G.R. No. L-20352, November 29, 1968
LILIA YUSAY GONZALES, petitioner, vs. HON. WENCESLAO L. FERNAN, as Judge of the Court of First Instance of Iloilo and FLORENCIA P. VDA. DE YUSAY, respondents.

FACTS

1. On May 30, 1956, a reamended project of partition was filed and approved in Special Proceedings No. 459 (“Intestate Estate of the late Matias Yusay”) by the Court of First Instance of Iloilo. This project awarded petitioner Lilia Yusay Gonzales, a natural child, one-third (1/3) of the estate, with the remaining two-thirds (2/3) going to the legitimate son, Jose S. Yusay.
2. The Supreme Court affirmed the project of partition in G.R. No. L-11378 on August 21, 1959. The intestate proceedings remained pending as debts were not fully paid and the estate had not been delivered to the heirs.
3. Among the properties awarded to petitioner was a parcel of land described as Lot No. 5904 of the Pototan Cadastre, covered by OCT No. 42956, with an area of 10.8405 hectares. However, upon verification, it was discovered that the lot with that area was actually Lot No. 5927, not Lot No. 5904.
4. On August 17, 1962, petitioner filed a motion in the probate court to correct this obvious mistake in the reamended project of partition, attaching a certification from the Iloilo Register of Deeds confirming that Lot No. 5927 corresponded to the area stated.
5. Respondent Florencia P. Vda. de Yusay, widow and heir of Jose Yusay (who died on November 30, 1956), opposed the motion, arguing that since the project of partition had been affirmed by the Supreme Court and was final and executory, the probate court no longer had jurisdiction to amend it.
6. On September 22, 1962, respondent Judge Wenceslao L. Fernan denied the motion, sustaining the opposition that he lacked jurisdiction to correct the partition. Petitioner’s motion for reconsideration was also denied.
7. Petitioner filed a petition for mandamus with the Supreme Court on October 8, 1962, alleging that the respondent judge unlawfully neglected a duty by refusing to assume jurisdiction to correct the mistake, and that she had no other plain, speedy, and adequate remedy. The petition was given due course on October 10, 1962, but no answer was filed by respondents.
8. On November 12, 1968, petitioner filed a motion to withdraw the petition, stating that she was seeking another remedy for the same cause in the Court of First Instance of Iloilo, sitting as a cadastral court, under Section 112 of Act No. 496 (the Land Registration Act).

ISSUE

Whether the petition for mandamus should be granted to compel the probate court to assume jurisdiction and correct an alleged mistake in the reamended project of partition that had already been affirmed by the Supreme Court and become final and executory.

RULING

The Supreme Court granted petitioner’s motion to withdraw the petition. The Court did not rule on the merits of the mandamus petition or the underlying issue of the probate court’s jurisdiction to correct the project of partition after final affirmation. Instead, it allowed the withdrawal based on petitioner’s representation that she was pursuing another remedy in the cadastral court. The petition was considered withdrawn, without pronouncement as to costs.