CASES NO. 4 2. Roberts v. Leonides.....................................................................

138
3. Guevarra v. Guevarra...................................................................57
SEPTEMBER 1, 2018
4. Palaganas v. Palaganas...............................................................141
WILLS AND SUCCESSION
Modes of Probate
HOLOGRAPHIC WILLS
1. Gan v. Yap......................................................................................26
Special Requirements
2. Rodelas v. Aranza.........................................................................32
1. Roxas v. De Jesus............................................................................2
2. Labrador v. Court of Appeals........................................................5
Requirements of Probate of a Holographic Will
Probate
1. Azaola v. Singson............................................................................9
1. Azaola v. Singson............................................................................9
2. Codoy v. Calugay.........................................................................12
2. Codoy v. Calugay.........................................................................12
3. Rivera v. Intermediate Appellate Court.....................................23
Effect of Allowance of Wills
4. Gan v. Yap......................................................................................26
1. Gallonosa v. Arcangel..................................................................75
5. Rodelas v. Aranza.........................................................................32
6. Kalaw v. Relova.............................................................................35
DISALLOWANCE OF WILLS
7. Spouses Ajero v. Court of Appeals.............................................39
1. Baltazar v. Laxa.....................................Refer to previous case list
2. Pascual v. Dela Cruz...................................................................144
REVOCATIONS OF WILLS AND TESTAMENTARY
3. Ozaeta v. Cuartero......................................................................149
DISPOSITIONS
4. Coso v. Fernandez-Deza............................................................151
1. Molo v. Molo.................................................................................44
5. Ortega v. Valmonte.....................................................................153
2. Maloto v. Court of Appeals.........................................................50
3. Gago v. Mamuyac.........................................................................54
4. Diaz v. De Leon.............................................................................56

ALLOWANCE OF WILLS
Concept of Probate
1. Guevarra v. Guevarra...................................................................57
2. Dela Cerna v. Potot.......................................................................73
3. Gallonasa v. Arcangel...................................................................75
4. Nepomuceno v. Court of Appeals..............................................80
5. Rodriguez v. Rodriguez...............................................................86
6. Heirs of Lasam v. Umengan........................................................91
7. Dorotheo v. Court of Appeals.....................................................99
8. Pastor Jr. v. Court of Appeals....................................................103
9. Jimenez v. Intermediate Appellate Court................................112
10. Agtarap v. Agtarap.....................................................................115
11. Maninang v. Court of Appeals..................................................125

Necessity of Probate
1. De Borja v. De Borja....................................................................129
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-38338 January 28, 1985
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G.
DE JESUS AND BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS
& PEDRO ROXAS DE JESUS, petitioners, 
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside the order of respondent
Hon. Jose C. Colayco, Presiding Judge Court of First Instance of
Manila, Branch XXI disallowing the probate of the holographic Will of
the deceased Bibiana Roxas de Jesus.
The antecedent facts which led to the filing of this petition are
undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de
Jesus, Special Proceeding No. 81503 entitled "In the Matter of the
Intestate Estate of Andres G. de Jesus and Bibiana Roxas de Jesus"
was filed by petitioner Simeon R. Roxas, the brother of the deceased
Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed
administrator. After Letters of Administration had been granted to
the petitioner, he delivered to the lower court a document purporting
to be the holographic Will of the deceased Bibiana Roxas de Jesus. On
May 26, 1973, respondent Judge Jose Colayco set the hearing of the
probate of the holographic Win on July 21, 1973.
Petitioner Simeon R. Roxas testified that after his appointment as
administrator, he found a notebook belonging to the deceased Bibiana
R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-win
addressed to her children and entirely written and signed in the
handwriting of the deceased Bibiana R. de Jesus was found. The will
is dated "FEB./61 " and states: "This is my win which I want to be
respected although it is not written by a lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the
testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus who
likewise testified that the letter dated "FEB./61 " is the holographic
Will of their deceased mother, Bibiana R. de Jesus. Both recognized
the handwriting of their mother and positively Identified her
signature. They further testified that their deceased mother
understood English, the language in which the holographic Will is
written, and that the date "FEB./61 " was the date when said Will was
executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an
"opposition to probate" assailing the purported holographic Will of
Bibiana R. de Jesus because a it was not executed in accordance with
law, (b) it was executed through force, intimidation and/or under
duress, undue influence and improper pressure, and (c) the alleged
testatrix acted by mistake and/or did not intend, nor could have
intended the said Will to be her last Will and testament at the time of
its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an
order allowing the probate of the holographic Will which he found to
have been duly executed in accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration
alleging inter alia that the alleged holographic Will of the deceased
Bibiana R. de Jesus was not dated as required by Article 810 of the
Civil Code. She contends that the law requires that the Will should
contain the day, month and year of its execution and that this should
be strictly complied with.
On December 10, 1973, respondent Judge Colayco reconsidered his
earlier order and disallowed the probate of the holographic Will on
the ground that the word "dated" has generally been held to include
the month, day, and year. The dispositive portion of the order reads:
WHEREFORE, the document purporting to be the
holographic Will of Bibiana Roxas de Jesus, is hereby
disallowed for not having been executed as required
by the law. The order of August 24, 1973 is hereby set
aside.
The only issue is whether or not the date "FEB./61 " appearing on the
holographic Will of the deceased Bibiana Roxas de Jesus is a valid
compliance with the Article 810 of the Civil Code which reads:
ART. 810. A person may execute a holographic will
which must be entirely written, dated, and signed by
the hand of the testator himself. It is subject to no other
form, and may be made in or out of the Philippines,
and need not be witnessed.
The petitioners contend that while Article 685 of the Spanish Civil
Code and Article 688 of the Old Civil Code require the testator to state
in his holographic Win the "year, month, and day of its execution," the
present Civil Code omitted the phrase Año mes y dia and simply
requires that the holographic Will should be dated. The petitioners
submit that the liberal construction of the holographic Will should
prevail.
Respondent Luz Henson on the other hand submits that the
purported holographic Will is void for non-compliance with Article
810 of the New Civil Code in that the date must contain the year,
month, and day of its execution. The respondent contends that Article
810 of the Civil Code was patterned after Section 1277 of the
California Code and Section 1588 of the Louisiana Code whose
Supreme Courts had consistently ruled that the required date
includes the year, month, and day, and that if any of these is wanting,
the holographic Will is invalid. The respondent further contends that
the petitioner cannot plead liberal construction of Article 810 of the
Civil Code because statutes prescribing the formalities to be observed
in the execution of holographic Wills are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and
literal application of the statutory requirements regarding the due
execution of Wills. We should not overlook the liberal trend of the
Civil Code in the manner of execution of Wills, the purpose of which,
in case of doubt is to prevent intestacy —
The underlying and fundamental objectives
permeating the provisions of the law on wigs in this
Project consists in the liberalization of the manner of
their execution with the end in view of giving the
testator more freedom in expressing his last wishes,
but with sufficien safeguards and restrictions to
prevent the commission of fraud and the exercise of
undue and improper pressure and influence upon the
testator.
This objective is in accord with the modem tendency
with respect to the formalities in the execution of wills.
(Report of the Code Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs of Raymundo
Castro v. Bustos (27 SCRA 327) he emphasized that:
xxx xxx xxx
... The law has a tender regard for the will of the
testator expressed in his last will and testament on the
ground that any disposition made by the testator is
better than that which the law can make. For this
reason, intestate succession is nothing more than a
disposition based upon the presumed will of the
decedent.
Thus, the prevailing policy is to require satisfaction of the legal
requirements in order to guard against fraud and bad faith but
without undue or unnecessary curtailment of testamentary
privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed
in substantial compliance with the formalities of the law, and the
possibility of bad faith and fraud in the exercise thereof is obviated,
said Win should be admitted to probate (Rey v. Cartagena 56 Phil.
282). Thus,
xxx xxx xxx
... More than anything else, the facts and circumstances
of record are to be considered in the application of any
given rule. If the surrounding circumstances point to a
regular execution of the wilt and the instrument
appears to have been executed substantially in
accordance with the requirements of the law, the
inclination should, in the absence of any suggestion of
bad faith, forgery or fraud, lean towards its admission
to probate, although the document may suffer from
some imperfection of language, or other non-essential
defect. ... (Leynez v. Leynez 68 Phil. 745).
If the testator, in executing his Will, attempts to comply with all the
requisites, although compliance is not literal, it is sufficient if the
objective or purpose sought to be accomplished by such requisite is
actually attained by the form followed by the testator.
The purpose of the solemnities surrounding the execution of Wills has
been expounded by this Court in Abangan v. Abanga 40 Phil. 476,
where we ruled that:
The object of the solemnities surrounding the execution
of wills is to close the door against bad faith and fraud,
to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. ...
In particular, a complete date is required to provide against such
contingencies as that of two competing Wills executed on the same
day, or of a testator becoming insane on the day on which a Will was
executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency
in this case.
We have carefully reviewed the records of this case and found no
evidence of bad faith and fraud in its execution nor was there any
substitution of Wins and Testaments. There is no question that the
holographic Will of the deceased Bibiana Roxas de Jesus was entirely
written, dated, and signed by the testatrix herself and in a language
known to her. There is also no question as to its genuineness and due
execution. All the children of the testatrix agree on the genuineness of
the holographic Will of their mother and that she had the
testamentary capacity at the time of the execution of said Will. The
objection interposed by the oppositor-respondent Luz Henson is that
the holographic Will is fatally defective because the date "FEB./61 "
appearing on the holographic Will is not sufficient compliance with
Article 810 of the Civil Code. This objection is too technical to be
entertained.
As a general rule, the "date" in a holographic Will should include the
day, month, and year of its execution. However, when as in the case
at bar, there is no appearance of fraud, bad faith, undue influence and
pressure and the authenticity of the Will is established and the only
issue is whether or not the date "FEB./61" appearing on the
holographic Will is a valid compliance with Article 810 of the Civil
Code, probate of the holographic Will should be allowed under the
principle of substantial compliance.
WHEREFORE, the instant petition is GRANTED. The order appealed
from is REVERSED and SET ASIDE and the order allowing the
probate of the holographic Will of the deceased Bibiana Roxas de
Jesus is reinstated.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova and De la Fuente,
JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. Nos. 83843-44               April 5, 1990
IN THE MATTER OF THE PETITION TO APPROVE THE WILL
OF MELECIO LABRADOR. SAGRADO LABRADOR (Deceased),
substituted by ROSITA LABRADOR, ENRICA LABRADOR, and
CRISTOBAL LABRADOR, petitioners-appellants,  matter of fact, O.C.T. No. P-1652 had been cancelled by T.C.T. No. T-
vs.
COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS
LABRADOR, respondents-appellees.
Benjamin C. Santos Law Offices for petitioners.
Rodrigo V. Fontelera for private respondents.
PARAS, J.:
The sole issue in this case is whether or not the alleged holographic
will of one Melecio Labrador is dated, as provided for in Article 8102 of
the New Civil Code.
The antecedent and relevant facts are as follows: On June 10, 1972,
Melecio Labrador died in the Municipality of Iba, province of
Zambales, where he was residing, leaving behind a parcel of land
designated as Lot No. 1916 under Original Certificate of Title No. P-
1652, and the following heirs, namely: Sagrado, Enrica, Cristobal,
Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita, all surnamed
Labrador, and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted by
his heirs), Enrica Labrador and Cristobal Labrador, filed in the court a
quo a petition for the probate docketed as Special Proceeding No. 922-
I of the alleged holographic will of the late Melecio Labrador.
Subsequently, on September 30, 1975, Jesus Labrador (now deceased
but substituted by his heirs), and Gaudencio Labrador filed an
opposition to the petition on the ground that the will has been
extinguished or revoked by implication of law, alleging therein that
on September 30, 1971, that is, before Melecio's death, for the
consideration of Six Thousand (P6,000) Pesos, testator Melecio
executed a Deed of Absolute Sale, selling, transferring and conveying
in favor of oppositors Jesus and Gaudencio Lot No. 1916 and that as a
21178. Earlier however, in 1973, Jesus Labrador sold said parcel of
land to Navat for only Five Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his brothers,
Gaudencio and Jesus, for the annulment of said purported Deed of
Absolute Sale over a parcel of land which Sagrado allegedly had
already acquired by devise from their father Melecio Labrador under
a holographic will executed on March 17, 1968, the complaint for
annulment docketed as Civil Case No. 934-I, being premised on the
fact that the aforesaid Deed of Absolute Sale is fictitious.
After both parties had rested and submitted their respective evidence,
the trial court rendered a joint decision dated February 28, 1985,
allowing the probate of the holographic will and declaring null and
void the Deed of Absolute sale. The court a quo had also directed the
respondents (the defendants in Civil Case No. 934-I) to reimburse to
the petitioners the sum of P5,000.00 representing the redemption price
for the property paid by the plaintiff-petitioner Sagrado with legal
interest thereon from December 20, 1976, when it was paid to
vendee a retro.
Respondents appealed the joint decision to the Court of Appeals,
which on March 10, 1988 modified said joint decision of the court a
quo by denying the allowance of the probate of the will for being
undated and reversing the order of reimbursement. Petitioners'
Motion for Reconsideration of the aforesaid decision was denied by
the Court of Appeals, in the resolution of June 13, 1988. Hence, this
petition.
Petitioners now assign the following errors committed by respondent
court, to wit:
I among themselves, those among brothers and sisters, for it is I
THE COURT OF APPEALS ERRED IN NOT ALLOWING
AND APPROVING THE PROBATE OF THE HOLOGRAPHIC
WILL OF THE TESTATOR MELECIO LABRADOR; and
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE
ORDER OF THE LOWER COURT DIRECTING THE
REIMBURSEMENT OF THE FIVE THOUSAND PESOS
REPRESENTING THE REDEMPTION PRICE WAS
ERRONEOUS.
The alleged undated holographic will written in Ilocano translated
into English, is quoted as follows:
ENGLISH INTERPRETATION OF THE WILL OF THE
LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I — First Page
This is also where it appears in writing of the place which is
assigned and shared or the partition in favor of SAGRADO
LABRADOR which is the fishpond located and known place
as Tagale.
And this place that is given as the share to him, there is a
measurement of more or less one hectare, and the boundary at
the South is the property and assignment share of ENRICA
LABRADOR, also their sister, and the boundary in the West is
the sea, known as the SEA as it is, and the boundary on the
NORTH is assignment belonging to CRISTOBAL
LABRADOR, who likewise is also their brother. That because
it is now the time for me being now ninety three (93) years,
then I feel it is the right time for me to partition the fishponds
which were and had been bought or acquired by us, meaning
with their two mothers, hence there shall be no differences
myself their father who am making the apportionment and
delivering to each and everyone of them the said portion and
assignment so that there shall not be any cause of troubles or
differences among the brothers and sisters.
II — Second Page
And this is the day in which we agreed that we are making the
partitioning and assigning the respective assignment of the
said fishpond, and this being in the month of March, 17th day,
in the year 1968, and this decision and or instruction of mine is
the matter to be followed. And the one who made this writing
is no other than MELECIO LABRADOR, their father.
Now, this is the final disposition that I am making in writing
and it is this that should be followed and complied with in
order that any differences or troubles may be forestalled and
nothing will happen along these troubles among my children,
and that they will be in good relations among themselves,
brothers and sisters;
And those improvements and fruits of the land; mangoes,
bamboos and all coconut trees and all others like the other
kind of bamboo by name of Bayog, it is their right to get if they
so need, in order that there shall be nothing that anyone of
them shall complain against the other, and against anyone of
the brothers and sisters.
 III — THIRD PAGE
And that referring to the other places of property, where the
said property is located, the same being the fruits of our
earnings of the two mothers of my children, there shall be
equal portion of each share among themselves, and or to be
benefitted with all those property, which property we have
been able to acquire.
That in order that there shall be basis of the truth of this
writing (WILL) which I am here hereof manifesting of the
truth and of the fruits of our labor which their two mothers, I
am signing my signature below hereof, and that this is what
should be complied with, by all the brothers and sisters, the
children of their two mothers — JULIANA QUINTERO
PILARISA and CASIANA AQUINO VILLANUEVA Your
father who made this writing (WILL), and he is, MELECIO
LABRADOR y RALUTIN (p. 46, Rollo)
The petition, which principally alleges that the holographic will is
really dated, although the date is not in its usual place, is impressed
with merit.
The will has been dated in the hand of the testator himself in perfect
compliance with Article 810.1âwphi1 It is worthy of note to quote the
first paragraph of the second page of the holographic will, viz:
And this is the day in which we agreed that we are making the
partitioning and assigning the respective assignment of the
said fishpond, and this being in the month of March, 17th day,
in the year 1968, and this decision and or instruction of mine is
the matter to be followed. And the one who made this writing
is no other than MELECIO LABRADOR, their father.
(emphasis supplied) (p. 46, Rollo)
The law does not specify a particular location where the date should
be placed in the will. The only requirements are that the date be in the
will itself and executed in the hand of the testator. These requirements
are present in the subject will.
Respondents claim that the date 17 March 1968 in the will was when
the testator and his beneficiaries entered into an agreement among
themselves about "the partitioning and assigning the respective
assignments of the said fishpond," and was not the date of execution
of the holographic will; hence, the will is more of an "agreement"
between the testator and the beneficiaries thereof to the prejudice of
other compulsory heirs like the respondents. This was thus a failure
to comply with Article 783 which defines a will as "an act whereby a
person is permitted, with the formalities prescribed by law, to control
to a certain degree the disposition of his estate, to take effect after his
death."
Respondents are in error. The intention to show 17 March 1968 as the
date of the execution of the will is plain from the tenor of the
succeeding words of the paragraph. As aptly put by petitioner, the
will was not an agreement but a unilateral act of Melecio Labrador
who plainly knew that what he was executing was a will. The act of
partitioning and the declaration that such partitioning as the testator's
instruction or decision to be followed reveal that Melecio Labrador
was fully aware of the nature of the estate property to be disposed of
and of the character of the testamentary act as a means to control the
disposition of his estate.
Anent the second issue of finding the reimbursement of the P5,000
representing the redemption price as erroneous, respondent court's
conclusion is incorrect. When private respondents sold the property
(fishpond) with right to repurchase to Navat for P5,000, they were
actually selling property belonging to another and which they had no
authority to sell, rendering such sale null and void. Petitioners, thus
"redeemed" the property from Navat for P5,000, to immediately
regain possession of the property for its disposition in accordance
with the will. Petitioners therefore deserve to be reimbursed the
P5,000.
PREMISES CONSIDERED, the decision of the Court of Appeals dated
March 10, 1988 is hereby REVERSED. The holographic will of Melecio
Labrador is APPROVED and ALLOWED probate. The private
respondents are directed to REIMBURSE the petitioners the sum of
Five Thousand Pesos (P5,000.00).
SO ORDERED.

Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

Footnotes

1
 Penned by Justice Jorge S. Imperial and concurred in by
Justices Jose A.R. Melo and Manuel C. Herrera

2
 Article 810 provides: A person may execute a holographic
will which must be entirely written, dated and signed by the
hand of the testator himself. It is subject to no other form, and
may be made in or out of the Philippines, and need not be
witnessed.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-14003             August 5, 1960
FEDERICO AZAOLA, petitioner-appellant,  signatures appearing in the aforesaid documentary evidence is
vs.
CESARIO SINGSON, oppositor-appellee.
F. Lavides and L.B. Alcuaz for appellant.
Vicente J. Cuna and P.S. Singson for appellee.
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision rendered on 15
January 1958 by the Court of First Instance of Quezon City in its
Special Proceedings No. Q-2640, involves the determination of the
quantity of evidence required for the probate of a holographic will.
The established facts are thus summarized in the decision appealed
from (Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established by the
petitioner; that on September 9, 1957, Fortunata S. Vda. de
Yance died at 13 Luskot, Quezon City, known to be the last
residence of said testatrix; that Francisco Azaola, petitioner
herein for probate of the holographic will, submitted the said
holographic will (Exh. C) whereby Maria Milagros Azaola was
made the sole heir as against the nephew of deceased Cesario
Singson; that witness Francisco Azaola testified that he saw
the holographic will (Exh. C) one month, more or less, before
the death of the testatrix, as the same was handed to him and
his wife; that the witness testified also that he recognized all
the signatures appearing in the holographic will (Exh. C) as
the handwriting of the testatrix and to reinforce said
statement, witness presented the mortgage (Exh. E), the
special power of the attorney (Exh. F), and the general power
of attorney (Exh. F-1), besides the deeds of sale (Exhs. G and
G-1) including an affidavit (Exh. G-2), and that there were
further exhibited in court two residence certificates (Exhs. H
and H-1) to show the signatures of the testatrix, for
comparison purposes; that said witness, Azaola, testified that
the penmanship appearing in the aforesaid documentary
evidence is in the handwriting of the testatrix as well as the
in the handwriting of the testatrix as well as the signatures
appearing therein are the signatures of the testatrix; that said
witness, in answer to a question of his counsel admitted that
the holographic will was handed to him by the testatrix.
"apparently it must have been written by her" (t.s.n., p. 11).
However, on page 16 on the same transcript of the
stenographic notes, when the same witness was asked by
counsel if he was familiar with the penmanship and
handwriting of the deceased Fortunata Vda. de Yance, he
answered positively in the affirmative and when he was asked
again whether the penmanship referred to in the previous
answer as appearing in the holographic will (Exh. C) was hers
(testatrix'), he answered, "I would definitely say it is hers"; that
it was also established in the proceedings that the assessed
value of the property of the deceased in Luskot, Quezon City,
is in the amount of P7,000.00.
The opposition to the probate was on the ground that (1) the
execution of the will was procured by undue and improper pressure
and influence on the part of the petitioner and his wife, and (2) that
the testatrix did not seriously intend the instrument to be her last will,
and that the same was actually written either on the 5th or 6th day of
August 1957 and not on November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the
Civil Code, the proponent must present three witnesses who could
declare that the will and the signature are in the writing of the
testatrix, the probate being contested; and because the lone witness
presented by the proponent "did not prove sufficiently that the body
of the will was written in the handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to
produce more than one witness because the will's authenticity was
not questioned; and second, that Article 811 does not mandatorily
require the production of three witnesses to identify the handwriting
and signature of a holographic will, even if its authenticity should be
denied by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following
effect:
ART. 811. In the probate of a holographic will, it shall be
necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare
that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three of such witnesses
shall be required.
In the absence of any competent witnesses referred to in the
preceding paragraph, and if the court deems it necessary,
expert testimony may be resorted to. (691a).
We agree with the appellant that since the authenticity of the will was
not contested, he was not required to produce more than one witness;
but even if the genuineness of the holographic will were contested,
we are of the opinion that Article 811 of our present Civil Code can
not be interpreted as to require the compulsory presentation of three
witnesses to identify the handwriting of the testator, under penalty of
having the probate denied. Since no witness may have been present at
the execution of a holographic will, none being required by law (Art.
810, new Civil Code), it becomes obvious that the existence of witness
possessing the requisite qualifications is a matter beyond the control
of the proponent. For it is not merely a question of finding and
producing any three witnesses; they must be witnesses "who know
the handwriting and signature of the testator" and who can declare
(truthfully, of course, even if the law does not so express) "that the
will and the signature are in the handwriting of the testator". There
may be no available witness of the testator's hand; or even if so
familiarized, the witnesses may be unwilling to give a positive
opinion. Compliance with the rule of paragraph 1 of Article 811 may
thus become an impossibility. That is evidently the reason why the
second paragraph of Article 811 prescribes that —
in the absence of any competent witness referred to in the
preceding paragraph, and if the court deems it necessary,
expert testimony may be resorted to.
As can be seen, the law foresees the possibility that no qualified
witness may be found (or what amounts to the same thing, that no
competent witness may be willing to testify to the authenticity of the
will), and provides for resort to expert evidence to supply the
deficiency.
It may be true that the rule of this article (requiring that three
witnesses be presented if the will is contested and only one if no
contest is had) was derived from the rule established for ordinary
testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs.
Francisco, 57 Phil., 742). But it can not be ignored that the requirement
can be considered mandatory only in the case of ordinary testaments,
precisely because the presence of at least three witnesses at the
execution of ordinary wills is made by law essential to their validity
(Art. 805). Where the will is holographic, no witness need be present
(Art. 10), and the rule requiring production of three witnesses must be
deemed merely permissive if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned
by the words "if the Court deem it necessary", which reveal that what
the law deems essential is that the Court should be convinced of the
will's authenticity. Where the prescribed number of witnesses is
produced and the court is convinced by their testimony that the ill is
genuine, it may consider it unnecessary to call for expert evidence. On
the other hand, if no competent witness is available, or none of those
produced is convincing, the Court may still, and in fact it should,
resort to handwriting experts. The duty of the Court, in fine, is to
exhaust all available lines of inquiry, for the state is as much
interested as the proponent that the true intention of the testator be
carried into effect.
Commenting on analogous provisions of Article 691 of the Spanish the parties ample opportunity to adduce additional evidence,
Civil Code of 1889, the noted Commentator, Mucuis Scaevola (Vol. 12, including expert witnesses, should the Court deem them necessary.
2nd Ed., p.421), sagely remarks:
In view of the foregoing, the decision appealed from is set aside, and
La manera como esta concebida la redaccion del ultimo the records ordered remanded to the Court of origin, with
apartado de dicho precepto induce la conclusion de que instructions to hold a new trial in conformity with this opinion. But
siempre o por lo menos, en la mayor parte de los casos, el Juez evidence already on record shall not be retaken. No costs.
debe acudir al criterio pericial para que le ilustre acerca de la
autenticidad del testamento olografo, aunque ya esten insertas Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera and
en los autos del expediente las declaraciones testificales. La Gutierrez David, JJ., concur.
prudencia con que el Juez debe de proceder en resoluciones de
transcendencia asi lo exige, y la indole delicada y peligrosa del
testamento olografo lo hace necesario para mayor garantia de
todos los interes comprometidos en aquel.

