- CASE DIGEST -
Lipana v.
CFI of Cavite
G.R. No. 47174,
June 28, 1940
FACTS: One Eliodora Lipana filed in the respondent court an application
for the probate of a will supposedly executed by the deceased, Manuela Lipana,
a carbon copy of which was attached to the application. Natividad Lipana filed
an opposition, she claimed that evidence was unnecessary upon the facts alleged
in the application, the copy of the will attached thereto showing, in itself,
that the will had not been executed in accordance with law. The respondent
court, after inspecting the copy of the will but without a hearing, dismissed
the application on the ground that such copy could not be admitted to probate,
it not having been signed by the testatrix and the attesting witnesses at the
end thereof and on the left margin of each page. It is against this order of
dismissal that the petition for certiorari has been filed with this court.
ISSUE: WON the respondent court acted in excess of its
jurisdiction?
HELD: Yes. There can be no doubt that the respondent court acted in
excess of its jurisdiction in rendering a judgment upon the merits of the case
without a previous hearing. The pronouncement made by the respondent court that
the will had not been executed in accordance with law, is founded undoubtedly
on the erroneous assumption that the probate of the carbon copy of the will was
being applied for.
It is apparent from the application that what is sought to be admitted
to probate is the original of the will. It is alleged therein that the original
was in the possession of a third person or that it was either lost or destroyed
by some person other than the testatrix. Such copy was attached to the
application merely to corroborate the allegation as to the existence of its
original and not to establish a full compliance with the requirements of the
law as to the execution of the will.
Under section 623 of Act No. 190, if a will is shown to have been torn
by some other person without the express direction of the testator, it may be
admitted to probate, if its contents, due execution and its unauthorized
destruction are established by satisfactory evidence. The applicant, therefore,
was entitled to hearing to prove the due execution of the original will and its
loss or destruction, and the respondent court had no statutory authority to
dismiss the application without such hearing.
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