Linart vs. Ugarte

G.R. No. L-2599, October 27, 1905 – Leo



Ramon Iturralde y Gonzalez having died intestate on the 28th of December, 1900, Maria Juana Ugarte e Iturralde asked that she be judicially declared the legitimate heir of the deceased.

There being no legitimate heirs to the estate either in the direct ascendant or descendant line of succession, the petitioner presented herself as a collateral  descendant, that is to say, as the legitimate niece of the deceased.

However, Carmen Linart, through her guardian, Rafaela Pavia, claimed one-half of all of the estate of the deceased, Ramon Iturralde y Gonzalez, and asked at the same time that Maria Juana Ugarte e Iturralde, who had been declared the lawful heir of the deceased.

The father of the petitioner was in the same collateral degree of succession as Maria Juana Ugarte e Iturralde. Pablo Linart, the father of Carmen Linart, was the legitimate son of Maria Josefa Iturralde y Gonzalez, another sister of Ramon Iturralde y Gonzalez

The court below on the 24th of February, 1905, entered judgment declaring that the petitioner had the same right to participate in the inheritance as had Maria Juana Ugarte e Iturralde, and ordered the latter to render an account of the estate, enjoining her, at the same time, from disposing of any part thereof until such accounting had been made and the estate distributed.



Who has better right over the estate of Ramon Iturralde y Gonzalez.



The High Court reverse the decision of the lower court and held that Carmen Linart has no right to succeed the deceased with said Maria Juana Ugarte e Iturralde, who was once declared to be the lawful heir, and who is now in possession of the estate, as to whom we hereby dissolve the injunction issued from the Court of First Instance, following the rule that the relative nearest in degree excludes those more distant, with the exception of the right of representation in proper cases (art. 921, par. 1 of the Civil Code); and  that the right of representation in the collateral line shall take place only in favor of children of brothers or sisters whether they be of whole or half blood (art. 925, par. 2).

The error which the appellant claims was committed in the court below is very clearly shown. The court below held that the grandniece was entitled to the same share of the estate that the niece was entitled to, when, as a matter of law, the right of representation in the collateral line can only take place in favor of the children of brothers or sisters of the intestate, and the plaintiff in this case is not a daughter of one of the sisters of the deceased. G.R. No. L-18753             1965 -03-26










G.R. No. 113725, June 06, 2000 – Gem



In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of the herein petitioner, Johnny S. Rabadilla, was instituted as a devisee of a parcel of land. The said Codicil, which was duly probated before the then CFI of Negros Occidental. Pursuant to the same Codicil, the subject land was transferred to the deceased, Dr. Jorge Rabadilla, and the Transfer Certificate of Title thereto was issued in his name.Dr. Jorge Rabadilla died and was survived by his wife Rufina and children Johnny (petitioner), Aurora, Ofelia and Zenaida, all surnamed Rabadilla.

Respondent brought a complaintbefore the RTC in Bacolod City, against the above-mentioned heirs of Dr. Jorge Rabadilla, to enforce the provisions of subject Codicil. The Complaint alleged that the defendant-heirs violated the conditions of the Codicil.

The plaintiff then prayed for the reconveyance/return of the subject land to the surviving heirs of the late Aleja Belleza, because it is alleged that petitioner failed to comply with the terms of the will; that since 1985, Johnny failed to deliver the fruits; and that the the land was mortgaged to the Philippine National Bank, which is a violation of the will.

In his defense, Johnny avers that the term “near descendants” in the will of Aleja pertains to the near descendants of Aleja and not to the near descendants of Dr. Rabadilla, hence, since Aleja had no near descendants at the time of his death, no can substitute Dr. Rabadilla on the obligation to deliver the fruits of the devised land.



WON the testamentary institution of Dr. Rabadilla is a modal institution.



YES. The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under subject Codicil is in the nature of a modal institution and therefore, Article 882 of the New Civil Code is the provision of law in point.From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the testatrix intended that subject property be inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that the testatrix imposed an obligation on the said instituted heir and his successors-in-interest to deliver one hundred piculs of sugar to the herein private respondent, Marlena Coscolluela Belleza, during the lifetime of the latter. However, the testatrix did not make Dr. Jorge Rabadilla’s inheritance and the effectivity of his institution as a devisee, dependent on the performance of the said obligation. It is clear, though, that should the obligation be not complied with, the property shall be turned over to the testatrix’s near descendants. The manner of institution of Dr. Jorge Rabadilla under subject Codicil is evidently modal in nature because it imposes a charge upon the instituted heir without, however, affecting the efficacy of such institution.