En efecto, el cotejo pericial de letras puede ser una

confirmacion facultativa del dicho profano de los testigos y un
modo de desvanecer las ultimas dudas que pudieran ocurrir al
Juez acerca de la autenticidad que trata de averigaur y
declarar. Para eso se ha escrito la frase del citado ultimo
apartado, (siempre que el Juez lo estime conveniente), haya
habido o no testigos y dudaran o no estos respecto de los
extremos por que son preguntados.

El arbitrio judicial en este caso debe formarse con

independencia de los sucesos y de su significacion, para
responder debidamente de las resoluciones que haya de dictar.

And because the law leaves it to the trial court if experts are still
needed, no unfavourable inference can be drawn from a party's
failure to offer expert evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay witnesses.

Our conclusion is that the rule of the first paragraph of Article 811 of
the Civil Code is merely directory and is not mandatory.

Considering, however, that this is the first occasion in which this

Court has been called upon to construe the import of said article, the
interest of justice would be better served, in our opinion, by giving
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 123486           August 12, 1999
EUGENIA RAMONAL CODOY, and MANUEL
RAMONAL, petitioners,  Vda. de Ramonal, was of sound and disposing mind when she
vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and
UEFEMIA PATIGAS, respondents.
PARDO, J.:
Before us is a petition for review on certiorari of the decision of the
Court of Appeals1 and its resolution denying reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline
Calugay and witness Matilde Ramonal Binanay, the
authenticity of testators holographic will has been established
and the handwriting and signature therein (exhibit S) are hers,
enough to probate said will. Reversal of the judgment
appealed from and the probate of the holographic will in
question be called for. The rule is that after plaintiff has
completed presentation of his evidence and the defendant files
a motion for judgment on demurrer to evidence on the ground
that upon the facts and the law plaintiff has shown no right to
relief, if the motion is granted and the order to dismissal is
reversed on appeal, the movant loses his right to present
evidence in his behalf (Sec, 1 Rule 35 Revised Rules of Court).
Judgment may, therefore, be rendered for appellant in the
instant case.
Wherefore, the order appealed from is REVERSED and
judgment rendered allowing the probate of the holographic
will of the testator Matilde Seño Vda. de Ramonal.2
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia
Patigas, devisees and legatees of the holographic will of the deceased
Matilde Seño Vda. de Ramonal, filed with the Regional Trial Court,
Misamis Oriental, Branch 18, a petition3 for probate of the holographic
will of the deceased, who died on January 16, 1990.
In the petition, respondents claimed that the deceased Matilde Seño
executed the will on August 30, 1978, that there was no fraud, undue
influence, and duress employed in the person of the testator, and will
was written voluntarily.
The assessed value of the decedent's property, including all real and
personal property was about P400,000.00, at the time of her death. 4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed
an opposition5 to the petition for probate, alleging that the
holographic will was a forgery and that the same is even illegible.
This gives an impression that a "third hand" of an interested party
other than the "true hand" of Matilde Seño Vda. de Ramonal executed
the holographic will.
Petitioners argued that the repeated dates incorporated or appearing
on will after every disposition is out of the ordinary. If the deceased
was the one who executed the will, and was not forced, the dates and
the signature should appear at the bottom after the dispositions, as
regularly done and not after every disposition. And assuming that the
holographic will is in the handwriting of the deceased, it was
procured by undue and improper pressure and influence on the part
of the beneficiaries, or through fraud and trickery.1âwphi1.nêt
Respondents presented six (6) witnesses and various documentary
evidence. Petitioners instead of presenting their evidence, filed a
demurrer6 to evidence, claiming that respondents failed to establish
sufficient factual and legal basis for the probate of the holographic
will of the deceased Matilde Seño Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order, the
dispositive portion of which reads:
WHEREFORE, in view of the foregoing consideration, the
Demurrer to Evidence having being well taken, same is
granted, and the petition for probate of the document (Exhibit
"S") on the purported Holographic Will of the late Matilde
Seño Vda. de Ramonal, is denied for insufficiency of evidence
and lack of merits.7
On December 12, 1990, respondents filed a notice of appeal,8 and in
support of their appeal, the respondents once again reiterated the
testimony of the following witnesses, namely: (1) Augusto Neri; (2)
Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5)
Fiscal Rodolfo Waga; and (6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses, we
recite an account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis
Oriental, where the special proceedings for the probate of the
holographic will of the deceased was filed. He produced and
identified the records of the case. The documents presented bear the
signature of the deceased, Matilde Seño Vda. de Ramonal, for the
purpose of laying the basis for comparison of the handwriting of the
testatrix, with the writing treated or admitted as genuine by the party
against whom the evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro, was presented to
produced and identify the voter's affidavit of the decedent. However,
the voters' affidavit was not produced for the same was already
destroyed and no longer available.
Matilde Ramonal Binanay, testified that the deceased Matilde Seño Vda.
de Ramonal was her aunt, and that after the death of Matilde's
husband, the latter lived with her in her parent's house for eleven (11)
years from 1958 to 1969. During those eleven (11) years of close
association the deceased, she acquired familiarity with her signature
and handwriting as she used to accompany her (deceased Matilde
Seño Vda. de Ramonal) in collecting rentals from her various tenants
of commercial buildings, and deceased always issued receipts. In
addition to this, she (witness Matilde Binanay) assisted the deceased
in posting the records of the accounts, and carried personal letters of
the deceased to her creditors.
Matilde Ramonal Binanay further testified that at the time of the death
of Matilde Vda. de Ramonal, she left a holographic will dated August
30, 1978, which was personally and entirely written, dated and
signed, by the deceased and that all the dispositions therein, the dates,
and the signatures in said will, were that of the deceased.
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal
of Cagayan de Oro, he was a practicing lawyer, and handled all the
pleadings and documents signed by the deceased in connection with
the proceedings of her late husband, as a result of which he is familiar
with the handwriting of the latter. He testified that the signature
appearing in the holographic will was similar to that of the deceased,
Matilde Seño Vda. de Ramonal, but he can not be sure.
The fifth witness presented was Mrs.  Teresita Vedad, an employee of
the Department of Environment and Natural Resources, Region 10.
She testified that she processed the application of the deceased for
pasture permit and was familiar with the signature of the deceased,
since the signed documents in her presence, when the latter was
applying for pasture permit.
Finally, Evangeline Calugay, one of the respondents, testified that she
had lived with the deceased since birth, and was in fact adopted by
the latter. That after a long period of time she became familiar with
the signature of the deceased. She testified that the signature
appearing in the holographic will is the true and genuine signature of
Matilde Seño Vda. de Ramonal.
The holographic will which was written in Visayan, is translated in
English as follows:
Instruction
August 30, 1978
 1. My share at Cogon, Raminal Street, for Evangeline Calugay. 6. Bury me where my husband Justo is ever buried.

(Sgd) Matilde Vda de Ramonal (Sgd) Matilde Vda de Ramonal

August 30, 1978 August 30, 1978

2. Josefina Salcedo must be given 1,500 square meters at Gene and Manuel:
Pinikan Street.
Follow my instruction in order that I will rest peacefully.
(Sgd) Matilde Vda de Ramonal
Mama
August 30, 1978
Matilde Vda de Ramonal
3. My jewelry's shall be divided among:
On October 9, 1995, the Court of Appeals, rendered decision9 ruling
1. Eufemia Patigas that the appeal was meritorious. Citing the decision in the case
of Azaola vs. Singson, 109 Phil. 102, penned by Mr. Justice J. B. L.
2. Josefina Salcedo Reyes, a recognized authority in civil law, the Court of Appeals held:

3. Evangeline Calugay . . . even if the genuineness of the holographic will were

contested, we are of the opinion that Article 811 of our present
(Sgd) Matilde Vda de Ramonal civil code can not be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of
August 30, 1978 the testator, under penalty of having the probate denied. Since
no witness may have been present at the execution of the
4. I bequeath my one (1) hectare land at Mandumol, Indahag holographic will, none being required by law (art. 810, new
to Evangeline R. Calugay civil code), it becomes obvious that the existence of witnesses
possessing the requisite qualifications is a matter beyond the
(Sgd) Matilde Vda de Ramonal control of the proponent. For it is not merely a question of
finding and producing any three witnesses; they must be
August 30, 1978 witnesses "who know the handwriting and signature of the
testator" and who can declare (truthfully, of course, even if the
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village law does not express) "that the will and the signature are in
in favor of Evangeline R. Calugay, Helen must continue with the handwriting of the testator." There may be no available
the Sta. Cruz, once I am no longer around. witness acquainted with the testator's hand; or even if so
familiarized, the witness maybe unwilling to give a positive
opinion. Compliance with the rule of paragraph 1 of article 811
(Sgd) Matilde Vda de Ramonal
may thus become an impossibility. That is evidently the
reason why the second paragraph of article 811 prescribes that
August 30, 1978
—
in the absence of any competent witness referred to in the
preceding paragraph, and if the court deems it necessary,
expert testimony may be resorted to.
As can be see, the law foresees, the possibility that no qualified
witness ma be found (or what amounts to the same thing, that
no competent witness may be willing to testify to the
authenticity of the will), and provides for resort to expert
evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three
witnesses be presented if the will is contested and only one if
no contest is had) was derived from the rule established for
ordinary testaments (CF Cabang vs. Delfianado, 45 PHIL 291;
Tolentino v. Francisco, 57 PHIL 742). But it can not be ignored
that the requirement can be considered mandatory only in
case of ordinary testaments, precisely because the presence of
at least three witnesses at the execution of ordinary wills is
made by law essential to their validity (Art. 805). Where the
will is holographic, no witness need be present (art. 10), and
the rule requiring production of three witnesses must be
deemed merely permissive if absurd results are to be avoided.
Again, under Art. 811, the resort to expert evidence is
conditioned by the words "if the court deem it necessary",
which reveal that what the law deems essential is that the
court should be convinced of the will's authenticity. Where the
prescribed number of witnesses is produced and the court is
convinced by their testimony that the will is genuine, it may
consider it unnecessary to call for expert evidence. On the
other hand, if no competent witness is available, or none of
those produced is convincing, the court may still, and in fact it
should resort to handwriting experts. The duty of the court, in
fine, is to exhaust all available lines of inquiry, for the state is
as much interested as the proponent that the true intention of
the testator be carried into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness of the
holographic will were contested, Article 811 of the civil code
cannot be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of
the testator, under penalty of the having the probate denied.
No witness need be present in the execution of the
holographic will. And the rule requiring the production of
three witnesses is merely permissive. What the law deems
essential is that the court is convinced of the authenticity of the
will. Its duty is to exhaust all available lines of inquiry, for the
state is as much interested in the proponent that the true
intention of the testator be carried into effect. And because the
law leaves it to the trial court to decide if experts are still
needed, no unfavorable inference can be drawn from a party's
failure to offer expert evidence, until and unless the court
expresses dissatisfaction with the testimony of the lay
witnesses.10
According to the Court of Appeals, Evangeline Calugay, Matilde
Ramonal Binanay and other witnesses definitely and in no uncertain
terms testified that the handwriting and signature in the holographic
will were those of the testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline
Calugay and witness Matilde Ramonal Binanay, the Court of Appeals
sustained the authenticity of the holographic will and the
handwriting and signature therein, and allowed the will to probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola vs. Singson,
109 Phil. 102, relied upon by the respondent Court of Appeals,
was applicable to the case.
(2) Whether or not the Court of Appeals erred in holding that
private respondents had been able to present credible
evidence to that the date, text, and signature on the
holographic will written entirely in the hand of the testatrix.
 (3) Whether or not the Court of Appeals erred in not analyzing
the signatures in the holographic will of Matilde Seño Vda. de
Ramonal.
In this petition, the petitioners ask whether the provisions of Article
811 of the Civil Code are permissive or mandatory. The article
provides, as a requirement for the probate of a contested holographic
will, that at least three witnesses explicitly declare that the signature
in the will is the genuine signature of the testator.1âwphi1.nêt
Matilde Ramonal Binanay, on the other hand, testified that:
Q.   And you said for eleven (11) years Matilde Vda de
Ramonal resided with your parents at Pinikitan, Cagayan de
Oro City. Would you tell the court what was your occupation
or how did Matilde Vda de Ramonal keep herself busy that
time?
A.   Collecting rentals.

