Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 76464 February 29, 1988
TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO
CASIANO, CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN
CATHOLIC CHURCH OF MOLO, AND ASILO DE MOLO, petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.

SARMIENTO, J.:
This is not the first time that the parties to this case come to us. In fact, two other
cases directly related to the present one and involving the same parties had already
been decided by us in the past. In G.R. No. L-30479, 1which was a petition for
certiorari and mandamus instituted by the petitioners herein, we dismissed the
petition ruling that the more appropriate remedy of the petitioners is a separate
proceeding for the probate of the will in question. Pursuant to the said ruling, the
petitioners commenced in the then Court of First Instance of Iloilo, Special
Proceeding No. 2176, for the probate of the disputed will, which was opposed by the
private respondents presently, Panfilo and Felino both surnamed Maloto. The trial
court dismissed the petition on April 30, 1970. Complaining against the dismissal,
again, the petitioners came to this Court on a petition for review by
certiorari. 2 Acting on the said petition, we set aside the trial court's order and
directed it to proceed to hear the case on the merits. The trial court, after hearing,
found the will to have already been revoked by the testatrix. Adriana Maloto, and
thus, denied the petition. The petitioners appealed the trial court's decision to the
Intermediate Appellate Court which, on June 7, 1985, affirmed the order. The
petitioners' motion for reconsideration of the adverse decision proved to be of no
avail, hence, this petition.
For a better understanding of the controversy, a factual account would be a great
help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews,
the petitioners Aldina Maloto-Casiano and Constancio, Maloto, and the private
respondents Panfilo Maloto and Felino Maloto. Believing that the deceased did not
leave behind a last will and testament, these four heirs commenced on November 4,
1963 an intestate proceeding for the settlement of their aunt's estate. The case was
instituted in the then Court of First Instance of Iloilo and was docketed as Special
Proceeding No. 1736. However, while the case was still in progress, or to be exact
on February 1, 1964, the parties Aldina, Constancio, Panfilo, and Felino
executed an agreement of extrajudicial settlement of Adriana's estate. The

agreement provided for the division of the estate into four equal parts among the
parties. The Malotos then presented the extrajudicial settlement agreement to the
trial court for approval which the court did on March 21, 1964. That should have
signalled the end of the controversy, but, unfortunately, it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former
associate of Adriana's counsel, the late Atty. Eliseo Hervas, discovered a document
entitled "KATAPUSAN NGA PAGBUBULAT-AN (Testamento)," dated January 3,1940,
and purporting to be the last will and testament of Adriana. Atty. Palma claimed to
have found the testament, the original copy, while he was going through some
materials inside the cabinet drawer formerly used by Atty. Hervas. The document
was submitted to the office of the clerk of the Court of First Instance of Iloilo on April
1, 1967. Incidentally, while Panfilo and Felino are still named as heirs in the said will,
Aldina and Constancio are bequeathed much bigger and more valuable shares in
the estate of Adriana than what they received by virtue of the agreement of
extrajudicial settlement they had earlier signed. The will likewise gives devises and
legacies to other parties, among them being the petitioners Asilo de Molo, the
Roman Catholic Church of Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and
legatees named in the will, filed in Special Proceeding No. 1736 a motion for
reconsideration and annulment of the proceedings therein and for the allowance of
the will When the trial court denied their motion, the petitioner came to us by way
of a petition for certiorari and mandamus assailing the orders of the trial court . 3 As
we stated earlier, we dismissed that petition and advised that a separate
proceeding for the probate of the alleged will would be the appropriate vehicle to
thresh out the matters raised by the petitioners.
Significantly, the appellate court while finding as inconclusive the matter on
whether or not the document or papers allegedly burned by the househelp of
Adriana, Guadalupe Maloto Vda. de Coral, upon instructions of the testatrix, was
indeed the will, contradicted itself and found that the will had been revoked. The
respondent court stated that the presence of animus revocandi in the destruction of
the will had, nevertheless, been sufficiently proven. The appellate court based its
finding on the facts that the document was not in the two safes in Adriana's
residence, by the testatrix going to the residence of Atty. Hervas to retrieve a copy
of the will left in the latter's possession, and, her seeking the services of Atty. Palma
in order to have a new will drawn up. For reasons shortly to be explained, we do not
view such facts, even considered collectively, as sufficient bases for the conclusion
that Adriana Maloto's will had been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the due
execution of the will. The heart of the case lies on the issue as to whether or not the
will was revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can be found in Article
830.
Art. 830. No will shall be revoked except in the following cases:

(1) By implication of law; or

(2) By some will, codicil, or other writing executed as provided in case
of wills: or
(3) By burning, tearing, cancelling, or obliterating the will with the
intention of revoking it, by the testator himself, or by some other
person in his presence, and by his express direction. If burned, torn
cancelled, or obliterated by some other person, without the express
direction of the testator, the will may still be established, and the
estate distributed in accordance therewith, if its contents, and due
execution, and the fact of its unauthorized destruction, cancellation, or
obliteration are established according to the Rules of Court. (Emphasis
Supplied.)
It is clear that the physical act of destruction of a will, like burning in this case, does
not per se constitute an effective revocation, unless the destruction is coupled
with animus revocandi on the part of the testator. It is not imperative that the
physical destruction be done by the testator himself. It may be performed by
another person but under the express direction and in the presence of the testator.
Of course, it goes without saying that the document destroyed must be the will
itself.
In this case, while animus revocandi or the intention to revoke, may be conceded,
for that is a state of mind, yet that requisite alone would not suffice. "Animus
revocandi is only one of the necessary elements for the effective revocation of a last
will and testament. The intention to revoke must be accompanied by the overt
physical act of burning, tearing, obliterating, or cancelling the will carried out by the
testator or by another person in his presence and under his express direction. There
is paucity of evidence to show compliance with these requirements. For one, the
document or papers burned by Adriana's maid, Guadalupe, was not satisfactorily
established to be a will at all, much less the will of Adriana Maloto. For another, the
burning was not proven to have been done under the express direction of Adriana.
And then, the burning was not in her presence. Both witnesses, Guadalupe and
Eladio, were one in stating that they were the only ones present at the place where
the stove (presumably in the kitchen) was located in which the papers proffered as
a will were burned.
The respondent appellate court in assessing the evidence presented by the private
respondents as oppositors in the trial court, concluded that the testimony of the two
witnesses who testified in favor of the will's revocation appear "inconclusive." We
share the same view. Nowhere in the records before us does it appear that the two
witnesses, Guadalupe Vda. de Corral and Eladio Itchon, both illiterates, were
unequivocably positive that the document burned was indeed Adriana's will.
Guadalupe, we think, believed that the papers she destroyed was the will only
because, according to her, Adriana told her so. Eladio, on the other hand, obtained
his information that the burned document was the will because Guadalupe told him
so, thus, his testimony on this point is double hearsay.

At this juncture, we reiterate that "(it) is an important matter of public interest that
a purported win is not denied legalization on dubious grounds. Otherwise, the very
institution of testamentary succession will be shaken to its very foundations ...." 4
The private respondents in their bid for the dismissal of the present action for
probate instituted by the petitioners argue that the same is already barred by res
adjudicata. They claim that this bar was brought about by the petitioners' failure to
appeal timely from the order dated November 16, 1968 of the trial court in the
intestate proceeding (Special Proceeding No. 1736) denying their (petitioners')
motion to reopen the case, and their prayer to annul the previous proceedings
therein and to allow the last will and testament of the late Adriana Maloto. This is
untenable.
The doctrine of res adjudicata finds no application in the present controversy. For a
judgment to be a bar to a subsequent case, the following requisites must concur: (1)
the presence of a final former judgment; (2) the former judgment was rendered by a
court having jurisdiction over the subject matter and the parties; (3) the former
judgment is a judgment on the merits; and (4) there is, between the first and the
second action, Identity of parties, of subject matter, and of cause of action. 5 We do
not find here the presence of all the enumerated requisites.
For one, there is yet, strictly speaking, no final judgment rendered insofar as the
probate of Adriana Maloto's will is concerned. The decision of the trial court in
Special Proceeding No. 1736, although final, involved only the intestate settlement
of the estate of Adriana. As such, that judgment could not in any manner be
construed to be final with respect to the probate of the subsequently discovered will
of the decedent. Neither is it a judgment on the merits of the action for probate.
This is understandably so because the trial court, in the intestate proceeding, was
without jurisdiction to rule on the probate of the contested will . 6 After all, an action
for probate, as it implies, is founded on the presence of a will and with the objective
of proving its due execution and validity, something which can not be properly done
in an intestate settlement of estate proceeding which is predicated on the
assumption that the decedent left no will. Thus, there is likewise no Identity
between the cause of action in intestate proceeding and that in an action for
probate. Be that as it may, it would be remembered that it was precisely because of
our ruling in G.R. No. L-30479 that the petitioners instituted this separate action for
the probate of the late Adriana Maloto's will. Hence, on these grounds alone, the
position of the private respondents on this score can not be sustained.
One last note. The private respondents point out that revocation could be inferred
from the fact that "(a) major and substantial bulk of the properties mentioned in the
will had been disposed of: while an insignificant portion of the properties remained
at the time of death (of the testatrix); and, furthermore, more valuable properties
have been acquired after the execution of the will on January 3,1940." 7 Suffice it to
state here that as these additional matters raised by the private respondents are
extraneous to this special proceeding, they could only be appropriately taken up
after the will has been duly probated and a certificate of its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the
Decision dated June 7, 1985 and the Resolution dated October 22, 1986, of the

respondent Court of Appeals, and a new one ENTERED for the allowance of Adriana
Maloto's last will and testament. Costs against the private respondents.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
Yap (Chairman), Melencio-Herrera, and Paras JJ., concur.
Padilla, J., took no part.

Footnotes
1 Constancio Maloto, et al. vs. Hon. Emigdio V. Nietes, etc., et al., May
14, 1969.
2 G.R. No. L-32328.
3 G.R. No. L-30479, supra.
4 Vda. de Precilla vs. Narciso, No. L-27200, August 18, 1972, 46 SCRA
538, 565-566, quoted in: Maninang vs. Court of Appeals, No. L-57848,
June 19, 1982, 114 SCRA 78.
5 Heirs of Matilde Cenizal Arguzon vs. Miclat, No. L-61049, April 15,
1985, 135 SCRA 678; Martinez vs. Court of Appeals, No. L-41425,
November 11, 1985,139 SCRA 558.
6 See Circa Nila Development Corporation, et. al. vs. Hon. Salvador J.
Baylen, etc., et al., G.R. Nos. 69757-58, January 29, 1988.
7 Rollo, 75.

EN BANC
G.R. No. L-8327

December 14, 1955

ANTONINA CUEVAS, Plaintiff-Appellant, vs. CRISPULO CUEVAS, DefendantAppellee.

Pedro D. Maldia for appellant.

Teodoro P. Santiago for appellee.
REYES, J. B. L., J.:
On September 18, 1950, Antonina Cuevas executed a notarized conveyance entitled
"Donacin Mortis Causa," ceding to her nephew Crispulo Cuevas the northern half of
a parcel of unregistered land in barrio Sinasajan, municipality of Penaranda,
Province of Nueva Ecija (Exhibit A). In the same instrument appears the acceptance
of Crispulo Cuevas.chanroblesvirtualawlibrary chanrobles virtual law library
"Subsequently, on May 26, 1952, the donor executed another notarial instrument
entitled "Revocacion de Donacion Mortis Causa" (Exhibit B) purporting to set aside
the preceding conveyance; and on August 26, 1952, she brought action in the Court
of First Instance to recover the land conveyed, on the ground (1) that the donation
being mortis causa, it had been lawfully revoked by the donor; and (2) even it if
were a donation inter vivos, the same was invalidated because (a) it was not
properly accepted; (b) because the donor did not reserve sufficient property for her
own maintenance, and (c) because the donee was guilty of ingratitute, for having
refused to support the donor.chanroblesvirtualawlibrary chanrobles virtual law
library
Issues having been joined, and trial had, the Court of First Instance denied the
recovery sought, and Antonina Cuevas thereupon appealed. The Court of Appeals
forwarded the case to this Court because, the case having been submitted on a
stipulation of facts, the appellant raised only questions of
law.chanroblesvirtualawlibrary chanrobles virtual law library
The first issue tendered converns the true nature of the deed "Exhibit A"; whether it
embodies a donation inter vivos, or a disposition of property mortis causa revocable
freely by the transferor at any time before death. 1 chanrobles virtual law library
It has been rules that neither the designation mortis causa, nor the provision that a
donation is "to take effect at the death of the donor", is a controlling criterion in
defining the true nature of donations (Laureta vs. Mata, 44 Phil., 668; Concepcion
vs. Concepcion, 91 Phil., 823). Hence, the crux of the controversy revolves around
the following provisions of the deed of donation:
Dapat maalaman ni Crispulo Cuevas na samantalang ako ay nabubuhay, and lupa
na ipinagkakaloob ko sa kaniya ay ako pa rin and patuloy na mamomosecion,
makapagparatrabaho, makikinabang at ang iba pang karapatan sa pagmamayari ay
sa akin pa rin hanggang hindo ko binabawian ny buhay ng Maykapal at ito naman
ay hindi ko nga iya-alis pagkat kung ako ay mamatay na ay inilalaan ko sa kaniya.
There is an apparent conflict in the expression above quoted, in that the donor
reserves to herself "the right of possession, cultivation, harvesting and other rights
and attributes of ownership while I am not deprived of life by the Almighty"; but
right after, the same donor states that she "will not takle away" (the property)
"because I reserve it for him (the donee) when I die."chanrobles virtual law library

The question to be decided is whetehr the donor intended to part with the title to
the property immediately upon the execution of the deed, or only later, when she
had died. If the first, the donation is operative inter vivos; if the second, we would
be confronted with a disposition mortis causa, void from the beginning because the
formalities of testaments were not observed (new Civil Code, Arts. 728 and 828;
heirs of Bonsato vs. Court of Appeals, 2 50 Off. Gaz. (8), p. 3568; Tuason vs.
Posadas, 54 Phil., 289; Sent. Trib. Sup. of Spain, 8 July
1943).chanroblesvirtualawlibrary chanrobles virtual law library
We agree with the Court below that the decisive proof that the present donation is
operative inter vivor lies in the final phrase to the effect that the donor will not
dispose ortake away ("hindi ko nga iya-alis" in the original) the land "because I am
reserving it to him upon my death." By these words the donor expressly renounced
the right to freely dispose of the property in favor of another (a right essential to full
ownership) and manifested the irrevocability of the conveyance of the naked title to
the property in favor of the donee. As stated in our decision in Bonsato vs. Court of
Appeals, ante, such irrevocability is characteristic of donations inter vivos, because
it is incompatible with the idea of a disposition post mortem. Witness article 828 of
the New Civil Code, that provides:
ART. 828. A will may be revoked by the testator at any time before his death. Any
waiver or restriction of this right is void.
It is apparent from the entire context of the deed of donation that the donor
intended that she should retain the entire beneficial ownership during her lifetime,
but that the naked title should irrevocably pass to the donee. It is only thus that all
the expressions heretofore discussed can be given full effect; and when the donor
stated that she would continue to retain the "possession, cultivation, harvesting and
all other rights and attributes of ownership," she meant only the dominium utile, not
the full ownership. As the Court below correctly observed, the words "rights and
attributes of ownership" should be construed ejusdem generis with the preceding
rights of "possession, cultivation and harvesting" expressly enumerated in the deed.
Had the donor meant to retain full or absolute ownership she had no need to specify
possession, cultivation and harvesting, since all these rights are embodied in full or
absolute ownership; nor would she then have excluded the right of free disposition
from the "rights and attributes of ownership" that she reserved for
herself.chanroblesvirtualawlibrary chanrobles virtual law library
Hence, the Court below rightly concluded that the deed Exhibit A was a valid
donation inter vivos, with reservation of beneficial title during the lifetime of the
donor. We may add that it is highly desirable that all those who are called to prepare
or notarize deeds of donation should call the attention of the donors to the
necessity of clearly specifying whether, notwithstanding the donation, they wish to
retain the right to control and dispose at will of the property before their death,
without need of the consent or intervention of the beneficiary, since the express
reservation of such right would be conclusive indication that the liberality is to exist
only at the donor's death, and therefore, the formalities of testaments should be
observed; while, a converso, the express waiver of the right of free disposition
would place the inter vivos character of the donation beyond dispute (Heirs of

Bonsato vs. Court of Appeals, 50 Off. Gaz. (8), p.

3568).chanroblesvirtualawlibrary chanrobles virtual law library
The argument that there was no sufficient acceptance, because the deed "merely
recites that (1) the donee has duly read all the contents of this donation; (2) that he
'shall fully respect all its terms'; and (3) that 'for the act of benevolence' he is
expressing his gratitude" but there is no show of acceptance (Appellant's brief, p.
7), is without basis. To respect the terms of the donation, and at the same time
express gratitude for the donor's benevolence, constitutes sufficient acceptance, If
the donee did not accept, what had he to be grateful about? We are no longer under
the formulary system of the Roman law, when specific expressions had to be used
under paid of nullity.chanroblesvirtualawlibrary chanrobles virtual law library
Also unmeritoriious is the contention that the donation is void because the donor
failed to reserve enough for ther own support. As we have seen, she expressly
reserved to herself all the benefits derivable from the donated property as long as
she lived. During that time, she suffered no diminution of income. If that was not
enough to support her, the deficiency was not dur to the
donation.chanroblesvirtualawlibrary chanrobles virtual law library
Finally, the donee is not rightfully chargeaboe with ingratitude, because it was
expressly stipulated that the donee had a total income of only P30 a month, out of
which he had to support himself, his wife and his two children. Evidently his means
did not allow him to add the donor's support to his own
burdens.chanroblesvirtualawlibrary chanrobles virtual law library
Wherefore, the decision appealed from is affirmed. No costs in this instance,
appellant having obtained leave to litigate as a pauper. So
ordered.chanroblesvirtualawlibrary chanrobles virtual law library
Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo,
Labrador, and Concepcion, JJ., concur. chanrobles virtual law library
Endnotes:
1 In Bonsato vs. Court of Appeals, 50 Off. Gaz. (8), p. 3568, we have called attention
to the legal inexistance of so-called "donation mortis causa" that out Civil Code
identifies with testamentary disposition.2 95 Phil. 481.
2 95 Phil. 481.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-26317

January 29, 1927

Estate of Miguel Mamuyac, deceased.

FRANCISCO GAGO, petitioner-appellant,
vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA,
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.
Nicanor Tavora for appellant.
Jose Rivera for appellees.
JOHNSON, J.:
The purpose of this action was to obtain the probation of a last will and testament of
Miguel Mamuyac, who died on the 2d day of January, 1922, in the municipality of
Agoo of the Province of La Union. It appears from the record that on or about the
27th day of July, 1918, the said Miguel Mamuyac executed a last will and testament
(Exhibit A). In the month of January, 1922, the said Francisco Gago presented a
petition in the Court of First Instance of the Province of La Union for the probation of
that will. The probation of the same was opposed by Cornelio Mamuyac, Ambrosio
Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144, Province of
La Union). After hearing all of the parties the petition for the probation of said will
was denied by the Honorable C. M. Villareal on the 2d day of November, 1923, upon
the ground that the deceased had on the 16th day of April, 1919, executed a new
will and testament.
On the 21st day of February, 1925, the present action was commenced. Its purpose
was to secure the probation of the said will of the 16th day of April, 1919 (Exhibit 1).
To said petition Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina
Mamuyac presented their oppositions, alleging (a) that the said will is a copy of the
second will and testament executed by the said Miguel Mamuyac; (b) that the same
had been cancelled and revoked during the lifetime of Miguel Mamuyac and (c) that
the said will was not the last will and testament of the deceased Miguel Mamuyac.
Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge, after
hearing the respective parties, denied the probation of said will of April 16, 1919,
upon the ground that the same had been cancelled and revoked in the year 1920.
Judge Teodoro, after examining the evidence adduced, found that the following facts
had been satisfactorily proved:
That Exhibit A is a mere carbon of its original which remained in the
possession of the deceased testator Miguel Mamuyac, who revoked it before
his death as per testimony of witness Jose Fenoy, who typed the will of the
testator on April 16, 1919, and Carlos Bejar, who saw on December 30, 1920,
the original Exhibit A (will of 1919) actually cancelled by the testator Miguel
Mamuyac, who assured Carlos Bejar that inasmuch as he had sold him a
house and the land where the house was built, he had to cancel it (the will of
1919), executing thereby a new testament. Narcisa Gago in a way
corroborates the testimony of Jose Fenoy, admitting that the will executed by
the deceased (Miguel Mamuyac) in 1919 was found in the possession of
father Miguel Mamuyac. The opponents have successfully established the
fact that father Miguel Mamuyac had executed in 1920 another will. The

same Narcisa Gago, the sister of the deceased, who was living in the house
with him, when cross-examined by attorney for the opponents, testified that
the original Exhibit A could not be found. For the foregoing consideration and
for the reason that the original of Exhibit A has been cancelled by the
deceased father Miguel Mamuyac, the court disallows the probate of Exhibit A
for the applicant." From that order the petitioner appealed.
The appellant contends that the lower court committed an error in not finding from
the evidence that the will in question had been executed with all the formalities
required by the law; that the same had been revoked and cancelled in 1920 before
his death; that the said will was a mere carbon copy and that the oppositors were
not estopped from alleging that fact.
With reference to the said cancellation, it may be stated that there is positive proof,
not denied, which was accepted by the lower court, that will in question had been
cancelled in 1920. The law does not require any evidence of the revocation or
cancellation of a will to be preserved. It therefore becomes difficult at times to prove
the revocation or cancellation of wills. The fact that such cancellation or revocation
has taken place must either remain unproved of be inferred from evidence showing
that after due search the original will cannot be found. Where a will which cannot be
found is shown to have been in the possession of the testator, when last seen, the
presumption is, in the absence of other competent evidence, that the same was
cancelled or destroyed. The same presumption arises where it is shown that the
testator had ready access to the will and it cannot be found after his death. It will
not be presumed that such will has been destroyed by any other person without the
knowledge or authority of the testator. The force of the presumption of cancellation
or revocation by the testator, while varying greatly, being weak or strong according
to the circumstances, is never conclusive, but may be overcome by proof that the
will was not destroyed by the testator with intent to revoke it.
In view of the fat that the original will of 1919 could not be found after the death of
the testator Miguel Mamuyac and in view of the positive proof that the same had
been cancelled, we are forced to the conclusion that the conclusions of the lower
court are in accordance with the weight of the evidence. In a proceeding to probate
a will the burden of proofs is upon the proponent clearly to establish not only its
execution but its existence. Having proved its execution by the proponents, the
burden is on the contestant to show that it has been revoked. In a great majority of
instances in which wills are destroyed for the purpose of revoking them there is no
witness to the act of cancellation or destruction and all evidence of its cancellation
perishes with the testator. Copies of wills should be admitted by the courts with
great caution. When it is proven, however, by proper testimony that a will was
executed in duplicate and each copy was executed with all the formalities and
requirements of the law, then the duplicate may be admitted in evidence when it is
made to appear that the original has been lost and was not cancelled or destroyed
by the testator. (Borromeo vs. Casquijo, G.R. No. L-26063.)1
After a careful examination of the entire record, we are fully persuaded that the will
presented for probate had been cancelled by the testator in 1920. Therefore the
judgment appealed from is hereby affirmed. And without any finding as to costs, it is
so ordered.

Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.

