  the  same Court stated:

*  *   *   Section  1317 declares:  'If the court is sa upon the proof taken, or from  the facts  found by the jury, that the will was duly executed, and  that  the will testator at of its execution was of sound  and disposing mind and not acting under duress,  menace,  fraud,  or undue influence,  a certification of the proof and the facts found, signed by the judge  and attested by the seal of the court, must be  attached to the will.'

'This excludes the bar of the statute of limitation from consideration as one of  the  matters which may  be shown in opposition to the probate.  This  is further emphasized by  section 1341 which, in substance, declares that,  if upon the verdict of the jury facts mentioned in  section 1317  as aforesaid appear to be established, the court 'must'  admit the will to probate.  Section 1314 makes it imperative that  the  court  shall  admit the "will to probate if the execution  is  proven and the  grounds  of opposition authorized by section  1312  are not  established.  This  clearly implies that no grounds of  opposition other than those enumerated in section 1312 may be set  up,  and it leaves no  place  for the application of  the statute  of limitations.

'It is further  to  be  observed that,  notwithstanding the positive and comprehensive language of sections 343 and 369, if taken literally, there can he no doubt that  they  cannot apply to  all special  proceedings of  a civil nature. Proceedings for a chang name, or in arbitration, or for voluntary dissolution of a corporation, or for guardianship, or for a  married woman to become  a  sole trader, are all  within  the  definition of  the phrase, and  each is enumerated, classed, and defined as  such proceeding by the Code.  If statute of limitations applied, it would begin to run against such proceedings as soon as the right to institute them accrued.  Yet from very nature of these  proceedings it is obvious that neither of could be subject to such  limitation.

'This construction  of these Code  provisions is confirmed by  the long-continued and uniform practice and the universal understanding of the bench  and bar  of the state on  the subject.'

*        *         *         *         *         *        *

'Action to quiet title frequently involve wills of persons who have died many  years before the action was begun.  The section contemplates that such  a will, although not  yet  probated, may  be construed in  the  action and may be  afterwards probated, and it clearly shows that the  Legislature did  not understand that the right to probate such will  would bo barred if the  testator had  died more than four years before the petition  for probate was filed.

'This uniform  practice and understanding of the bench and bar, and of the legislative department of the state  also, is a  strong argument to the effect that the statute  of limitations ddus not apply to  such  proceedings. The authorities on the effect of such long acquiescence are  numerous.

"The Statute of Limitations upon which the court below  has relied, sections  38 to 50  of  the  old  Code  of Civil Procedure, Act 190, undertakes  to fix limits for the filing of 'civil actions', but none for 'special proceedings' of which probate is admittedly  one.  The distinction is  not purely verbal,  but  based on differences that  make the limitation to 'actions' inapplicable  to  'special  proceedings'.   In this regard, the  Supreme Court of  New York has  adequately  remarked (In re Canfield's Will,  300 NYS 502) :

'A  respondent  in  a private  proceeding owes  no  legal duty  or obligation to  the proponent  as  such, wherefore  it is impossible  for him to  violate such  non-existent obligation.  Furthermore  such a proceeding is not instituted for the vindication of any personal right to the proponent.  The subject-matter is  therefore  wholly absent which could give rise  to any 'cause of action'  against any  respondent therein.

'The primary purpose of the, proceeding  is not, to establish  the existence of the right of any living person, but to determine whether or not the decedent has performed the acts specified by the pertinent statutes which are the  essential  prerequisites to personal direction of the mode of devolution of his property  on death.  There  is  no legal but merely  a moral duty resting  upon a proponent  to attempt to ¦validate the wishes  of the departed, and he may  and frequently does receive no personal benefit from, the  performance of  the act.

'One of the most fundamental conceptions of probate law, is that it is the duty of the court to effectuate, in so far as may be compatible  with  the  public interest, the  devolutionary wishes  of a deceased person (Matter of Watson's Will, 262 N.Y. 284, 294, 186 N.E. 787; Matter of Marriman's  Estate, 124 Misc.  320, 325, 208 N.Y.S. 672; Foley,.S. affirmed 217 App. Div. 733,  216 N.Y.S. 842; Matter of Lensman's Estate,  137  Misc.  77, 78, 243 N.Y.S. 126, Henderson, S., Matter of Drake's Estate, 160 Misc. 587,  593, 290  N.Y.S.  581). To that end, the court is, in effect,  an  additional party to  every litigation affecting the disposal of the assets  of the deceased.  Matter of Van Valkenburgh's Estate, 164 Misc.  295,  296, 298 N.Y.S. 219. A determination, therefore,  that the mere  non-action of a person upon ivhmn no legal duty rested  in this regard, could have the effect of subverting the wishes of one who  was no  longer  able to protect his own unquestionable  rights, would strike at the very foundation of all  conceptions of  justice  as  administered  in  probate courts.'

"These decisions are  of high  persuasive  value (Cu  vs. Republic, G. R.  L-3018, July 18, 1951); they represent  the trend of authority (57 Am. Jur.  535),  and enable  us  to  conclude  that reason and precedent reject the applicability of  the Statute of Limitations to probate proceedings, because these are not exclusively  established in the interest of  the surviving heirs, but primarily for the protection of the testator's expressed wishes, that are  entitled to  respect as an effect  of his ownership and right  of disposition.   If the  probate of validly executed wills is required by public  policy, as declared by the Supreme Court  in  the  previous  case, G.R.  48840  (Exhibit E), the state could  not have intended the  statute of limitations to  defeat that policy.