We are convinced, based on the language used, that Article 811 of the Q.   From where?
Civil Code is mandatory. The word "shall" connotes a mandatory
order. We have ruled that "shall" in a statute commonly denotes an A.   From the land rentals and commercial buildings at
imperative obligation and is inconsistent with the idea of discretion Pabayo-Gomez streets.12
and that the presumption is that the word "shall," when used in a
statute is mandatory.11 xxx     xxx     xxx

Laws are enacted to achieve a goal intended and to guide against an Q.   Who sometime accompany her?
evil or mischief that aims to prevent. In the case at bar, the goal to
achieve is to give effect to the wishes of the deceased and the evil to A.   I sometimes accompany her.
be prevented is the possibility that unscrupulous individuals who for
their benefit will employ means to defeat the wishes of the testator. Q.   In collecting rentals does she issue receipts?

So, we believe that the paramount consideration in the present A.   Yes, sir.13
petition is to determine the true intent of the deceased. An exhaustive
and objective consideration of the evidence is imperative to establish xxx     xxx     xxx
the true intent of the testator.
Q.   Showing to you the receipt dated 23 October 1979, is this
It will be noted that not all the witnesses presented by the the one you are referring to as one of the receipts which she
respondents testified explicitly that they were familiar with the issued to them?
handwriting of testator. In the case of Augusto Neri, clerk of court,
Court of First Instance, Misamis Oriental, he merely identified the A.   Yes, sir.
record of Special Proceedings No. 427 before said court. He was not
presented to declare explicitly that the signature appearing in the
Q.   Now there is that signature of Matilde vda. De Ramonal,
holographic was that of the deceased.
whose signature is that Mrs. Binanay?
Generosa E. Senon, the election registrar of Cagayan de Oro City, was
A.   Matilde vda. De Ramonal.
presented to identify the signature of the deceased in the voter's
affidavit, which was not even produced as it was no longer available.
Q.   Why do you say that is the signature of Matilde Vda. De A.   To her creditors.15
Ramonal?
xxx     xxx     xxx
A.   I am familiar with her signature.
Q.   You testified that at time of her death she left a will. I am
Q.   Now, you tell the court Mrs. Binanay, whether you know showing to you a document with its title "tugon" is this the
Matilde vda de Ramonal kept records of the accounts of her document you are referring to?
tenants?
A.   Yes, sir.
A.   Yes, sir.
Q.   Showing to you this exhibit "S", there is that handwritten
Q.   Why do you say so? "tugon", whose handwriting is this?

A.   Because we sometimes post a record of accounts in behalf A.   My Aunt.

of Matilde Vda. De Ramonal.
Q.   Why do you say this is the handwriting of your aunt?
Q.   How is this record of accounts made? How is this
reflected? A.   Because I am familiar with her signature.16

A.   In handwritten.14 What Ms. Binanay saw were pre-prepared receipts and letters of the
deceased, which she either mailed or gave to her tenants. She did not
xxx     xxx     xxx declare that she saw the deceased sign a document or write a note.

Q.   In addition to collection of rentals, posting records of Further, during the cross-examination, the counsel for petitioners
accounts of tenants and deed of sale which you said what else elicited the fact that the will was not found in the personal belongings
did you do to acquire familiarity of the signature of Matilde of the deceased but was in the possession of Ms. Binanay. She testified
Vda De Ramonal? that:

A.   Posting records. Q.   Mrs. Binanay, when you were asked by counsel for the
petitioners if the late Matilde Seno vda de Ramonal left a will
Q.   Aside from that? you said, yes?

A.   Carrying letters. A.   Yes, sir.

Q.   Letters of whom? Q.   Who was in possession of that will?

A.   Matilde. A.   I.

Q.   To whom? Q.   Since when did you have the possession of the will?
 A.   It was in my mother's possession.
Q.   So, it was not in your possession?
A.   Sorry, yes.
Q.   And when did you come into possession since as you said
this was originally in the possession of your mother?
A.   1985.17
xxx     xxx     xxx
Q.   Now, Mrs. Binanay was there any particular reason why
your mother left that will to you and therefore you have that
in your possession?
A.   It was not given to me by my mother, I took that in the
aparador when she died.
Q.   After taking that document you kept it with you?
A.   I presented it to the fiscal.
Q.   For what purpose?
A.   Just to seek advice.
Q.   Advice of what?
A.   About the will.18
In her testimony it was also evident that Ms. Binanay kept the fact
about the will from petitioners, the legally adopted children of the
deceased. Such actions put in issue her motive of keeping the will a
secret to petitioners and revealing it only after the death of Matilde
Seño Vda. de Ramonal.
In the testimony of Ms. Binanay, the following were established:
Q.   Now, in 1978 Matilde Seno Vda de Ramonal was not yet a
sickly person is that correct?
A.   Yes, sir.
Q.   She was up and about and was still uprightly and she
could walk agilely and she could go to her building to collect
rentals, is that correct?
A.   Yes, sir.19
xxx     xxx     xxx
Q.   Now, let us go to the third signature of Matilde Ramonal.
Do you know that there are retracings in the word Vda.?
A.   Yes, a little. The letter L is continuous.
Q.   And also in Matilde the letter L is continued to letter D?
A.   Yes, sir.
Q.   Again the third signature of Matilde Vda de Ramonal the
letter L in Matilde is continued towards letter D.
A.   Yes, sir.
Q.   And there is a retracing in the word Vda.?
A.   Yes, sir.20
xxx     xxx     xxx
Q.   Now, that was 1979, remember one year after the alleged
holographic will. Now, you identified a document marked as
Exhibit R. This is dated January 8, 1978 which is only about
eight months from August 30, 1978. Do you notice that the
signature Matilde Vda de Ramonal is beautifully written and
legible?
 A.   Yes, sir the handwriting shows that she was very
exhausted.
Q.   You just say that she was very exhausted while that in
1978 she was healthy was not sickly and she was agile. Now,
you said she was exhausted?
A.   In writing.
Q.   How did you know that she was exhausted when you
were not present and you just tried to explain yourself out
because of the apparent inconsistencies?
A.   That was I think. (sic).
Q.   Now, you already observed this signature dated 1978, the
same year as the alleged holographic will. In exhibit I, you will
notice that there is no retracing; there is no hesitancy and the
signature was written on a fluid movement. . . . And in fact,
the name Eufemia R. Patigas here refers to one of the
petitioners?
A.   Yes, sir.
Q.   You will also notice Mrs. Binanay that it is not only with
the questioned signature appearing in the alleged holographic
will marked as Exhibit X but in the handwriting themselves,
here you will notice the hesitancy and tremors, do you notice
that?
A.   Yes, sir.21
Evangeline Calugay declared that the holographic will was written,
dated and signed in the handwriting of the testator. She testified that:
Q.   You testified that you stayed with the house of the spouses
Matilde and Justo Ramonal for the period of 22 years. Could
you tell the court the services if any which you rendered to
Matilde Ramonal?
A.   During my stay I used to go with her to the church, to
market and then to her transactions.
Q.   What else? What services that you rendered?
A.   After my college days I assisted her in going to the bank,
paying taxes and to her lawyer.
Q.   What was your purpose of going to her lawyer?
A.   I used to be her personal driver.
Q.   In the course of your stay for 22 years did you acquire
familiarity of the handwriting of Matilde Vda de Ramonal?
A.   Yes, sir.
Q.   How come that you acquired familiarity?
A.   Because I lived with her since birth.22
xxx     xxx     xxx
Q.   Now, I am showing to you Exhibit S which is captioned
"tugon" dated Agosto 30, 1978 there is a signature here below
item No. 1, will you tell this court whose signature is this?
A.   Yes, sir, that is her signature.
Q.   Why do you say that is her signature?
A.   I am familiar with her signature.23
So, the only reason that Evangeline can give as to why she was
familiar with the handwriting of the deceased was because she lived
with her since birth. She never declared that she saw the deceased
write a note or sign a document.
The former lawyer of the deceased, Fiscal Waga, testified that:
Q.   Do you know Matilde Vda de Ramonal?
A.   Yes, sir I know her because she is my godmother the
husband is my godfather. Actually I am related to the husband
by consanguinity.
Q.   Can you tell the name of the husband?
A.   The late husband is Justo Ramonal.24
xxx     xxx     xxx
Q.   Can you tell this court whether the spouses Justo Ramonal
and Matilde Ramonal have legitimate children?
A.   As far as I know they have no legitimate children.25
xxx     xxx     xxx
Q.   You said after becoming a lawyer you practice your
profession? Where?
A.   Here in Cagayan de Oro City.
Q.   Do you have services rendered with the deceased Matilde
vda de Ramonal?
A.   I assisted her in terminating the partition, of properties.
Q.   When you said assisted, you acted as her counsel? Any
sort of counsel as in what case is that, Fiscal?
A.   It is about the project partition to terminate the property,
which was under the court before.26
xxx     xxx     xxx
Q.   Appearing in special proceeding no. 427 is the amended
inventory which is marked as exhibit N of the estate of Justo
Ramonal and there appears a signature over the type written
word Matilde vda de Ramonal, whose signature is this?
A.   That is the signature of Matilde Vda de Ramonal.
Q.   Also in exhibit n-3, whose signature is this?
A.   This one here that is the signature of Mrs. Matilde vda de
Ramonal.27
xxx     xxx     xxx
Q.   Aside from attending as counsel in that Special Proceeding
Case No. 427 what were the other assistance wherein you were
rendering professional service to the deceased Matilde Vda de
Ramonal?
A.   I can not remember if I have assisted her in other matters
but if there are documents to show that I have assisted then I
can recall.28
xxx     xxx     xxx
Q.   Now, I am showing to you exhibit S which is titled
"tugon", kindly go over this document, Fiscal Waga and tell
the court whether you are familiar with the handwriting
contained in that document marked as exhibit "S"?
A.   I am not familiar with the handwriting.
Q.   This one, Matilde Vda de Ramonal, whose signature is
this?
A.   I think this signature here it seems to be the signature of
Mrs. Matilde vda de Ramonal.
Q.   Now, in item No. 2 there is that signature here of Matilde
Vda de Ramonal, can you tell the court whose signature is
this?
 A.   Well, that is similar to that signature appearing in the
project of partition.
Q.   Also in item no. 3 there is that signature Matilde Vda de
Ramonal, can you tell the court whose signature is that?
A.   As I said, this signature also seems to be the signature of
Matilde vda de Ramonal.
Q.   Why do you say that?
A.   Because there is a similarity in the way it is being written.
Q.   How about this signature in item no. 4, can you tell the
court whose signature is this?
A.   The same is true with the signature in item no. 4. It seems
that they are similar.29
xxx     xxx     xxx
Q.   Mr. Prosecutor, I heard you when you said that the
signature of Matilde Vda de Ramonal Appearing in exhibit S
seems to be the signature of Matilde vda de Ramonal?
A.   Yes, it is similar to the project of partition.
Q.   So you are not definite that this is the signature of Matilde
vda de Ramonal. You are merely supposing that it seems to be
her signature because it is similar to the signature of the
project of partition which you have made?
A.   That is true.30
From the testimonies of these witnesses, the Court of Appeals allowed
the will to probate and disregard the requirement of three witnesses
in case of contested holographic will, citing the decision in Azaola
vs. Singson,31ruling that the requirement is merely directory and not
mandatory.
In the case of Ajero vs. Court of Appeals,32 we said that "the object of the
solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity. Therefore, the
laws on this subject should be interpreted in such a way as to attain
these primordial ends. But on the other hand, also one must not lose
sight of the fact that it is not the object of the law to restrain and
curtail the exercise of the right to make a will.
However, we cannot eliminate the possibility of a false document
being adjudged as the will of the testator, which is why if the
holographic will is contested, that law requires three witnesses to
declare that the will was in the handwriting of the deceased.
The will was found not in the personal belongings of the deceased but
with one of the respondents, who kept it even before the death of the
deceased. In the testimony of Ms. Binanay, she revealed that the will
was in her possession as early as 1985, or five years before the death
of the deceased.
There was no opportunity for an expert to compare the signature and
the handwriting of the deceased with other documents signed and
executed by her during her lifetime. The only chance at comparison
was during the cross-examination of Ms. Binanay when the lawyer of
petitioners asked Ms. Binanay to compare the documents which
contained the signature of the deceased with that of the holographic
will and she is not a handwriting expert. Even the former lawyer of
the deceased expressed doubts as to the authenticity of the signature
in the holographic will.
A visual examination of the holographic will convince us that the
strokes are different when compared with other documents written
by the testator. The signature of the testator in some of the disposition
is not readable. There were uneven strokes, retracing and erasures on
the will.
Comparing the signature in the holographic will dated August 30,
1978,33 and the signatures in several documents such as the
application letter for pasture permit dated December 30, 1980,34 and a
letter dated June 16, 1978,35the strokes are different. In the letters,
there are continuous flows of the strokes, evidencing that there is no
hesitation in writing unlike that of the holographic will. We, therefore,
cannot be certain that ruling holographic will was in the handwriting
by the deceased.

IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The

records are ordered remanded to the court of origin with instructions
to allow petitioners to adduce evidence in support of their opposition
to the probate of the holographic will of the deceased Matilde Seño
vda. de Ramonal.1âwphi1.nêt

No costs.

SO ORDERED.

Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. Nos. 75005-06 February 15, 1990
JOSE RIVERA petitioner,  probate. 3
vs.
INTERMEDIATE APPELLATE COURT and ADELAIDO J.
RIVERA, respondents.
Lorenzo O. Navarro, Jr. for petitioner.
Regalado P. Morales for private respondent.
CRUZ, J.:
Was there only one Venancio Rivera in Mabalacat, Pampanga, or
were there two?
On May 30, 1975, a prominent and wealthy resident of that town
named Venancio Rivera died. On July 28, 1975, Jose Rivera, claiming
to be the only surviving legitimate son of the deceased, filed a petition
for the issuance of letters of administration over Venancio's estate.
Docketed as SP No. 1076, this petition was opposed by Adelaido J.
Rivera, who denied that Jose was the son of the decedent. Adelaido
averred that Venancio was his father and did not die intestate but in
fact left two holographic wills.1
On November 7, 1975, Adelaido J. Rivera filed, also with the Regional
Trial Court of Angeles City, a petition for the probate of the
holographic wills. Docketed as SP No. 1091, this petition was in turn
opposed by Jose Rivera, who reiterated that he was the sole heir of
Venancio's intestate estate. 2
On November 11, 1975, the two cases were consolidated. Adelaido J.
Rivera was later appointed special administrator. After joint trial,
Judge Eliodoro B. Guinto found that Jose Rivera was not the son of
the decedent but of a different Venancio Rivera who was married to
Maria Vital. The Venancio Rivera whose estate was in question was
married to Maria Jocson, by whom he had seven children, including
Adelaido. Jose Rivera had no claim to this estate because the decedent
was not his father. The holographic wills were also admitted to
On appeal, the decision of the trial court was affirmed by the then
Intermediate Appellate Court. 4 Its decision is now the subject of this
petition, which urges the reversal of the respondent court.
In support of his claim that he was the sole heir of the late Venancio
Rivera, Jose sought to show that the said person was married in 1928
to Maria Vital, who was his mother. He submitted for this purpose
Exhibit A, the marriage certificate of the couple, and Exhibit B, his
own baptismal certificate where the couple was indicated as his
parents. The petitioner also presented Domingo Santos, who testified
that Jose was indeed the son of the couple and that he saw Venancio
and Jose together several times. 5 Jose himself stressed that Adelaido
considered him a half-brother and kissed his hand as a sign of respect
whenever they met. He insisted that Adelaido and his brothers and
sisters were illegitimate children, sired by Venancio with Maria
Jocson. 6
Adelaido, for his part, maintained that he and his brothers and sisters
were born to Venancio Rivera and Maria Jocson, who were legally
married and lived as such for many years. He explained that he could
not present his parents' marriage certificate because the record of
marriages for 1942 in Mabalacat were destroyed when the town was
burned during the war, as certified by Exhibit 6. 7 He also submitted
his own birth certificate and those of his sisters Zenaida and Yolanda
Rivera, who were each described therein as the legimitate children of
Venancio Rivera and Maria Jocson. 8 Atty. Regalado P. Morales, then
71 years of age, affirmed that he knew the deceased and his parents,
Magno Rivera and Gertrudes de los Reyes, and it was during the
Japanese occupation that Venancio introduced to him Maria Jocson as
his wife. 9 To prove that there were in fact two persons by the same
name of Venancio Rivera, Adelaido offered Venancio Rivera's
baptismal certificate showing that his parents were Magno Rivera and
Gertrudes de los Reyes, 10 as contrasted with the marriage certificate
submitted by Jose, which indicated that the Venancio Rivera subject
thereof was the son of Florencio Rivera and Estrudez Reyes. 11 He also
denied kissing Jose's hand or recognizing him as a brother. 12
We find in favor of Adelaido J. Rivera.
It is true that Adelaido could not present his parents' marriage
certificate because, as he explained it, the marriage records for 1942 in
the Mabalacat civil registry were burned during the war. Even so, he
could still rely on the presumption of marriage, since it is not denied
that Venancio Rivera and Maria Jocson lived together as husband and
wife for many years, begetting seven children in all during that time.
According to Article 220 of the Civil Code:
In case of doubt, all presumptions favor the solidarity
of the family. Thus every intendment of the law or fact
leans toward the validity of marriage, the
indissolubility of the marriage bonds, the legitimacy of
children, ... .
The Rules of Court, in Rule 131, provides:
SEC. 3. Disputable presumptions. — The following
presumptions are satisfactory if uncontradicted, but
may be contradicted and overcome by other evidence:
xxx xxx xxx
(aa) That a man and woman deporting themselves as
husband and wife have entered into a lawful contract
of marriage.
By contrast, although Jose did present his parents' marriage
certificate, Venancio was described therein as the son of Florencio
Rivera. Presumably, he was not the same Venancio Rivera described
in Exhibit 4, his baptismal certificate, as the son of Magno Rivera.
While we realize that such baptismal certificate is not conclusive
evidence of Venancio's filiation (which is not the issue here) it may
nonetheless be considered to determine his real identity. Jose insists
that Magno and Florencio are one and the same person, arguing that
it is not uncommon for a person to be called by different names. The
Court is not convinced. There is no evidence that Venancio's father
was called either Magno or Florencio. What is more likely is that two
or more persons may live at the same time and bear the same name,
even in the same community. That is what the courts below found in
the cases at bar.
What this Court considers particularly intriguing is why, if it is true
that he was the legitimate son of Venancio Rivera, Jose did not assert
his right as such when his father was still alive. By his own account,
Jose supported himself — and presumably also his mother Maria
Vital — as a gasoline attendant and driver for many years. All the
time, his father was residing in the same town — and obviously
prospering — and available for support. His alleged father was
openly living with another woman and raising another family, but
this was apparently accepted by Jose without protest, taking no step
whatsoever to invoke his status. If, as he insists, he and Venancio
Rivera were on cordial terms, there is no reason why the father did
not help the son and instead left Jose to fend for himself as a humble
worker while his other children by Maria Jocson enjoyed a
comfortable life. Such paternal discrimination is difficult to
understand, especially if it is considered — assuming the claims to be
true — that Jose was the oldest and, by his own account, the only
legitimate child of Venancio Rivera.
And there is also Maria Vital, whose attitude is no less
incomprehensible. As Venancio's legitimate wife — if indeed she was
— she should have objected when her husband abandoned her and
founded another family by another woman, and in the same town at
that. Seeing that the children of Maria Jocson were being raised well
while her own son Jose was practically ignored and neglected, she
nevertheless did not demand for him at least support, if not better
treatment, from his legitimate father. It is unnatural for a lawful wife
to say nothing if she is deserted in favor of another woman and for a
caring mother not to protect her son's interests from his wayward
father's neglect. The fact is that this forsaken wife never demanded
support from her wealthy if errant husband. She did not file a
complaint for bigamy or concubinage against Venancio Rivera and
Maria Jocson, the alleged partners in crime and sin. Maria Vital was
completely passive and complaisant.
Significantly, as noted by the respondent court, Maria Vital was not
even presented at the trial to support her son's allegations that she
was the decedent's lawful wife. Jose says this was not done because
she was already old and bedridden then. But there was no
impediment to the taking of her deposition in her own house. No
effort was made toward this end although her testimony was vital to
the petitioner's cause. Jose dismisses such testimony as merely
"cumulative," but this Court does not agree. Having alleged that
Maria Jocson's marriage to Venancio Rivera was null and void, Jose
had the burden of proving that serious allegation.
We find from the evidence of record that the respondent court did not
err in holding that the Venancio Rivera who married Maria Jocson in
1942 was not the same person who married Maria Vital, Jose's
legitimate mother, in 1928. Jose belonged to a humbler family which
had no relation whatsoever with the family of Venancio Rivera and
Maria Vital. This was more prosperous and prominent. Except for the
curious Identity of names of the head of each, there is no evidence
linking the two families or showing that the deceased Venancio
Rivera was the head of both.
Now for the holographic wills. The respondent court considered them
valid because it found them to have been written, dated and signed
by the testator himself in accordance with Article 810 of the Civil
Code. It also held there was no necessity of presenting the three
witnesses required under Article 811 because the authenticity of the
wills had not been questioned.
claimed that they were spurious. Consequently, it may be argued, the
respondent court should have applied Article 811 of the Civil Code,
providing as follows:
In the probate of a holographic will, it shall be
necessary that at least one witness who knows the
handwriting and signature of the testator explicitly
declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at
least three of such witnesses shall be required.
The flaw in this argument is that, as we have already determined, Jose
Rivera is not the son of the deceased Venancio Rivera whose estate is
in question. Hence, being a mere stranger, he had no personality to
contest the wills and his opposition thereto did not have the legal
effect of requiring the three witnesses. The testimony of Zenaida and
Venancio Rivera, Jr., who authenticated the wills as having been
written and signed by their father, was sufficient.
WHEREFORE, the petition is DENIED and the challenged decision is
AFFIRMED, with costs against the petitioner.
SO ORDERED.
Narvasa (Chairman), Gancayco, Griño-Aquino and Medialdea, JJ., concur.