Footnotes
1

Promulgated December 14, 1926, not reported.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. L-2538

September 21, 1951

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN

VDA. DE MOLO, petitioner-appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.
Claro M. Recto and Serafin C. Dizon for appellants.
Delgado & Flores for appellee.
BAUTISTA ANGELO, J.:
This is an appeal from an order of the Court of First Instance of Rizal admitting to
probate the last will and testament of the deceased Mariano Molo y Legaspi
executed on August 17, 1918. The oppositors-appellants brought the case on appeal
to this Court for the reason that the value of the properties involved exceeds
P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay,
province of Rizal, without leaving any forced heir either in the descending or
ascending line. He was survived, however, by his wife, the herein petitioner Juana
Juan Vda. de Molo, and by his nieces and nephew, the oppositors-appellants, Luz
Gliceria and Cornelio, all surnamed Molo, who were the legitimate children of
Candido Molo y Legaspi, deceased brother of the testator. Mariano Molo y Legaspi
left two wills, one executed on August 17, 1918, (Exhibit A) and another executed
on June 20, 1939. (Exhibit I). The later will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of
Rizal a petition, which was docketed as special proceeding No. 8022 seeking the
probate of the will executed by the deceased on June 20, 1939. There being no
opposition, the will was probated. However, upon petition filed by the herein
oppositors, the order of the court admitting the will to probate was set aside and the
case was reopened. After hearing, at which both parties presented their evidence,

the court rendered decision denying the probate of said will on the ground that the
petitioner failed to prove that the same was executed in accordance with law.
In view of the disallowance of the will executed on June 20, 1939, the widow on
February 24, 1944, filed another petition for the probate of the will executed by the
deceased on August 17, 1918, which was docketed as special proceeding No. 56, in
the same court. Again, the same oppositors filed an opposition to the petition based
on three grounds: (1) that petitioner is now estopped from seeking the probate of
the will of 1918; (2) that said will has not been executed in the manner required by
law and (3) that the will has been subsequently revoked. But before the second
petition could be heard, the battle for liberation came and the records of the case
were destroyed. Consequently, a petition for reconstitution was filed, but the same
was found to be impossible because neither petitioner nor oppositors could produce
the copies required for its reconstitution. As a result, petitioner filed a new petition
on September 14, 1946, similar to the one destroyed, to which the oppositors filed
an opposition based on the same grounds as those contained in their former
opposition. Then, the case was set for trial, and on May 28, 1948, the court issued
an order admitting the will to probate already stated in the early part of this
decision. From this order the oppositors appealed assigning six errors, to wit.
I. The probate court erred in not holding that the present petitioner
voluntarily and deliberately frustrated the probate of the will dated June 20,
1939, in special proceeding No. 8022, in order to enable her to obtain the
probate of another alleged will of Molo dated 191.
II. The court a quo erred in not holding that the petitioner is now estopped
from seeking the probate of Molo's alleged will of 1918.
III. The lower court erred in not holding that petitioner herein has come to
court with "unclean hands" and as such is not entitled to relief.
IV. The probate court erred in not holding that Molo's alleged will of August
17, 1918 was not executed in the manner required by law.
V. The probate court erred in not holding that the alleged will of 1918 was
deliberately revoked by Molo himself.
VI. The lower court erred in not holding that Molo's will of 1918 was
subsequently revoked by the decedent's will of 1939.
In their first assignment of error, counsel for oppositors contend that the probate
court erred in not holding that the petitioner voluntarily and deliberately frustrated
the probate of the will dated June 20, 1939, in order to enable her to obtain the
probate of the will executed by the deceased on August 17, 1918, pointing out
certain facts and circumstances with their opinion indicate that petitioner connived
with the witness Canuto Perez in an effort to defeat and frustrate the probate of the
1939 will because of her knowledge that said will intrinsically defective in that "the
one and only testamentory disposition thereof was a "disposicion captatoria". These
circumstances, counsel for the appellants contend, constitute a series of steps

deliberately taken by petitioner with a view to insuring the realization of her plan of
securing the probate of the 1918 will which she believed would better safeguard her
right to inherit from the decease.
These imputations of fraud and bad faith allegedly committed in connection with
special proceedings No. 8022, now closed and terminated, are vigorously met by
counsel for petitioner who contends that to raise them in these proceedings which
are entirely new and distinct and completely independent from the other is
improper and unfair as they find no support whatsoever in any evidence submitted
by the parties in this case. They are merely based on the presumptions and
conjectures not supported by any proof. For this reason, counsel, contends, the
lower court was justified in disregarding them and in passing them sub silentio in its
decision.
A careful examination of the evidence available in this case seems to justify this
contention. There is indeed no evidence which may justify the insinuation that
petitioner had deliberately intended to frustrate the probate of the 1939 will of the
deceased to enable her to seek the probate of another will other than a mere
conjecture drawn from the apparently unexpected testimony of Canuto Perez that
he went out of the room to answer an urgent call of nature when Artemio Reyes was
signing the will and the failure of petitioner later to impeach the character of said
witness in spite of the opportunity given her by the court to do so. Apart from this
insufficiency of evidence, the record discloses that this failure has been explained
by petitioner when she informed the court that she was unable to impeach the
character of her witness Canuto Perez because of her inability to find witnesses who
may impeach him, and this explanation stands uncontradicted. Whether this
explanation is satisfactory or not, it is not now, for us to determine. It is an incident
that comes within the province of the former case. The failure of petitioner to
present the testimony of Artemio Reyes at the hearing has also been explained, and
it appears that petitioner has filed because his whereabouts could not be found.
Whether this is true or not is also for this Court to determine. It is likewise within the
province and function of the court in the former case. And the unfairness of this
imputation becomes more glaring when we stock of the developments that had
taken place in these proceedings which show in bold relief the true nature of the
conduct, behavior and character of the petitioner so bitterly assailed and held in
disrepute by the oppositors.
It should be recalled that the first petition for the probate of the will executed on
June 20, 1939, was filed on February 7, 1941, by the petitioner. There being no
opposition, the will was probated. Subsequently, however, upon petition of the
herein oppositors, the order of the court admitting said will to probate was set
aside, over the vigorous opposition of the herein petitioner, and the case was
reopened. The reopening was ordered because of the strong opposition of the
oppositors who contended that he will had not been executed as required by law.
After the evidence of both parties had been presented, the oppositors filed an
extensive memorandum wherein they reiterated their view that the will should be
denied probate. And on the strenght of this opposition, the court disallowed the will.
If petitioner then knew that the 1939 will was inherently defective and would make
the testamentary disposition in her favor invalid and ineffective, because it is a

"disposicion captatoria", which knowledge she may easily acquire through

consultation with a lawyer, there was no need her to go through the order of filing
the petition for the probate of the will. She could accomplish her desire by merely
suppressing the will or tearing or destroying it, and then take steps leading to the
probate of the will executed in 1918. But for her conscience was clear and bade her
to take the only proper step possible under the circumstances, which is to institute
the necessary proceedings for the probate of the 1939 will. This she did and the will
was admitted to probate. But then the unexpected happened. Over her vigorous
opposition, the herein appellants filed a petition for reopening, and over her
vigorous objection, the same was granted and the case was reopened. Her motion
for reconsideration was denied. Is it her fault that the case was reopened? Is it her
fault that the order admitting the will to probate was set aside? That was a
contingency which petitioner never expected. Had appellants not filed their
opposition to the probate of the will and had they limited their objection to the
intrinsic validity of said will, their plan to defeat the will and secure the intestacy of
the deceased would have perhaps been accomplished. But they failed in their
strategy. If said will was denied probate it is due to their own effort. It is now unfair
to impute bad faith petitioner simply because she exerted every effort to protect her
own interest and prevent the intestacy of the deceased to happen.
Having reached the foregoing conclusions, it is obvious that the court did not
commit the second and third errors imputed to it by the counsel for appellants.
Indeed, petitioner cannot be considered guilty or estoppel which would prevent her
from seeking the probate of the 1918 will simply because of her effort to obtain the
allowance of the 1939 will has failed considering that in both the 1918 and 1939
wills she was in by her husband as his universal heir. Nor can she be charged with
bad faith far having done so because of her desire to prevent the intestacy of her
husband. She cannot be blamed being zealous in protecting her interest.
The next contention of appellants refers to the revocatory clause contained in 1939
will of the deceased which was denied probate. They contend that, notwithstanding
the disallowance of said will, the revocatory clause is valid and still has the effect of
nullifying the prior of 1918.
Counsel for petitioner meets this argument by invoking the doctrine laid down in the
case of Samson vs. Naval, (41 Phil., 838). He contends that the facts involved in
that case are on all fours with the facts of this case. Hence, the doctrine is that case
is here controlling.
There is merit in this contention. We have carefully read the facts involved in the
Samson case we are indeed impressed by their striking similarity with the facts of
this case. We do not need to recite here what those facts are; it is enough to point
out that they contain many points and circumstances in common. No reason,
therefore, is seen by the doctrine laid down in that case (which we quote hereunder)
should not apply and control the present case.
A subsequent will, containing a clause revoking a previous will, having been
disallowed, for the reason that it was not executed in conformity with the
provisions of section 618 of the Code of Civil Procedure as to the making of

wills, cannot produce the effect of annulling the previous will, inasmuch as
said revocatory clause is void. (41 Phil., 838.)
Apropos of this question, counsel for oppositors make the remark that, while they do
not disagree with the soundness of the ruling laid down in the Samson case, there is
reason to abandon said ruling because it is archaic or antiquated and runs counter
to the modern trend prevailing in American jurisprudence. They maintain that said
ruling is no longer controlling but merely represents the point of view of the minority
and should, therefore, be abandoned, more so if we consider the fact that section
623 of our Code of Civil Procedure, which governs the revocation of wills, is of
American origin and as such should follow the prevailing trend of the majority view
in the United States. A long line of authorities is cited in support of this contention.
And these authorities hold the view, that "an express revocation is immediately
effective upon the execution of the subsequent will, and does not require that it first
undergo the formality of a probate proceeding". (p. 63, appellants' brief .
While they are many cases which uphold the view entertained by counsel for
oppositors, and that view appears to be in controlling the states where the decisions
had been promulgated, however, we are reluctant to fall in line with the assertion
that is now the prevailing view in the United States. In the search we have made of
American authorities on the subject, we found ourselves in a pool of conflicting
opinions perhaps because of the peculiar provisions contained in the statutes
adopted by each State in the subject of revocation of wills. But the impression we
gathered from a review and the study of the pertinent authorities is that the
doctrine laid down in the Samson case is still a good law. On page 328 of the
American Jurisprudence Vol. 57, which is a revision Published in 1948, we found the
following passages which in our opinion truly reflect the present trend of American
jurisprudence on this matter affecting the revocation of wills:
SEC. 471. Observance of Formalities in Execution of Instrument. Ordinarily,
statutes which permit the revocation of a will by another writing provide that
to be effective as a revocation, the writing must be executed with the same
formalities which are required to be observed in the execution of a will.
Accordingly, where, under the statutes, attestation is necessary to the
making of a valid will, an unattested non testamentary writing is not effective
to revoke a prior will. It has been held that a writing fails as a revoking
instrument where it is not executed with the formalities requisite for the
execution of a will, even though it is inscribed on the will itself, although it
may effect a revocation by cancellation or obliteration of the words of the
will. A testator cannot reserve to himself the power to modify a will by a
written instrument subsequently prepared but not executed in the manner
required for a will.
SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. A
will which is invalid because of the incapacity of the testator, or of undue
influence can have no effect whatever as a revoking will. Moreover, a will is
not revoked by the unexecuted draft of a later one. Nor is a will revoked by a
defectively executed will or codicil, even though the latter contains a clause
expressly revoking the former will, in a jurisdiction where it is provided by a
controlling statute that no writing other than a testamentary instrument is

sufficient to revoke a will, for the simple reason that there is no revoking will.
Similarly where the statute provides that a will may be revoked by a
subsequent will or other writing executed with the same formalities as are
required in the execution of wills, a defectively executed will does not revoke
a prior will, since it cannot be said that there is a writing which complies with
the statute. Moreover, a will or codicil which, on account of the manner in
which it is executed, is sufficient to pass only personally does not affect
dispositions of real estate made by a former will, even though it may
expressly purport to do so. The intent of the testator to revoke is immaterial,
if he has not complied with the statute. (57 Am. Jur., 328, 329.)
We find the same opinion in the American Law Reports, Annotated, edited in 1939.
On page 1400, Volume 123, there appear many authorities on the "application of
rules where second will is invalid", among which a typical one is the following:
It is universally agreed that where the second will is invalid on account of not
being executed in accordance with the provisions of the statute, or where the
testator who has not sufficient mental capacity to make a will or the will is
procured through undue influence, or the such, in other words, where the
second will is really no will, it does not revoke the first will or affect it in any
manner. Mort vs. Baker University (193-5) 229 Mo. App., 632, 78 S.W. (2d),
498.
These treaties cannot be mistaken. They uphold the view on which the ruling in the
Samson case is predicated. They reflect the opinion that this ruling is sound and
good and for this reason, we see no justification for abondoning it as now suggested
by counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a
will may be some will, codicil, or other writing executed as proved in case of wills"
but it cannot be said that the 1939 will should be regarded, not as a will within the
meaning of said word, but as "other writing executed as provided in the case of
wills", simply because it was denied probate. And even if it be regarded as
any other writing within the meaning of said clause, there is authority for holding
that unless said writing is admitted to probate, it cannot have the effect of
revocation. (See 57 Am. Jur. pp. 329-330).
But counsel for oppositors contemned that, regardless of said revocatory clause,
said will of 1918 cannot still be given effect because of the presumption that it was
deliberately revoked by the testator himself. The oppositors contend that the
testator, after executing the 1939 will, and with full knowledge of the recovatory
clause contained said will, himself deliberately destroyed the original of the 1918
will, and for that reason the will submitted by petitioner for probate in these
proceedings is only a duplicate of said original.
There is no evidence which may directly indicate that the testator deliberately
destroyed the original of the 1918 will because of his knowledge of the revocatory
clause contained in the will he executed in 1939. The only evidence we have is that
when the first will was executed in 1918, Juan Salcedo, who prepared it, gave the
original and copies to the testator himself and apparently they remained in his

possession until he executed his second will in 1939. And when the 1939 will was
denied probate on November 29, 1943, and petitioner was asked by her attorney to
look for another will, she found the duplicate copy (Exhibit A) among the papers or
files of the testator. She did not find the original.
If it can be inferred that the testator deliberately destroyed the 1918 will because of
his knowledge of the revocatory clause of the 1939 will, and it is true that he gave a
duplicate copy thereof to his wife, the herein petitioner, the most logical step for the
testator to take is to recall said duplicate copy in order that it may likewise be
destroyed. But this was not done as shown by the fact that said duplicate copy
remained in the possession of petitioner. It is possible that because of the long lapse
of twenty-one (21) years since the first will was executed, the original of the will had
been misplaced or lost, and forgetting that there was a copy, the testator deemed it
wise to execute another will containing exactly the same testamentary dispositions.
Whatever may be the conclusion we may draw from this chain of circumstances, the
stubborn fact is that there is no direct evidence of voluntary or deliberate
destruction of the first will by the testator. This matter cannot be inference or
conjectur.
Granting for the sake of argument that the earlier will was voluntarily destroyed by
the testator after the execution of the second will, which revoked the first, could
there be any doubt, under this theory, that said earlier will was destroyed by the
testator in the honest belief that it was no longer necessary because he had
expressly revoked it in his will of 1939? In other words, can we not say that the
destruction of the earlier will was but the necessary consequence of the testator's
belief that the revocatory clause contained in the subsequent will was valid and the
latter would be given effect? If such is the case, then it is our opinion that the earlier
will can still be admitted to probate under the principle of "dependent relative
revocation".
This doctrine is known as that of dependent relative revocation, and is usually
applied where the testator cancels or destroys a will or executes an
instrument intended to revoke a will with a present intention to make a new
testamentary disposition as a substitute for the old, and the new disposition
is not made or, if made, fails of effect for same reason. The doctrine is n
limited to the existence of some other document, however, and has been
applied where a will was destroyed as a consequence of a mistake of law. . . .
(68 C.J.P. 799).
The rule is established that where the act of destruction is connected with the
making of another will so as fairly to raise the inference that the testator
meant the revocation of the old to depend upon the efficacy of a new
disposition intended to be substituted, the revocation will be conditional and
dependent upon the efficacy of the new disposition; and if, for any reason,
the new will intended to be made as a substitute is inoperative, the
revocation fails and the original will remains in full force. (Gardner, pp. 232,
233.)
This is the doctrine of dependent relative revocation. The failure of a new
testamentary disposition upon whose validity the revocation depends, is

equivalent to the non-fulfillment of a suspensive conditions, and hence

prevents the revocation of the original will. But a mere intent to make at
some time a will in the place of that destroyed will not render the destruction
conditional. It must appear that the revocation is dependent upon the valid
execution of a new will. (1 Alexander, p. 751; Gardner, p. 253.)
We hold therefore, that even in the supposition that the destruction of the original
will by the testator could be presumed from the failure of the petitioner to produce
it in court, such destruction cannot have the effect of defeating the prior will of
1918 because of the fact that it is founded on the mistaken belief that the will of
1939 has been validly executed and would be given due effect. The theory on which
this principle is predicated is that the testator did not intend to die intestate. And
this intention is clearly manifest when he executed two wills on two different
occasion and instituted his wife as his universal heir. There can therefore be no
mistake as to his intention of dying testate.
The remaining question to be determined refers to the sufficiency of the evidence to
prove the due execution of the will.
The will in question was attested, as required by law, by three witnesses, Lorenzo
Morales, Rufino Enriquez, and Angel Cuenca. The first two witnesses died before the
commencement of the present proceedings. So the only instrumental witness
available was Angel Cuenca and under our law and precedents, his testimony is
sufficient to prove the due execution of the will. However, petitioner presented not
only the testimony of Cuenca but placed on the witness stand Juan Salcedo, the
notary public who prepared and notarized the will upon the express desire and
instruction of the testator, The testimony of these witnesses shows that the will had
been executed in the manner required by law. We have read their testimony and we
were impressed by their readiness and sincerity. We are convinced that they told
the truth.
Wherefore, the order appealed from is hereby affirmed, with costs against the
appellants.1wphl.nt
Paras, C.J. Feria, Pablo Bengzon, Tuason and Jugo JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 17714

May 31, 1922

In the mater of the estate of Jesus de Leon.

IGNACIA DIAZ, petitioner-appellant,
vs.
ANA DE LEON, opponent-appellee.

Montinola, Montinola & Hontiveros and Jose Lopez Vito for appellant.
Francisco A. Delgado, Powell & Hill and Padilla & Treas for appellee.
ROMUALDEZ, J.:
The only question raised in this case is whether or to the will executed by Jesus de
Leon, now, was revoked by him.
The petitioner denies such revocation, while the contestant affirms the same by
alleging that the testator revoked his will by destroying it, and by executing another
will expressly revoking the former.
We find that the second will Exhibit 1 executed by the deceased is not cloth with all
the necessary requisites to constitute a sufficient revocation.
But according to the statute governing the subject in this jurisdiction, the
destruction of a will animo revocandiconstitutes, in itself, a sufficient revocation.
(Sec. 623, Code of Civil Procedure.)lvvph1n+
From the evidence submitted in this case, it appears that the testator, shortly after
the execution of the first will in question, asked that the same be returned to him.
The instrument was returned to the testator who ordered his servant to tear the
document. This was done in his presence and before a nurse who testified to this
effect. After some time, the testator, being asked by Dr. Cornelio Mapa about the
will, said that it had been destroyed.
The intention of revoking the will is manifest from the established fact that the
testator was anxious to withdraw or change the provisions he had made in his first
will. This fact is disclosed by the testator's own statements to the witnesses Canto
and the Mother Superior of the Hospital where he was confined.
The original will herein presented for probate having been destroyed with animo
revocandi, cannot now be probated as the will and last testament of Jesus de Leon.
Judgement is affirmed with costs against the petitioner. So ordered.
Araullo, C.J., Malcolm, Avancea, Ostrand and Johns, JJ., concur.
Villamor, J., took no part.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-48840 December 29, 1943

ERNESTO M. GUEVARA, petitioner-appellant,

vs.
ROSARIO GUEVARA and her husband PEDRO BUISON, respondent-appellees.
Primacias, Abad, Mencias & Castillo for appellant.
Pedro C. Quinto for appellees.

OZAETA, J.:
Ernesto M. Guevarra and Rosario Guevara, ligitimate son and natural daughter,
respectively, of the deceased Victorino L. Guevara, are litigating here over their
inheritance from the latter. The action was commenced on November 12, 1937, by
Rosario Guevara to recover from Ernesto Guevara what she claims to be her strict
ligitime as an acknowledged natural daughter of the deceased to wit, a portion of
423,492 square meters of a large parcel of land described in original certificate of
title No. 51691 of the province of Pangasinan, issued in the name of Ernesto M.
Guervara and to order the latter to pay her P6,000 plus P2,000 a year as
damages for withholding such legitime from her. The defendant answered the
complaint contending that whatever right or rights the plaintiff might have had, had
been barred by the operation of law.
It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit A),
apparently with all the formalities of the law, wherein he made the following
bequests: To his stepdaughter Candida Guevara, a pair of earrings worth P150 and a
gold chain worth P40; to his son Ernesto M. Guevara, a gold ring worth P180 and all
the furniture, pictures, statues, and other religious objects found in the residence of
the testator in Poblacion Sur, Bayambang, Pangasinan; "a mi hija Rosario Guevara,"
a pair of earrings worth P120; to his stepson Piuo Guevara, a ring worth P120; and
to his wife by second marriage, Angustia Posadas, various pieces of jewelry worth
P1,020.
He also made the following devises: "A mis hijos Rosario Guevara y Ernesto M.
Guevara y a mis hijastros, Vivencio, Eduviges, Dionisia, Candida y Pio, apellidados
Guevara," a residential lot with its improvements situate in the town of Bayambang,
Pangasinan, having an area of 960 square meters and assessed at P540; to his wife
Angustia Posadas he confirmed the donation propter nuptias theretofore made by
him to her of a portion of 25 hectares of the large parcel of land of 259-odd hectares
described in plan Psu-66618. He also devised to her a portion of 5 hectares of the
same parcel of land by way of complete settlement of her usufructurary
right.1awphil.net
He set aside 100 hectares of the same parcel of land to be disposed of either by him
during his lifetime or by his attorney-in-fact Ernesto M. Guevara in order to pay all
his pending debts and to degray his expenses and those of his family us to the time
of his death.
The remainder of said parcel of land his disposed of in the following manner:

(d). Toda la porcion restante de mi terreno arriba descrito, de la extension

superficial aproximada de ciento veintinueve (129) hectareas setenta (70)
areas, y veiticinco (25) centiares, con todas sus mejoras existentes en la
misma, dejo y distribuyo, pro-indiviso, a mis siguientes herederos como
sigue:
A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas, ocho (8)
areas y cincuenta y cuatro (54) centiareas, hacia la parte que colinda al
Oeste de las cien (100) hectareas referidas en el inciso (a) de este parrafo del
testamento, como su propiedad absoluta y exclusiva, en la cual extension
superficial estan incluidas cuarenta y tres (43) hectareas, veintitres (23)
areas y cuarenta y dos (42) centiareas que le doy en concepto de mejora.
A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas,
sesenta y un (61) areas y setenta y un (71) centiareas, que es la parte
restante.
Duodecimo. Nombro por la presente como Albacea Testamentario a mi hijo
Ernesto M. Guevara, con relevacion de fianza. Y una vez legalizado este
testamento, y en cuanto sea posible, es mi deseo, que los herederos y
legatarios aqui nombrados se repartan extrajudicialmente mis bienes de
conformidad con mis disposiciones arriba consignadas.
Subsequently, and on July 12, 1933, Victorino L. Guevarra executed whereby he
conveyed to him the southern half of the large parcel of land of which he had
theretofore disposed by the will above mentioned, inconsideration of the sum of P1
and other valuable considerations, among which were the payment of all his debts
and obligations amounting to not less than P16,500, his maintenance up to his
death, and the expenses of his last illness and funeral expenses. As to the northern
half of the same parcel of land, he declared: "Hago constar tambien que reconozco
a mi referido hijo Ernesto M. guevara como dueo de la mitad norte de la totalidad y
conjunto de los referidos terrenos por haberlos comprado de su propio peculio del
Sr. Rafael T. Puzon a quien habia vendido con anterioridad."
On September 27, 1933, final decree of registration was issued in land registration
case No. 15174 of the Court of First Instance of Pangasinan, and pursuant thereto
original certificate of title No. 51691 of the same province was issued on October 12
of the same year in favor of Ernesto M. Guevara over the whole parcel of land
described in the deed of sale above referred to. The registration proceeding had
been commenced on November 1, 1932, by Victorino L. Guevara and Ernesto M.
Guevara as applicants, with Rosario, among others, as oppositor; but before the trial
of the case Victorino L. Guevara withdrew as applicant and Rosario Guevara and her
co-oppositors also withdrew their opposition, thereby facilitating the issuance of the
title in the name of Ernesto M. Guevara alone.
On September 27, 1933, Victorino L. Guevarra died. His last will and testament,
however, was never presented to the court for probate, nor has any administration
proceeding ever been instituted for the settlement of his estate. Whether the
various legatees mentioned in the will have received their respective legacies or
have even been given due notice of the execution of said will and of the dispositions

therein made in their favor, does not affirmatively appear from the record of this
case. Ever since the death of Victorino L. Guevara, his only legitimate son Ernesto
M. Guevara appears to have possessed the land adjudicated to him in the
registration proceeding and to have disposed of various portions thereof for the
purpose of paying the debts left by his father.
In the meantime Rosario Guevara, who appears to have had her father's last will
and testament in her custody, did nothing judicially to invoke the testamentary
dispositions made therein in her favor, whereby the testator acknowledged her as
his natural daughter and, aside from certain legacies and bequests, devised to her a
portion of 21.6171 hectares of the large parcel of land described in the will. But a
little over four years after the testor's demise, she (assisted by her husband)
commenced the present action against Ernesto M. Guevara alone for the purpose
hereinbefore indicated; and it was only during the trial of this case that she
presented the will to the court, not for the purpose of having it probated but only to
prove that the deceased Victirino L. Guevara had acknowledged her as his natural
daughter. Upon that proof of acknowledgment she claimed her share of the
inheritance from him, but on the theory or assumption that he died intestate,
because the will had not been probated, for which reason, she asserted, the
betterment therein made by the testator in favor of his legitimate son Ernesto M.
Guevara should be disregarded. Both the trial court and the Court of appeals
sustained that theory.
Two principal questions are before us for determination: (1) the legality of the
procedure adopted by the plaintiff (respondent herein) Rosario Guevara; and (2) the
efficacy of the deed of sale exhibit 2 and the effect of the certificate of title issued
to the defendant (petitioner herein) Ernesto M. Guevara.
I
We cannot sanction the procedure adopted by the respondent Rosario Guevara, it
being in our opinion in violation of procedural law and an attempt to circumvent and
disregard the last will and testament of the decedent. The Code of Civil Procedure,
which was in force up to the time this case was decided by the trial court, contains
the following pertinent provisions:
Sec. 625. Allowance Necessary, and Conclusive as to Execution. No will
shall pass either the real or personal estate, unless it is proved and allowed in
the Court of First Instance, or by appeal to the Supreme Court; and the
allowance by the court of a will of real and personal estate shall be conclusive
as to its due execution.
Sec. 626. 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 testor, or within thirty days after he knows that he is named
executor, if he obtained such knowledge after knowing of the death of the
testor, 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. 628. Penalty. A person who neglects any of the duties required in the
two proceeding sections, unless he gives a satisfactory excuse to the court,
shall be subject to a fine not exceeding one thousand dollars.
Sec. 629. Person Retaining Will may be Committed. If a person having
custody of a will after the death of the testator neglects without reasonable
cause to deliver the same to the court having jurisdiction, after notice by the
court so to do, he may be committed to the prison of the province by a
warrant issued by the court, and there kept in close confinement until he
delivers the will.
The foregoing provisions are now embodied in Rule 76 of the new Rules of Court,
which took effect on July 1, 1940.
The proceeding for the probate of a will is one in rem, with notice by publication to
the whole world and with personal notice to each of the known heirs, legatees, and
devisees of the testator (section 630, C. c. P., and sections 3 and 4, Rule 77). Altho
not contested (section 5, Rule 77), the due execution of the will and the fact that
the testator at the time of its execution was of sound and disposing mind and not
acting under duress, menace, and undue influence or fraud, must be proved to the
satisfaction of the court, and only then may the will be legalized and given effect by
means of a certificate of its allowance, signed by the judge and attested by the seal
of the court; and when the will devises real property, attested copies thereof and of
the certificate of allowance must be recorded in the register of deeds of the
province in which the land lies. (Section 12, Rule 77, and section 624, C. C. P.)
It will readily be seen from the above provisions of the law that the presentation of a
will to the court for probate is mandatory and its allowance by the court is essential
and indispensable to its efficacy. To assure and compel the probate of will, the law
punishes a person who neglects his duty to present it to the court with a fine not
exceeding P2,000, and if he should persist in not presenting it, he may be
committed to prision and kept there until he delivers the will.
The Court of Appeals took express notice of these requirements of the law and held
that a will, unless probated, is ineffective. Nevertheless it sanctioned the procedure
adopted by the respondent for the following reasons:
The majority of the Court is of the opinion that if this case is dismissed
ordering the filing of testate proceedings, it would cause injustice,
incovenience, delay, and much expense to the parties, and that therefore, it
is preferable to leave them in the very status which they themselves have
chosen, and to decide their controversy once and for all, since, in a similar