Miciano vs. Brimo

G.R. No. L-22595, November 1, 1927 – Krist



The judicial administrator of the estate of the deceased, Joseph Brimo, filed a scheme of partition. However, one of the brothers of the deceased opposed the said partition.

According to the scheme and its provision, that the deceased requests that all his relatives respect his wishes, otherwise those who opposed the same shall be cancelled in said disposition in favor of the oppositor.

The apellant in the case, who opposed the same, based his opposition on the fact that the deceased was a Turkish citizen, that his disposition should be in accordance with the laws of his nationality.



WON the disposition shall be made in accordance with Philippine Laws

WON there shall be cancellation of disposition/s in favor of the appellant-oppositor



No, although the disposition provides an express provision that it shall be governed by Philippine Laws and those who opposed the condition of the provisions given shall be cancelled from the disposition, the fact is that the condition itself is void for being contrary to law. Article 792 of the Civil Code provides:

“Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should the testator otherwise provide.”


It is contrary to law because it expressly ignores the decedent’s national law, according to Article 10 of the Civil Code, such national law shall govern his testamentary dispositions.

Therefore, the institution of the legatees are unconditional and are valid, as well as those favorable to herein appellant-oppositor.



Austria vs. Reyes

G.R. No. L-23079 | 1970-02-27 – Karen



Basilia Austria vda. de Cruz filed with the CIF of Rizal  a petition for probate, ante mortem, of her last will and testament. The probate was opposed by the present petitioners. This opposition was dismissed and the probate of the will was allowed after due hearing.


The bulk of the estate of Basilia, admittedly, was destined under the will to pass on to the respondents all of whom had been assumed and declared by Basilia as her own legally adopted children.


More than two years after her will was allowed to probate, Basilia died. The respondent Perfecto Cruz was appointed executor without bond by the same court in accordance with the provisions of the decedent’s will, notwithstanding the blocking attempt pursued by the petitioner Ruben Austria.


Finally, the present petitioners filed in the same proceedings a petition in intervention for partition alleging in substance that they are the nearest of kin of Basilia, and that the five respondents Perfecto Cruz, et al., had not in fact been adopted by the decedent in accordance with law, in effect rendering these respondents mere strangers to the decedent and without any right to succeed as heirs.



WON the institution of the heirs would retain efficacy in the event there exists proof that the adoption of the same heirs by the decedent was false





Ratio: Article 850 of the Civil Code which reads, “The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause.”


Before the institution of heirs may be annulled under article 850 of the Civil Code, the following requisites must concur: First, the cause for the institution of heirs must be stated in the will; second, the cause must be shown to be false; and third, it must appear from the face of the will that the testator would not have made such institution if he had known the falsity of the cause.


From the use of the terms, “sapilitang tagapagmana” (compulsory heirs) and “sapilitang mana” (legitime), that the impelling reason or cause for the institution of the respondents was the testatrix’s belief that under the law she could not do otherwise. If this were indeed what prompted the testatrix in instituting the respondents, she did not make it known in her will. Surely if she was aware that succession to the legitime takes place by operation of law, independent of her own wishes, she would not have found it convenient to name her supposed compulsory heirs to their legitimes. Her express adoption of the rules on legitimes should very well indicate her complete agreement with that statutory scheme. But even this, like the petitioners’ own proposition, is highly speculative of what was in the mind of the testatrix when she executed her will. One fact prevails, however, and it is that the decedent’s will does not state in a specific or unequivocal manner the cause for such institution of heirs. We cannot annul the same on the basis of guesswork or uncertain implications.