The existence and therefore also the authenticity of the holographic

wills were questioned by Jose Rivera. In his own petition in SP No.
1076, he declared that Venancio Rivera died intestate; and in SP No.
1091, he denied the existence of the holographic wills presented by
Adelaido Rivera for probate. In both proceedings, Jose Rivera
opposed the holographic wills submitted by Adelaido Rivera and
 Republic of the Philippines Gan .........................................................
SUPREME COURT
Manila Rosario E. 2 Bahagi
Gan .........................................................
EN BANC Filomena 1 Bahagi
Alto ..........................................................
G.R. No. L-12190             August 30, 1958
Beatriz 1 Bahagi
Alto ..............................................................
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP
deceased. FAUSTO E. GAN, petitioner-appellant, 
vs. At ang aking lahat ng ibang kayamanan sa Maynila at iba
ILDEFONSO YAP, oppositor-appellee. panglugar ay aking ipinamamana sa aking asawang si
Idelfonso D. Yap sa kondisyong siya'y magpapagawa ng isang
Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant. Health Center na nagkakahalaga ng di kukulangin sa
Arturo M. Tolentino for appellee. halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit
ang aking pangalang Felicidad Esguerra-Alto. At kung ito ay
may kakulangan man ay bahala na ang aking asawa ang
BENGZON, J.:
magpuno upang matupad ang aking kagustuhan.
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart
failure in the University of Santo Tomas Hospital, leaving properties (Lagda) Felicidad E. Alto-Yap.
in Pulilan, Bulacan, and in the City of Manila.

On March 17, 1952, Fausto E. Gan initiated them proceedings in the
Manila court of first instance with a petition for the probate of a
holographic will allegedly executed by the deceased, substantially in
these words:
Nobyembre 5, 1951.
Opposing the petition, her surviving husband Ildefonso Yap asserted
that the deceased had not left any will, nor executed any testament
during her lifetime.
After hearing the parties and considering their evidence, the Hon.
Ramon R. San Jose, Judge,1 refused to probate the alleged will. A
seventy-page motion for reconsideration failed. Hence this appeal.

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-
iisip, ay nagsasalaysay na ang aking kayamanan sa bayan ng
Pulilan, Bulacan ay aking ipinamamana sa aking mga kamag-
anakang sumusunod:
Vicente Esguerra,
Sr. .............................................
Fausto E.
The will itself was not presented. Petitioner tried to establish its
contents and due execution by the statements in open court of Felina
Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez,
whose testimonies may be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra
5 Bahagi mentioned to her first cousin, Vicente Esguerra, her desire to make a
will. She confided however that it would be useless if her husband
2 Bahagi discovered or knew about it. Vicente consulted with Fausto E. Gan,
nephew of Felicidad, who was then preparing for the bar
examinations. The latter replied it could be done without any witness,
provided the document was entirely in her handwriting, signed and
dated by her. Vicente Esguerra lost no time in transmitting the
information, and on the strength of it, in the morning of November 5,
1951, in her residence at Juan Luna Street, Manila, Felicidad wrote,
signed and dated a holographic will substantially of the tenor above
transcribed, in the presence of her niece, Felina Esguerra (daughter of
Vicente), who was invited to read it. In the afternoon of that day,
Felicidad was visited by a distant relative, Primitivo Reyes, and she
allowed him to read the will in the presence of Felina Esguerra, who
again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and
Rosario Gan Jimenez, a niece. To these she showed the will, again in
the presence of Felina Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T.
Hospital for her last illness, she entrusted the said will, which was
contained in a purse, to Felina Esguerra. But a few hours later,
Ildefonso Yap, her husband, asked Felina for the purse: and being
afraid of him by reason of his well-known violent temper, she
delivered it to him. Thereafter, in the same day, Ildefonso Yap
returned the purse to Felina, only to demand it the next day shortly
before the death of Felicidad. Again, Felina handed it to him but not
before she had taken the purse to the toilet, opened it and read the
will for the last time.2
From the oppositor's proof it appears that Felicidad Esguerra had
been suffering from heart disease for several years before her death;
that she had been treated by prominent physicians, Dr. Agerico Sison,
Dr. Agustin Liboro and others; that in May 1950 husband and wife
journeyed to the United States wherein for several weeks she was
treated for the disease; that thereafter she felt well and after visiting
interesting places, the couple returned to this country in August 1950.
However, her ailment recurred, she suffered several attacks, the most
serious of which happened in the early morning of the first Monday
of November 1951 (Nov. 5). The whole household was surprised and
alarmed, even the teachers of the Harvardian Colleges occupying the
lower floors and of by the Yap spouses. Physician's help was
hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found
the patient hardly breathing, lying in bed, her head held high by her
husband. Injections and oxygen were administered. Following the
doctor's advice the patient stayed in bed, and did nothing the whole
day, her husband and her personal attendant, Mrs. Bantique,
constantly at her side. These two persons swore that Mrs. Felicidad
Esguerra Yap made no will, and could have made no will on that day.
The trial judge refused to credit the petitioner's evidence for several
reasons, the most important of which were these: (a) if according to
his evidence, the decedent wanted to keep her will a secret, so that her
husband would not know it, it is strange she executed it in the
presence of Felina Esguerra, knowing as she did that witnesses were
unnecessary; (b) in the absence of a showing that Felina was a
confidant of the decedent it is hard to believe that the latter would
have allowed the former to see and read the will several times; (c) it is
improbable that the decedent would have permitted Primitivo Reyes,
Rosario Gan Jimenez and Socorro Olarte to read her will, when she
precisely wanted its contents to remain a secret during her lifetime;
(d) it is also improbable that her purpose being to conceal the will
from her husband she would carry it around, even to the hospital, in
her purse which could for one reason or another be opened by her
husband; (e) if it is true that the husband demanded the purse from
Felina in the U.S.T. Hospital and that the will was there, it is hard to
believe that he returned it without destroying the will, the theory of
the petitioner being precisely that the will was executed behind his
back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the
oppositor's evidence that Felicidad did not and could not have
executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the
testimony of the oppositor and of his witnesses in a vigorous effort to
discredit them. It appears that the same arguments, or most of them,
were presented in the motion to reconsider; but they failed to induce
the court a quo to change its mind. The oppositor's brief, on the other
hand, aptly answers the criticisms. We deem it unnecessary to go over
the same matters, because in our opinion the case should be decided
not on the weakness of the opposition but on the strength of the
evidence of the petitioner, who has the burden of proof.
The Spanish Civil Code permitted the execution of holographic wills
along with other forms. The Code of Civil Procedure (Act 190)
approved August 7, 1901, adopted only one form, thereby repealing
the other forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its
arts. 810-814. "A person may execute a holographic will which must
be entirely written, dated, and signed by the hand of the testator
himself. It is subject to no other form and may be made in or out of
the Philippines, and need not be witnessed."
This is indeed a radical departure from the form and solemnities
provided for wills under Act 190, which for fifty years (from 1901 to
1950) required wills to be subscribed by the testator and three credible
witnesses in each and every page; such witnesses to attest to the
number of sheets used and to the fact that the testator signed in their
presence and that they signed in the presence of the testator and of
each other.
The object of such requirements it has been said, is to close the door
against bad faith and fraud, to prevent substitution of wills, to
guarantee their truth and authencity (Abangan vs. Abangan, 40 Phil.,
476) and to avoid those who have no right to succeed the testator
would succeed him and be benefited with the probate of same.
(Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal
imperfections may be brushed aside when authenticity of the
instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp.
No. 3 p. 194.)
Authenticity and due execution is the dominant requirements to be
fulfilled when such will is submitted to the courts for allowance. For
that purpose the testimony of one of the subscribing witnesses would
be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the
three must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291;
Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such
witnesses (and of other additional witnesses) the court may form its
opinion as to the genuineness and authenticity of the testament, and
the circumstances its due execution.
Now, in the matter of holographic wills, no such guaranties of truth
and veracity are demanded, since as stated, they need no witnesses;
provided however, that they are "entirely written, dated, and signed
by the hand of the testator himself." The law, it is reasonable to
suppose, regards the document itself  as material proof of authenticity,
and as its own safeguard, since it could at any time, be demonstrated
to be — or not to be — in the hands of the testator himself. "In the
probate of a holographic will" says the New Civil Code, "it shall be
necessary that at least one witness who knows the handwriting and
signature of the testator explicitly declare that the will and the
signature are in the handwriting of the testator. If the will is
contested, at least three such witnesses shall be required. In the
absence of any such witnesses, (familiar with decedent's handwriting)
and if the court deem it necessary, expert testimony may be resorted
to."
The witnesses so presented do not need to have seen the execution of
the holographic will. They may be mistaken in their opinion of the
handwriting, or they may deliberately lie in affirming it is in the
testator's hand. However, the oppositor may present other witnesses
who also know the testator's handwriting, or some expert witnesses,
who after comparing the will with other writings or letters of the
deceased, have come to the conclusion that such will has not been
written by the hand of the deceased. (Sec. 50, Rule 123). And the
court, in view of such contradictory testimony may use its own visual
sense, and decide in the face of the document, whether the will
submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of
opposition, and of assessing the evidence are not available. And then the
only guaranty of authenticity3 — the testator's handwriting — has
disappeared.
Therefore, the question presents itself, may a holographic will be
probated upon the testimony of witnesses who have allegedly seen it and
who declare that it was in the handwriting of the testator? How can
the oppositor prove that such document was not in the testator's
handwriting? His witnesses who know testator's handwriting have
not examined it. His experts can not testify, because there is no way to
compare the alleged testament with other documents admittedly, or
proven to be, in the testator's hand. The oppositor will, therefore, be
caught between the upper millstone of his lack of knowledge of the
will or the form thereof, and the nether millstone of his inability to
prove its falsity. Again the proponent's witnesses may be honest and
truthful; but they may have been shown a faked document, and
having no interest to check the authenticity thereof have taken no
pains to examine and compare. Or they may be perjurers boldly
testifying, in the knowledge that none could convict them of perjury,
because no one could prove that they have not "been shown" a
document which they believed was in the handwriting of the deceased.
Of course, the competency of such perjured witnesses to testify as to
the handwriting could be tested by exhibiting to them other writings
sufficiently similar to those written by the deceased; but what witness
or lawyer would not foresee such a move and prepare for it? His
knowledge of the handwriting established, the witness (or witnesses)
could simply stick to his statement: he has seen and read a document
which he believed was in the deceased's handwriting. And the court
and the oppositor would practically be at the mercy of such witness
(or witnesses) not only as to the execution, but also as to the
contents  of the will. Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof (and
probate) of a lost or destroyed will by secondary — evidence the
testimony of witnesses, in lieu of the original document. Yet such
Rules could not have contemplated holographic wills which could not
then be validly made here. (See also Sec. 46, Rule 123; Art. 830-New
Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the
holographic will is that it may be lost or stolen4 — an implied
admission that such loss or theft renders it useless..
This must be so, because the Civil Code requires it to be protocoled
and presented to the judge, (Art. 689) who shall subscribe it and
require its identity to be established by the three witnesses who
depose that they have no reasonable doubt that the will  was written
by the testator (Art. 691). And if the judge considers that the identity
of the will has been proven he shall order that it be filed (Art. 693). All
these, imply presentation of the will itself. Art. 692 bears the same
implication, to a greater degree. It requires that the surviving spouse
and the legitimate ascendants and descendants be summoned so that
they may make "any statement they may desire to submit with respect
to the authenticity of the will." As it is universally admitted that the
holographic will is usually done by the testator and by himself alone,
to prevent others from knowing either its execution or its contents, the
above article 692 could not have the idea of simply permitting such
relatives to state whether they know of the will, but whether in the
face of the document itself  they think the testator wrote it. Obviously,
this they can't do unless the will itself  is presented to the Court and to
them.
Undoubtedly, the intention of the law is to give the near relatives the
choice of either complying with the will if they think it authentic, or to
oppose it, if they think it spurious.5 Such purpose is frustrated when
the document is not presented for their examination. If it be argued
that such choice is not essential, because anyway the relatives may
oppose, the answer is that their opposition will be at a distinct
disadvantage, and they have the right and privilege to comply with the
will, if genuine, a right which they  should not be denied by
withholding inspection thereof from them.
We find confirmation of these ideas--about exhibition of the
document itself--in the decision of the Supreme Court of Spain of June
5, 1925, which denied protocolization or probate to a document
containing testamentary dispositions in the handwriting of the
deceased, but apparently mutilated, the signature and some words
having been torn from it. Even in the face of allegations and testimonial
evidence (which was controverted), ascribing the mutilation to the
opponents of the will. The aforesaid tribunal declared that, in
accordance with the provision of the Civil Code (Spanish) the will
itself, whole and unmutilated, must be presented; otherwise, it shall
produce no effect.
Considerando que sentado lo anterior, y estableciendose en el
parrafo segundo del articulo 688 del Codigo civil, que para
 que sea valido el testamento olografo debera estar escrito todo
el y firmado por testador, con expression del año, mes y dia en
que se otorque, resulta evidente que para la validez y eficacia
de esos testamentos, no basta la demostracion mas o menos
cumplida de que cuando se otorgaron se Ilenaron todos esos
requisitos, sino que de la expresada redaccion el precepto legal, y por
el tiempo en que el verbo se emplea, se desprende la necesidad de
que el documento se encuentre en dichas condiciones en el
momento de ser presentado a la Autoridad competente, para au
adveracion y protocolizacion; y como consecuencia ineludible
de ello, forzoso es affirmar que el de autos carece de validez y
aficacia, por no estarfirmado por el testador, cualquiera que sea
la causa de la falta de firma, y sin perjuicio de las acciones que
puedan ejercitar los perjudicados, bien para pedir
indemnizacion por el perjuicio a la persona culpable, si la
hubiere, o su castigo en via criminal si procediere,
por constituir dicha omision un defecto insubsanable . . . .
This holding aligns with the ideas on holographic wills in the Fuero
Juzgo, admittedly the basis of the Spanish Civil Code provisions on
the matter.6
PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo
V, ley 15--E depues que los herederos e sus fijos ovieren esta
manda, fasta ... annos muestrenla al obispo de la tierra, o al
juez fasta VI meses y el obispo o el juez tomen otros tales tres
escritos, que fuesen fechos por su mano daquel que fizo la
manda; e por aquellos escriptos, si semjara la letra de la
manda, sea confirmada la manda. E depues que todo esto
fuere connoscido, el obispo o el juez, o otras testimonios
confirmen el escripto de la manda otra vez, y en esta manera
vala la manda. (Art. 689, Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be compared with
specimens of the testators handwriting.)
All of which can only mean: the courts will not distribute the property
of the deceased in accordance with his holographic will, unless they
are shown his handwriting and signature.7
Parenthetically, it may be added that even the French Civil Law
considers the loss of the holographic will to be fatal. (Planiol y Ripert,
Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page
555).
Taking all the above circumstances together, we reach the conclusion
that the execution and the contents of a lost or destroyed holographic
will may not be proved by the bare testimony of witnesses who have
seen and/or read such will.8
Under the provisions of Art. 838 of the New Civil Code, we are
empowered to adopt this opinion as a Rule of Court for the allowance
of such holographic wills. We hesitate, however, to make this Rule
decisive of this controversy, simultaneously with its promulgation.
Anyway, decision of the appeal may rest on the sufficiency, rather the
insufficiency, of the evidence presented by petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to
explain why, unlike holographic wills, ordinary wills may be proved
by testimonial evidence when lost or destroyed. The difference lies in
the nature of the wills. In the first, the only guarantee of authenticity
is the handwriting itself; in the second, the testimony of the
subscribing or instrumental witnesses (and of the notary, now). The
loss of the holographic will entails the loss of the only medium of
proof; if the ordinary will is lost, the subscribing witnesses are
available to authenticate.
In the case of ordinary wills, it is quite hard to convince three
witnesses (four with the notary) deliberately to lie. And then their lies
could be checked and exposed, their whereabouts and acts on the
particular day, the likelihood that they would be called by the
testator, their intimacy with the testator, etc. And if they were
intimates or trusted friends of the testator they are not likely to end
themselves to any fraudulent scheme to distort his wishes. Last but
not least, they can not receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were
admissible9 only one man could engineer the fraud this way: after
making a clever or passable imitation of the handwriting and
signature of the deceased, he may contrive to let three honest and
credible witnesses see and read the forgery; and the latter, having no
interest, could easily fall for it, and in court they would in all good
faith affirm its genuineness and authenticity. The will having been
lost — the forger may have purposely destroyed it in an "accident" —
the oppositors have no way to expose the trick and the error, because
the document itself is not at hand. And considering that the
holographic will may consist of two or three pages, and only one of
them need be signed, the substitution of the unsigned pages, which
may be the most important ones, may go undetected.
that it fails to measure up to that "clear and distinct" proof required by
Rule 77, sec. 6.11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.
Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion,
Reyes, J. B. L., Endencia and Felix, JJ.,concur.