case, the Supreme Court applied that same criterion

(Leao vs. Leao, supra), which is now sanctioned by section 1 of Rule 74 of
the Rules of Court. Besides, section 6 of Rule 124 provides that, if the
procedure which the court ought to follow in the exercise of its jurisdiction is
not specifically pointed out by the Rules of Court, any suitable process or
mode of procedure may be adopted which appears most consistent to the
spirit of the said Rules. Hence, we declare the action instituted by the plaintiff
to be in accordance with law.
Let us look into the validity of these considerations. Section 1 of Rule 74 provides as
follows:
Section 1. Extrajudicial settlement by agreement between heirs. If the
decedent left no debts and the heirs and legatees are all of age, or the
minors are represented by their judicial guardians, the parties may, without
securing letters of administration, divide the estate among themselves as
they see fit by means of a public instrument filed in the office of the register
of deeds, and should they disagree, they may do so in an ordinary action of
partition. If there is only one heir or one legatee, he may adjudicate to
himself the entire estate by means of an affidavit filed in the office of the
register of deeds. It shall be presumed that the decedent left no debts if no
creditor files a petition for letters of administration within two years after the
death of the decedent.
That is a modification of section 596 of the Code of Civil Procedure, which reads as
follows:
Sec. 596. Settlement of Certain Intestates Without Legal Proceedings.
Whenever all the heirs of a person who died intestate are of lawful age and
legal capacity and there are no debts due from the estate, or all the debts
have been paid the heirs may, by agreement duly executed in writing by all
of them, and not otherwise, apportion and divide the estate among
themselves, as they may see fit, without proceedings in court.
The implication is that by the omission of the word "intestate" and the use of the
word "legatees" in section 1 of Rule 74, a summary extrajudicial settlement of a
deceased person's estate, whether he died testate or intestate, may be made under
the conditions specified. Even if we give retroactive effect to section 1 of Rule 74
and apply it here, as the Court of Appeals did, we do not believe it sanctions the
nonpresentation of a will for probate and much less the nullification of such will thru
the failure of its custodian to present it to the court for probate; for such a result is
precisely what Rule 76 sedulously provides against. Section 1 of Rule 74 merely
authorizes the extrajudicial or judicial partition of the estate of a decedent "without
securing letter of administration." It does not say that in case the decedent left a
will the heirs and legatees may divide the estate among themselves without the
necessity of presenting the will to the court for probate. The petition to probate a
will and the petition to issue letters of administration are two different things, altho
both may be made in the same case. the allowance of a will precedes the issuance
of letters testamentary or of administration (section 4, Rule 78). One can have a will
probated without necessarily securing letters testamentary or of administration. 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 extrajudicial 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 so 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.
In the instant case there is no showing that the various legatees other than the
present litigants had received their respective legacies or that they had knowledge
of the existence and of the provisions of the will. Their right under the will cannot be
disregarded, nor may those rights be obliterated on account of the failure or refusal
of the custodian of the will to present it to the court for probate.
Even if the decedent left no debts and nobdy raises any question as to the
authenticity and due execution of the will, none of the 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 the substituted by any other proceeding, judicial or
extrajudicial, without 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 reinvindicacion or partition.
We therefore believe and so hold that section 1 of Rule 74, relied upon by the Court
of Appeals, does not sanction the procedure adopted by the respondent.
The case of Leao vs. Leao (25 Phil., 180), cited by the Court of Appeals, like
section 1 of Rule 74, sanctions the extrajudicial partition by the heirs of the
properties left by a decedent, but not the nonpresentation of a will for probate. In
that case one Paulina Ver executed a will on October 11, 1902, and died on
November 1, 1902. Her will was presented for probate on November 10, 1902, and
was approved and allowed by the Court on August 16, 1904. In the meantime, and
on November 10, 1902, the heirs went ahead and divided the properties among
themselves and some of them subsequently sold and disposed of their shares to
third persons. It does not affirmatively appear in the decision in that case that the
partition made by the heirs was not in accordance with the will or that they in any
way disregarded the will. In closing the case by its order dated September 1, 1911,

the trial court validated the partition, and one of the heirs, Cunegunda Leao,
appealed. In deciding the appeal this Court said:
The principal assignment of error is that the lower court committed an error
in deciding that the heirs and legatees of the estate of Da. Paulina Ver had
voluntarily divided the estate among themselves.
In resolving that question this Court said:
In view of the positive finding of the judge of the lower court that there had
been a voluntary partition of the estate among the heirs and legatees, and in
the absence of positive proof to the contrary, we must conclude that the
lower court had some evidence to support its conclusion.
Thus it will be seen that as a matter of fact no question of law was raised and
decided in that case. That decision cannot be relied upon as an authority for the
unprecedented and unheard of procedure adopted by the respondent whereby she
seeks to prove her status as an acknowledged natural child of the decedent by his
will and attempts to nullify and circumvent the testamentary dispositions made by
him by not presenting the will to the court for probate and by claiming her legitime
as an acknowledged natural child on the basis of intestacy; and that in the face of
express mandatory provisions of the law requiring her to present the will to the
court for probate.
In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this Court departed
from the procedure sanctioned by the trial court and impliedly approved by this
Court in the Leao case, by holding that an extrajudicial partition is not proper in
testate succession. In the Riosa case the Court, speaking thru Chief Justice
Avancea, held:
1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION.
Section 596 of the Code of Civil Procedure, authorizing the heirs of a person
who dies intestate to make extrajudicial partition of the property of the
deceased, without going into any court of justice, makes express reference to
intestate succession, and therefore excludes testate succession.
2. ID.; EFFECTS OF; TESTATE SUCCESSION. In the instant case, which is a
testate succession, the heirs made an extrajudicial partition of the estate and
at the same time instituted proceeding for the probate of the will and the
administration of the estate. When the time came for making the partition,
they submitted to the court the extrajudicial partition previously made by
them, which the court approved. Held: That for the purposes of the
reservation and the rights and obligations created thereby, in connection with
the relatives benefited, the property must not be deemed transmitted to the
heirs from the time the extrajudicial partition was made, but from the time
said partition was approved by the court. (Syllabus.)
The Court of Appeals also cites section 6 of Rule 124, which provides that if the
procedure which the court ought to follow in the exercise of its jurisdiction is not

specifically pointed out by the Rules of Court, any suitable process for mode of
proceeding may be adopted which appears most conformable to the spirit of the
said Rules. That provision is not applicable here for the simple reason that the
procedure which the court ought to follow in the exercise of its jurisdiction is
specifically pointed out and prescribed in detail by Rules 74, 76, and 77 of the Rules
of Court.
The Court of Appeals also said "that if this case is dismissed, ordering the filing of
testate proceedings, it would cause injustice, inconvenience, delay, and much
expense to the parties." We see no injustice in requiring the plaintiff not to violate
but to comply with the law. On the contrary, an injustice might be committed
against the other heirs and legatees mentioned in the will if the attempt of the
plaintiff to nullify said will by not presenting it to the court for probate should be
sanctioned. As to the inconvenience, delay, and expense, the plaintiff herself is to
blame because she was the custodian of the will and she violated the duty imposed
upon her by sections 2, 4, and 5 of Rule 76, which command her to deliver said will
to the court on pain of a fine not exceeding P2,000 and of imprisonment for
contempt of court. As for the defendant, he is not complaining of inconvenience,
delay, and expense, but on the contrary he is insisting that the procedure
prescribed by law be followed by the plaintiff.
Our conclusion is that the Court of Appeals erred in declaring the action instituted
by the plaintiff to be in accordance with law. It also erred in awarding relief to the
plaintiff in this action on the basis of intestacy of the decedent notwithstanding the
proven existence of a will left by him and solely because said will has not been
probated due to the failure of the plaintiff as custodian thereof to comply with the
duty imposed upon her by the law.
It is apparent that the defendant Ernesto M. Guevara, who was named executor in
said will, did not take any step to have it presented to the court for probate and did
not signify his acceptance of the trust or refusal to accept it as required by section 3
of Rule 76 (formerly section 627 of the Code of Civil Procedure), because his
contention is that said will, insofar as the large parcel of land in litigation is
concerned, has been superseded by the deed of sale exhibit 2 and by the
subsequent issuance of the Torrens certificate of title in his favor.
II
This brings us to the consideration of the second question, referring to the efficacy
of the deed of sale exhibit 2 and the effect of the certificate of titled issued to the
defendant Ernesto M. Guevara. So that the parties may not have litigated here in
vain insofar as that question is concerned, we deem it proper to decide it now and
obviate the necessity of a new action.
The deed of sale exhibit 2 executed by and between Victorino L. Guevara and
Ernesto M. Guevara before a notary public on July 12, 1933, may be divided into two
parts: (a) insofar as it disposes of and conveys to Ernesto M. Guevara the southern
half of Victorino L. Guevara's hacienda of 259-odd hectares in consideration of P1
and other valuable considerations therein mentioned; and (b) insofar as it declares

that Ernesto M. Guevara became the owner of the northern half of the same
hacienda by repurchasing it with his own money from Rafael T. Puzon.
A. As to the conveyance of the southern half of the hacienda to Ernesto M. Guevara
in consideration of the latter's assumption of the obligation to pay all the debts of
the deceased, the Court of Appeals found it to be valid and efficacious because: "(a)
it has not been proven that the charges imposed as a condition is [are] less than the
value of the property; and (b) neither has it been proven that the defendant did not
comply with the conditions imposed upon him in the deed of transfer." As a matter
of fact the Court of Appeals found" "It appears that the defendant has been paying
the debts left by his father. To accomplish this, he had to alienate considerable
portions of the above-mentioned land. And we cannot brand such alienation as
anomalous unless it is proven that they have exceeded the value of what he has
acquired by virtue of the deed of July 12, 1933, and that of his corresponding share
in the inheritance." The finding of the Court of Appeals on this aspect of the case is
final and conclusive upon the respondent, who did not appeal therefrom.
B. With regard to the northern half of the hacienda, the findings of fact and of law
made by the Court of Appeals are as follows:
The defendant has tried to prove that with his own money, he bought from
Rafael Puzon one-half of the land in question, but the Court a quo, after
considering the evidence, found it not proven; we hold that such conclusion is
well founded. The acknowledgment by the deceased, Victorino L. Guevara, of
the said transactions, which was inserted incidentally in the document of July
12, 1933, is clearly belied by the fact that the money paid to Rafael Puzon
came from Silvestre P. Coquia, to whom Victorino L. Guevara had sold a
parcel of land with the right of repurchase. The defendant, acting for his
father, received the money and delivered it to Rafael Puzon to redeem the
land in question, and instead of executing a deed of redemption in favor of
Victorino L. Guevara, the latter executed a deed of sale in favor of the
defendant.
The plaintiff avers that she withdrew her opposition to the registration of the
land in the name of the defendant, because of the latter's promise that after
paying all the debt of their father, he would deliver to her and to the widow
their corresponding shares. As their father then was still alive, there was no
reason to require the delivery of her share and that was why she did not insist
on her opposition, trusting on the reliability and sincerity of her brother's
promise. The evidence shows that such promise was really made. The
registration of land under the Torrens system does not have the effect of
altering the laws of succession, or the rights of partition between
coparceners, joint tenants, and other cotenants nor does it change or affect
in any other way any other rights and liabilities created by law and applicable
to unregistered land (sec. 70, Land Registration Law). The plaintiff is not,
then, in estoppel, nor can the doctrine of res judicata be invoked against her
claim. Under these circumstances, she has the right to compel the defendant
to deliver her corresponding share in the estate left by the deceased,
Victorino L. Guevara.

In his tenth to fourteenth assignments of error the petitioner assails the foregoing
findings of the Court of Appeals. But the findings of fact made by said court are final
and not reviewable by us on certiorari. The Court of Appeals found that the money
with which the petitioner repurchased the northern half of the land in question from
Rafael Puzon was not his own but his father's, it being the proceeds of the sale of a
parcel of land made by the latter to Silvestre P. Coquia. Said court also found that
the respondent withdrew her opposition to the registration of the land in the name
of the petitioner upon the latter's promise that after paying all the debts of their
father he would deliver to her and to the widow their corresponding shares. From
these facts, it results that the interested parties consented to the registration of the
land in question in the name of Ernesto M. Guevara alone subject to the implied
trust on account of which he is under obligation to deliver and convey to them their
corresponding shares after all the debts of the original owner of said land had been
paid. Such finding does not constitute a reversal of the decision and decree of
registration, which merely confirmed the petitioner's title; and in the absence of any
intervening innocent third party, the petitioner may be compelled to fulfill the
promise by virtue of which he acquired his title. That is authorized by section 70 of
the Land Registration Act, cited by the Court of Appeals, and by the decision of this
Court in Severino vs. Severino, 44 Phil., 343, and the cases therein cited.
Upon this phase of the litigation, we affirm the finding of the Court of Appeals that
the northern half of the land described in the will exhibit A and in original certificate
of title No. 51691 still belongs to the estate of the deceased Victorino L. Guevara. In
the event the petitioner Ernesto M. Guevara has alienated any portion thereof, he is
under obligation to compensate the estate with an equivalent portion from the
southern half of said land that has not yet been sold. In other words, to the estate of
Victorino L. Guevara still belongs one half of the total area of the land described in
said original certificate of title, to be taken from such portions as have not yet been
sold by the petitioner, the other half having been lawfully acquired by the latter in
consideration of his assuming the obligation to pay all the debts of the deceased.
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
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 awards any relief to the respondent Rosario Guevara in this action is
hereby reversed and set aside, and the parties herein 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 of Pangasinan may take
against the responsible party or parties under section 4 of Rule 76. After the said
document is approved and allowed by the court as the last will and testament of the
deceased Victorino L. Guevara, the heirs and legatees therein named may take such
action, judicial or extrajudicial, as may be necessary to partition the estate of the
testator, taking into consideration the pronouncements made in part II of this
opinion. No finding as to costs in any of the three instances.
Yulo, C.J., and Hontiveros, 1 J., concur.

Separate Opinions

BOCOBO, J., concurring:

I concur in the result. Extrajudicial settlement by agreement among the heirs is
authorized by section 1 of Rule 74. only "if the decedent left no debts." In this case,
according to the findings of the Court of Appeals, Ernesto M. Guevara "has been
paying the debts left by his father." It is true that said Ernesto M. Guevara, in
consideration of the conveyance to him of the southern half of the hacienda,
assumed all the debts of the deceased, but this agreement is binding only upon the
parties to the contract but not upon the creditors who did not consent thereto. (Art.
1205, Civil Code.) There being debts when the father died, section 1 of Rule 74 is
not applicable.
MORAN, J., concurring in part and dissenting in part:
I would be agreeable to the majority decision but for a statement therein made
which in my view repeals by an erroneous interpretation the provisions of Rule 74,
section 1, of the Rules of Court, which reads as follows:
EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS. If the
decedent left no debts and the heirs and legatees are all of age, or the
minors are represented by their judicial guardians, the parties may, without
securing letters of administration, divide the estate among themselves as
they see fit by means of a public instrument filed in the office of the register
of deeds, and should they disagree, they may do so in an ordinary action of
partition. If there is only one heir or one legatee, he may adjudicate to
himself the entire estate by means of an affidavit filed in the office of the
register of deeds. It shall be presumed that the decedent left no debts if no
creditor files a petition for letters of administration within two years after the
death of the decedent.
The majority holds that under this provision, the heirs and legatees, even if all of
them are of age, and there are no debts to be paid, cannot make an extrajudicial
settlement of the estate left by the decedent without first submitting in court for
probate the will left by the testator. This erroneous interpretation clearly overlooks
not only the letter and the spirit but more specially the whole background of the
provision.

It is admitted that the provision has been taken from section 596 of Act No. 190 but
with modification consisting in that it is made to apply in testate succession. Said
section 596 reads:
SETTLEMENT OF CERTAIN INTESTATE ESTATES WITHOUT LEGAL
PROCEEDINGS. Whenever all the heirs of a person who died intestate are
of lawful age and legal capacity, and there are no debts due from the estate,
or all the debts have been paid the heirs may, by agreement duly executed in
writing by all of them, and not otherwise, apportion and divide the estate
among themselves, as they may see fit, without proceedings in court.
It must be observed that the procedure contemplated in this legal provision is
completely extrajudicial and the same procedure intended in section 1 of Rule 74
above quoted which is captioned "Extrajudicial Settlement by Agreement . . .".
Justice Laurel, who was one of the members of this Court when the new Rules were
promulgated, in commenting upon Rule 74, said:
RULE 74. SUMMARY SETTLEMENT OF ESTATES. The corresponding
provisions in the Code of Civil Procedures are sections 596-598. There is
substantial analogy between the provisions of the Code of Civil Procedure and
those of Rule 74, save that: (1) Under section 1 of Rule 74, there may be
extrajudicial settlement whether a person died testate or intestate, while
under section 596 of the Code of Civil Procedure extrajudicial settlement can
be had only when a person dies intestate. (2) Under Rule 74, section 1,
extrajudicial settlement may take place 'if the decedent left no debts,' while
under section 596 of the Code of Civil Procedure it may take place 'when
there are no debts due from the estate, or all the debts have been paid.' (3)
Under section 596 of the Code of Civil Procedure, extrajudicial settlement
may take place when 'the heirs and legatees are of lawful age and legal
capacity, while under section 1 of Rule 74 it may take place when the 'the
heirs and legatees are all of legal age, or the minors are represented by their
judicial guardians' (4) Unlike the Code of Civil Procedure, section 596, section
1 of Rule 74 requires the extrajudicial agreement to be filed in the office of
the register of deeds; provides that should the heirs disagree, 'they may do
so in an ordinary action of partition', and that 'if there is only one heir or one
legatee, he may adjudicate to himself the entire estate by means of an
affidavit filed in the office of the register of deeds', and that 'it shall be
presumed that the decedent left no debts if no creditor files a petition for
letter of administration within two years after the death of the decedent.'
[(Emphasis mine); Laurel, Procedural Reform in the Philippines, pp. 137-138].
The phrase "extrajudicial settlement" unquestionably means liquidation and
distribution of the estate without judicial proceeding. In other words, even in cases
of testate succession, the heirs and legatees, when they are all of age or are
represented by their judicial guardians, and there are no debts to be paid, are
allowed by section 1 of Rule 74 of the Rules of Court to liquidate and distribute
among themselves the estate left by the decedent and need not go to court even
for the probate of the will. Unless legal terms mean nothing, this is clearly what it
meant in said provision by the words "extrajudicial settlement" and by the clause " .
. . the parties may, without securing letters of administration, divide the estate

among themselves as they see fit" . . . . When judicial administration is made

unnecessary by the provision, the inevitable implication is that the probate of the
will is also unnecessary, the probate having no other object than administration for
purposes of distribution according to the provisions of the will. That is why section 4
of rule 78 provides:
ESTATE, HOW ADMINISTERED. When a will is thus allowed, the court shall
grant letters testamentary, or letters of administration with the will annexed,
such letters testamentary or of administration shall extend to all the estate of
the testator in the Philippines. Such estate, after the payment of just debts
and expenses of administration, shall be disposed of according to such will,
so far as such will may operate upon it; and the residue, if any, shall be
disposed of as is provided by law in cases of estates in the Philippines
belonging to persons who are inhabitants of another state or country.
If judicial administration and distribution is made unnecessary by section 1 of Rule
74, then, I repeat, the probate of the will being purposeless, becomes unnecessary.
If the parties have already divided the estate in accordance with the will, the
probate of the will is a useless ceremony. If they have divided the estate in a
different manner, the probate of the will is worse than useless; it is ridiculous. The
following words of this Court in a previous case may well be here reiterated:
These sections provide for the voluntary division of the whole property of the
decedent without proceedings in court. The provisions which they contain are
extremely important. The wisdom which underlies them is apparent. It is the
undisputed policy of every people which maintains the principle of private
ownership of property that he who owns a thing shall not be deprived of its
possession or use except for the most urgent and imperative reasons and
then only so long as is necessary to make the rights which underlie those
reasons effective. It is a principle of universal acceptance which declares that
one has the instant right to occupy and use that which he owns, and it is only
in the presence of reasons of the strongest and most urgent nature that the
principle is prevented from accomplishing the purpose which underlies it. The
force which gave birth to this stern and imperious principle is the same force
which destroyed the feudal despotism and created the democracy of private
owners.
These provisions should, therefore, be given the most liberal construction so
that the intent of the framers may be fully carried out. They should not be
straitened or narrowed but should rather be given that wideness and fullness
of application without which they cannot produce their most beneficial
effects.
. . . The purpose which underlies them, as we have already intimated, is to
put into one's hands the property which belongs to him not only at the
earliest possible moment but also with the least possible expense. By
permitting the partition and division without proceedings in court no time is
lost and substantially all expense and waste are saved. This is as it should be.
The State fails wretchedly in its duly to its citizens if the machinery furnished
by it for the division and distribution of the property of a decedent is so

cumbersome, unwieldy and expensive that a considerable portion of the

estate is absorbed in the process of such division. . . . (McMicking vs. Sy
Conbieng, 21 Phil., 211; 219-220).
Indeed, there can be no valid reason why the probate of a will may not be dispensed
with by agreement of all the parties interested and the estate left by the decedent
settled extrajudicially among all the heirs and legatees, as is now provided in
section 1 of Rule 74. It is well recognized that the allowance of a will gives
conclusiveness merely to its provisions which are governed by the substantive law
regarding descent and distribution. If so, why cannot all the parties interested
agree, without going to court, that the will of the decedent is in form valid (this
being the only point to be litigated in a probate proceeding), and that they will
divide the inheritance in the manner acceptable to them? The procedure would not
be against public policy or the law placing in the hands of the courts the probate of
wills, because what the courts are enjoined to do for the benefit of the parties, the
latter have already done. As long as the extrajudicial partition of the estate does not
affect the rights of third parties and is not rendered invalid by any provision of the
substantive law, no possible objection can be raised thereto. On practical
considerations, it would be useless to force the parties, at their expense, to go thru
the formality of probating a will and dividing the estate in accordance therewith,
because as soon as the routine is over, they are of course free to make such
transfers to one another as will be necessary to effect a partition which they would
have made if they were allowed to settle the estate extrajudicially. It is true that
there are provisions in the Rules of Court compelling the delivery of a will to the
competent court and punishing omissions to do so, but said provisions are
calculated to protect the interests of the persons entitled to share in the
inheritance. The latter may waive such benefit. This waiver cannot be said to be
withdrawal or diminution of the jurisdiction of the court, since it only implies a
desire of the parties not to litigate. The fear that "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", is wisely provided
against in the requirement of the Rule that all the parties interested and all the
beneficiaries under the will should be parties to the extrajudicial settlement. The
participation of all the interested parties excludes the probability of fraud or
collusion and, even in that eventuality, the aggrieved beneficiaries are not without
adequate remedy for the voidance of the partition under the Civil Code.
And this is in accordance with the weight of authority in this and other jurisdictions.
In Leao vs. Leao (25 Phil., 180), all the heirs and legatees have made an
extrajudicial partition of the estate left by the decedent and then filed the will in
court which was probated. Nine years of costly probate proceedings have followed
after which the extrajudicial partition was made known to court. such extrajudicial
partition was objected to by one party upon the ground that it was not in conformity
with the provisions of the will. But the trial Court held:
Naturally the partition made by the heirs voluntarily and spontaneously must
produce and has produced a legal status, which cannot be annulled merely
for the caprice of one person. and it cannot be said that, because the
partition was not made in accordance with the will, if such be the case, the

latter has to be annulled, for by voluntarily and spontaneously concurring

therein they implicitly renounced the effects of said will, of which they were
aware. (See p. 183).
On appeal, this Court affirmed the ruling with the following pronouncement:
In view of the positive finding of the judge of the lower court that there had
been a voluntary partition of the estate among the heirs and legatees and in
the absence of positive proof to the contrary, we must conclude that the
lower court had some evidence to support his conclusion. If the heirs and
legatees had voluntarily divided the estate among themselves, then their
division is conclusive, unless and until it is shown that there were debts
existing against the estate which had not been paid. No claim is made
whatever by third parties nor objections of any character are made by others
than the heirs against said partition. We see no reason why their heirs and
legatees should not be bound by their voluntary acts. (Page 183184).
This case furnishes precisely a valuable experience as to the practical wisdom
underlying the procedure established in section 1 of Rule 74. After the will was
probated and after nine years of costly administration proceedings, nothing
absolutely nothing was accomplished by the court except to make the belated
pronouncement that the extrajudicial partition made by the parties prior to the
institution of the proceedings was proper and binding upon them. Thus, the whole
proceedings for nine years have proved no more than a futile chronicle of wasted
time and money for the parties and the court. This disgraceful experience could not
and did not pass unnoticed to the members of this Court who drafted the new Rules
of Court. The solemn admonition made by this Court in a previous case
(McMicking vs. Sy Conbieng, supra) when it said that "the State fails wretchedly in
its duly to its citizens if the machinery furnished by it for the division and
distribution of the property of a decedent is so cumbersome, unwieldy and
expensive that a considerable portion of the estate is absorbed in the process of
such division", rang with re-echoing insistence and was heeded to when the new
Rules of Court was drafted and promulgated. The fundamental policy pervading the
whole system of procedure adopted in said Rules is speed, economy an justice.
Thus, features of procedure were done away with when, without them, the same
purpose may be achieved. The result is brevity and simplicity of procedure with
such guarantees as the necessary to assure due process. And to remedy such evil
as is disclosed in the Leao case, a completely extrajudicial settlement is allowed
even in testate succession with the probate of the will dispensed with, when the
heirs and legatees who are all of age or represented by their judicial guardians, so
agree, and there are not debts to be paid. Thus, the scope of section 596 of Act No.
190 was amplified and with it the ruling of this Court in Riosa vs. Rocha (48 Phil.,
737). The procedure is in consonance with the almost unanimous weight of
authority in other jurisdictions:
The complainant, to which a demurrer was sustained, shows that all the
persons interested in a decedent's estate, as widow, heirs, distributees,
legatees, or devisees, including the person appointed executrix by the will,
and the husbands of femes covert, (all being adults), by agreement divided
among themselves all the property of the estate according to the direction of