The phrases, “mga sapilitang tagapagmana” and “sapilitang mana,” were borrowed from the language of the law on succession and were used, respectively, to describe the class of heirs instituted and the abstract object of the inheritance. They offer no absolute indication that the decedent would have willed her estate other than the way she did if she had known that she was not bound by law to make allowance for legitimes. Her disposition of the free portion of her estate (libre disposicion) which largely favored the respondent Perfecto Cruz, the latter’s children, and the children of the respondent Benita Cruz, shows a perceptible inclination on her part to give to the respondents more than what she thought the law enjoined her to give to them. Compare this with the relatively small devise of land which the decedent had left for her blood relatives, including the petitioners Consuelo Austria-Benta and Lauro Mozo and the children of the petitioner Ruben Austria. Were we to exclude the respondents Perfecto Cruz, et al. from the inheritance, then the petitioners and the other nephews and nieces would succeed to the bulk of the testate by intestacy — a result which would subvert the clear wishes of the decedent.


Dispositive: The present petition is denied, at petitioners cost.



AC No. 6056, Sept. 9, 2015

By: Karen P. Lustica




On February 20, 1993, upon the behest of Atty. Mendoza, Felicisima signed a Contract for Service3prepared by Atty. Mendoza. The said contract stipulated that in the event of a favorable CENRO or LMB resolution, Felicisima shall convey to Atty. Mendoza one-fifth (1/5) of the lands subject of the application or one-fifth (1/5) of the proceeds should the same property be sold.

The CENRO and the LMB proceedings resulted in the dismissal of Felicisima and her siblings’ application for Lot No. 2489 and the partial grant of their application for Lot No. 3771. Subsequently, Felicisima and her siblings sold the land to Greenfield Corporation (Greenfield) and received the amount of P2,000,000.00 as down payment.

On October 15, 1998, Atty. Mendoza, joined by his wife Filomena S. Mendoza, filed in the RTC claiming that except for the amount of P40,000.00, Felicisima and her siblings refused to pay his attorney’s fees equivalent to 1/5 of the proceeds of the sale of the land as stipulated in the Contract for Service.

In their Answer with Counterclaim, Felicisima and her siblings denied the “existence and authenticity of the x x x Contract of Service.”

The RTC rendered judgment in favor of Atty. Mendoza and against Felicisima and her siblings.

Since no opposition was filed by Felicisima and her siblings, the RTC granted the said motion and issued a writ of execution, which resulted in the levy and eventual transfer of Felicisima’s properties in favor of Atty. Mendoza as the highest bidder in the execution sale.

Felicisima filed a complaint-affidavit for disbarment before this Court against Atty. Mendoza for allegedly deceiving her into signing the Contract for Service by taking advantage of her illiteracy, and against Atty. Navarro for dereliction of duty in handling her case before the CA causing her properties to be levied and sold at public auction.
Felicisima alleges that Atty. Mendoza made her sign a document at her house without the presence of her siblings. Said document (Contract for Service) was written in English which she does not understand. She claims that Atty. Mendoza told her the document will shield her from her siblings’ possible future claims on the property because she alone is entitled to the property as her siblings did not help her in processing the application for original registration. She was not given a copy of the said document and she discovered only during the trial that Atty. Mendoza anchors his claim over Vs of proceeds from the sale of the land awarded by the CENRO and LMB on the same document she had signed.

As to Atty. Navarro, Felicisima claims that her case before the CA was neglected despite repeated follow-ups on her part. She also points out that Atty. Navarro abandoned her case before the RTC when the latter failed to file an opposition to Atty. Mendoza’s motion for execution pending appeal, which resulted in the loss of her properties.

In his Comment, Atty. Mendoza avers that he has been a lawyer since 1954 and retired sometime in 1983 due to partial disability.

Atty. Navarro pleads for mercy and compassion if he had somehow committed some lapses considering that this is the first time he was charged administratively in his almost 39 years of law practice and that he is too willing to take complainant’s cause if not for such apparent miscommunication between a lawyer and his client.

IBP – Atty. Mendoza guilty of taking advantage of Felicisima’s ignorance just to have the Contract for Service signed. Atty. Mendoza violated Canon 17 of the Code of Professional Responsibility (CPR) that a lawyer owes fidelity to the cause of his client and shall be mindful of the trust and confidence reposed on him, as well as Rule 20.04, Canon 20 which exhorts lawyers to avoid controversies with clients concerning matters of compensation and to resort to judicial action only to prevent imposition, injustice or fraud.