If testimonial evidence of holographic wills be permitted, one more

objectionable feature — feasibility of forgery — would be added to
the several objections to this kind of wills listed by Castan, Sanchez
Roman and Valverde and other well-known Spanish Commentators
and teachers of Civil Law.10

One more fundamental difference: in the case of a lost will, the three
subscribing witnesses would be testifying to a fact which they saw,
namely the act of the testator of subscribing the will; whereas in the
case of a lost holographic will, the witnesses would testify as to their
opinion  of the handwriting which they allegedly saw, an opinion
which can not be tested in court, nor directly contradicted by the
oppositors, because the handwriting itself is not at hand.

Turning now to the evidence presented by the petitioner, we find

ourselves sharing the trial judge's disbelief. In addition to the dubious
circumstances described in the appealed decision, we find it hard to
believe that the deceased should show her will precisely to relatives
who had received nothing from it: Socorro Olarte and Primitivo
Reyes. These could pester her into amending her will to give them a
share, or threaten to reveal its execution to her husband Ildefonso
Yap. And this leads to another point: if she wanted so much to
conceal the will from her husband, why did she not entrust it to her
beneficiaries? Opportunity to do so was not lacking: for instance, her
husband's trip to Davao, a few days after the alleged execution of the
will.

In fine, even if oral testimony were admissible to establish and

probate a lost holographic will, we think the evidence submitted by
herein petitioner is so tainted with improbabilities and inconsistencies
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE WILL
OF RICARDO B. BONILLA deceased, MARCELA
RODELAS, petitioner-appellant,  (3) The alleged hollographic will itself,and not an
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY.
LORENZO SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.
RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for
final determination pursuant to Section 3, Rule 50 of the Rules of
Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with
the Court of First Instance of Rizal for the probate of
the holographic will of Ricardo B. Bonilla and the
issuance of letters testamentary in her favor. The
petition, docketed as Sp. Proc. No. 8432, was opposed
by the appellees Amparo Aranza Bonilla, Wilferine
Bonilla Treyes Expedita Bonilla Frias and Ephraim
Bonilla on the following grounds:
(1) Appellant was estopped from claiming that the
deceased left a will by failing to produce the will
within twenty days of the death of the testator as
required by Rule 75, section 2 of the Rules of Court;
(2) The alleged copy of the alleged holographic will did
not contain a disposition of property after death and
was not intended to take effect after death, and
therefore it was not a will
alleged copy thereof, must be produced, otherwise it
would produce no effect, as held in Gam v. Yap, 104
Phil. 509; and
(4 ) The deceased did not leave any will, holographic or
otherwise, executed and attested as required by law.
The appellees likewise moved for the consolidation of
the case with another case Sp. Proc. No, 8275). Their
motion was granted by the court in an order dated
April 4, 1977.
On November 13, 1978, following the consolidation of
the cases, the appellees moved again to dismiss the
petition for the probate of the will. They argued that:
(1) The alleged holographic was not a last will but
merely an instruction as to the management and
improvement of the schools and colleges founded by
decedent Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be
proved by secondary evidence unlike ordinary wills.
Upon opposition of the appellant, the motion to
dismiss was denied by the court in its order of
February 23, 1979.
 The appellees then filed a motion for reconsideration
on the ground that the order was contrary to law and
settled pronouncements and rulings of the Supreme
Court, to which the appellant in turn filed an
opposition. On July 23, 1979, the court set aside its
order of February 23, 1979 and dismissed the petition
for the probate of the will of Ricardo B. Bonilla. The
court said:
... It is our considered opinion that once the original
copy of the holographic will is lost, a copy thereof
cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the
Supreme Court held that 'in the matter of holographic
wills the law, it is reasonable to suppose, regards the
document itself as the material proof of authenticity of
said wills.
MOREOVER, this Court notes that the alleged
holographic will was executed on January 25, 1962
while Ricardo B. Bonilla died on May 13, 1976. In view
of the lapse of more than 14 years from the time of the
execution of the will to the death of the decedent, the
fact that the original of the will could not be located
shows to our mind that the decedent had discarded
before his death his allegedly missing Holographic
Will.
Appellant's motion for reconsideration was denied. Hence, an appeal
to the Court of Appeals in which it is contended that the dismissal of
appellant's petition is contrary to law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on
the ground that the appeal does not involve question of fact and
alleged that the trial court committed the following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT
A LOST HOLOGRAPHIC WILL MAY NOT BE
PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT
THE DECEDENT HAS DISCARDED BEFORE HIS
DEATH THE MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING
APPELLANT'S WILL.
The only question here is whether a holographic will which was lost
or cannot be found can be proved by means of a photostatic copy.
Pursuant to Article 811 of the Civil Code, probate of holographic wills
is the allowance of the will by the court after its due execution has
been proved. The probate may be uncontested or not. If uncontested,
at least one Identifying witness is required and, if no witness is
available, experts may be resorted to. If contested, at least three
Identifying witnesses are required. However, if the holographic will
has been lost or destroyed and no other copy is available, the will can
not be probated because the best and only evidence is the
handwriting of the testator in said will. It is necessary that there be a
comparison between sample handwritten statements of the testator
and the handwritten will. But, a photostatic copy or xerox copy of the
holographic will may be allowed because comparison can be made
with the standard writings of the testator. In the case of Gam vs. Yap,
104 PHIL. 509, the Court ruled that "the execution and the contents of
a lost or destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will. The will
itself must be presented; otherwise, it shall produce no effect. The law
regards the document itself as material proof of authenticity." But, in
Footnote 8 of said decision, it says that "Perhaps it may be proved by
a photographic or photostatic copy. Even a mimeographed or carbon
copy; or by other similar means, if any, whereby the authenticity of
the handwriting of the deceased may be exhibited and tested before
the probate court," Evidently, the photostatic or xerox copy of the lost
or destroyed holographic will may be admitted because then the
authenticity of the handwriting of the deceased can be determined by
the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979,
denying appellant's motion for reconsideration dated August 9, 1979,
of the Order dated July 23, 1979, dismissing her petition to approve
the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.

Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr.,

JJ., concur.
 Republic of the Philippines 1. It is my will that I'll be burried in the cemetery of the catholic
SUPREME COURT church of Lipa City. In accordance with the rights of said Church, and
Manila that my executrix hereinafter named provide and erect at the expose
of my state a suitable monument to perpetuate my memory.
FIRST DIVISION
xxx xxx xxx
G.R. No. L-40207 September 28, 1984
The holographic Will, as first written, named ROSA K. Kalaw, a sister
ROSA K. KALAW, petitioner,  of the testatrix as her sole heir. Hence, on November 10, 1971,
vs. petitioner ROSA K. Kalaw opposed probate alleging, in substance,
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of that the holographic Will contained alterations, corrections, and
Batangas, Branch VI, Lipa City, and GREGORIO K. insertions without the proper authentication by the full signature of
KALAW, respondents. the testatrix as required by Article 814 of the Civil Code reading:

Leandro H. Fernandez for petitioner. Art. 814. In case of any insertion, cancellation, erasure
or alteration in a holographic will the testator must
Antonio Quintos and Jose M. Yacat for respondents. authenticate the same by his full signature.

ROSA's position was that the holographic Will, as first written, should
be given effect and probated so that she could be the sole heir
MELENCIO-HERRERA, J.: thereunder.