the will, paid off all debts against the estate, and delivered the note
described to the plaintiff, as a part of her share; and all this was done without
probate of the will, or administration of the estate. The effect of such a
division was to invest the plaintiff with an equitable title to the note. In the
absence of the will, the decisions of this court, heretofore made, would meet
every argument in favor of an opposite conclusion. (Anderson vs. Anderson,
37 Ala., 683; Marshall vs. Crow, 29 Ala., 278; Vanderveer vs. Alston, 16 Ala.,
494; Miller vs. Eatman, 11 feature of this case, take it out of the principle of
those decisions? We can perceive no sufficient reason why it should. All the
parties interested, or to be affected, may as well by agreement divide
property, where there is a will, without employing the agency of courts, as in
case of intestacy. Parties, competent to act, ought to do that, without the
agency of courts, which the courts would ultimately accomplish. To deny
them the privilege of so doing, would manifest a judicial abhorrence of
harmony. By the probate of the will, the claims of heirs and distributees, and
of the widow, would have been subordinated to the directions of the will. this
has been accomplished by the agreement. There being no debts, the
executrix would have had no other duty to perform, than to divide the
property according to the will. This, too, has been done by agreement of
competent parties. All the ends and objects of judicial proceedings have been
accomplished, by agreement of the parties; and that agreement must be
effective. (Carter vs. Owens, 41 Ala., 215; 216-217).
The absence of sound objection on this ground to a contract having for its
sole purpose the disposition of property in a manner different from that
proposed by a a testator, even where the contract contemplates the rejection
of the will when offered for probate or its setting aside when admitted to
probate, when it is entirely free from fraud, and is made by all the parties in
interest, may be freely conceded. As has often been substantially said, the
public generally has not interest in the matter of the probate of a will; and
only those interested in the estate under the will or otherwise are affected by
such a contract. If they all agree upon some course to be followed, and their
contract is otherwise free from contemplated fraud or violation of any law, no
one else has any such interest as warrants complaint. Such was the character
of contract involved in Spangenberg vs. Spangenberg (App.), 126 Pac., 379,
especially relied on by plaintiff here, where the contract purported to affect
only such property of the deceased as should in fact be received by the
parties thereto. In Estate of Garcelon, 104 Cal, 570; 38 Pac., 414; 32 L. R. A.,.
595; 43 Am. St., Rep., 134, another case much relied on by plaintiff, a
contract by an heir to refrain from contesting a will was involved. It was said
that the contract was one that concerned the parties alone, and one that did
not appear to be against public policy. (Gugolz vs. Gehrkens, 130 Pac, Rep., 8,
10; 164 Cal., 596).
The question of public policy is introduced. The disposition of one's property
after death is controlled by statute. One of the next of kin has no vested
interest in such property. In cases of intestacy, a next of kin has such interest
as the statute declares. In case there is a will, he has an interest which gives
him a standing and right to contest the will. This right is his alone; in it the
public has no interest; he may refrain from exercising it, or he may dispose of

it as he wishes, by release or assignment or settlement, and the law of public

policy is not offended. (In re cook's Will, 217 N. Y. S., 176, 180-181).
Agreement. "It has been definitely decided by the courts of this state, and
of many other states, that the beneficiaries under a will have a right to agree
among themselves upon any distribution they see proper of the property
bequeathed to them.
. . . That holding is based upon the proposition that the property is theirs. No
one else is interested in its disposition, and they may, with propriety, make
any distribution of it that suits them, so long as they do not invade the rights
of other parties or infringe some rule of public policy'. (Fore vs. McFadden,
276 N. W., 327; 329).
The first assignment of error presented by appellants complains of the action
of the court in sustaining exceptions to averments asking the enforcement of
the agreement that the will should not be probated, and that the estate
should be divided among the parties as they would be entitled as heirs at law
of the deceased, the proponent of the will surrendering thereby his rights as
principal legatee. This assignment must be sustained. It cannot be seen that
the agreement is contrary to public policy. Parties may make any contract
with reference to their property rights that is not illegal, may adjust by
compromise their differences and disputes concerning the same and, as they
bind themselves, so shall they be bound. It is difficult to understand why this
cannot be effected by an agreement not to probate a will, or how it interferes
with public policy. The power to litigate and to establish a right by appeal to
the courts is as much the subject of contract as any other right in property.
Such adjustments by contract are favored by the law and the courts, and are
not deemed to be an unwarranted interference with the jurisdiction of the
courts, or against public policy. On the contrary, public policy favors them.
Appellants have cited a case in point, the case of Phillips v. Phillips, 8
Watts, 197, in which it is held competent for devisees and legatees to bind
themselves by a written or parol agreement to destroy a will before probate,
and that a party to the agreement would be estopped from claiming any
interest under the will. The court says: "It cannot admit of doubt that before
probate the parties in interest under a will would have the right to set aside a
will, and such an act would be favored, when the object was to avert a family
controversy". The agreement that the will should not be probated, and that
the parties would take the property as heirs at law of the deceased,
destroyed the legal effect of the will; and it could not thereafter have legal
existence in conferring rights upon the legatees. (Stringfellow vs. Early, 40
SW., 871, 873-874; 15 Tex. Civ. App., 597).
The contention that the complaint does not state a cause of action, because
the contract sued on is against public policy, and therefore void, is made here
for the first time. It is to the interest of the public generally that the right to
make contract should not be unduly restricted, and no agreement will be
pronounced void, as being against public policy, unless it clearly contravenes
that which has been declared by statutory enactment or by judicial decisions
to be public policy, or unless the agreement manifestly tends in some way to

injure the public. Whether or not a contract in any given case is contrary to
public policy is a question of law, to be determined from the circumstances of
each particular case. Smith vs. Du Bose, 78 Ga., 413; 3 SE., 309-316; 6 Am.
St. Rep., 260; Weber vs. Shay, 56 Ohio St., 116; 46 NE., 377; 37 L.R.A., 230;
60 Am. St. Rep., 743; Pierce vs. Randolph, 12 Tex., 290; Print Numerical
Registering Co. vs. Sampson, 19 L. R. Eq. Cas., 465.
The contract in controversy is in effect but an agreement whereby the parties
thereto, "because of their love and affection for one another" and "being
desirous of avoiding litigation over the estate" of their father "in case of his
death," agreed to ignore his will in the event that he made one, and then
share his estate equally as if he had died intestate. In other words, the
contract was but an agreement of heirs apparent not to contest the will of an
ancestor. There is nothing to be fond in our code or statutory law prohibiting
the making and enforcement of such a contract, and it has been held in this
state that a contract, made after the death of the deceased, not to contest
his will, is purely personal to the parties making it, that it is not against public
policy, and that, when fairly made, it will be enforced, (Spangenberg vs.
Spangenberg, 126 Pac. Rep., 379, 382; 19 Cal. App., 439).
Probate Dispensed With. Probate of a will may be dispensed with by an
agreement between the persons interested; or it may be dispensed with
where the testator, before his death, conveyed to the devisees all the
property which he had devised to them, or where the will makes no other
disposition of the testator's property than the law would have done had he
died interstate, and the rights sought to be established are admitted by all
concerned. But where the language of the will expressly invokes the
jurisdiction of the probate court the fact that no administration is necessary
does not affect the power of the court to probate the will. (68 C. J., pp. 877878).
Agreement between Persons Interested: a. Requisites and Validity. (1) In General.
It has been held that, since the nature of a probate proceeding is one in rem, the
parties cannot submit a controversy arising therein to arbitration. The law, however,
favors the settlement, in good faith, of will contests, by a so-called "family
settlement",although it changes the mode of disposition of the estate; and,
therefore, subject to the limitation that a contestant cannot compromise anything
beyond his own personal interest in the contest, persons, such as devisees, legatee,
heirs, or next of kin, having interest in the will or estate, sufficient to entitle them to
opposed probate or contest the will, may enter into an agreement which, in the
absence of fraud or misrepresentation, is valid and binding on all the parties
thereto, whereby they waive probate of the will and bind themselves to abide by its
provisions, or whereby they agree that the will is not to be probated or is to be
superseded or destroyed; or whereby any controversy relative to the probate or
contest of the will is compromised or settled, and a contest is avoided, whether or
not there were, in fact, valid grounds for the contest. Such an agreement, in order to
be valid, must not exclude anyone entitled under the will, must be entered into by
all the persons affected thereby, and all the parties thereto must be competent to
make the agreement, and either they or their representative must fully execute it,

and, under some statutes, it must be properly approved by the court." ([Emphasis
supplied] 68 C. J., pp. 909-910).
As to Probate. The operation and effect of the agreement may not to
supersede the provisions of the will, but to carry out its provisions without a
probate, and under such agreement the parties are precluded from denying
the probate, or insisting on the invalidating of the will for want of probate. So,
also, a person who agrees not to contest the will is precluded from opposing
probate; or the probate of a will may be dispensed with, and the persons
interested in the estate under the will given at least an equitable interest in
the property, where they, being under no disability, divide the estate,
pursuant to an agreement among themselves. Where the effect of the
agreement of all interested parties is to repudiate or renounce the will, it will
not be probated, especially where the agreement expressly so provides; but
it has been held that, where the executor, defending a torn will, agrees, for a
consideration, not to probate it, the court should not refuse probate without
notifying other beneficiaries and requiring testimony as to the tearing of the
will by the testator. Probate, however, is not prevented by an agreement
executed by a part only of the beneficiaries, and the parties to such
agreement are not prevented thereby from taking under the will which is
probated by another interested person. ([Emphasis supplied] 68 C. J., pp.
914-915).
Thus, where the parties, being in doubt as to the instrument being construed
as a will, and for the purpose of saving a family controversy and for the
purpose of dividing the estate, enter into a compromise and settlement
agreement, under the terms of which the entire estate is to be, and has in
part been, divided, and agree that the instrument shall not be offered for
probate, it is sufficient to prevent a probate. (Brown vs.Burk, 26 NW [2d ed.],
415.
Validity of Agreements of Dispense with Probate or to Modify or Set Aside
Will. Though in some jurisdictions an agreement to dispense with the
probate of a will has been declared to be against public policy and void, in a
majority of the decisions on the point it has been held that all the persons
interested in decedent's estate may by agreement divide the estate among
themselves, without probating such decedent's will or administering the
estate, and the validity of a contract having for its sole purpose the
disposition of property in a manner different from that proposed by a testator,
even where the contract contemplates the rejection of the will when offered
for probate or its setting aside when admitted to probate, when it is entirely
free from fraud, and is made by all the parties in interest, would seem to be
freely concede. Thus it has been held that all the parties in interest may
agree to eliminate from a will a clause providing for survivorship among
them. But an agreement to resist the probate of a will and procure it to be set
aside so as to curt off the interest of one who is not a party to such
agreement is against public policy. Nor does the right of all the parties in
interest to set aside or disregard a will extend to the case of an active trust,
for a definite term, created by a testator as he deems proper for the
protection of his beneficiaries. A contract between the next of kin of a

decedent, that they will each have a certain portion of the estate, does not
amount to an agreement to divide the estate without probating the will. (28
R.C.L., pp. 357-358).
The minority decision pointed out in the last quotation from the Ruling Case Law
(Vol. 28, pp. 357-358) is from the Supreme Court of only one State that of
Wisconsin, in re Will of Dardis (135 Wis., 457; 115 NW., 332). All the other States
held the contrary doctrine that is now embodied in section 1 of Rule 74.
Commenting upon the Wisconsin rule, the Editor of the L.R.A. says the following:
No case has been found other than Re Dardis wherein any court passed upon
the validity of a stipulation to secure the denial to probate of a will
theretofore offered for probate, on the ground that the testator was mentally
incompetent to make a will at the time of its execution. The decision of the
court is based upon the doctrine therein enunciated, that proceedings to
probate a will are proceedings in rem, which public interest demands should
be pursued to a final adjudication, regardless of the wishes of the interested
parties. In this connection and with reference to this broader question, it is of
interest to note that courts of other jurisdictions, although generally
recognizing that proceedings to probate a will are proceedings in rem, hold
that the proceeding is inter partes to the extent that all the parties in interest
may control the probate proceedings, even to the extent of doing away with
the probate. (23 L.R.A. [N.S.], p.783).
For the sake of fixity in judicial policy, this Court in the exercise of its constitutional
powers, has solemnly given a form of a rule section 1, Rule 74 to what was
merely the consensus of judicial opinion. We cannot now repudiate the procedure
outlined in said provision unless we amend it by another rule.
The majority, however, expresses fear that abuses may easily be committed under
the Rules. Such fears have always been the bugbear set up against all task of
procedural reforms. To be sure, there has never been any provision of law that is not
liable to abuses. If by mere possibility of abuse we are to disregard clear provisions
of a procedural law, the result would not only the abrogation of all laws but also the
abolition of all courts. When a procedural law is calculated to remedy an evil under
a specific situation therein contemplated, it must be deemed good even if other
situations may be simulated or falsified and placed within its purview. And when
that law is duly enacted, it is no concern of the courts to pass upon its wisdom, their
duty being to apply its provisions in a manner which shall not defeat the intention
underlying it. Laws are promulgated to be obeyed and when they are abused there
are the courts to check up the abuse. Courts must deal with the specific
circumstances of each case and construe the provisions in such a manner as to
make it impregnable if possible to further abuses. This is constructive, not
destructive, jurisprudence. This explains why laws are more often worded so broadly
as to lay merely general principles a skeleton the flesh to be supplied with
judicial decisions. Judicial statemanship requires that courts in deciding judicial
controversies should be careful not to advance opinions which are not necessary to
a proper disposition of the case. Judicial experience has shown that such advanced
opinions may not infrequently place the court in an embarrassing position when a
proper case with the proper factual environment is properly presented with all its

angles before the court. Jurisprudence must be carefully progressive and not
impetuously aggressive. for instance, the majority, impressed by the awful
circumstances of the present case, has found it dangerous to hold that the probate
of the will may be dispensed with. While this conclusion is constructive under the
peculiar facts of the case, to generalize it is to make destructive. If a proper case is
presented to the court wherein all the heirs and legatees who are all of age have
agreed to dispense with the probate of a will and have actually made an
extrajudicial partition, and if it appears further that each of the recipients is in
peaceful enjoyment of his share in the estate, I am sure that the majority, with the
practical wisdom they have shown in other cases, would not dare disturb the peace
enjoyed by such heirs and legatees and compel them to go into court and litigate.
The majority, without the necessity of holding whether the probate of a will may or
may not be dispensed with under Rule 74, section 1, could have decided this case
by stating that said provision is not applicable, its requirements not being present.
And I would be wholly agreeable to this conclusion because the beneficiaries under
the will do not appear to have made an extrajudicial settlement of the estate left by
the deceased Victorino L. Guevara, nor the action brought by the natural daughter,
Rosario Guevara, is one for partition against all such beneficiaries founded either on
an extrajudicial settlement or on the provisions of the will as accepted by all parties
to be valid and binding. Upon the contrary, Rosario Guevara appears to be wishing
to take advantage of the will in so far as it is favorable to her, and repudiate it in so
far as it is favorable to others. Apparently, Rosario Guevara was in possession of the
will and the other heirs and legatees were not aware of its contents. The situation
not being the one contemplated by section 1 of Rule 74, plaintiff may not invoke its
provisions.

Footnotes
1 Justice Hontiveros of the Court of Appeals took part in this case by special
designation.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-20234

December 23, 1964

PAULA DE LA CERNA, ET AL., petitioners,

vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF
APPEALS, respondents.
Philip M. Alo and Crispin M. Menchavez for petitioners.
Nicolas Jumapao for respondents.

REYES, J.B.L., J.:

Appeal by Paula de la Cerna and others from a decision of the Court of Appeals,
Sixth Division (C.A.-G.R. No. 23763-R) reversing that of the Court of First Instance of
Cebu (Civ. Case No. R-3819) and ordering the dismissal of an action for partition.
The factual background appears in the following portion of the decision of the Court
of Appeals (Petition, Annex A, pp. 2-4):
It appears that on May 9, 1939, the spouses, Bernabe de la Serna and
Gervasia Rebaca, executed a joint last will and testament in the local dialect
whereby they willed that "our two parcels of land acquired during our
marriage together with all improvements thereon shall be given to Manuela
Rebaca, our niece, whom we have nurtured since childhood, because God did
not give us any child in our union, Manuela Rebaca being married to Nicolas
Potot", and that "while each of the testators is yet living, he or she will
continue to enjoy the fruits of the two lands aforementioned", the said two
parcels of land being covered by Tax No. 4676 and Tax No. 6677, both
situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of Cebu.
Bernabe dela Serna died on August 30, 1939, and the aforesaid will was
submitted to probate by said Gervasia and Manuela before the Court of First
Instance of Cebu which, after due publication as required by law and there
being no opposition, heard the evidence, and, by Order of October 31, 1939;
in Special Proceedings No. 499, "declara legalizado el documento Exhibit A
como el testamento y ultima voluntad del finado Bernabe de la Serna con
derecho por parte du su viuda superstite Gervasia Rebaca y otra testadora al
propio tiempo segun el Exhibit A de gozar de los frutos de los terranos
descritos en dicho documents; y habido consideracion de la cuantia de dichos
bienes, se decreta la distribucion sumaria de los mismos en favor de la
logataria universal Manuela Rebaca de Potot previa prestacion por parte de la
misma de una fianza en la sum de P500.00 para responder de cualesquiera
reclamaciones que se presentare contra los bienes del finado Bernabe de la
Serna de los aos desde esta fecha" (Act Esp. 499, Testamentaria Finado
Bernabe de la Serna) Upon the death of Gervasia Rebaca on October 14,
1952, another petition for the probate of the same will insofar as Gervasia
was concerned was filed on November 6, 1952, being Special Proceedings No.
1016-R of the same Court of First Instance of Cebu, but for failure of the
petitioner, Manuela R. Potot and her attorney, Manuel Potot to appear, for the
hearing of said petition, the case was dismissed on March 30, 1954 Spec.
Proc. No. 1016-R, In the matter of the Probate of the Will of Gervasia Rebaca).
The Court of First Instance ordered the petition heard and declared the testament
null and void, for being executed contrary to the prohibition of joint wills in the Civil
Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code of the Philippines); but on
appeal by the testamentary heir, the Court of Appeals reversed, on the ground that
the decree of probate in 1939 was issued by a court of probate jurisdiction and
conclusive on the due execution of the testament. Further, the Court of Appeals
declared that:

... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code).
prohibits the making of a will jointly by two or more persons either for their
reciprocal benefit or for the benefit of a third person. However, this form of
will has long been sanctioned by use, and the same has continued to be
used; and when, as in the present case, one such joint last will and testament
has been admitted to probate by final order of a Court of competent
jurisdiction, there seems to be no alternative except to give effect to the
provisions thereof that are not contrary to law, as was done in the case
of Macrohon vs. Saavedra, 51 Phil. 267, wherein our Supreme Court gave
effect to the provisions of the joint will therein mentioned, saying, "assuming
that the joint will in question is valid."
Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la
Cerna.
The appealed decision correctly held that the final decree of probate, entered in
1939 by the Court of First Instance of Cebu (when the testator, Bernabe de la Cerna,
died), has conclusive effect as to his last will and testament despite the fact that
even then the Civil Code already decreed the invalidity of joint wills, whether in
favor of the joint testators, reciprocally, or in favor of a third party (Art. 669, old Civil
Code). The error thus committed by the probate court was an error of law, that
should have been corrected by appeal, but which did not affect the jurisdiction of
the probate court, nor the conclusive effect of its final decision, however erroneous.
A final judgment rendered on a petition for the probate of a will is binding upon the
whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estates of Johnson, 39 Phil.
156); and public policy and sound practice demand that at the risk of occasional
errors judgment of courts should become final at some definite date fixed by
law. Interest rei publicae ut finis set litium (Dy Cay vs. Crossfield, 38 Phil, 521, and
other cases cited in 2 Moran, Comments on the Rules of Court (1963 Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded
by the 1939 decree admitting his will to probate. The contention that being void the
will cannot be validated, overlooks that the ultimate decision on Whether an act is
valid or void rests with the courts, and here they have spoken with finality when the
will was probated in 1939. On this court, the dismissal of their action for partition
was correct.
But the Court of Appeals should have taken into account also, to avoid future
misunderstanding, that the probate decree in 1989 could only affect the share of
the deceased husband, Bernabe de la Cerna. It could not include the disposition of
the share of the wife, Gervasia Rebaca, who was then still alive, and over whose
interest in the conjugal properties the probate court acquired no jurisdiction,
precisely because her estate could not then be in issue. Be it remembered that prior
to the new Civil Code, a will could not be probated during the testator's lifetime.
It follows that the validity of the joint will, in so far as the estate of the wife was
concerned, must be, on her death, reexamined and adjudicated de novo, since a
joint will is considered a separate will of each testator. Thus regarded, the holding of
the court of First Instance of Cebu that the joint will is one prohibited by law was
correct as to the participation of the deceased Gervasia Rebaca in the properties in

question, for the reasons extensively discussed in our decision in Bilbao vs. Bilbao,
87 Phil. 144, that explained the previous holding in Macrohon vs. Saavedra, 51 Phil.
267.
Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to
her heirs intestate, and not exclusively to the testamentary heir, unless some other
valid will in her favor is shown to exist, or unless she be the only heir intestate of
said Gervasia.
It is unnecessary to emphasize that the fact that joint wills should be in common
usage could not make them valid when our Civil Codes consistently invalidated
them, because laws are only repealed by other subsequent laws, and no usage to
the contrary may prevail against their observance (Art. 5, Civ. Code of 1889; Art. 7,
Civil Code of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CAG.R. No. 23763-R is affirmed. No Costs.
Bengzon, C.J., Bautista, Angelo, Concepcion, Barrera, Paredes, Dizon Regala,
Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-29300 June 21, 1978
PEDRO D. H. GALLANOSA, CORAZON GRECIA-GALLONOSA and ADOLFO
FORTAJADA, the deceased Pedro Gallanosa being substituted by his legal
heirs, namely his above-named widow and his children, ISIDRO
GALLANOSA and LEDY GALLANOSA, and grandchildren named IMELDA
TECLA GALLANOSA and ROSARIO BRIGIDA GALLANOSA, children of the late
SIKATUNA GALLANOSA, son of Pedro D.H. GALLONOSA,petitioners,
vs.
HON. UBALDO Y. ARCANGEL, Judge of Branch I of the Court of First
Instance of Sorsogon and FLORENTINO G. HITOSIS, CASIANO G. HITOSIS,
TEOTIMO G. HITOSIS, VICTORIO G. HITOSIS, EMILIA G. HITOSIS VDA. DE
CRUZ, JOAQUIN R. HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS,
FLORENTINO R. HITOSIS, VIRGINIA R. MITOSIS, DEBORAH R. HITOSIS,
EDILBERTO R. HITOSIS, LEONOR R. HITOSIS, NORMA R. HITOSISVILLANUEVA, LEONCIO R. HITOSIS, minors ANGEL R. HITOSIS and RODOLFO
R. HITOSIS, represented by their legal guardian and mother LOURDES
RELUCIO VDA. DE HITOSIS, PETRONA HITOSIS-BALBIDO, MODESTO
HITOSIS-GACILO, CLETO HITOSIS, AGUSTIN HITOSIS-FORTES, TOMASA
HITOSIS-BANARES VDA. DE BORRAS, CONRADA HITOSIS-BANARES
FRANCHE, RESTITUTO HITOSIS-BANARES, DAMIAN HITOSIS-BANARES,
FIDEL HITOSIS-BANARES, SUSANA HITOSIS-BANARES RODRIGUEZ, JOSE

HITOSIS, LOLITA HITOSIS-BANEGA, minors MILAGROS HITOSIS-BANEGA,

ALICIA HITOSIS-BANEGA AND ELISA HITOSIS-BANEGA, represented by their
legal guardian and father ERNESTO BANEGA, FELICITAS HITOSISPENAFLOR, GENOVEVA HITOSIS-ADRIATICO, MANUEL HITOSIS, PEDRO
HITOSIS, LIBRATA HITOSIS-BALMES, JUANITA HITOSIS-GABITO VDA. DE
GABAS, MAURA HITOSIS-GABITO VDA. DE GANOLA and LEONA HITOSISGABITO GAMBA, respondents.
Haile Frivaldo for petitioners.
Joaquin R Mitosis for private respondents.