As to Atty. Navarro, the Investigating Commissioner held that his participation in politics affected his law practice and caused him to forget about Felicisima’s caseThe Investigating Commissioner further said that Atty. Navarro’s acts showed lack of diligence in violation of Canon 18 of the CPR and his Lawyer’s Oath.

Suspension for two (2) years from the practice of law.

Modified – suspension from two (2) years to six (6) months.



WON disbarment or suspension for the two lawyers



  1. Dismissal of case against Attorney Mendoza
  2. Suspension for Attorney Navarro



  1. The Court has consistently held that in suspension or disbarment proceedings against lawyers, the lawyer enjoys the presumption of innocence, and the burden of proof rests upon the complainant to prove the allegations in his complaint. The evidence required in suspension or disbarment proceedings is preponderance of evidence. In case the evidence of the parties are equally balanced, the equipoise doctrine mandates a decision in favor of the respondent. For the Court to exercise its disciplinary powers, the case against the respondent must be established by clear, convincing and satisfactory proof.

    Contract for Service with Atty. Mendoza
    a contract for contingent fees

    On the basis of the evidence, the Court finds no ground to support Felicisima’s claim that she did not enter into any written agreement with the plaintiff, Juan Mendoza, for the latter to render legal services and the corresponding compensation therefor as set forth in the Contract of Service. However, the Court finds that the amounts received by the plaintiff Juan Mendoza from defendant Felicisima Mendoza during the course of his legal services for the twenty hearings in the amount of P1,300.00 per hearing or a total of P26,000.00 should also be deducted from his claim of P1,384,000.00 leaving an unpaid balance of PI,258,000.00 due plaintiff Juan Mendoza for legal services rendered the defendants.hanrobleslaw

Given the above finding of the RTC that Felicisima in fact entered into a contract for legal services with Atty. Mendoza, thus debunking her defense in her Answer denying the existence and authenticity of the said document, it appears that Felicisima raised the issue of voluntariness of her signing the Contract for Service only during the hearing when she supposedly testified that, having reached only Grade IV and trusting completely her lawyer cousin, Atty. Mendoza who told her that the document will protect her from the claims of her siblings, she actually signed the Contract for Service The RTC, however, found the evidence adduced by Felicisima as insufficient to defeat Atty. Mendoza’s claim for attorney’s fees. Said judgment had attained finality and even pending appeal was already executed on motion by Atty. Mendoza.

Apart from the allegations in her affidavit-complaint, Felicisima failed to establish by clear and satisfactory proof of the deception allegedly committed by Atty. Mendoza when she agreed in writing for the latter’s contingent fees. Fraud and irregularity in the execution of their contingency fee contract cannot be deduced from the fact alone that Atty. Mendoza filed suit to enforce their contract.

  1. Atty. Navarro ‘s Gross Negligence

    With respect to Atty. Navarro, the facts on record clearly established his failure to live up to the standards of diligence and competence of the legal profession.

    In this case, Atty. Navarro agreed to represent Felicisima and her siblings in Civil Case No. T-1080 and as their counsel he filed the Answer with Counterclaim. He likewise attended the hearings of the case until the RTC rendered an adverse judgment. However, after filing the Notice of Appeal, nothing was heard of again from him. He did not file any opposition when Atty. Mendoza moved for execution pending appeal, which resulted in the sale of Felicisima’s properties at public auction and eventual eviction of Felicisima and her children from the said premises. Worse, he failed to file an appellant’s brief despite receipt of the order from the CA directing him to do so within the period specified therein, and to file a motion for reconsideration when the appeal was dismissed due to non-filing of such brief. His motion for extension of time to submit an appellant’s brief was filed 93days late and was thus denied by the CA. Barely a week after, he filed a notice of withdrawal of appearance bearing the conformity of his clients which was granted. It is evident from the foregoing that Atty. Navarro failed to inform Felicisima of the status of the case so that the latter was surprised upon being served the eviction order of the court and eventual dismissal by the CA of their appeal.

    Canon 18 of the CPR mandates that a lawyer shall serve his client with competence and diligence. Rule 18.03 further provides that a lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable.