"It  is true, as ruled by the trial court, that the rights of parties 'should not be  left  hanging  in uncertainty for periods of time far in excess of the maximum period of  ten  years allowed by law'; but the obvious remedy  is  for the  other interested  persons to  petition for the production of the will and for its probate, or to inflict upon the guilty  party the penalties   prescribed  by Rule  76 or  declare the unworthiness of  the heir under  the Civil Code for  concealing or suppressing the testament; but not to  dismiss the petition for probate, however belatedly submitted, and thereby refuse sanction to testamentary dispositions executed with all the formalities prescribed by law, incidentally prejudicing  also those testamentary heirs who do not happen to be successors ab inlestato.  That in this particular case the appealed rule may not  work injustice would not excuse its adoption as a general norm  applicable to all cases..

"It  is likewise reasonable to assume that if the Supreme Court had considered  the  ten-year limitation applicable to probate proceedings, it  would not have  ordered  the  parties  on December  29, 1943  'to present the document Exhibit A to the proper court for probate in accordance  with law', because the ten  years from the  death  of the testator expired in September of that same year, two months  before the  decision.  It is safe to assume that the high Court would not order a  useless step.  The reasoning that the  phrase 'in  accordance with law' was  a  qualification signifying 'if  still legally possible*, appears  to be far-fetched and unjustified.  The plain import of the words employed by the  high  Court is that the probate should follow the  procedure provided for the  purpose."

*           *           *           *           *           *           *           *

"The  other reasons  advanced by the court a  quo in  support  of its order dismissing the petition are also untenable.   The allegation contained  in  paragraph 10 of the  original  petition, that 'the will, or its testamentary dispositions, had been de jure revoked in so far as the parcel of  259 hectares described in  said  will is concerned, does not justify  the  finding that the  probate would be pointless. What is alleged is a partial revocation, only  as to the parcel of land affected; but  as previously shown,  the will disposed of other  property besides  that  one.  And  even granting  that, the  next allegation  to the  effect  that  plaintiff sought to  probate 'only for  the purposes  of her  acknowledgment as natural  child  in said will', constitutes  an averment  that  the will had  been  fully  revoked,  the same would  at the  most constitute a  conclusion or inference that the lower court was not  bound  to admit.  Because the appellant claimed  or believed that the revocation of the will as to  the large parcel of land constituted  a total revocation of the testament is  no reason  why the court should concur in  the same belief or conclusion,  especially when the  will itself, appended to the  petition, showed that  there  were other  properties  and other  heirs  or  legatees, and  the   trial court had before it the decision  of the Supreme' Court  ordering the filing of the will for  its probate because, as stated in its decision, such a step was enjoined by law and public policy.  Moreover,  the defect, if any, incurred in failing to ask for the probate in  toto  of  the will, was subsequently  cured and corrected in the  amended petition, where not  only the objectionable statements  were eliminated,  but others added indicating the existence of  a partible  estate.

"Assuming that  the  original petition violated  the order of the Supreme Court in  so  far as it  did not  ask  for the allowance  of the  entire will, the court below  erred in  dismissing1 the  petition, for  it thereby  sanctioned  further  disobedience to the order of the superior court.  Once again, it must be repeated  that the  order  of dismissal failed to take into  account that the case involved  not only the  interests  of Eosario Guevara,  and those of the appellee Ernesto Guevara and the  other legatees,  but specially the  express desires of the testator; and that the  protection and  defense of the latter developed  upon the court  itself,  since  no one else made any  move to enforce them.

"Even if the  other heirs had failed to  show interest i case (a  fact  not properly  inferable from their  non-intervention in the case, because the order of publication of the petition on only called for those interested to  'appear to contest the allowance' and not to support  it)  (Rec. on App., p. 7), and  even if the other  heirs had already received their shares, the order refusing the probate  remains indefensible.  If the other heirs were not  interested, there remained the wishes of the testator to  be supported and protected if validly expressed.  If the heirs had distributed the estate, the distribution was illegal  and improper  unless  the will be first prob The Supreme Court  so ruled in its previous  decision  (G. R. 48840)  heretofore quoted.

'Even  if the decedent left no debts and nobody raises any question as tot the authenticity and due execution of the will, none of heirs may sue for the partition of  the estate in  accordance with that will without first securing its  allowance  or probate  by the court: first, because the law expressly provides that 'no will shall pass either real or  personal estate unless it  is proved and allowed in the  proper court; and, second, because  the probate of a will, which is a proceeding in rem,  cannot be  dispensed with and substituted by  any other proceeding, judicial or extrajudicial, with offending against  public  policy  designed to effectuate the testator's right to dispose of his property by will in accordance with law and to protect the  rights of the heirs and legatees under the will thru the means provided by law,  among which are the publication and the personal notices to each and  all of said  heirs  and  legatees. Nor may the court approve and allow the will presented in evidence in such an action for  partition, which is  one in personam, any  more than it could decree the registration under  the Torrens system of the land involved in an  ordinary action for revindicacion or partition.'

"From whatever angle the case is viewed, a hearing on the allowance of the will is unavoidable.  The persistent,  albeit obnoxious, attempts of Rosario Guevara to sidetrack the will are not remedied by dismissing the petition for probate of  will, and allowing Ernesto to  retain a greater interest than that intended by  the testator." (Appendix to brief for the petitioner-appellant, pp. 7- 17-20.)
We  are fully in accord with these  findings  which we adopt as ours.

 In view of the foregoing,  the decision appealed from  is hereby  affirmed, with the  costs  of this instance  against the petitioner.

Padilla, Reyes, A., Jugo, Bautista Angelo, and Labrador, JJ. concur.

[1] This statement does not include some petitions filed by petitioner, which likewise delayed the perfection of the appeal.

[1] The record shows that the petitions for postponement and extension  of time,  and other motions  filed  by  petitioner in the  court of first instance  had delayed the perfection of the appeal by over 100 days