AQUINO, J.:
In this special civil action of certiorari, filed on July 29, 1968, the petitioners seek to
annul the orders of respondent Judge dated May 3 trial June 17, 1968, wherein he
reconsidered his order of January 10, 1968, dismissing, on the ground of
prescription, the complaint in Civil Case No. 2233 of the Court of First Instance of
Sorsogon.
The case involves the sixty-one parcels of land in Sorsogon left by Florentino Hitosis,
with an estimated value of P50,000, trial claims for damages exceeding one million
pesos. The undisputed facts are as follows:
1. Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when he
was eighty years old. He died on May 26, 1939 at Irosin, Sorsogon. A childless
widower, he as survived by his brother, Leon Hitosis. His other brothers, named
Juan, Tito (Juancito), Leoncio (Aloncio) trial Apolonio and only sister, Teodora, were
all dead.
2. On June 24, 1939 a petition for the probate of his will was filed in the Court of
First Instance of Sorsogon (Special Proceeding No. 3171). The notice of hearing was
duly published. In that will, Florentino bequeathed his one-half share in the conjugal
estate to his second wife, Tecla Dollentas, and, should Tecla predecease him, as was
the case, his one-half share would be assigned to the spouses Pedro Gallanosa and
Corazon Grecia, the reason being that Pedro, Tecla's son by her first marriage, grew
up under the care of Florentino; he had treated Pedro as his foster child, and Pedro
has rendered services to Florentino and Tecla. Florentino likewise bequeathed his
separate properties consisting of three parcels of abaca land and parcel of riceland
to his protege (sasacuyang ataman), Adolfo Fortajada, a minor.
3. Opposition to the probate of the will was registered by the testator's legal heirs,
namely, his surviving brother, Leon, trial his nephews trial nieces. After a hearing,
wherein the oppositors did not present any evidence in support of their opposition,
Judge Pablo S. Rivera, in his decision of October 27, 1939, admitted the will to
probate and appointed Gallanosa as executor. Judge Rivera specifically found that

the testator executed his last will "gozando de buena salud y facultades mentales y
no obrando en virtud de amenaza, fraude o influencia indebida."
4. On October 24, 1941, the testamentary heirs, the Gallanosa spouses trial Adolfo
Fortajada, submitted a project of partition covering sixty-one parcels of land located
in various parts of Sorsogon, large cattle trial several pieces of personal property
which were distributed in accordance with Florentino's will. The heirs assumed the
obligations of the estate amounting to P7,129.27 in the portion of P2,376.42 for
Adolfo Fortajada and P4,752.85 for the Gallanosa spouses. The project of partition
was approved by Judge Doroteo Amador in his order of March 13, 1943, thus
confirming the heirs' possession of their respective shares. The testator's legal heirs
did not appeal from the decree of probate trial from the order of partition trial
distribution.
5. On February 20, 1952, Leon Hitosis trial the heirs of Florentino's deceased
brothers trial sisters instituted an action in the Court of First Instance of Sorsogon
against Pedro Gallanosa for the recovery of the said sixty-one parcels of land. They
alleged that they, by themselves or through their predecessors-in-interest, had been
in continuous possession of those lands en concepto de dueo trial that Gallanosa
entered those lands in 1951 trial asserted ownership over the lands. They prayed
that they be declared the owners of the lands trial that they be restored to the
possession thereof. They also claimed damages (Civil Case No. 696).
6. Gallanosa moved to dismiss the above complaint for lack of cause of action trial
on the ground of bar by the prior judgment in the probate proceeding. Judge
Anatolio C. Maalac dismiss the complaint on the ground of res judicata in his order
of August 14, 1952 wherein he said:
It also appears that the plaintiffs and/or their predecessors-in-interest
had intervened in the testate proceedings in Civil Case No. 3171 of this
Court for- the purpose of contesting the probate of the will of (the) late
Florentino Hitosis; trial had their opposition prospered trial the will
denied of probate, the proceedings would have been converted into
one of intestacy (Art. 960 Civil Code) and the settlement of the estate
of the said deceased would have been made in accordance with the
provisions of law governing legal or intestate succession ... , in which
case the said plaintiffs, as the nearest of kin or legal heirs of said
Florentino Mitosis, would have succeeded to the ownership and
possession of the 61 parcels of land in question forming part of his
estate (art. 1003, Civil Code).
However, the derision of the Court was adverse to them, when it their
opposition trial ordered the probate of his will. From this decision
(Annex K) legalizing the said will, the oppositors did not file any appeal
within the period fixed by law, despite the fact that they were duly
notified thereof, so that the said decision had become final trial it now
constitutes a bar to any action that the plaintiffs may institute for the
purpose of a redetermination of their rights to inherit the properties of
the late Florentino Hitosis.

In other words, the said decision of this Court in Civil Case special ) No.
3171, in which the herein plaintiffs or their predecessors-in-interest
had intervened as parties oppositors, constitutes a final judicial
determination of the issue that the said plaintiffs, as ordinary heirs,
have no legal rights to succeed to any of the properties of the late
Florentino Hitosis; consequently, their present claim to the ownership
trial possession of the 61 parcels of land in question is without any
legal merit or basis.
7. The plaintiffs did not appeal from that order of dismissal which should have set
the matter at rest. But the same plaintiffs or oppositors to the probate of the will,
trial their heirs, with a persistence befitting a more meritorious case, filed on
September 21, 1967, or fifteen years after the dismissal of Civil Case No. 696 trial
twenty-eight years after the probate of the will another action in the same court
against the Gallanosa spouses trial Adolfo Fortajada for the "annulment" of the will
of Florentino Hitosis trial and for the recovery of the same sixty-one parcels of land.
They prayed for the appointment of a receiver.
8. As basis of their complaint, they alleged that the Gallanosa spouses, through
fraud trial deceit, caused the execution trial simulation of the document purporting
to be the last will trial testament of Florentino Hitosis. While in their 1952 complaint
the game plaintiffs alleged that they were in possession of the lands in question, in
their 1967 complaint they admitted that since 1939, or from the death of Florentino
Hitosis, the defendants (now the petitioners) have been in possession of the
disputed lands (Par. XIV of the complaint, p. 70, Rollo in Civil Case No. 555, Gubat
Branch, which was transferred to Branch I in Sorsogon town where Special
Proceeding No. 3171 trial Civil Case No. 696 were decided trial which was redocketed as Civil Case No. 2233).
9. As already stated, that 1967 complaint, upon motion of the defendants, now the
petitioners, was dismissed by respondent Judge. The plaintiffs filed a motion for
reconsideration Respondent Judge. granted it trial set aside the order of dismissal.
He denied defendants' motion for the reconsideration of his order setting aside that
dismissal order.
The petitioners or the defendants below contend in this certiorari case that the
lower court has no jurisdiction to set aside the 1939 decree of probate trial the 1952
order of dismissal in Civil Case No. 696 trial that it acted with grave abuse of
discretion in not dismissing private respondents' 1967 complaint.
The issue is whether, under the facts set forth above, the private respondents have
a cause of action the "annulment" of the will of Florentino Hitosis trial for the
recovery of the sixty-one parcels of land adjudicated under that will to the
petitioners.
We hold that the lower court committed a grave abuse of discretion in
reconsideration its order of dismissal trial in ignoring the 1939 testamentary case
trial the 1952 Civil Case No. 696 which is the same as the instant 1967 case.

A rudimentary knowledge of substantive law trial procedure is sufficient for an

ordinary lawyer to conclude upon a causal perusal of the 1967 complaint that it is
baseless trial unwarranted.
What the plaintiffs seek is the "annulment" of a last will trial testament duly
probated in 1939 by the lower court itself. The proceeding is coupled with an action
to recover the lands adjudicated to the defendants by the same court in 1943 by
virtue of the probated will, which action is a resuscitation of The complaint of the
same parties that the same court dismissed in 1952.
It is evident from the allegations of the complaint trial from defendants' motion to
dismiss that plaintiffs' 1967 action is barred by res judicata, a double-barrelled
defense, trial by prescription, acquisitive trial extinctive, or by what are known in
the jus civile trial the jus gentium as usucapio, longi temporis
possesio and praescriptio (See Ramos vs. Ramos, L-19872, December 3, 1974, 61
SCRA 284).
Our procedural law does not sanction an action for the "annulment" of a will. In
order that a will may take effect, it has to be probated, legalized or allowed in the
proper testamentary proceeding. The probate of the will is mandatory (Art. 838,
Civil Code; sec. 1, Rule 75, formerly sec. 1, Rule 76, Rules of Court; Guevara vs.
Guevara, 74 Phil. 479; Guevara vs. Guevara, 98 Phil. 249).
The testamentary proceeding is a special proceeding for the settlement of the
testator's estate. A special proceeding is distinct trial different from an ordinary
action (Secs. 1 trial 2, Rule 2 trial sec. 1, Rule 72, Rules of Court).
We say that the defense of res judicata, as a ground for the dismissal of plaintiffs'
1967 complaint, is a two-pronged defense because (1) the 1939 trial 1943 decrees
of probate trial distribution in Special Proceeding No. 3171 trial (2) the 1952 order of
dismissal in Civil Case No. 696 of the lower court constitute bars by former
judgment, Rule 39 of the Rules of Court provides:
SEC. 49. Effect of judgments. The effect of a judgment or final order
rendered by a court or judge of the Philippines, having jurisdiction to
pronounce the judgment or order, may be as follows:
(a) In case of a judgment or order against a specific thing, or in respect
to the probate of a will or the administration of the estate of a
deceased person, or in respect to the personal, political, or legal
condition or status of a particular person or his relationship to another,
the judgment or order is conclusive upon the title to the thing the will
or administration, or the condition, status or relationship of the person;
however, the probate of a will or granting of letters of administration
shall only be prima facie evidence of the death of the testator or
intestate;
(b) In other cases the judgment or order is, with respect to the matter
directly adjudged or as to any other matter that could have been

raised in relation thereto, conclusive between the parties trial their

successors in interest by title subsequent to the commencement of the
action or special proceeding, litigating of the same thing trial under the
same title trial in the same capacity;
(c) In any other litigation between the same parties or their successors
in interest, that only is deemed to have been adjudged in a former
judgment which appears upon its face to have been so adjudged, or
which was actually trial necessarily included therein or necessary
thereto.
The 1939 decree of probate is conclusive as to the due execution or formal validity
of the will (Sec. 625, Act 190, sec. 1, Rule 76, now sec. 1, Rule 75, Rules of Court;
Last par. of art. 838, Civil Code).
That means that the testator was of sound trial disposing mind at the time when he
executed the will and was not acting under duress, menace, fraud, or undue
influence; that the will was signed by him in the presence of the required number of
witnesses, and that the will is genuine trial is not a forgery. Accordingly, these facts
cannot again be questioned in a subsequent proceeding, not even in a criminal
action for the forgery of the will. (3 Moran's Comments on the Rules of Court, 1970
Edition, p. 395; Manahan vs. Manahan, 58 Phil. 448).
After the finality of the allowance of a will, the issue as to the voluntariness of its
execution cannot be raised anymore (Santos vs. De Buenaventura, L-22797,
September 22, 1966, 18 SCRA 47).
In Austria vs. Ventenilla, 21 Phil. 180, a "petition for annulment of a will" was not
entertained after the decree of probate had become final. That case is summarized
as follows:
Wills; Probate; Alledged Fraudulent Will; Appeal. V. died. His will was
admitted to probate without objection. No appeal was taken from said
order. It was admitted that due trial legal notice had been given to all
parties. Fifteen months after the date of said order, a motion was
presented in the lower court to have said will declared null and void,
for the reason that fraud had been practised upon the deceased in the
making of his will.
Held: That under section 625 of Act No. 190, the only time given
parties who are displeased with the order admitting to probate a will,
for an appeal is the time given for appeals in ordinary actions; but
without deciding whether or not an order admitting a will to probate
will be opened for fraud, after the time allowed for an appeal has
expired, when no appeal is taken from an order probating a will, the
heirs can not, in subsequent litigation in the same proceedings, raise
questions relating to its due execution. The probate of a will is
conclusive as to its due execution trial as to the testamentary capacity
of The testator. (See Austria vs. Heirs of Ventenilla. 99 Phil. 1069).

On the other hand, the 1943 decree of adjudication rendered by the trial court in
the testate proceeding for the settlement of the estate of Florentino Hitosis, having
been rendered in a proceeding in rem, is under the abovequoted section 49(a),
binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estate of
Johnson, 39 Phil. 156; De la Cerna vs. Potot, 120 Phil. 1361, 1364; McMaster vs.
Hentry Reissmann & Co., 68 Phil. 142).
It is not only the 1939 probate proceeding that can be interposed as res
judicata with respect to private respondents' complaint, The 1952 order of dismissal
rendered by Judge Maalac in Civil Case No. 696, a judgment in personam was an
adjudication on the merits (Sec. 4, Rule 30, old Rules of Court). It constitutes a bar
by former judgment under the aforequoted section 49(b) (Anticamara vs. Ong, L29689. April 14, 1978).
The plaintiffs or private respondents did not even bother to ask for the annulment of
the testamentary proceeding trial the proceeding in Civil Case No. 696. Obviously,
they realized that the final adjudications in those cases have the binding force
of res judicata and that there is no ground, nor is it timely, to ask for the nullification
of the final orders trial judgments in those two cases.
It is a fundamental concept in the organization of every jural system, a principle of
public policy, that, at the risk of occasional errors, judgments of courts should
become final at some definite date fixed by law. Interest rei publicae ut finis sit
litum. "The very object for which the courts were constituted was to put an end to
controversies." (Dy Cay vs. Crossfield and O'Brien, 38 Phil. 521: Pealosa vs. Tuason,
22 Phil, 303; De la Cerna vs. Potot, supra).
After the period for seeking relief from a final order or judgment under Rule 38 of
the Rules of Court has expired, a final judgment or order can be set aside only on
the grounds of (a) lack of jurisdiction or lack of due process of law or (b) that the
judgment was obtained by means of extrinsic or collateral fraud. In the latter case,
the period for annulling the judgment is four years from the discovery of the fraud
(2 Moran's Comments on the Rules of Court, 1970 Edition, pp. 245-246; Mauricio vs.
Villanueva, 106 Phil. 1159).
To hurdle over the obstacle of prescription, the trial court, naively adopting the
theory of plaintiffs' counsel, held that the action for the recovery of the lands had
not prescribed because the rule in article 1410 of the Civil Code, that "the action or
defense for the declaration of the inexistence of a contract does not prescribe",
applies to wills.
That ruling is a glaring error. Article 1410 cannot possibly apply to last wills trial
testaments. The trial court trial plaintiffs' counsel relied upon the case of Dingle vs.
Guillermo, 48 0. G. 4410, allegedly decided by this Court, which cited the ruling in
Tipton vs. Velasco, 6 Phil. 67, that mere lapse of time cannot give efficacy to
voidcontracts, a ruling elevated to the category of a codal provision in article 1410.
The Dingle case was decided by the Court of Appeals. Even the trial court did not
take pains to verify the misrepresentation of plaintiffs' counsel that the Dingle case
was decided by this Court. An elementary knowledge of civil law could have alerted

the trial court to the egregious error of plaintiffs' counsel in arguing that article 1410
applies to wills.
WHEREFORE, the lower court's orders of May 3 trial June 17, 1968 are reversed trial
set aside trial its order of dismissal dated January 10, 1968 is affirmed. Costs
against the private respondents.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio, and Santos, JJ., concur.
Concepcion, Jr., J., is on leave.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-62952 October 9, 1985
SOFIA J. NEPOMUCENO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG,
CARMELITA JUGO,respondents.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside that portion of the decision of the
respondent Court of Appeals (now intermediate Appellate Court) dated June 3, 1982,
as amended by the resolution dated August 10, 1982, declaring as null and void the
devise in favor of the petitioner and the resolution dated December 28, 1982
denying petitioner's motion for reconsideration.
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament
duly signed by him at the end of the Will on page three and on the left margin of
pages 1, 2 and 4 thereof in the presence of Celestina Alejandro, Myrna C. Cortez,
and Leandro Leano, who in turn, affixed their signatures below the attestation
clause and on the left margin of pages 1, 2 and 4 of the Will in the presence of the
testator and of each other and the Notary Public. The Will was acknowledged before
the Notary Public Romeo Escareal by the testator and his three attesting witnesses.
In the said Will, the testator named and appointed herein petitioner Sofia J.
Nepomuceno as his sole and only executor of his estate. It is clearly stated in the
Will that the testator was legally married to a certain Rufina Gomez by whom he had
two legitimate children, Oscar and Carmelita, but since 1952, he had been
estranged from his lawfully wedded wife and had been living with petitioner as

husband and wife. In fact, on December 5, 1952, the testator Martin Jugo and the
petitioner herein, Sofia J. Nepomuceno were married in Victoria, Tarlac before the
Justice of the Peace. The testator devised to his forced heirs, namely, his legal wife
Rufina Gomez and his children Oscar and Carmelita his entire estate and the free
portion thereof to herein petitioner. The Will reads in part:
Art. III. That I have the following legal heirs, namely: my
aforementioned legal wife, Rufina Gomez, and our son, Oscar, and
daughter Carmelita, both surnamed Jugo, whom I declare and admit to
be legally and properly entitled to inherit from me; that while I have
been estranged from my above-named wife for so many years, I
cannot deny that I was legally married to her or that we have been
separated up to the present for reasons and justifications known fully
well by them:
Art. IV. That since 1952, 1 have been living, as man and wife with one
Sofia J. Nepomuceno, whom I declare and avow to be entitled to my
love and affection, for all the things which she has done for me, now
and in the past; that while Sofia J. Nepomuceno has with my full
knowledge and consent, did comport and represent myself as her own
husband, in truth and in fact, as well as in the eyes of the law, I could
not bind her to me in the holy bonds of matrimony because of my
aforementioned previous marriage;
On August 21, 1974, the petitioner filed a petition for the probate of the last Will
and Testament of the deceased Martin Jugo in the Court of First Instance of Rizal,
Branch XXXIV, Caloocan City and asked for the issuance to her of letters
testamentary.
On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed
an opposition alleging inter alia that the execution of the Will was procured by
undue and improper influence on the part of the petitioner; that at the time of the
execution of the Will, the testator was already very sick and that petitioner having
admitted her living in concubinage with the testator, she is wanting in integrity and
thus, letters testamentary should not be issued to her.
On January 6, 1976, the lower court denied the probate of the Will on the ground
that as the testator admitted in his Will to cohabiting with the petitioner from
December 1952 until his death on July 16, 1974, the Will's admission to probate will
be an Idle exercise because on the face of the Will, the invalidity of its intrinsic
provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the Court of First
Instance of Rizal denying the probate of the will. The respondent court declared the
Will to be valid except that the devise in favor of the petitioner is null and void
pursuant to Article 739 in relation with Article 1028 of the Civil Code of the
Philippines. The dispositive portion of the decision reads:

WHEREFORE, the decision a quo is hereby set aside, the will in

question declared valid except the devise in favor of the appellant
which is declared null and void. The properties so devised are instead
passed on in intestacy to the appellant in equal shares, without
pronouncement as to cost.
On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for
Correction of Clerical Error" praying that the word "appellant" in the last sentence of
the dispositive portion of the decision be changed to "appellees" so as to read: "The
properties so devised are instead passed on intestacy to the appellees in equal
shares, without pronouncement as to costs." The motion was granted by the
respondent court on August 10, 1982.
On August 23, 1982, the petitioner filed a motion for reconsideration. This was
denied by the respondent court in a resolution dated December 28, 1982.
The main issue raised by the petitioner is whether or not the respondent court acted
in excess of its jurisdiction when after declaring the last Will and Testament of the
deceased Martin Jugo validly drawn, it went on to pass upon the intrinsic validity of
the testamentary provision in favor of herein petitioner.
The petitioner submits that the validity of the testamentary provision in her favor
cannot be passed upon and decided in the probate proceedings but in some other
proceedings because the only purpose of the probate of a Will is to establish
conclusively as against everyone that a Will was executed with the formalities
required by law and that the testator has the mental capacity to execute the same.
The petitioner further contends that even if the provisions of paragraph 1 of Article
739 of the Civil Code of the Philippines were applicable, the declaration of its nullity
could only be made by the proper court in a separate action brought by the legal
wife for the specific purpose of obtaining a declaration of the nullity of the
testamentary provision in the Will in favor of the person with whom the testator was
allegedly guilty of adultery or concubinage.
The respondents on the other hand contend that the fact that the last Will and
Testament itself expressly admits indubitably on its face the meretricious
relationship between the testator and the petitioner and the fact that petitioner
herself initiated the presentation of evidence on her alleged ignorance of the true
civil status of the testator, which led private respondents to present contrary
evidence, merits the application of the doctrine enunciated in Nuguid v. Felix
Nuguid, et al. (17 SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et al.
(G.R. No. L- 39247, June 27, 1975). Respondents also submit that the admission of
the testator of the illicit relationship between him and the petitioner put in issue the
legality of the devise. We agree with the respondents.
The respondent court acted within its jurisdiction when after declaring the Will to be
validly drawn, it went on to pass upon the intrinsic validity of the Will and declared
the devise in favor of the petitioner null and void.

The general rule is that in probate proceedings, the court's area of inquiry is limited
to an examination and resolution of the extrinsic validity of the Will. The rule is
expressed thus:
xxx xxx xxx
... It is elementary that a probate decree finally and definitively settles
all questions concerning capacity of the testator and the proper
execution and witnessing of his last Will and testament, irrespective of
whether its provisions are valid and enforceable or
otherwise. (Fernandez v. Dimagiba,21 SCRA 428)
The petition below being for the probate of a Will, the court's area of
inquiry is limited to the extrinsic validity thereof. The testators
testamentary capacity and the compliance with the formal requisites
or solemnities prescribed by law are the only questions presented for
the resolution of the court. Any inquiry into the intrinsic validity or
efficacy of the provisions of the will or the legality of any devise or
legacy is premature.
xxx xxx xxx
True or not, the alleged sale is no ground for the dismissal of the
petition for probate. Probate is one thing; the validity of the
testamentary provisions is another. The first decides the execution of
the document and the testamentary capacity of the testator; the
second relates to descent and distribution (Sumilang v. Ramagosa, 21
SCRA 1369)
xxx xxx xxx
To establish conclusively as against everyone, and once for all, the
facts that a will was executed with the formalities required by law and
that the testator was in a condition to make a will, is the only purpose
of the proceedings under the new code for the probate of a will. (Sec.
625). The judgment in such proceedings determines and can
determine nothing more. In them the court has no power to pass upon
the validity of any provisions made in the will. It can not decide, for
example, that a certain legacy is void and another one valid. ...
(Castaneda v. Alemany, 3 Phil. 426)
The rule, however, is not inflexible and absolute. Given exceptional circumstances,
the probate court is not powerless to do what the situation constrains it to do and
pass upon certain provisions of the Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the
petitioner as universal heir and completely preterited her surviving forced heirs. A
will of this nature, no matter how valid it may appear extrinsically, would be null

and void. Separate or latter proceedings to determine the intrinsic validity of the
testamentary provisions would be superfluous.
Even before establishing the formal validity of the will, the Court in Balanay .Jr. v.
Martinez (64 SCRA 452) passed upon the validity of its intrinsic provisions.
Invoking "practical considerations", we stated:
The basic issue is whether the probate court erred in passing upon the
intrinsic validity of the will, before ruling on its allowance or formal
validity, and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the
will, which are of dubious legality, and because of the motion to
withdraw the petition for probate (which the lower court assumed to
have been filed with the petitioner's authorization) the trial court acted
correctly in passing upon the will's intrinsic validity even before its
formal validity had been established. The probate of a will might
become an Idle ceremony if on its face it appears to be intrinsically
void. Where practical considerations demand that the intrinsic validity
of the will be passed upon, even before it is probated, the court should
meet the issue (Nuguid v. Nuguid, 64 O.G. 1527, 17 SCRA 449.
Compare with Sumilang vs. Ramagosa L-23135, December 26, 1967,
21 SCRA 1369; Cacho v. Udan L-19996, April 30, 1965, 13 SCRA 693).
There appears to be no more dispute at this time over the extrinsic validity of the
Will. Both parties are agreed that the Will of Martin Jugo was executed with all the
formalities required by law and that the testator had the mental capacity to execute
his Will. The petitioner states that she completely agrees with the respondent court
when in resolving the question of whether or not the probate court correctly denied
the probate of Martin Jugo's last Will and Testament, it ruled:
This being so, the will is declared validly drawn. (Page 4, Decision,
Annex A of Petition.)
On the other hand the respondents pray for the affirmance of the Court of Appeals'
decision in toto.
The only issue, therefore, is the jurisdiction of the respondent court to declare the
testamentary provision in favor of the petitioner as null and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid,
(supra):
We pause to reflect. If the case were to be remanded for probate of the
will, nothing will be gained. On the contrary, this litigation will be
protracted. And for aught that appears in the record, in the record, in
the event of probate or if the court rejects the will, probability exists
that the case will come up once again before us on the same issue of

the intrinsic validity or nullity of the will. Result, waste of time, effort,
expense, plus added anxiety. These are the practical considerations
that induce us to a belief that we might as well meet head-on the issue
of the validity of the provisions of the will in question. (Section 2, Rule
1, Rules of Court. Case, et al. v. Jugo, et al., 77 Phil. 517, 522). After all,
there exists a justiciable controversy crying for solution.
We see no useful purpose that would be served if we remand the nullified provision
to the proper court in a separate action for that purpose simply because, in the
probate of a will, the court does not ordinarily look into the intrinsic validity of its
provisions.
Article 739 of the Civil Code provides:
The following donations shall be void:
(1) Those made between persons who were guilty of adultery or
concubinage at the time of the donation;
(2) Those made between persons found guilty of the same criminal
offense, in consideration thereof;
(3) Those made to a public officer or his wife, descendants and
ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration of nullity may
be brought by the spouse of the donor or donee; and the guilt of the
donor and donee may be proved by preponderance of evidence in the
same action.
Article 1028 of the Civil Code provides:
The prohibitions mentioned in Article 739, concerning donations inter
vivos shall apply to testamentary provisions.
In Article III of the disputed Will, executed on August 15, 1968, or almost six years
before the testator's death on July 16, 1974, Martin Jugo stated that respondent
Rufina Gomez was his legal wife from whom he had been estranged "for so many
years." He also declared that respondents Carmelita Jugo and Oscar Jugo were his
legitimate children. In Article IV, he stated that he had been living as man and wife
with the petitioner since 1952. Testator Jugo declared that the petitioner was
entitled to his love and affection. He stated that Nepomuceno represented Jugo as
her own husband but "in truth and in fact, as well as in the eyes of the law, I could
not bind her to me in the holy bonds of matrimony because of my aforementioned
previous marriage.
There is no question from the records about the fact of a prior existing marriage
when Martin Jugo executed his Will. There is also no dispute that the petitioner and

Mr. Jugo lived together in an ostensible marital relationship for 22 years until his
death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno
contracted a marriage before the Justice of the Peace of Victoria, Tarlac. The man
was then 51 years old while the woman was 48. Nepomuceno now contends that
she acted in good faith for 22 years in the belief that she was legally married to the
testator.
The records do not sustain a finding of innocence or good faith. As argued by the
private respondents:
First. The last will and testament itself expressly admits indubitably on
its face the meretricious relationship between the testator and
petitioner, the devisee.
Second. Petitioner herself initiated the presentation of evidence on her
alleged ignorance of the true civil status of the testator, which led
private respondents to present contrary evidence.
In short, the parties themselves dueled on the intrinsic validity of the
legacy given in the will to petitioner by the deceased testator at the
start of the proceedings.
Whether or not petitioner knew that testator Martin Jugo, the man he
had lived with as man and wife, as already married, was an important
and specific issue brought by the parties before the trial court, and
passed upon by the Court of Appeals.
Instead of limiting herself to proving the extrinsic validity of the will, it
was petitioner who opted to present evidence on her alleged good faith
in marrying the testator. (Testimony of Petitioner, TSN of August 1,
1982, pp. 56-57 and pp. 62-64).
Private respondents, naturally, presented evidence that would refute
the testimony of petitioner on the point.
Sebastian Jugo, younger brother of the deceased testator, testified at
length on the meretricious relationship of his brother and petitioner.
(TSN of August 18,1975).
Clearly, the good faith of petitioner was by option of the parties made
a decisive issue right at the inception of the case.
Confronted by the situation, the trial court had to make a ruling on the
question.