A lawyer who performs his duty with diligence and candor not only protects the interest of his client; he also serves the ends of justice, does honor to the bar and helps maintain the respect of the community to the legal

We have held that the failure of counsel to submit the appeal brief for his client within the reglementary period constitutes inexcusable negligence39 an offense that entails disciplinary action.40The filing of a brief within the period set by law is a duty not only to the client, but also to the court.41The failure to file an appellate court brief without any justifiable reason thus deserves sanction.42


DISPOSITION: Dismissal of case against Attorney Mendoza

Suspension for 6 months against Attorney Navarro


A.C. No. 5816, March 10, 2015

By: Karen P. Lustica




Atty. Tristan A. Catindig admitted to Dr. Elmar Perez that he was already wed to Lily Corazon Gomez. Atty. Catindig told Dr. Perez that he was in the process of obtaining a divorce in a foreign country to dissolve his marriage to Gomez, and that he would eventually marry her once the divorce had been decreed. Consequently, sometime in 1984, Atty. Catindig and Gomez obtained a divorce decree from the Dominican Republic.


On July 14, 1984, Atty. Catindig married Dr. Perez in the State of Virginia in the United States of America (USA).
Years later, Dr. Perez came to know that her marriage to Atty. Catindig is a nullity since the divorce decree that was obtained from the Dominican Republic by the latter and Gomez is not recognized by Philippine laws. Sometime in 1997, Dr. Perez reminded Atty. Catindig of his promise to legalize their union by filing a petition to nullify his marriage to Gomez.
Sometime in 2001, Dr. Perez alleged that she received an anonymous letter in the mail informing her of Atty. Catindig’s scandalous affair with Atty. Baydo, and that sometime later, she came upon a love letter  written and signed by Atty. Catindig for Atty. Baydo dated April 25, 2001. In the said letter, Atty. Catindig professed his love to Atty. Baydo, promising to marry her once his “impediment is removed.”
On October 31, 2001, Atty. Catindig abandoned Dr. Perez and their son; he moved to an upscale condominium in Salcedo Village, Makati City where Atty. Baydo was frequently seen.


Atty. Catindig, in his Comment, admitted that he married Gomez on May 18, 1968. He claimed, however, that immediately after the wedding, Gomez showed signs that she was incapable of complying with her marital obligations. Eventually, their irreconcilable differences led to their de facto separation in 1984.
Atty. Catindig claimed that Dr. Perez knew of the foregoing, including the fact that the divorce decreed by the Dominican Republic court does not have any effect in the Philippines.
Atty. Catindig claimed that his relationship with Dr. Perez turned sour. Eventually, he left their home in October 2001 to prevent any acrimony from developing.anroblesvirtuallawlibrary

He denied that Atty. Baydo was the reason that he left Dr. Perez.
For her part, Atty. Baydo denied that she had an affair with Atty. Catindig.


IBP – recommended the disbarment of Atty. Catindig for gross immorality, violation of Rule 1.01, Canon 7 and Rule 7.03 of the Code of Professional Responsibility. Complaint against Atty. Baydo – dismissed for dearth of evidence.


WON the respondents committed gross immorality, which would warrant their disbarment.








The Code of Professional Responsibility provides:chanRoblesvirtualLawlibrary


Rule 1.01 – A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

Canon 7 – A lawyer shall at all times uphold the integrity and dignity of the legal profession and support the activities of the Integrated Bar.

Rule 7.03 – A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor should he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.cralawred


In this regard, Section 27, Rule 138 of the Rules of Court provides that a lawyer may be removed or suspended from the practice of law, inter alia, for grossly immoral conduct.


“A lawyer may be suspended or disbarred for any misconduct showing any fault or deficiency in his moral character, honesty, probity or good demeanor.” Immoral conduct involves acts that are willful, flagrant, or shameless, and that show a moral indifference to the opinion of the upright and respectable members of the community. Immoral conduct is gross when it is so corrupt as to constitute a criminal act, or so unprincipled as to be reprehensible to a high degree, or when committed under such scandalous or revolting circumstances as to shock the community’s sense of decency. The Court makes these distinctions, as the supreme penalty of disbarment arising from conduct requires grossly immoral, not simply immoral, conduct.roblesvirtuallawlibrary

Contracting a marriage during the subsistence of a previous one amounts to a grossly immoral conduct.

The facts gathered from the evidence adduced by the parties and, ironically, from Atty. Catindig’s own admission, indeed establish a pattern of conduct that is grossly immoral; it is not only corrupt and unprincipled, but reprehensible to a high degree.