When the court a quo held that the testator Martin Jugo and petitioner
'were deemed guilty of adultery or concubinage', it was a finding that
petitioner was not the innocent woman she pretended to be.
xxx xxx xxx
3. If a review of the evidence must be made nonetheless, then private
respondents respectfully offer the following analysis:
FIRST: The secrecy of the marriage of petitioner with the deceased
testator in a town in Tarlac where neither she nor the testator ever
resided. If there was nothing to hide from, why the concealment' ? Of
course, it maybe argued that the marriage of the deceased with
private respondent Rufina Gomez was likewise done in secrecy. But it
should be remembered that Rufina Gomez was already in the family
way at that time and it would seem that the parents of Martin Jugo
were not in favor of the marriage so much so that an action in court
was brought concerning the marriage. (Testimony of Sebastian Jugo,
TSN of August 18, 1975, pp. 29-30)
SECOND: Petitioner was a sweetheart of the deceased testator when
they were still both single. That would be in 1922 as Martin Jugo
married respondent Rufina Gomez on November 29, 1923 (Exh. 3).
Petitioner married the testator only on December 5, 1952. There was a
space of about 30 years in between. During those 30 years, could it be
believed that she did not even wonder why Martin Jugo did not marry
her nor contact her anymore after November, 1923 - facts that should
impel her to ask her groom before she married him in secrecy,
especially so when she was already about 50 years old at the time of
marriage.
THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by
itself conclusive demonstration that she new that the man she had
openly lived for 22 years as man and wife was a married man with
already two children.
FOURTH: Having admitted that she knew the children of respondent
Rufina Gomez, is it possible that she would not have asked Martin Jugo
whether or not they were his illegitimate or legitimate children and by
whom? That is un-Filipino.
FIFTH: Having often gone to Pasig to the residence of the parents of the
deceased testator, is it possible that she would not have known that
the mother of private respondent Oscar Jugo and Carmelita Jugo was
respondent Rufina Gomez, considering that the houses of the parents
of Martin Jugo (where he had lived for many years) and that of
respondent Rufina Gomez were just a few meters away?

Such pretentions of petitioner Sofia Nepomuceno are unbelievable.

They are, to say the least, inherently improbable, for they are against
the experience in common life and the ordinary instincts and
promptings of human nature that a woman would not bother at all to
ask the man she was going to marry whether or not he was already
married to another, knowing that her groom had children. It would be a
story that would strain human credulity to the limit if petitioner did not
know that Martin Jugo was already a married man in view of the
irrefutable fact that it was precisely his marriage to respondent Rufina
Gomez that led petitioner to break off with the deceased during their
younger years.
Moreover, the prohibition in Article 739 of the Civil Code is against the making of a
donation between persons who are living in adultery or concubinage. It is
the donation which becomes void. The giver cannot give even assuming that the
recipient may receive. The very wordings of the Will invalidate the legacy because
the testator admitted he was disposing the properties to a person with whom he
had been living in concubinage.
WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court
of Appeals, now Intermediate Appellate Court, is AFFIRMED. No costs.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova, De la Fuente and Patajo,
JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23445

June 23, 1966

REMEDIOS NUGUID, petitioner and appellant,

vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.
Custodio O. Partade for petitioner and appellant.
Beltran, Beltran and Beltran for oppositors and appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single,
without descendants, legitimate or illegitimate. Surviving her were her legitimate
parents, Felix Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters,
namely: Alfredo, Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed
Nuguid.

On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of
Rizal a holographic will allegedly executed by Rosario Nuguid on November 17,
1951, some 11 years before her demise. Petitioner prayed that said will be admitted
to probate and that letters of administration with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate
father and mother of the deceased Rosario Nuguid, entered their opposition to the
probate of her will. Ground therefor, inter alia, is that by the institution of petitioner
Remedios Nuguid as universal heir of the deceased, oppositors who are
compulsory heirs of the deceased in the direct ascending line were illegally
preterited and that in consequence the institution is void.
On August 29, 1963, before a hearing was had on the petition for probate and
objection thereto, oppositors moved to dismiss on the ground of absolute
preterition.
On September 6, 1963, petitioner registered her opposition to the motion to
dismiss.1wph1.t
The court's order of November 8, 1963, held that "the will in question is a complete
nullity and will perforce create intestacy of the estate of the deceased Rosario
Nuguid" and dismissed the petition without costs.
A motion to reconsider having been thwarted below, petitioner came to this Court
on appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The case is
for the probate of a will. The court's area of inquiry is limited to an examination
of, and resolution on, the extrinsic validity of the will. The due execution thereof, the
testatrix's testamentary capacity, and the compliance with the requisites or
solemnities by law prescribed, are the questions solely to be presented, and to be
acted upon, by the court. Said court at this stage of the proceedings is not called
upon to rule on the intrinsic validity or efficacy of the provisions of the will, the
legality of any devise or legacy therein.1
A peculiar situation is here thrust upon us. The parties shunted aside the question of
whether or not the will should be allowed probate. For them, the meat of the case is
the intrinsic validity of the will. Normally, this comes only after the court has
declared that the will has been duly authenticated. 2 But petitioner and oppositors, in
the court below and here on appeal, travelled on the issue of law, to wit: Is the will
intrinsically a nullity?
We pause to reflect. If the case were to be remanded for probate of the will, nothing
will be gained. On the contrary, this litigation will be protracted. And for aught that
appears in the record, in the event of probate or if the court rejects the will,
probability exists that the case will come up once again before us on the same issue
of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense,
plus added anxiety. These are the practical considerations that induce us to a belief

that we might as well meet head-on the issue of the validity of the provisions of the
will in question.3 After all, there exists a justiciable controversy crying for solution.
2. Petitioner's sole assignment of error challenges the correctness of the conclusion
below that the will is a complete nullity. This exacts from us a study of the disputed
will and the applicable statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having
amassed a certain amount of property, do hereby give, devise, and bequeath all of
the property which I may have when I die to my beloved sister Remedios Nuguid,
age 34, residing with me at 38-B Iriga, Q.C. In witness whereof, I have signed my
name this seventh day of November, nineteen hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code which, in
part, provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory
heirs in the direct line, whether living at the time of the execution of the will
or born after the death of the testator, shall annul the institution of heir; but
the devises and legacies shall be valid insofar as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a reproduction of
Article 814 of the Civil Code of Spain of 1889, which is similarly herein copied, thus

Art. 814. The preterition of one or all of the forced heirs in the direct line,
whether living at the time of the execution of the will or born after the death
of the testator, shall void the institution of heir; but the legacies and
betterments4 shall be valid, in so far as they are not inofficious. ...
A comprehensive understanding of the term preterition employed in the law
becomes a necessity. On this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se le
nombra siquiera o aun nombrandole como padre, hijo, etc., no se le instituya
heredero ni se le deshereda expresamente ni se le asigna parte alguna de los
bienes, resultando privado de un modo tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el
testamento omita el testador a uno cualquiera de aquellos a quienes por su
muerte corresponda la herencia forzosa.

Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que

la omision sea completa; que el heredero forzoso nada reciba en el
testamento.
It may now appear trite bat nonetheless helpful in giving us a clear perspective of
the problem before us, to have on hand a clear-cut definition of the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A.
342, 343, 204 Pa. 484.6
The word "annul" as used in statute requiring court to annul alimony
provisions of divorce decree upon wife's remarriage means to reduce to
nothing; to annihilate; obliterate; blot out; to make void or of no effect; to
nullify; to abolish. N.J.S.A. 2:50 38 (now N.J.S. 2A:34-35). Madden vs.
Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132. 7
ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no
effect; to nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va.
283, 14 S.E. 2d. 771, 774.8
And now, back to the facts and the law. The deceased Rosario Nuguid left no
descendants, legitimate or illegitimate. But she left forced heirs in the direct
ascending line her parents, now oppositors Felix Nuguid and Paz Salonga Nuguid.
And, the will completely omits both of them: They thus received nothing by the
testament; tacitly, they were deprived of their legitime; neither were they expressly
disinherited. This is a clear case of preterition. Such preterition in the words of
Manresa "anulara siempre la institucion de heredero, dando caracter absoluto a
este ordenamiento referring to the mandate of Article 814, now 854 of the Civil
Code.9 The one-sentence will here institutes petitioner as the sole, universal heir
nothing more. No specific legacies or bequests are therein provided for. It is in this
posture that we say that the nullity is complete. Perforce, Rosario Nuguid died
intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja de
existir, en todo o en parte? No se aade limitacion alguna, como en el
articulo 851, en el que se expresa que se anulara la institucion de heredero
en cuanto prejudique a la legitima del deseheredado Debe, pues, entenderse
que la anulacion es completa o total, y que este articulo como especial en el
caso que le motiva rige con preferencia al 817. 10
The same view is expressed by Sanchez Roman:
La consecuencia de la anulacion o nulidad de la institucion de heredero por
pretericion de uno, varios o todos los forzosos en linea recta, es la apertura
de la sucesion intestada total o parcial. Sera total, cuando el testador que
comete la pretericion, hubiese dispuesto de todos los bienes por titulo
universal de herencia en favor de los herederos instituidos, cuya institucion
se anula, porque asi lo exige la generalidad del precepto legal del art. 814, al

determinar, como efecto de la pretericion, el de que "anulara la institucion de

heredero." ... 11
Really, as we analyze the word annul employed in the statute, there is no escaping
the conclusion that the universal institution of petitioner to the entire inheritance
results in totally abrogating the will. Because, the nullification of such institution of
universal heir without any other testamentary disposition in the will amounts
to a declaration that nothing at all was written. Carefully worded and in clear terms,
Article 854 offers no leeway for inferential interpretation. Giving it an expansive
meaning will tear up by the roots the fabric of the statute. On this point, Sanchez
Roman cites the "Memoria annual del Tribunal Supreme, correspondiente a 1908",
which in our opinion expresses the rule of interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la nulidad de la
institucion de heredero, no consiente interpretacion alguna favorable a la
persona instituida en el sentido antes expuesto aun cuando parezca, y en
algun caso pudiera ser, mas o menos equitativa, porque una nulidad no
significa en Derecho sino la suposicion de que el hecho o el acto no se ha
realizado, debiendo por lo tanto procederse sobre tal base o supuesto, y
consiguientemente, en un testamento donde falte la institucion, es obligado
llamar a los herederos forzosos en todo caso, como habria que llamar a los de
otra clase, cuando el testador no hubiese distribudo todos sus bienes en
legados, siendo tanto mas obligada esta consecuencia legal cuanto que, en
materia de testamentos, sabido es, segun tiene declarado la jurisprudencia,
con repeticion, que no basta que sea conocida la voluntad de quien testa si
esta voluntad no aparece en la forma y en las condiciones que la ley ha
exigido para que sea valido y eficaz, por lo que constituiria una interpretacion
arbitraria, dentro del derecho positivo, reputar como legatario a un heredero
cuya institucion fuese anulada con pretexto de que esto se acomodaba mejor
a la voluntad del testador, pues aun cuando asi fuese, sera esto razon para
modificar la ley, pero no autoriza a una interpretacion contraria a sus
terminos y a los principios que informan la testamentifaccion, pues no porque
parezca mejor una cosa en el terreno del Derecho constituyente, hay razon
para convereste juicio en regla de interpretacion, desvirtuando y anulando
por este procedimiento lo que el legislador quiere establecer. 12
3. We should not be led astray by the statement in Article 854 that, annullment
notwithstanding, "the devises and legacies shall be valid insofar as they are not
inofficious". Legacies and devises merit consideration only when they are so
expressly given as such in a will. Nothing in Article 854 suggests that
the mere institution of a universal heir in a will void because of preterition
would give the heir so instituted a share in the inheritance. As to him, the will is
inexistent. There must be, in addition to such institution, a testamentary disposition
granting him bequests or legacies apart and separate from the nullified institution
of heir. Sanchez Roman, speaking of the two component parts of Article 814, now
854, states that preterition annuls the institution of the heir "totalmente por la
pretericion"; but added (in reference to legacies and bequests) "pero subsistiendo ...
todas aquellas otras disposiciones que no se refieren a la institucion de
heredero ... . 13 As Manresa puts it, annulment throws open to intestate succession

the entire inheritance including "la porcion libre (que) no hubiese dispuesto en
virtud de legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us except the institution of
petitioner as universal heir. That institution, by itself, is null and void. And, intestate
succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance
rather than one of preterition". 15From this, petitioner draws the conclusion that
Article 854 "does not apply to the case at bar". This argument fails to appreciate the
distinction between pretention and disinheritance.
Preterition "consists in the omission in the testator's will of the forced heirs or
anyone of them, either because they are not mentioned therein, or, though
mentioned, they are neither instituted as heirs nor are expressly
disinherited." 16 Disinheritance, in turn, "is a testamentary disposition depriving any
compulsory heir of his share in the legitime for a cause authorized by law. " 17 In
Manresa's own words: "La privacion expresa de la legitima constituye
la desheredacion. La privacion tacita de la misma se
denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that
disinheritance "es siempre voluntaria"; preterition, upon the other hand, is
presumed to be "involuntaria". 19 Express as disinheritance should be, the same
must be supported by a legal cause specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It
simply omits their names altogether. Said will rather than be labeled ineffective
disinheritance is clearly one in which the said forced heirs suffer from preterition.
On top of this is the fact that the effects flowing from preterition are totally different
from those of disinheritance. Preterition under Article 854 of the Civil Code, we
repeat, "shall annul the institution of heir". This annulment is in toto, unless in the
will there are, in addition, testamentary dispositions in the form of devises or
legacies. In ineffective disinheritance under Article 918 of the same Code, such
disinheritance shall also "annul the institution of heirs", put only "insofar as it may
prejudice the person disinherited", which last phrase was omitted in the case of
preterition. 21 Better stated yet, in disinheritance the nullity is limited to that portion
of the estate of which the disinherited heirs have been illegally deprived. Manresa's
expressive language, in commenting on the rights of the preterited heirs in the case
of preterition on the one hand and legal disinheritance on the other, runs thus:
"Preteridos, adquiren el derecho a todo; desheredados, solo les corresponde un
tercio o dos tercios, 22 el caso. 23
5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled
to receive their legitimes, but that the institution of heir "is not invalidated,"
although the inheritance of the heir so instituted is reduced to the extent of said
legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief Justice Moran in
the Neri case heretofore cited,viz:

But the theory is advanced that the bequest made by universal title in favor
of the children by the second marriage should be treated
as legado and mejora and, accordingly, it must not be entirely annulled but
merely reduced. This theory, if adopted, will result in a complete abrogation
of Articles 814 and 851 of the Civil Code. If every case of institution of heirs
may be made to fall into the concept of legacies and betterments reducing
the bequest accordingly, then the provisions of Articles 814 and 851
regarding total or partial nullity of the institution, would. be absolutely
meaningless and will never have any application at all. And the remaining
provisions contained in said article concerning the reduction of inofficious
legacies or betterments would be a surplusage because they would be
absorbed by Article 817. Thus, instead of construing, we would be destroying
integral provisions of the Civil Code.
The destructive effect of the theory thus advanced is due mainly to a failure
to distinguish institution of heirs from legacies and betterments, and a
general from a special provision. With reference to article 814, which is the
only provision material to the disposition of this case, it must be observed
that the institution of heirs is therein dealt with as a thing separate and
distinct from legacies or betterments. And they are separate and distinct not
only because they are distinctly and separately treated in said article but
because they are in themselves different. Institution of heirs is a bequest by
universal title of property that is undetermined. Legacy refers to specific
property bequeathed by a particular or special title. ... But again an
institution of heirs cannot be taken as a legacy. 25
The disputed order, we observe, declares the will in question "a complete nullity".
Article 854 of the Civil Code in turn merely nullifies "the institution of heir".
Considering, however, that the will before us solely provides for the institution of
petitioner as universal heir, and nothing more, the result is the same. The entire will
is null.
Upon the view we take of this case, the order of November 8, 1963 under review is
hereby affirmed. No costs allowed. So ordered.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P. and
Zaldivar, JJ., concur.
Footnotes
1

Castaeda vs. Alemany, 3 Phil. 426, 428; Pimentel vs. Palanca, etc., et al., 5
Phil. 436, 440-441; Limjuco vs. Ganara, 11 Phil. 393, 394-395; Montaano vs.
Suesa, 14 Phil. 676, 679; Riera vs. Palmorali, et al., 40 Phil. 105, 116; In
re Estate of Johnson, 39 Phil. 156, 174; Palacios vs. Palacios, 58 O.G. No. 2,
220, 221; Teotico vs. Del Val, etc., L-18753, March 26, 1965.
2

Section 13, Rule 76 of the Rules of Court.

Section 2, Rule 1, Rules of Court. Case, et al. vs. Jugo, et al., 77 Phil. 517,
522.
4

Betterments are eliminated in the present Civil Code. II Padilla, Civil Code
Annotated, p. 1077.
5

VI Manresa, Commentarios al Codigo Civil Espaol, 7th Edition, (1951), p.

424.
6

Words & Phrases, Vol. 3A, Permanent Ed., p. 3.

Id., p. 4.

Black's Law Dictionary, 4th ed., p. 117.

Manresa, id., p. 426.

10

Manresa, id., pp. 431-432.

11

VI Sanchez Roman, Estudios de Derecho Civil, 2nd Edition, Volumen 2.o, p.

1140.
12

VI Sanchez Roman, id., p. 1138. This is also cited in the Neri case, 74 Phil.
192-193.
Justice J.B.L. Reyes and Judge R.C. Puno, in their work entitled "An
Outline of Philippine Civil Law", 1956 ed., Vol. III, p. 8; citing Gil vs.
Murciano, L-3362, March 1, 1951, likewise opined that "the right to
make a will is statutory, not a natural right, and must be subordinate to
law and public policy".
13

Sanchez Roman, id., p. 1141.

14

Manresa, id., p. 434.

15

Petitioner's brief, p. 15.

16

Neri, et al. vs. Akutin, et al., supra, 72 Phil., at p. 325.

17

Justice J.B.L. Reyes and Judge R.C. Puno, id., p. 106.

18

Manresa, id., p. 424. Justice Reyes and Judge Puno, id., 107, speaking of the
requisites of a valid disinheritance, confirm the theory that disinheritance
"must be express (not implied) (Art. 918 ; otherwise there is preterition".
19

Sanchez Roman, id., p. 1131.

20

Arts. 915, 916, Civil Code; II Padilla, Civil Code Annotated, pp. 750-752.

21

III Tolentino, Civil Code of the Philippines, 1961 Edition, p. 172.

22

Now one-half, Articles 888 and 889, Civil Code.

23

Manresa, id., p. 430.

24

Petitioner's brief, p. 13.

25

Neri, et al. vs. Akutin, et al., 74 Phil. pp. 191-192.

Arts. 817 and 851, Civil Code of Spain of 1889, referred to in the
opinion above, are now Arts. 907 and 918 of the present Civil Code.

SECOND DIVISION
[G.R. No. 129505. January 31, 2000]
OCTAVIO S. MALOLES II, petitioner, vs. PACITA DE LOS REYES
PHILLIPS, respondent.
[G.R. No. 133359. January 31, 2000]
OCTAVIO S. MALOLES II, petitioner, vs. COURT OF APPEALS, HON.
FERNANDO V. GOROSPE, JR., in his Official Capacity as Presiding Judge of
RTC-Makati, Branch 61, and PACITA PHILLIPS as the alleged executrix of
the alleged will of the late Dr. Arturo de Santos, respondents. Scmis
DECISION
MENDOZA, J.:
These are petitions for review on certiorari of the decisions of the Thirteenth and the
Special Eighth Divisions of the Court of Appeals which ruled that petitioner has no
right to intervene in the settlement of the estate of Dr. Arturo de Santos. The cases
were consolidated considering that they involve the same parties and some of the
issues raised are the same.
The facts which gave rise to these two petitions are as follows:
On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of Makati City, filed a
petition for probate of his will[1] in the Regional Trial Court, Branch 61, Makati,
docketed as Sp. Proc. No. M-4223. In his petition, Dr. De Santos alleged that he had
no compulsory heirs; that he had named in his will as sole legatee and devisee the
Arturo de Santos Foundation, Inc.; that he disposed by his will his properties with an
approximate value of not less than P2,000,000.00; and that copies of said will were
in the custody of the named executrix, private respondent Pacita de los Reyes
Phillips. A copy of the will[2] was annexed to the petition for probate.

On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-Makati, Branch 61

issued an order granting the petition and allowing the will. The order reads:
On 03 August 1995, the Court issued an Order setting the hearing of
the petition on 12 September 1995, at 8:30 oclock in the morning,
copies of which were served to Arturo de Santos Foundation, Inc. and
Ms. Pacita de los Reyes Phillips (Officers Return, dated 04 September
1995 attached to the records). When the case was called for hearing
on the date set, no oppositor appeared nor any written opposition was
ever filed and on motion of petitioner, he was allowed to adduce his
evidence in support of the petition.
Petitioner personally appeared before this Court and was placed on the
witness stand and was directly examined by the Court through "free
wheeling" questions and answers to give this Court a basis to
determine the state of mind of the petitioner when he executed the
subject will. After the examination, the Court is convinced that
petitioner is of sound and disposing mind and not acting on duress,
menace and undue influence or fraud, and that petitioner signed his
Last Will and Testament on his own free and voluntary will and that he
was neither forced nor influenced by any other person in signing it. Mis
sc
Furthermore, it appears from the petition and the evidence adduced
that petitioner in his lifetime, executed his Last Will and Testament
(Exhs. "A", "A-1", "A-2", "A-4", "A-5") at his residence situated at 9
Bauhinia corner Intsia Streets, Forbes Park, Makati City; said Last Will
and Testament was signed in the presence of his three (3) witnesses,
namely, to wit: Dr. Elpidio Valencia (Exhs. "A-6", "A-7", "A-8", "A-16",
"A-16-A"), Atty. Edward J. Berenguer (Exhs. "A-3", "A-3-A", "A-9", "A-10",
& "A-11"), and Atty. Victoria C. delos Reyes (Exhs. "A-12", "A-13", "A14", "A-17", & "A-18"), who in turn, in the presence of the testator and
in the presence of each and all of the witnesses signed the said Last
Will and Testament and duly notarized before Notary Public Anna
Melissa L. Rosario (Exh. "A-15"); on the actual execution of the Last Will
and Testament, pictures were taken (Exhs. "B" to "B-3").
Petitioner has no compulsory heirs and Arturo de Santos Foundation,
Inc., with address at No. 9 Bauhinia corner Intsia Streets, Forbes Park,
Makati City has been named as sole legatee and devisee of petitioners
properties, real and personal, approximately valued at not less than P2
million, Ms. Pacita de los Reyes Phillips was designated as executor and
to serve as such without a bond.
From the foregoing facts, the Court finds that the petitioner has
substantially established the material allegations contained in his
petition. The Last Will and Testament having been executed and
attested as required by law; that testator at the time of the execution
of the will was of sane mind and/or not mentally incapable to make a
Will; nor was it executed under duress or under the influence of fear or

threats; that it was in writing and executed in the language known and
understood by the testator duly subscribed thereof and attested and
subscribed by three (3) credible witnesses in the presence of the
testator and of another; that the testator and all the attesting
witnesses signed the Last Will and Testament freely and voluntarily and
that the testator has intended that the instrument should be his Will at
the time of affixing his signature thereto.
WHEREFORE, as prayed for by the petitioner (testator himself) the
petition for the allowance of the Last Will and Testament of Arturo de
Santos is hereby APPROVED and ALLOWED.
Shortly after the probate of his will, Dr. De Santos died on February 26, 1996.
On April 3, 1996, petitioner Octavio S. Maloles II filed a motion for intervention
claiming that, as the only child of Alicia de Santos (testators sister) and Octavio L.
Maloles, Sr., he was the sole full-blooded nephew and nearest of kin of Dr. De
Santos. He likewise alleged that he was a creditor of the testator. Petitioner thus
prayed for the reconsideration of the order allowing the will and the issuance of
letters of administration in his name. Mis spped
On the other hand, private respondent Pacita de los Reyes Phillips, the designated
executrix of the will, filed a motion for the issuance of letters testamentary with
Branch 61. Later, however, private respondent moved to withdraw her motion. This
was granted, while petitioner was required to file a memorandum of authorities in
support of his claim that said court (Branch 61) still had jurisdiction to allow his
intervention.[3]
Petitioner filed his memorandum of authorities on May 13, 1996. On the other hand,
private respondent, who earlier withdrew her motion for the issuance of letters
testamentary in Branch 61, refiled a petition for the same purpose with the Regional
Trial Court, Makati, which was docketed as Sp. Proc. No. M-4343 and assigned to
Branch 65.
Upon private respondents motion, Judge Salvador Abad Santos of Branch 65 issued
an order, dated June 28, 1996, appointing her as special administrator of Dr. De
Santoss estate.
On July 29, 1996, petitioner sought to intervene in Sp. Proc. No. M-4343 and to set
aside the appointment of private respondent as special administrator. He reiterated
that he was the sole and full blooded nephew and nearest of kin of the testator; that
he came to know of the existence of Sp. Proc. No. M-4343 only by accident; that the
probate proceedings in Sp. Proc. No. M-4223 before Branch 61 of the same court
was still pending; that private respondent misdeclared the true worth of the
testators estate; that private respondent was not fit to be the special administrator
of the estate; and that petitioner should be given letters of administration for the
estate of Dr. De Santos.

On August 28, 1996, Judge Abad Santos ordered the transfer of Sp. Proc. No. M-4343
to Branch 61, on the ground that "[it] is related to the case before Judge Gorospe of
RTC Branch 61 . . ."
It appears, however, that in Sp. Proc. No. M-4223, Judge Gorospe had denied on
August 26, 1996 petitioners motion for intervention. Petitioner brought this matter
to the Court of Appeals which, in a decision [4] promulgated on February 13, 1998,
upheld the denial of petitioners motion for intervention.
Meanwhile, Judge Gorospe issued an order, dated September 4, 1996, returning the
records of Sp. Proc. No. M-4343 to Branch 65 on the ground that there was a
pending case involving the Estate of Decedent Arturo de Santos pending before said
court. The order reads: Spped
Acting on the ORDER dated 28 August 1996 of Branch 65, this Court,
transferring this case to this Branch 61 on the ground that this case is
related with a case before this Court, let this case be returned to
Branch 65 with the information that there is no related case involving
the ESTATE OF DECEDENT ARTURO DE SANTOS pending before this
Branch.
There is, however, a case filed by ARTURO DE SANTOS, as petitioner
under Rule 76 of the Rules of Court for the Allowance of his will during
his lifetime docketed as SP. PROC. NO. M-4223 which was already
decided on 16 February 1996 and has become final.
It is noted on records of Case No. M-4223 that after it became final,
herein Petitioner Pacita de los Reyes Phillips filed a MOTION FOR THE
ISSUANCE OF LETTERS TESTAMENTARY, which was subsequently
withdrawn after this Court, during the hearing, already ruled that the
motion could not be admitted as the subject matter involves a
separate case under Rule 78 of the Rules of Court, and movant
withdrew her motion and filed this case (No. 4343).
Octavio de Santos Maloles [II] filed a MOTION FOR INTERVENTION
before Case No. M-4223 and this motion was already DENIED in the
order (Branch 61) of 26 August 1996 likewise for the same grounds
that the matter is for a separate case to be filed under Rule 78 of the
Rules of Court and cannot be included in this case filed under Rule 76
of the Rules of Court.
It is further noted that it is a matter of policy that consolidation of
cases must be approved by the Presiding Judges of the affected
Branches.
Initially, in his decision dated September 23, 1996, [5] Judge Abad Santos appeared
firm in his position that " . . . it would be improper for (Branch 65) to hear and
resolve the petition (Sp. Proc. No. M-4343)," considering that the probate
proceedings were commenced with Branch 61. He thus ordered the transfer of the

records back to the latter branch. However, he later recalled his decision and took
cognizance of the case "to expedite the proceedings." Thus, in his Order, dated
October 21, 1996, he stated:
Considering the refusal of the Hon. Fernando V. Gorospe, Jr. of Branch
61 to continue hearing this case notwithstanding the fact that said
branch began the probate proceedings of the estate of the deceased
and must therefore continue to exercise its jurisdiction to the exclusion
of all others, until the entire estate of the testator had been partitioned
and distributed as per Order dated 23 September 1996, this branch
(Regional Trial Court Branch 65) shall take cognizance of the petition if
only to expedite the proceedings, and under the concept that the
Regional Trial Court of Makati City is but one court. Jo spped
Furnish a copy of this order to the Office of the Chief justice and the
Office of the Court Administrator, of the Supreme Court; the Hon.
Fernando V. Gorospe, Jr.; Pacita De Los Reyes Phillips, Petitioner; and
Octavio de Santos Maloles, Intervenor.
On November 4, 1996, Judge Abad Santos granted petitioners motion for
intervention. Private respondent moved for a reconsideration but her motion was
denied by the trial court. She then filed a petition forcertiorari in the Court of
Appeals which, on February 26, 1997, rendered a decision [6] setting aside the trial
courts order on the ground that petitioner had not shown any right or interest to
intervene in Sp. Proc. No. M-4343.
Hence, these petitions which raise the following issues:
1. Whether or not the Honorable Regional Trial Court - Makati, Branch
61 has lost jurisdiction to proceed with the probate proceedings upon
its issuance of an order allowing the will of Dr. Arturo de Santos
2. Whether or not the Honorable (Regional Trial Court - Makati, Branch
65) acquired jurisdiction over the petition for issuance of letters
testamentary filed by (private) respondent.
3. Whether or not the petitioner, being a creditor of the late Dr. Arturo
de Santos, has a right to intervene and oppose the petition for
issuance of letters testamentary filed by the respondent.
4. Whether or not (private) respondent is guilty of forum shopping in
filing her petition for issuance of letters testamentary with the Regional
Trial Court - Makati, Branch 65 knowing fully well that the probate
proceedings involving the same testate estate of the decedent is still
pending with the Regional Trial Court - Makati, Branch 61. Spped jo
First. Petitioner contends that the probate proceedings in Branch 61 of RTC-Makati
did not terminate upon the issuance of the order allowing the will of Dr. De Santos.
Citing the cases of Santiesteban v. Santiesteban[7] and Tagle v. Manalo,[8] he argues

that the proceedings must continue until the estate is fully distributed to the lawful
heirs, devisees, and legatees of the testator, pursuant to Rule 73, 1 of the Rules of
Court. Consequently, petitioner contends that Branch 65 could not lawfully act upon
private respondents petition for issuance of letters testamentary.
The contention has no merit.
In cases for the probate of wills, it is well-settled that the authority of the court is
limited to ascertaining the extrinsic validity of the will, i.e., whether the testator,
being of sound mind, freely executed the will in accordance with the formalities
prescribed by law.[9]
Ordinarily, probate proceedings are instituted only after the death of the testator, so
much so that, after approving and allowing the will, the court proceeds to issue
letters testamentary and settle the estate of the testator. The cases cited by
petitioner are of such nature. In fact, in most jurisdictions, courts cannot entertain a
petition for probate of the will of a living testator under the principle of ambulatory
nature of wills.[10]
However, Art. 838 of the Civil Code authorizes the filing of a petition for probate of
the will filed by the testator himself. It provides:
Civil Code, Art. 838. No will shall pass either real or personal property
unless it is proved and allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having
jurisdiction for the allowance of his will. In such case, the pertinent
provisions of the Rules of Court for the allowance of wills after the
testators death shall govern. Miso
The Supreme Court shall formulate such additional Rules of Court as
may be necessary for the allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance of the will, either during
the lifetime of the testator or after his death, shall be conclusive as to
its due execution.
Rule 76, 1 likewise provides:
Sec. 1 Who may petition for the allowance of will. - Any executor,
devisee, or legatee named in a will, or any other 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, whether the
same be in his possession or not, or is lost or destroyed.
The testator himself may, during his lifetime, petition in the court for
the allowance of his will.

The rationale for allowing the probate of wills during the lifetime of testator has
been explained by the Code Commission thus:
Most of the cases that reach the courts involve either the testamentary
capacity of the testator or the formalities adopted in the execution of
wills. There are relatively few cases concerning the intrinsic validity of
testamentary dispositions. It is far easier for the courts to determine
the mental condition of a testator during his lifetime than after his
death. Fraud, intimidation and undue influence are minimized.
Furthermore, if a will does not comply with the requirements prescribed
by law, the same may be corrected at once. The probate during the
testators life, therefore, will lessen the number of contest upon wills.
Once a will is probated during the lifetime of the testator, the only
questions that may remain for the courts to decide after the testators
death will refer to the intrinsic validity of the testamentary dispositions.
It is possible, of course, that even when the testator himself asks for
the allowance of the will, he may be acting under duress or undue
influence, but these are rare cases.
After a will has been probated during the lifetime of the testator, it
does not necessarily mean that he cannot alter or revoke the same
before his death. Should he make a new will, it would also be allowable
on his petition, and if he should die before he has had a chance to
present such petition, the ordinary probate proceeding after the
testators death would be in order. [11]
Thus, after the allowance of the will of Dr. De Santos on February 16, 1996, there
was nothing else for Branch 61 to do except to issue a certificate of allowance of the
will pursuant to Rule 73, 12 of the Rules of Court. There is, therefore, no basis for
the ruling of Judge Abad Santos of Branch 65 of RTC-Makati that -Nex old
Branch 61 of the Regional Trial Court of Makati having begun the
probate proceedings of the estate of the deceased, it continues and
shall continue to exercise said jurisdiction to the exclusion of all others.
It should be noted that probate proceedings do not cease upon the
allowance or disallowance of a will but continues up to such time that
the entire estate of the testator had been partitioned and distributed.
The fact that the will was allowed during the lifetime of the testator
meant merely that the partition and distribution of the estate was to be
suspended until the latters death. In other words, the petitioner,
instead of filing a new petition for the issuance of letters testamentary,
should have simply filed a manifestation for the same purpose in the
probate court.[12]
Petitioner, who defends the order of Branch 65 allowing him to intervene, cites Rule
73, 1 which states:

Where estate of deceased persons settled. - If the decedent is an

inhabitant of the Philippines at the time of his death, whether a citizen
or an 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 resides at the time of his death, and if he is an
inhabitant of a foreign country, the Court of First Instance of any
province in which he had estate. The court first taking cognizance of
the settlement of the estate of a decedent, shall exercise jurisdiction to
the exclusion of all other courts. The jurisdiction assumed by a court,
so far as it depends on the place of residence of the decedent, or of
the location of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the original case, or
when the want of jurisdiction appears on the record.
The above rule, however, actually provides for the venue of actions for the
settlement of the estate of deceased persons. In Garcia Fule v. Court of Appeals, it
was held:[13]
The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1),
specifically the clause "so far as it depends on the place of residence of
the decedent, or of the location of the state," is in reality a matter of
venue, as the caption of the Rule indicates: "Settlement of Estate of
Deceased Persons. Venue and Processes." It could not have been
intended to define the jurisdiction over the subject matter, because
such legal provision is contained in a law of procedure dealing merely
with procedural matters. Procedure is one thing, jurisdiction over the
subject matter is another. The power or authority of the court over the
subject matter "existed was fixed before procedure in a given cause
began." That power or authority is not altered or changed by
procedure, which simply directs the manner in which the power or
authority shall be fully and justly exercised. There are cases though
that if the power is not exercised conformably with the provisions of
the procedural law, purely, the court attempting to exercise it loses the
power to exercise it legally. However, this does not amount to a loss of
jurisdiction over the subject matter. Rather, it means that the court
may thereby lose jurisdiction over the person or that the judgment
may thereby be rendered defective for lack of something essential to
sustain it. The appearance of this provision in the procedural law at
once raises a strong presumption that it has nothing to do with the
jurisdiction of the court over the subject matter. In plain words, it is just
a matter of method, of convenience to the parties. Mani kx
Indeed, the jurisdiction over probate proceedings and settlement of estates with
approximate value of over P100,000.00 (outside Metro Manila) or P200,000.00 (in
Metro Manila) belongs to the regional trial courts under B.P. Blg. 129, as amended.
The different branches comprising each court in one judicial region do not possess
jurisdictions independent of and incompatible with each other. [14]
It is noteworthy that, although Rule 73, 1 applies insofar as the venue of the petition
for probate of the will of Dr. De Santos is concerned, it does not bar other branches

of the same court from taking cognizance of the settlement of the estate of the
testator after his death. As held in the leading case of Bacalso v. Ramolote:[15]
The various branches of the Court of First Instance of Cebu under the
Fourteenth Judicial District, are a coordinate and co-equal courts, and
the totality of which is only one Court of First Instance. The jurisdiction
is vested in the court, not in the judges. And when a case is filed in one
branch, jurisdiction over the case does not attach to the branch or
judge alone, to the exclusion of the other branches. Trial may be held
or proceedings continue by and before another branch or judge. It is
for this reason that Section 57 of the Judiciary Act expressly grants to
the Secretary of Justice, the administrative right or power to apportion
the cases among the different branches, both for the convenience of
the parties and for the coordination of the work by the different
branches of the same court. The apportionment and distribution of
cases does not involve a grant or limitation of jurisdiction, the
jurisdiction attaches and continues to be vested in the Court of First
Instance of the province, and the trials may be held by any branch or
judge of the court.
Necessarily, therefore, Branch 65 of the RTC of Makati City has jurisdiction over Sp.
Proc. No. M-4343.
Second. Petitioner claims the right to intervene in and oppose the petition for
issuance of letters testamentary filed by private respondent. He argues that, as the
nearest next of kin and creditor of the testator, his interest in the matter is material
and direct. In ruling that petitioner has no right to intervene in the proceedings
before Branch 65 of RTC-Makati City, the Court of Appeals held:
The private respondent herein is not an heir or legatee under the will of
the decedent Arturo de Santos. Neither is he a compulsory heir of the
latter. As the only and nearest collateral relative of the decedent, he
can inherit from the latter only in case of intestacy. Since the decedent
has left a will which has already been probated and disposes of all his
properties the private respondent can inherit only if the said will is
annulled. His interest in the decedents estate is, therefore, not direct
or immediate. Maniks
His claim to being a creditor of the estate is a belated one, having
been raised for the first time only in his reply to the opposition to his
motion to intervene, and, as far as the records show, not supported by
evidence.
. . . . [T]he opposition must come from one with a direct interest in the
estate or the will, and the private respondent has none. Moreover, the
ground cited in the private respondents opposition, that the petitioner
has deliberately misdeclared the truth worth and value of the estate, is
not relevant to the question of her competency to act as executor.
Section 2, Rule 76 of the Rules of Court requires only an allegation of
the probable value and character of the property of the estate. The

true value can be determined later on in the course of the settlement

of the estate.[16]
Rule 79, 1 provides:
Opposition to issuance of letters testamentary. Simultaneous petition
for administration. - Any person interested in a will may state in writing
the grounds why letters testamentary should not issue to the persons
named therein as executors, or any of them, and the court, after
hearing upon notice, shall pass upon the sufficiency of such grounds. A
petition may, at the same time, be filed for letters of administration
with the will annexed.
Under this provision, it has been held that an "interested person" is one who would
be benefited by the estate, such as an heir, or one who has a claim against the
estate, such as a creditor, and whose interest is material and direct, not merely
incidental or contingent.[17]
Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot be
considered an "heir" of the testator. It is a fundamental rule of testamentary
succession that one who has no compulsory or forced heirs may dispose of his
entire estate by will. Thus, Art. 842 of the Civil Code provides:
One who has no compulsory heirs may dispose by will of all his estate
or any part of it in favor of any person having capacity to
succeed. Manikan
One who has compulsory heirs may dispose of his estate provided he
does not contravene the provisions of this Code with regard to the
legitimate of said heirs.
Compulsory heirs are limited to the testators (1) Legitimate children and descendants, with respect to their
legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and ascendants, with
respect to their legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal
fiction;
(5) Other illegitimate children referred to in Article 287 of the Civil
Code.[18]
Petitioner, as nephew of the testator, is not a compulsory heir who may have been
preterited in the testators will.

Nor does he have any right to intervene in the settlement proceedings based on his
allegation that he is a creditor of the deceased. Since the testator instituted or
named an executor in his will, it is incumbent upon the Court to respect the desires
of the testator. As we stated in Ozaeta v. Pecson:[19]
The choice of his executor is a precious prerogative of a testator, a
necessary concomitant of his right to dispose of his property in the
manner he wishes. It is natural that the testator should desire to
appoint one of his confidence, one who can be trusted to carry out his
wishes in the disposal of his estate. The curtailment of this right may
be considered a curtailment of the right to dispose.
Only if the appointed executor is incompetent, refuses the trust, or fails to give
bond may the court appoint other persons to administer the estate. [20] None of these
circumstances is present in this case.
Third. Petitioner contends that private respondent is guilty of forum shopping when
she filed the petition for issuance of letters testamentary (Sp. Proc. No. M-4343)
while the probate proceedings (Sp. Proc. No. M-4223) were still pending. According
to petitioner, there is identity of parties, rights asserted, and reliefs prayed for in the
two actions which are founded on the same facts, and a judgment in either will
result in res judicata in the other.
This contention has no merit. As stated earlier, the petition for probate was filed by
Dr. De Santos, the testator, solely for the purpose of authenticating his will. Upon
the allowance of his will, the proceedings were terminated. Oldmis o
On the other hand, the petition for issuance of letters testamentary was filed by
private respondent, as executor of the estate of Dr. De Santos, for the purpose of
securing authority from the Court to administer the estate and put into effect the
will of the testator. The estate settlement proceedings commenced by the filing of
the petition terminates upon the distribution and delivery of the legacies and
devises to the persons named in the will. Clearly, there is no identity between the
two petitions, nor was the latter filed during the pendency of the former. There was,
consequently, no forum shopping.
WHEREFORE, the petition is DENIED and the decisions of the Court of Appeals are
hereby AFFIRMED.
SO ORDERED.
Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

[1]
[2]
[3]

G.R. No. 129505, Rollo, pp. 107-109.

Id., at 110-111.
RTC order, dated April 26, 1996. G.R. No. 133359, Rollo, pp. 54-55.

[4]

Per Justice Rodrigo V. Cosico and concurred in by Justices Delilah Vidalon-Magtolis

(Acting Chairman) and Artemio G. Tuquero. This is the subject of G.R. No. 133359.
[5]
G.R No. 129505, Rollo, p. 83.
[6]
Per Justice Hector L. Hofilea and concurred in by Justices Jainal D. Rasul
(Chairman) and Artemio G. Tuquero. This is the subject of G.R. No. 129505.
[7]
68 Phil. 367 (1939).
[8]
105 Phil. 1123 (1959).
[9]
Pastor, Jr. v. Court of Appeals, 207 Phil. 758 (1983); Montaano v. Suesa, 14 Phil.
676 (1909).
[10]
79 Am Jur 2d, Wills, 851: It seems clear that in the absence of statute expressly
conferring such jurisdiction, a court does not have the power to entertain a suit for
the establishment or annulment of the will of a living testator. The ambulatory
nature of a will, and the absence of parties in interest, which results from the rule
that a living person has neither heirs nor legatees, render impossible the
assumption that a court has inherent power to determine the validity of a will prior
to the death of the maker. It has been held that a statute providing for the probate
of a will before the death of the testator, leaving him at liberty to alter or revoke it,
or to escape the effect of any action under it by removal from the jurisdiction, is
alleged and void on the ground that such a proceeding is not within the judicial
power.
[11]
Report of The Code Commission, pp. 53-54, quoted in 3 A. Tolentino,
Commentaries and Jurisprudence on the Civil Code of the Philippines 149 (1992).
[12]
G.R. No. 129505, Rollo, p. 83.
[13]
74 SCRA 189, 198 (1976).
[14]
Ella v. Salonga, 146 Phil. 91 (1970).
[15]
128 Phil. 559, 564-565 (1967).
[16]
G.R. No. 129505, Rollo, pp. 38-39.
[17]
Teotico v. Del Val Chan, 121 Phil. 392 (1965).
[18]
Civil Code, Art. 887.
[19]
93 Phil. 416, 420 (1953).
[20]
Rules of Court, Rule 78, 6.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-56340 June 24, 1983
SPOUSES ALVARO PASTOR, JR. and MA. ELENA ACHAVAL DE
PASTOR, petitioners,
vs.
THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF BRANCH I, COURT OF
FIRST INSTANCE OF CEBU and LEWELLYN BARLITO QUEMADA, respondents.
Pelaez, Pelaez, & Pelaez Law Office for petitioners.
Ceniza, Rama & Associates for private respondents.

PLANA, J.:
I. FACTS:
This is a case of hereditary succession.
Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in Cebu City on June 5,
1966, survived by his Spanish wife Sofia Bossio (who also died on October 21,
1966), their two legitimate children Alvaro Pastor, Jr. (PASTOR, JR.) and Sofia Pastor
de Midgely (SOFIA), and an illegitimate child, not natural, by the name of Lewellyn
Barlito Quemada QUEMADA PASTOR, JR. is a Philippine citizen, having been
naturalized in 1936. SOFIA is a Spanish subject. QUEMADA is a Filipino by his
mother's citizenship.
On November 13, 1970, QUEMADA filed a petition for the probate and allowance of
an alleged holographic will of PASTOR, SR. with the Court of First Instance of Cebu,
Branch I (PROBATE COURT), docketed as SP No. 3128-R. The will contained only one
testamentary disposition: a legacy in favor of QUEMADA consisting of 30% of
PASTOR, SR.'s 42% share in the operation by Atlas Consolidated Mining and
Development Corporation (ATLAS) of some mining claims in Pina-Barot, Cebu.
On November 21, 1970, the PROBATE COURT, upon motion of QUEMADA and after
an ex parte hearing, appointed him special administrator of the entire estate of
PASTOR, SR., whether or not covered or affected by the holographic will. He
assumed office as such on December 4, 1970 after filing a bond of P 5,000.00.
On December 7, 1970, QUEMADA as special administrator, instituted against
PASTOR, JR. and his wife an action for reconveyance of alleged properties of the
estate, which included the properties subject of the legacy and which were in the
names of the spouses PASTOR, JR. and his wife, Maria Elena Achaval de Pastor, who
claimed to be the owners thereof in their own rights, and not by inheritance. The
action, docketed as Civil Case No. 274-R, was filed with the Court of First Instance of
Cebu, Branch IX.
On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their opposition to the
petition for probate and the order appointing QUEMADA as special administrator.
On December 5, 1972, the PROBATE COURT issued an order allowing the will to
probate. Appealed to the Court of Appeals in CA-G.R. No. 52961- R, the order was
affirmed in a decision dated May 9, 1977. On petition for review, the Supreme Court
in G.R. No. L-46645 dismissed the petition in a minute resolution dated November 1,
1977 and remanded the same to the PROBATE COURT after denying reconsideration
on January 11, 1978.
For two years after remand of the case to the PROBATE COURT, QUEMADA filed
pleading after pleading asking for payment of his legacy and seizure of the
properties subject of said legacy. PASTOR, JR. and SOFIA opposed these pleadings

on the ground of pendency of the reconveyance suit with another branch of the
Cebu Court of First Instance. All pleadings remained unacted upon by the PROBATE
COURT.
On March 5, 1980, the PROBATE COURT set the hearing on the intrinsic validity of
the will for March 25, 1980, but upon objection of PASTOR, JR. and SOFIA on the e
ground of pendency of the reconveyance suit, no hearing was held on March 25.
Instead, the PROBATE COURT required the parties to submit their respective position
papers as to how much inheritance QUEMADA was entitled to receive under the wig.
Pursuant thereto, PASTOR. JR. and SOFIA submitted their Memorandum of
authorities dated April 10, which in effect showed that determination of how much
QUEMADA should receive was still premature. QUEMADA submitted his Position
paper dated April 20, 1980. ATLAS, upon order of the Court, submitted a sworn
statement of royalties paid to the Pastor Group of tsn from June 1966 (when Pastor,
Sr. died) to February 1980. The statement revealed that of the mining claims being
operated by ATLAS, 60% pertained to the Pastor Group distributed as follows:
1. A. Pastor, Jr. ...................................40.5%
2. E. Pelaez, Sr. ...................................15.0%
3. B. Quemada .......................................4.5%
On August 20, 1980, while the reconveyance suit was still being litigated in Branch
IX of the Court of First Instance of Cebu, the PROBATE COURT issued the now
assailed Order of Execution and Garnishment, resolving the question of ownership
of the royalties payable by ATLAS and ruling in effect that the legacy to QUEMADA
was not inofficious. [There was absolutely no statement or claim in the Order that
the Probate Order of December 5, 1972 had previously resolved the issue of
ownership of the mining rights of royalties thereon, nor the intrinsic validity of the
holographic will.]
The order of August 20, 1980 found that as per the holographic will and a written
acknowledgment of PASTOR, JR. dated June 17, 1962, of the above 60% interest in
the mining claims belonging to the Pastor Group, 42% belonged to PASTOR, SR. and
only 33% belonged to PASTOR, JR. The remaining 25% belonged to E. Pelaez, also of
the Pastor Group. The PROBATE COURT thus directed ATLAS to remit directly to
QUEMADA the 42% royalties due decedent's estate, of which QUEMADA was
authorized to retain 75% for himself as legatee and to deposit 25% with a reputable
banking institution for payment of the estate taxes and other obligations of the
estate. The 33% share of PASTOR, JR. and/or his assignees was ordered garnished to
answer for the accumulated legacy of QUEMADA from the time of PASTOR, SR.'s
death, which amounted to over two million pesos.
The order being "immediately executory", QUEMADA succeeded in obtaining a Writ
of Execution and Garnishment on September 4, 1980, and in serving the same on
ATLAS on the same day. Notified of the Order on September 6, 1980, the oppositors
sought reconsideration thereof on the same date primarily on the ground that the
PROBATE COURT gravely abused its discretion when it resolved the question of

ownership of the royalties and ordered the payment of QUEMADA's legacy after
prematurely passing upon the intrinsic validity of the will. In the meantime, the
PROBATE COURT ordered suspension of payment of all royalties due PASTOR, JR.
and/or his assignees until after resolution of oppositors' motion for reconsideration.
Before the Motion for Reconsideration could be resolved, however, PASTOR, JR., this
time joined by his wife Ma. ELENA ACHAVAL DE PASTOR, filed with the Court of
Appeals a Petition for certiorari and Prohibition with a prayer for writ of preliminary
injunction (CA-G.R. No. SP- 11373-R). They assailed the Order dated August 20,
1980 and the writ of execution and garnishment issued pursuant thereto. The
petition was denied on November 18, 1980 on the grounds (1) that its filing was
premature because the Motion for Reconsideration of the questioned Order was still
pending determination by the PROBATE COURT; and (2) that although "the rule that
a motion for reconsideration is prerequisite for an action for certiorari is never an
absolute rule," the Order assailed is "legally valid. "
On December 9, 1980, PASTOR, JR. and his wife moved for reconsideration of the
Court of Appeal's decision of November 18, 1980, calling the attention of the
appellate court to another order of the Probate Court dated November 11, 1980
(i.e., while their petition for certiorari was pending decision in the appellate court),
by which the oppositors' motion for reconsideration of the Probate Court's Order of
August 20, 1980 was denied. [The November 11 Order declared that the questions
of intrinsic validity of the will and of ownership over the mining claims (not the
royalties alone) had been finally adjudicated by the final and executory Order of
December 5, 1972, as affirmed by the Court of Appeals and the Supreme Court,
thereby rendering moot and academic the suit for reconveyance then pending in
the Court of First Instance of Cebu, Branch IX. It clarified that only the 33% share of
PASTOR, JR. in the royalties (less than 7.5% share which he had assigned to
QUEMADA before PASTOR, SR. died) was to be garnished and that as regards
PASTOR, SR.'s 42% share, what was ordered was just the transfer of its possession
to the custody of the PROBATE COURT through the special administrator. Further,
the Order granted QUEMADA 6% interest on his unpaid legacy from August 1980
until fully paid.] Nonetheless, the Court of Appeals denied reconsideration.
Hence, this Petition for Review by certiorari with prayer for a writ of pre y injunction,
assailing the decision of the Court of Appeals dated November 18, 1980 as well as
the orders of the Probate Court dated August 20, 1980, November 11, 1980 and
December 17, 1980, Med by petitioners on March 26, 1981, followed by a
Supplemental Petition with Urgent Prayer for Restraining Order.
In April 1981, the Court (First Division) issued a writ of preliminary injunction, the
lifting of which was denied in the Resolution of the same Division dated October 18,
1982, although the bond of petitioners was increased from P50,000.00 to
P100,000.00.
Between December 21, 1981 and October 12, 1982, private respondent filed seven
successive motions for early resolution. Five of these motions expressly prayed for
the resolution of the question as to whether or not the petition should be given due
course.