Moreover, assuming arguendo that Atty. Catindig’s claim is true, it matters not that Dr. Perez knew that their marriage is a nullity. The fact still remains that he resorted to various legal strategies in order to render a façade of validity to his otherwise invalid marriage to Dr. Perez. Such act is, at the very least, so unprincipled that it is reprehensible to the highest degree.

Further, after 17 years of cohabiting with Dr. Perez, and despite the various legal actions he resorted to in order to give their union a semblance of validity, Atty. Catindig left her and their son. It was only at that time that he finally decided to properly seek the nullity of his first marriage to Gomez. Apparently, he was then already entranced with the much younger Atty. Baydo, an associate lawyer employed by his firm.

While the fact that Atty. Catindig decided to separate from Dr. Perez to pursue Atty. Baydo, in itself, cannot be considered a grossly immoral conduct, such fact forms part of the pattern showing his propensity towards immoral conduct. Lest it be misunderstood, the Court’s finding of gross immoral conduct is hinged not on Atty. Catindig’s desertion of Dr. Perez, but on his contracting of a subsequent marriage during the subsistence of his previous marriage to Gomez.
Atty. Catindig’s subsequent marriage during the subsistence of his previous one definitely manifests a deliberate disregard of the sanctity of marriage and the marital vows protected by the Constitution and affirmed by our laws. By his own admission, Atty. Catindig made a mockery out of the institution of marriage, taking advantage of his legal skills in the process. He exhibited a deplorable lack of that degree of morality required of him as a member of the bar, which thus warrant the penalty of disbarment.

There is insufficient evidence to prove the affair between the respondents.

As it is, the evidence that was presented by Dr. Perez to prove her claim was mere allegation, an anonymous letter informing her that the respondents were indeed having an affair and the purported love letter to Atty. Baydo that was signed by Atty. Catindig.

The Court has consistently held that in suspension or disbarment proceedings against lawyers, the lawyer enjoys the presumption of innocence, and the burden of proof rests upon the complainant to prove the allegations in his complaint. The evidence required in suspension or disbarment proceedings is preponderance of evidence.

DISPOSITION: Catindig – disbarred. Baydo – dismissed.



A.C. No. 8723 | January 26, 2016

By: Karen P. Lustica



A Complaint for Disbarment filed by Gregory Fabay (Fabay) against respondent Atty. Rex A. Resuena for Gross Misconduct due to the unauthorized notarization of documents.

Virginia Perez, Marcella Perez, Amador Perez, Gloria Perez, Gracia Perez and Valentino Perez (plaintiffs) filed a complaint for ejectment/forcible entry against Gregory Fabay with respondent Atty. Resuena as their counsel.

Atty. Resuena notarized a special power of attorney (SPA) with plaintiffs as grantors, in favor of Apolo D. Perez. However, it appeared that it was only Remedios Perez who actually signed the SPA in behalf of Amador Perez, Valentino Perez, Gloria Perez and Gracia Perez.

The ejectment case was later on decided in favor of the client of Atty. Resuena. On appeal, the RTC ordered the case to be remanded to the court a quo to try the case on the merits. The trial court noted that both Amador Perez and Valentino Perez have already died.

Complainant alleged that Atty. Resuena violated the provisions of the Notarial Law by notarizing a special power of attorney notwithstanding the fact that two of the principals therein were already dead long before the execution of the SPA.

Complainant added that Atty. Resuena likewise notarized a complaint for ejectment in 2003 where Apolo Perez was made to appear as attorney-in-fact of Amador Perez and Valentino Perez when again the latter could not have possibly authorized him as they were already dead.

Further, complainant averred that Atty. Resuena, as counsel of the plainfiffs, participated in the barangay conciliations which is prohibited under the law.

Atty. Resuena explained that although it was just Remedios Perez who signed the SPA on behalf of Amador Perez, Valentino Perez, Gloria Perez and Gracia Perez, there was no misrepresentation since Remedios Perez is the spouse of Amador Perez and she was likewise previously authorized by the other co-owners, Gloria Perez and Gracia Perez, to represent them.

Atty. Resuena denied that he participated in the barangay conciliations and presented the certificate issued by the barangay captain showing that there was no record of his attendance during the confrontations of the parties before the barangay.