On October 18, 1982, the Court (First Division) adopted a resolution stating that
"the petition in fact and in effect was given due course when this case was heard on
the merits on September 7, (should be October 21, 1981) and concise memoranda
in amplification of their oral arguments on the merits of the case were filed by the
parties pursuant to the resolution of October 21, 1981 . . . " and denied in a
resolution dated December 13, 1982, private respondent's "Omnibus motion to set
aside resolution dated October 18, 1982 and to submit the matter of due course to
the present membership of the Division; and to reassign the case to another
ponente."
Upon Motion for Reconsideration of the October 18, 1982 and December 13, 1982
Resolutions, the Court en banc resolved to CONFIRM the questioned resolutions
insofar as hey resolved that the petition in fact and in effect had been given due
course.
II. ISSUES:
Assailed by the petitioners in these proceedings is the validity of the Order of
execution and garnishment dated August 20, 1980 as well as the Orders
subsequently issued allegedly to implement the Probate Order of December 5,
1972, to wit: the Order of November 11, 1980 declaring that the Probate Order of
1972 indeed resolved the issues of ownership and intrinsic validity of the will, and
reiterating the Order of Execution dated August 20, 1980; and the Order of
December 17, 1980 reducing to P2,251,516.74 the amount payable to QUEMADA
representing the royalties he should have received from the death of PASTOR, SR. in
1966 up to February 1980.
The Probate Order itself, insofar as it merely allowed the holographic will in probate,
is not questioned. But petitioners denounce the Probate Court for having acted
beyond its jurisdiction or with grave abuse of discretion when it issued the assailed
Orders. Their argument runs this way: Before the provisions of the holographic win
can be implemented, the questions of ownership of the mining properties and the
intrinsic validity of the holographic will must first be resolved with finality. Now,
contrary to the position taken by the Probate Court in 1980 i.e., almost eight
years after the probate of the will in 1972 the Probate Order did not resolve the
two said issues. Therefore, the Probate Order could not have resolved and actually
did not decide QUEMADA's entitlement to the legacy. This being so, the Orders for
the payment of the legacy in alleged implementation of the Probate Order of 1972
are unwarranted for lack of basis.
Closely related to the foregoing is the issue raised by QUEMADA The Probate Order
of 1972 having become final and executory, how can its implementation (payment
of legacy) be restrained? Of course, the question assumes that QUEMADA's
entitlement to the legacy was finally adjudged in the Probate Order.
On the merits, therefore, the basic issue is whether the Probate Order of December
5, 1972 resolved with finality the questions of ownership and intrinsic validity. A
negative finding will necessarily render moot and academic the other issues raised
by the parties, such as the jurisdiction of the Probate Court to conclusively resolve
title to property, and the constitutionality and repercussions of a ruling that the

mining properties in dispute, although in the name of PASTOR, JR. and his wife,
really belonged to the decedent despite the latter's constitutional disqualification as
an alien.
On the procedural aspect, placed in issue is the propriety of certiorari as a means to
assail the validity of the order of execution and the implementing writ.
III. DISCUSSION:
1. Issue of Ownership
(a) In a special proceeding for the probate of a will, the issue by and large is
restricted to the extrinsic validity of the will, i.e., whether the testator, being of
sound mind, freely executed the will in accordance with the formalities prescribed
by law. (Rules of Court, Rule 75, Section 1; Rule 76, Section 9.) As a rule, the
question of ownership is an extraneous matter which the Probate Court cannot
resolve with finality. Thus, for the purpose of determining whether a certain property
should or should not be included in the inventory of estate properties, the Probate
Court may pass upon the title thereto, but such determination is provisional, not
conclusive, and is subject to the final decision in a separate action to resolve title. [3
Moran, Comments on the Rules of Court (1980 ed.), p. 458; Valero Vda. de
Rodriguez vs. Court of Appeals, 91 SCRA 540.]
(b) The rule is that execution of a judgment must conform to that decreed in the
dispositive part of the decision. (Philippine-American Insurance Co. vs. Honorable
Flores, 97 SCRA 811.) However, in case of ambiguity or uncertainty, the body of the
decision may be scanned for guidance in construing the judgment. (Heirs of Presto
vs. Galang, 78 SCRA 534; Fabular vs. Court of Appeals, 119 SCRA 329; Robles vs.
Timario. 107 Phil. 809.)
The Order sought to be executed by the assailed Order of execution is the Probate
Order of December 5, 1972 which allegedly resolved the question of ownership of
the disputed mining properties. The said Probate Order enumerated the issues
before the Probate Court, thus:
Unmistakably, there are three aspects in these proceedings: (1) the
probate of the holographic will (2) the intestate estate aspect; and (3)
the administration proceedings for the purported estate of the
decedent in the Philippines.
In its broad and total perspective the whole proceedings are being
impugned by the oppositors on jurisdictional grounds, i.e., that the fact
of the decedent's residence and existence of properties in the
Philippines have not been established.
Specifically placed in issue with respect to the probate proceedings
are: (a) whether or not the holographic will (Exhibit "J") has lost its
efficacy as the last will and testament upon the death of Alvaro Pastor,
Sr. on June 5, 1966, in Cebu City, Philippines; (b) Whether or not the

said will has been executed with all the formalities required by law; and
(c) Did the late presentation of the holographic will affect the validity of
the same?
Issues In the Administration Proceedings are as follows: (1) Was the exparte appointment of the petitioner as special administrator valid and
proper? (2) Is there any indispensable necessity for the estate of the
decedent to be placed under administration? (3) Whether or not
petition is qualified to be a special administrator of the estate; and (4)
Whether or not the properties listed in the inventory (submitted by the
special administrator but not approved by the Probate Court) are to be
excluded.
Then came what purports to be the dispositive portion:
Upon the foregoing premises, this Court rules on and resolves some of
the problems and issues presented in these proceedings, as follows:
(a) The Court has acquired jurisdiction over the probate proceedings as
it hereby allows and approves the so-called holographic will of testator
Alvaro Pastor, Sr., executed on July 31, 1961 with respect to its
extrinsic validity, the same having been duly authenticated pursuant to
the requisites or solemnities prescribed by law. Let, therefore, a
certificate of its allowance be prepared by the Branch Clerk of this
Court to be signed by this Presiding Judge, and attested by the seal of
the Court, and thereafter attached to the will, and the will and
certificate filed and recorded by the clerk. Let attested copies of the
will and of the certificate of allowance thereof be sent to Atlas
Consolidated Mining & Development Corporation, Goodrich Bldg., Cebu
City, and the Register of Deeds of Cebu or of Toledo City, as the case
may be, for recording.
(b) There was a delay in the granting of the letters testamentary or of
administration for as a matter of fact, no regular executor and/or
administrator has been appointed up to this time and - the
appointment of a special administrator was, and still is, justified under
the circumstances to take possession and charge of the estate of the
deceased in the Philippines (particularly in Cebu) until the problems
causing the delay are decided and the regular executor and/or
administrator appointed.
(c) There is a necessity and propriety of a special administrator and
later on an executor and/or administrator in these proceedings, in spite
of this Court's declaration that the oppositors are the forced heirs and
the petitioner is merely vested with the character of a voluntary heir to
the extent of the bounty given to him (under) the will insofar as the
same will not prejudice the legitimes of the oppositor for the following
reasons:

1. To submit a complete inventory of the

estate of the decedent-testator Alvaro
Pastor, Sr.
2. To administer and to continue to put to
prolific utilization of the properties of the
decedent;
3. To keep and maintain the houses and
other structures and belonging to the estate,
since the forced heirs are residing in Spain,
and prepare them for delivery to the heirs in
good order after partition and when directed
by the Court, but only after the payment of
estate and inheritance taxes;
(d) Subject to the outcome of the suit for reconveyance of ownership
and possession of real and personal properties in Civil Case No. 274-T
before Branch IX of the Court of First Instance of Cebu,the intestate
estate administration aspect must proceed, unless, however, it is duly
proven by the oppositors that debts of the decedent have already been
paid, that there had been an extrajudicial partition or summary one
between the forced heirs, that the legacy to be given and delivered to
the petitioner does not exceed the free portion of the estate of the
testator, that the respective shares of the forced heirs have been fairly
apportioned, distributed and delivered to the two forced heirs of Alvaro
Pastor, Sr., after deducting the property willed to the petitioner, and
the estate and inheritance taxes have already been paid to the
Government thru the Bureau of Internal Revenue.
The suitability and propriety of allowing petitioner to remain as special
administrator or administrator of the other properties of the estate of
the decedent, which properties are not directly or indirectly affected by
the provisions of the holographic will (such as bank deposits, land in
Mactan etc.), will be resolved in another order as separate
incident, considering that this order should have been properly issued
solely as a resolution on the issue of whether or not to allow and
approve the aforestated will. (Emphasis supplied.)
Nowhere in the dispositive portion is there a declaration of ownership of specific
properties. On the contrary, it is manifest therein that ownership was not resolved.
For it confined itself to the question of extrinsic validity of the win, and the need for
and propriety of appointing a special administrator. Thus it allowed and approved
the holographic win "with respect to its extrinsic validity, the same having been duly
authenticated pursuant to the requisites or solemnities prescribed by law." It
declared that the intestate estate administration aspect must proceed " subject to
the outcome of the suit for reconveyance of ownership and possession of real and
personal properties in Civil Case 274-T before Branch IX of the CFI of Cebu."
[Parenthetically, although the statement refers only to the "intestate" aspect, it
defies understanding how ownership by the estate of some properties could be

deemed finally resolved for purposes of testate administration, but not so

for intestate purposes. Can the estate be the owner of a property for testate but not
for intestate purposes?] Then again, the Probate Order (while indeed it does not
direct the implementation of the legacy) conditionally stated that the intestate
administration aspect must proceed "unless . . . it is proven . . . that the legacy to
be given and delivered to the petitioner does not exceed the free portion of the
estate of the testator," which clearly implies that the issue of impairment of legitime
(an aspect of intrinsic validity) was in fact not resolved. Finally, the Probate Order
did not rule on the propriety of allowing QUEMADA to remain as special
administrator of estate properties not covered by the holographic will, "considering
that this (Probate) Order should have been properly issued solely as a resolution on
the issue of whether or not to allow and approve the aforestated will. "
(c) That the Probate Order did not resolve the question of ownership of the
properties listed in the estate inventory was appropriate, considering that the issue
of ownership was the very subject of controversy in the reconveyance suit that was
still pending in Branch IX of the Court of First Instance of Cebu.
(d) What, therefore, the Court of Appeals and, in effect, the Supreme Court
affirmed en toto when they reviewed the Probable Order were only the matters
properly adjudged in the said Order.
(e) In an attempt to justify the issuance of the Order of execution dated August 20,
1980, the Probate Court in its Order of November 11, 1980 explained that the basis
for its conclusion that the question of ownership had been formally resolved by the
Probate Order of 1972 are the findings in the latter Order that (1) during the lifetime
of the decedent, he was receiving royalties from ATLAS; (2) he had resided in the
Philippines since pre-war days and was engaged in the mine prospecting business
since 1937 particularly in the City of Toledo; and (3) PASTOR, JR. was only acting as
dummy for his father because the latter was a Spaniard.
Based on the premises laid, the conclusion is obviously far-fetched.
(f) It was, therefore, error for the assailed implementing Orders to conclude that the
Probate Order adjudged with finality the question of ownership of the mining
properties and royalties, and that, premised on this conclusion, the dispositive
portion of the said Probate Order directed the special administrator to pay the
legacy in dispute.
2. Issue of Intrinsic Validity of the Holographic Will (a) When PASTOR, SR. died in 1966, he was survived by his wife, aside from his two
legitimate children and one illegitimate son. There is therefore a need to liquidate
the conjugal partnership and set apart the share of PASTOR, SR.'s wife in the
conjugal partnership preparatory to the administration and liquidation of the estate
of PASTOR, SR. which will include, among others, the determination of the extent of
the statutory usufructuary right of his wife until her death. * When the disputed
Probate order was issued on December 5, 1972, there had been no liquidation of the
community properties of PASTOR, SR. and his wife.

(b) So, also, as of the same date, there had been no prior definitive determination of
the assets of the estate of PASTOR, SR. There was an inventory of his properties
presumably prepared by the special administrator, but it does not appear that it was
ever the subject of a hearing or that it was judicially approved. The reconveyance or
recovery of properties allegedly owned but not in the name of PASTOR, SR. was still
being litigated in another court.
(c) There was no appropriate determination, much less payment, of the debts of the
decedent and his estate. Indeed, it was only in the Probate Order of December 5,
1972 where the Probate Court ordered that... a notice be issued and published pursuant to the provisions of Rule
86 of the Rules of Court, requiring all persons having money claims
against the decedent to file them in the office of the Branch Clerk of
this Court."
(d) Nor had the estate tax been determined and paid, or at least provided for, as of
December 5, 1972.
(e) The net assets of the estate not having been determined, the legitime of the
forced heirs in concrete figures could not be ascertained.
(f) All the foregoing deficiencies considered, it was not possible to determine
whether the legacy of QUEMADA - a fixed share in a specific property rather than an
aliquot part of the entire net estate of the deceased - would produce an impairment
of the legitime of the compulsory heirs.
(g) Finally, there actually was no determination of the intrinsic validity of the will in
other respects. It was obviously for this reason that as late as March 5, 1980 - more
than 7 years after the Probate Order was issued the Probate Court scheduled on
March 25, 1980 a hearing on the intrinsic validity of the will.
3. Propriety of certiorari
Private respondent challenges the propriety of certiorari as a means to assail the
validity of the disputed Order of execution. He contends that the error, if any, is one
of judgment, not jurisdiction, and properly correctible only by appeal, not certiorari.
Under the circumstances of the case at bar, the challenge must be rejected. Grave
abuse of discretion amounting to lack of jurisdiction is much too evident in the
actuations of the probate court to be overlooked or condoned.
(a) Without a final, authoritative adjudication of the issue as to what properties
compose the estate of PASTOR, SR. in the face of conflicting claims made by heirs
and a non-heir (MA. ELENA ACHAVAL DE PASTOR) involving properties not in the
name of the decedent, and in the absence of a resolution on the intrinsic validity of
the will here in question, there was no basis for the Probate Court to hold in its
Probate Order of 1972, which it did not, that private respondent is entitled to the
payment of the questioned legacy. Therefore, the Order of Execution of August 20,

1980 and the subsequent implementing orders for the payment of QUEMADA's
legacy, in alleged implementation of the dispositive part of the Probate Order of
December 5, 1972, must fall for lack of basis.
(b) The ordered payment of legacy would be violative of the rule requiring prior
liquidation of the estate of the deceased, i.e., the determination of the assets of the
estate and payment of all debts and expenses, before apportionment and
distribution of the residue among the heirs and legatees. (Bernardo vs. Court of
Appeals, 7 SCRA 367.)
(c) Neither has the estate tax been paid on the estate of PASTOR, SR. Payment
therefore of the legacy to QUEMADA would collide with the provision of the National
Internal Revenue Code requiring payment of estate tax before delivery to any
beneficiary of his distributive share of the estate (Section 107 [c])
(d) The assailed order of execution was unauthorized, having been issued
purportedly under Rule 88, Section 6 of the Rules of Court which reads:
Sec. 6. Court to fix contributive shares where devisees, legatees, or
heirs have been in possession. Where devisees, legatees,
or heirs have entered into possession of portions of the estate before
the debts and expenses have been settled and paid and have become
liable to contribute for the payment of such debts and expenses, the
court having jurisdiction of the estate may, by order for that purpose,
after hearing, settle the amount of their several liabilities, and order
how much and in what manner each person shall contribute, and may
issue execution as circumstances require.
The above provision clearly authorizes execution to enforce payment of debts of
estate. A legacy is not a debt of the estate; indeed, legatees are among those
against whom execution is authorized to be issued.
... there is merit in the petitioners' contention that the probate court
generally cannot issue a writ of execution. It is not supposed to issue a
writ of execution because its orders usually refer to the adjudication of
claims against the estate which the executor or administrator may
satisfy without the necessity of resorting to a writ of execution. The
probate court, as such, does not render any judgment enforceable by
execution.
The circumstances that the Rules of Court expressly specifies that the
probate court may issue execution (a) to satisfy (debts of the estate
out of) the contributive shares of devisees, legatees and heirs in
possession of the decedent's assets (Sec. 6. Rule 88), (b) to enforce
payment of the expenses of partition (Sec. 3, Rule 90), and (c) to
satisfy the costs when a person is cited for examination in probate
proceedings (Sec. 13, Rule 142) may mean, under the rule of inclusion
unius est exclusion alterius, that those are the only instances when it

can issue a writ of execution. (Vda. de Valera vs. Ofilada, 59 SCRA 96,
108.)
(d) It is within a court's competence to order the execution of a final judgment; but
to order the execution of a final order (which is not even meant to be executed) by
reading into it terms that are not there and in utter disregard of existing rules and
law, is manifest grave abuse of discretion tantamount to lack of jurisdiction.
Consequently, the rule that certiorari may not be invoked to defeat the right of a
prevailing party to the execution of a valid and final judgment, is inapplicable. For
when an order of execution is issued with grave abuse of discretion or is at variance
with the judgment sought to be enforced (PVTA vs. Honorable Gonzales, 92 SCRA
172), certiorari will lie to abate the order of execution.
(e) Aside from the propriety of resorting to certiorari to assail an order of execution
which varies the terms of the judgment sought to be executed or does not find
support in the dispositive part of the latter, there are circumstances in the instant
case which justify the remedy applied for.
Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of PASTOR, JR., is the holder in her
own right of three mining claims which are one of the objects of conflicting claims of
ownership. She is not an heir of PASTOR, SR. and was not a party to the probate
proceedings. Therefore, she could not appeal from the Order of execution issued by
the Probate Court. On the other hand, after the issuance of the execution order, the
urgency of the relief she and her co-petitioner husband seek in the petition for
certiorari states against requiring her to go through the cumbersome procedure of
asking for leave to intervene in the probate proceedings to enable her, if leave is
granted, to appeal from the challenged order of execution which has ordered
the immediate transfer and/or garnishment of the royalties derived from mineral
properties of which she is the duly registered owner and/or grantee together with
her husband. She could not have intervened before the issuance of the assailed
orders because she had no valid ground to intervene. The matter of ownership over
the properties subject of the execution was then still being litigated in another court
in a reconveyance suit filed by the special administrator of the estate of PASTOR,
SR.
Likewise, at the time petitioner PASTOR, JR. Med the petition for certiorari with the
Court of Appeals, appeal was not available to him since his motion for
reconsideration of the execution order was still pending resolution by the Probate
Court. But in the face of actual garnishment of their major source of income,
petitioners could no longer wait for the resolution of their motion for
reconsideration. They needed prompt relief from the injurious effects of the
execution order. Under the circumstances, recourse to certiorari was the feasible
remedy.
WHEREFORE, the decision of the Court of Appeals in CA G.R. No. SP-11373-R is
reversed. The Order of execution issued by the probate Court dated August 20,
1980, as well as all the Orders issued subsequent thereto in alleged implementation
of the Probate Order dated December 5, 1972, particularly the Orders dated
November 11, 1980 and December 17, 1980, are hereby set aside; and this case is

remanded to the appropriate Regional Trial Court for proper proceedings, subject to
the judgment to be rendered in Civil Case No. 274-R.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera Vasquez and Relova JJ., concur.
Gutierrez, J., took no part.

Footnotes
* Under the Civil Code, Art. 16, intestate and testamentary successions
of an alien are regulated by his national law "with respect to the order
of succession and to the amount of successional rights and to the
intrinsic validity of testamentary provisions." The Civil Code of Spain
Art. 834, provides for the usufructuary right of the surviving spouse
with respect to a portion of the decedent's estate; while Art. 1392
provides for conjugal partnership. Under the Rules of Court, Rule 73,
Section 2: "When the marriage is dissolved by the death of the
husband or wife, the community property shall be inventoried,
administered and liquidated, and the debts thereof paid, in the testate
or intestate proceedings of the deceased spouse. If both spouses have
died, the conjugal partnership shall be liquidated in the testate or
intestate proceedings of either. "
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-16763 December 22, 1921
PASCUAL COSO, petitioner-appellant,
vs.
FERMINA FERNANDEZ DEZA, ET AL., objectors-appellees.
Eduardo Gutierrez Repide & Felix Socias for appellant.
Jose Varela Calderon & Benito Jimenez Zoboli for appellees.

OSTRAND, J.:
This is an appeal from a decision of the Court of First Instance of Manila setting
aside a will on the ground of undue influence alleged to have been exerted over the
mind of a testator by one Rosario Lopez. The will gives the tercio de libre

disposicion to an illegitimate son had by the testator with said Rosario Lopez, and
also provides for the payment to her of nineteen hundred Spanish duros by way the
reimbursement for expenses incurred by her in taking care of the testator in
Barcelona during the years 1909 to 1916, when he is alleged to have suffered from
a severe illness.
The evidence shows that the testator, a married man and resident of the Philippine
Islands, became acquainted with Rosario Lopez in Spain in 1898 and that he had
illicit returns with her for many years thereafter. After his return to the Philippines
she followed him, arriving in Manila in February, 1918, and remained in close
communication with him until his death in February, 1919. There is no doubt that
she exercised some influence over him and the only question for our determination
is whether this influence was of such a character as to vitiate the will.
The English and American rule in regard to undue influence is thus stated in 40
Cyc., 1144-1149.
Mere general or reasonable influence over a testator is not sufficient to
invalidate a will; to have that effect the influence must be "undue." The rule
as to what constitutes "undue influence" has been variously stated, but the
substance of the different statements is that, to be sufficient to avoid a will,
the influence exerted must be of a kind that so overpowers and subjugates
the mind of the testator as to destroy his free agency and make his express
the will of another, rather than his own.1awphil.net
. . . such influence must be actually exerted on the mind of the testator in
regard to the execution of the will in question, either at time of the execution
of the will, or so near thereto as to be still operative, with the object of
procuring a will in favor of particular parties, and it must result in the making
of testamentary dispositions which the testator would not otherwise have
made. . . .
. . . and while the same amount of influence may become "undue" when
exercised by one occupying an improper and adulterous relation to testator,
the mere fact that some influence is exercised by a person sustaining that
relation does not invalidate a will, unless it is further shown that the influence
destroys the testator's free agency.
The burden is upon the parties challenging the will to show that undue influence, in
the sense above expressed, existed at the time of its execution and we do not think
that this burden has been carried in the present case. While it is shown that the
testator entertained strong affections for Rosario Lopez, it does not appear that her
influence so overpowered and subjugated his mind as to "destroy his free agency
and make him express the will of another rather than his own." He was an
intelligent man, a lawyer by profession, appears to have known his own mind, and
may well have been actuated only by a legitimate sense of duty in making
provisions for the welfare of his illegitimate son and by a proper feeling of gratitude
in repaying Rosario Lopez for the sacrifices she had made for him. Mere affection,
even if illegitimate, is not undue influence and does not invalidate a will. No
imposition or fraud has been shown in the present case.

Influence gained by kindness and affection will not be regarded as `undue,' if

no imposition or fraud be practiced, even though it induces the testator to
make an unequal and unjust disposition of his property in favor of those who
have contributed to his comfort and ministered to his wants, if such
disposition is voluntarily made. (Mackall vs. Mackall, 135 U. S., 1677.)
It may be further observed that under the Civil Law the right of a person with legal
heirs to dispose of his property by will is limited to only a portion of his estate, and
that under the law in force in these Islands before the enactment of the Code of
Civil Procedure, the only outside influences affecting the validity of a will were
duress, deceit, and fraud. The present doctrine of undue influence originated in a
legal system where the right of the testator to dispose of his property by will was
nearly unlimited. Manifestly, greater safeguards in regard to execution of wills may
be warranted when the right to so dispose of property is unlimited than when it is
restricted to the extent it is in this jurisdiction. There is, therefore, certainly no
reason for giving the doctrine of undue influence a wider scope here than it enjoys
in the United States.
For the reasons stated, the decision of the lower court disallowing the will of
Federico Gimenez Zoboli is hereby reversed and it is ordered that the will be
admitted to probate. No costs will be allowed. So ordered.
Johnson, Street, Malcolm, Avancea, Villamor, Johns and Romualdez, JJ., concur.