IBP-CBD found Atty. Resuena to have violated the provisions of the notarial law. The IBP-CBD recommended that his notarial commission be revoked and that he be disqualified to be commissioned as notary public for one (1) year.


WON Atty. Resuena was guilty of Gross Misconduct due to the unauthorized notarization of documents.




Section 2 (b) of Rule IV of the 2004 Rules on Notarial Practice stresses the necessity of the affiant’s personal appearance before the notary public:

x x x x

(b) A person shall not perform a notarial act if the person involved as signatory to the instrument or document –

(1) is not in the notary’s presence personally at the time of the notarization; and

(2) is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules.

In the instant case, it is undisputed that Atty. Resuena violated not only the notarial law but also his oath as a lawyer when he notarized the subject SPA without all the affiant’s personal appearance.

A notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him to attest to the contents and truth of what are stated therein. The purpose of this requirement is to enable the notary public to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the party’s free act and deed.

A graver responsibility is placed upon Atty. Resuena by reason of his solemn oath to obey the laws and to do no falsehood or consent to the doing of any. The Code of Professional Responsibility (Rule 1.01 of Canon 1) also commands lawyers not to engage in unlawful, dishonest, immoral or deceitful conduct and to uphold at all times the integrity and dignity of the legal profession.

Moreover, the Notarial Law and the 2004 Rules on Notarial Practice require a duly-commissioned notary public to make the proper entries in his Notarial Register and to refrain from committing any dereliction or act which constitutes good cause for the revocation of commission or imposition of administrative sanction. Unfortunately, Atty. Resuena failed in both respects.

DISPOSITION: Atty. Rex A. Resuena is found GUILTY of malpractice as a notary public, and of violating the lawyer’s oath as well as Rule 1.01, Canon 1 of the Code of Professional Responsibility. Accordingly, he is DISBARRED from the practice of law and likewise PERPETUALLY DISQUALIFIED from being commissioned as a notary public.

Search warrants. Place to be searched. People vs. C.A., 291 SCRA 400

By: Randel Bejasa


G.R. No. 126379                      June 26, 1998

PEOPLE OF THE PHILIPPINES, represented by Provincial Prosecutor FAUSTINO T.

CHIONG, petitioner,


Court, Branch 80, Malolos, Bulacan, AZFAR HUSSAIN, MOHAMMAD SAGED,





– A petition for certiorari has been filed to invalidate the order of Judge Casanova which quashed search warrant issued by Judge Bacalla and declared inadmissible for any purpose the items seized under the warrant.

– An application for a search warrant was made by S/Insp Brillantes against Mr. Azfar Hussain who had allegedly in his possession firearms and explosives at Abigail Variety Store, Apt 1207 Area F. Bagon Buhay Avenue, Sarang Palay, San Jose Del Monte, Bulacan.

– The following day Search Warrant No. 1068 was issued but was served not at Abigail Variety Store but at Apt. No. 1, immediately adjacent to Abigail Variety Store resulting in the arrest of 4 Pakistani nationals and the seizure of a number of different explosives and firearms.



  1. WON a search warrant was validly issued as regard the apartment in which private respondents were then actually residing, or more explicitly, WON that particular apartment had been specifically described in the warrant.










In applying for a search warrant, the police officers had in their mind the first four (4) separate apartment units at the rear of ABIGAIL VARIETY STORE in Quezon City to be the subject of their search.

The same was not, however, what the Judge who issued the warrant had in mind, AND WAS NOT WHAT WAS ULTIMATELY DESCRIBED IN THE SEARCH WARRANT.

As such, any evidence obtained from the place searched which is different from that indicated in the search warrant is inadmissible in evidence for any purpose and in any proceeding.

The ambiguity lies outside the instrument, arising from the absence of a meeting of minds as to the place to be searched between the applicants for the warrant and the Judge issuing the same; and what was done was to substitute for the place that the Judge had written down in the warrant, the premises that the executing officers had in their mind. This should not have been done.

It is neither fair nor licit to allow police officers to search a place different from that stated in the warrant on the claim that the place actually searched — although not that specified in the warrant — is exactly what they had in view when they applied for the warrant and had demarcated in their supporting evidence. What is material in determining the validity of a search is the place stated in the warrant itself, not what the applicants had in their thoughts, or had represented in the proofs they submitted to the court issuing the warrant.

The place to be searched, as set out in the warrant, cannot be amplified or modified by the officers’ own personal knowledge of the premises, or the evidence they adduced in support of their application for the warrant. Such a change is proscribed by the Constitution which requires inter alia the search warrant to particularly describe the place to be searched as well as the persons or things to be seized.

It would concede to police officers the power of choosing the place to be searched, even if it not be that delineated in the warrant. It would open wide the door to abuse of the search process, and grant to officers executing a search warrant that discretion which the Constitution has precisely removed from them. The particularization of the description of the place to be searched may properly be done only by the Judge, and only in the warrant itself; it cannot be left to the discretion of the police officers conducting the search.

Search warrants. Basis of probable cause. Prudente vs. dayrit. 180 SCRA 69

By: Randel Bejasa



G.R. No. 82870                       December 14, 1989

  1. NEMESIO E. PRUDENTE,petitioner,





  • P/Major Alladin Dimagmaliw, filed with the (RTC) an application for the issuance of a search warrant. In his application for search warrant, P/Major Alladin Dimagmaliw alleged, among others, as follows:

1) That he has been informed and has good and sufficient reasons to believe that Nemesio Prudente has in his control or possession firearms, explosives handgrenades and ammunition which are illegally possessed or intended to be used as the means of committing an offense which the said Nemesio Prudente is keeping and concealing at the following premises of the Polytechnic University of the Philippines;

2) That the undersigned has verified the report and found it to be a fact, and therefore, believes that a Search Warrant should be issued



  • Respondent Judge issued Search Warrant which was enforced by some 200 WPD operatives.


  • Petitioner moved to quash the search warrant. He claimed that

(1) the complainant’s lone witness, Lt. Florenio C. Angeles, had no personal knowledge of the facts which formed the basis for the issuance of the search warrant;

(2) the examination of the said witness was not in the form of searching questions and answers;

(3) the search warrant was a general warrant, for the reason that it did not particularly describe the place to be searched and that it failed to charge one specific offense; and

(4) the search warrant was issued in violation of Circular No. 19 of the Supreme Court in that the complainant failed to allege under oath that the issuance of the search warrant on a Saturday was urgent.


  • Respondent Judge issued an order, denying the petitioner’s motion and supplemental motion to quash. Petitioner’s motion for reconsideration 10 was likewise denied







  • Whether or not there was probable cause to satisfy the issuance of a search warrant.







For a valid search warrant to issue, there must be PROBABLE CAUSE, which is to be determined personally by the judge, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The probable cause must be in connection with one specific offense and the judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and any witness he may produce, on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted.


“Probable cause” for a valid search warrant, has been defined “as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed, and that objects sought in connection with the offense are in the place sought to be searched.”  This probable cause must be shown to be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay.


In his application for search warrant, P/Major Alladin Dimagmaliw stated that “he has been informed” that Nemesio Prudente “has in his control and possession” the firearms and explosives described therein, and that he “has verified the report and found it to be a fact.” On the other hand, in his supporting deposition, P/Lt. Florenio C. Angeles declared that, as a result of their continuous surveillance for several days, they “gathered informations from verified sources” that the holders of the said fire arms and explosives are not licensed to possess them. In other words, the applicant and his witness had no personal knowledge of the facts and circumstances which became the basis for issuing the questioned search warrant, but acquired knowledge thereof only through information from other sources or persons.


Moreover, a perusal of the deposition of P/Lt. Florenio Angeles shows that it was too brief and short. Respondent Judge did not examine him “in the form of searching questions and answers.” On the contrary, the questions asked were leading as they called for a simple “yes” or “no” answer.  Asking of leading questions to the deponent in an application for search warrant, and conducting of examination in a general manner, would not satisfy the requirements for issuance of a valid search warrant.”





The rule is, that a description of a place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and Identify the place intended .  In the case at bar, the application for search warrant and the search warrant itself described the place to be searched as the premises of the Polytechnic University of the Philippines. The designation of the places to be searched sufficiently complied with the constitutional injunction that a search warrant must particularly describe the place to be searched, even if there were several rooms at the ground floor and second floor of the PUP.