On September 1, 1971, private respondent GREGORIO K. KALAW,
claiming to be the sole heir of his deceased sister, Natividad K. Kalaw,
filed a petition before the Court of First Instance of Batangas, Branch
VI, Lipa City, for the probate of her holographic Will executed on
December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of
Lipa City, being of sound and disposing mind and memory, do
hereby declare thus to be my last will and testament.
After trial, respondent Judge denied probate in an Order, dated
September 3, 197 3, reading in part:
The document Exhibit "C" was submitted to the
National Bureau of Investigation for examination. The
NBI reported that the handwriting, the signature, the
insertions and/or additions and the initial were made
by one and the same person. Consequently, Exhibit "C"
was the handwriting of the decedent, Natividad K.
Kalaw. The only question is whether the win, Exhibit
'C', should be admitted to probate although the
alterations and/or insertions or additions above-
mentioned were not authenticated by the full signature
of the testatrix pursuant to Art. 814 of the Civil Code.
The petitioner contends that the oppositors are
estopped to assert the provision of Art. 814 on the
ground that they themselves agreed thru their counsel
 to submit the Document to the NBI FOR
EXAMINATIONS. This is untenable. The parties did
not agree, nor was it impliedly understood, that the
oppositors would be in estoppel.
The Court finds, therefore, that the provision of Article
814 of the Civil Code is applicable to Exhibit "C".
Finding the insertions, alterations and/or additions in
Exhibit "C" not to be authenticated by the full signature
of the testatrix Natividad K. Kalaw, the Court will
deny the admission to probate of Exhibit "C".
WHEREFORE, the petition to probate Exhibit "C" as
the holographic will of Natividad K. Kalaw is hereby
denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing that
since the alterations and/or insertions were the testatrix, the denial to
probate of her holographic Will would be contrary to her right of
testamentary disposition. Reconsideration was denied in an Order,
dated November 2, 1973, on the ground that "Article 814 of the Civil
Code being , clear and explicit, (it) requires no necessity for
interpretation."
From that Order, dated September 3, 1973, denying probate, and the
Order dated November 2, 1973 denying reconsideration, ROSA filed
this Petition for Review on certiorari on the sole legal question of
whether or not the original unaltered text after subsequent alterations
and insertions were voided by the Trial Court for lack of
authentication by the full signature of the testatrix, should be
probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations
made by the testator in a holographic Will litem not been noted under
his signature, ... the Will is not thereby invalidated as a whole, but at
most only as respects the particular words erased, corrected or
interlined.1 Manresa gave an Identical commentary when he said "la
omision de la salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril de 1895." 2
However, when as in this case, the holographic Will in dispute had
only one substantial provision, which was altered by substituting the
original heir with another, but which alteration did not carry the
requisite of full authentication by the full signature of the testator, the
effect must be that the entire Will is voided or revoked for the simple
reason that nothing remains in the Will after that which could remain
valid. To state that the Will as first written should be given efficacy is
to disregard the seeming change of mind of the testatrix. But that
change of mind can neither be given effect because she failed to
authenticate it in the manner required by law by affixing her full
signature,
The ruling in Velasco, supra,  must be held confined to such insertions,
cancellations, erasures or alterations in a holographic Will, which
affect only the efficacy of the altered words themselves but not the
essence and validity of the Will itself. As it is, with the erasures,
cancellations and alterations made by the testatrix herein, her real
intention cannot be determined with certitude. As Manresa had stated
in his commentary on Article 688 of the Spanish Civil Code, whence
Article 814 of the new Civil Code was derived:
... No infringe lo dispuesto en este articulo del Codigo
(el 688) la sentencia que no declara la nulidad de un
testamento olografo que contenga palabras tachadas,
enmendadas o entre renglones no salvadas por el
testador bajo su firnia segun previene el parrafo tercero
del mismo, porque, en realidad, tal omision solo puede
afectar a la validez o eficacia de tales palabras, y nunca al
testamento mismo, ya por estar esa disposicion en
parrafo aparte de aquel que determine las condiciones
necesarias para la validez del testamento olografo, ya
porque, de admitir lo contrario, se Ilegaria al absurdo
de que pequefias enmiendas no salvadas, que en nada
afectasen a la parte esencial y respectiva del
testamento, vinieran a anular este, y ya porque el
precepto contenido en dicho parrafo ha de entenderse
en perfecta armonia y congruencia con el art. 26 de la
 ley del Notariado que declara nulas las adiciones
apostillas entrerrenglonados, raspaduras y tachados en
las escrituras matrices, siempre que no se salven en la
forma prevenida, paro no el documento que las
contenga, y con mayor motivo cuando las palabras
enmendadas, tachadas, o entrerrenglonadas no tengan
importancia ni susciten duda alguna acerca del pensamiento
del testador, o constituyan meros accidentes de
ortografia o de purez escrituraria, sin trascendencia
alguna(l).
Mas para que sea aplicable la doctrina de excepcion
contenida en este ultimo fallo,  es preciso que las
tachaduras, enmiendas o entrerrenglonados sin salvar saan
de pala bras que no afecter4 alteren ni uarien de modo
substancial la express voluntad del testador manifiesta en el
documento. Asi lo advierte la sentencia de 29 de
Noviembre de 1916, que declara nulo un testamento
olografo por no estar salvada por el testador la
enmienda del guarismo ultimo del año en que fue
extendido3(Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of
respondent Judge, dated September 3, 1973, is hereby affirmed in toto.
No costs.
SO ORDERED.
Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.
Relova, J., took no part.
 
 
Separate Opinions
 
TEEHANKEE, J., concurring:
I concur. Rosa, having appealed to this Court on a sole question of
law, is bound by the trial court's factual finding that the peculiar
alterations in the holographic will crossing out Rosa's name and
instead inserting her brother Gregorio's name as sole heir and "sole
executrix" were made by the testatrix in her own handwriting. (I find
it peculiar that the testatrix who was obviously an educated person
would unthinkingly make such crude alterations instead of consulting
her lawyer and writing an entirely new holographic wig in order to
avoid any doubts as to her change of heir. It should be noted that the
first alteration crossing out "sister Rosa K. Kalaw" and inserting
"brother Gregorio Kalaw" as sole heir is not even initialed by the
testatrix. Only the second alteration crossing out "sister Rosa K.
Kalaw" and inserting "brother Gregorio Kalaw" as "sole executrix" is
initialed.) Probate of the radically altered will replacing Gregorio for
Rosa as sole heir is properly denied, since the same was not duly
authenticated by the full signature of the executrix as mandatorily
required by Article 814 of the Civil Code. The original unaltered will
naming Rosa as sole heir cannot, however, be given effect in view of
the trial court's factual finding that the testatrix had by her own
handwriting substituted Gregorio for Rosa, so that there is no longer
any will naming Rosa as sole heir. The net result is that the testatrix
left no valid will and both Rosa and Gregorio as her next of kill
succeed to her intestate estate.
 
 
Separate Opinions
TEEHANKEE, J., concurring:
I concur. Rosa, having appealed to this Court on a sole question of
law, is bound by the trial court's factual finding that the peculiar
alterations in the holographic will crossing out Rosa's name and
instead inserting her brother Gregorio's name as sole heir and "sole
executrix" were made by the testatrix in her own handwriting. (I find
it peculiar that the testatrix who was obviously an educated person
would unthinkingly make such crude alterations instead of consulting
her lawyer and writing an entirely new holographic wig in order to
avoid any doubts as to her change of heir. It should be noted that the
first alteration crossing out "sister Rosa K. Kalaw" and inserting
"brother Gregorio Kalaw" as sole heir is not even initialed by the
testatrix. Only the second alteration crossing out "sister Rosa K.
Kalaw" and inserting "brother Gregorio Kalaw" as "sole executrix" is
initialed.) Probate of the radically altered will replacing Gregorio for
Rosa as sole heir is properly denied, since the same was not duly
authenticated by the full signature of the executrix as mandatorily
required by Article 814 of the Civil Code. The original unaltered will
naming Rosa as sole heir cannot, however, be given effect in view of
the trial court's factual finding that the testatrix had by her own
handwriting substituted Gregorio for Rosa, so that there is no longer
any will naming Rosa as sole heir. The net result is that the testatrix
left no valid will and both Rosa and Gregorio as her next of kill
succeed to her intestate estate.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
 
G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA AJERO, petitioners,  the testament's body nor the signature therein was in decedent's
vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.
PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of  Considering then that the probate proceedings herein
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the
dispositive portion of which reads;
PREMISES CONSIDERED, the questioned decision of
November 19, 1988 of the trial court is hereby
REVERSED and SET ASIDE, and the petition for
probate is hereby DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon City,
Branch 94, 2 in Sp. Proc. No. Q-37171, and the instrument
submitted for probate is the holographic will of the late Annie
Sand, who died on November 25, 1982.
In the will, decedent named as devisees, the following: petitioners
Roberto and Thelma Ajero, private respondent Clemente Sand,
Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S.
Sand, and Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for
allowance of decedent's holographic will. They alleged that at the
time of its execution, she was of sound and disposing mind, not acting
under duress, fraud or undue influence, and was in every respect
capacitated to dispose of her estate by will.
Private respondent opposed the petition on the grounds that: neither
handwriting; it contained alterations and corrections which were not
duly signed by decedent; and, the will was procured by petitioners
through improper pressure and undue influence. The petition was
likewise opposed by Dr. Jose Ajero. He contested the disposition in
the will of a house and lot located in Cabadbaran, Agusan Del Norte.
He claimed that said property could not be conveyed by decedent in
its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the
decedent's holographic will to probate. It found, inter alia:
must decide only the question of identity of the will, its
due execution and the testamentary capacity of the
testatrix, this probate court finds no reason at all for the
disallowance of the will for its failure to comply with
the formalities prescribed by law nor for lack of
testamentary capacity of the testatrix.
For one, no evidence was presented to show that the
will in question is different from the will actually
executed by the testatrix. The only objections raised by
the oppositors . . . are that the will was not written in
the handwriting of the testatrix which properly refers
to the question of its due execution, and not to the
question of identity of will. No other will was alleged
to have been executed by the testatrix other than the
will herein presented. Hence, in the light of the
evidence adduced, the identity of the will presented for
probate must be accepted, i.e., the will submitted in
Court must be deemed to be the will actually executed
by the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated and
signed in the handwriting of the testatrix has been
disputed, the petitioners, however, have satisfactorily
shown in Court that the holographic will in question
was indeed written entirely, dated and signed in the
handwriting of the testatrix. Three (3) witnesses who
have convincingly shown knowledge of the
handwriting of the testatrix have been presented and
have explicitly and categorically identified the
handwriting with which the holographic will in
question was written to be the genuine handwriting
and signature of the testatrix. Given then the aforesaid
evidence, the requirement of the law that the
holographic will be entirely written, dated and signed
in the handwriting of the testatrix has been complied
with.
xxx xxx xxx
As to the question of the testamentary capacity of the
testratix, (private respondent) Clemente Sand himself
has testified in Court that the testatrix was completely
in her sound mind when he visited her during her
birthday celebration in 1981, at or around which time
the holographic will in question was executed by the
testatrix. To be of sound mind, it is sufficient that the
testatrix, at the time of making the will, knew
the value of the estate to be disposed of, the
proper object  of her bounty, and the characterof the
testamentary act . . . The will itself shows that the
testatrix even had detailed knowledge of the nature of
her estate. She even identified the lot number and
square meters of the lots she had conveyed by will. The
objects of her bounty were likewise identified
explicitly. And considering that she had even written a
nursing book which contained the law and
jurisprudence on will and succession, there is more
than sufficient showing that she knows the character of
the testamentary act.
In this wise, the question of identity of the will, its due
execution and the testamentary capacity of the testatrix
has to be resolved in favor of the allowance of probate
of the will submitted herein.
Likewise, no evidence was presented to show sufficient
reason for the disallowance of herein holographic will.
While it was alleged that the said will was procured by
undue and improper pressure and influence on the
part of the beneficiary or of some other person, the
evidence adduced have not shown any instance where
improper pressure or influence was exerted on the
testatrix. (Private respondent) Clemente Sand has
testified that the testatrix was still alert at the time of
the execution of the will, i.e., at or around the time of
her birth anniversary celebration in 1981. It was also
established that she is a very intelligent person and has
a mind of her own. Her independence of character and
to some extent, her sense of superiority, which has
been testified to in Court, all show the unlikelihood of
her being unduly influenced or improperly pressured
to make the aforesaid will. It must be noted that the
undue influence or improper pressure in question
herein only refer to the making of a will and not as to
the specific testamentary provisions therein which is
the proper subject of another proceeding. Hence, under
the circumstances, this Court cannot find convincing
reason for the disallowance of the will herein.
Considering then that it is a well-established doctrine
in the law on succession that in case of doubt, testate
succession should be preferred over intestate
succession, and the fact that no convincing grounds
 were presented and proven for the disallowance of the
holographic will of the late Annie Sand, the aforesaid
will submitted herein must be admitted to
probate. 3 (Citations omitted.)
On appeal, said Decision was reversed, and the petition for probate of
decedent's will was dismissed. The Court of Appeals found that, "the
holographic will fails to meet the requirements for its validity." 4 It
held that the decedent did not comply with Articles 813 and 814 of the
New Civil Code, which read, as follows:
Art. 813: When a number of dispositions appearing in a
holographic will are signed without being dated, and
the last disposition has a signature and date, such date
validates the dispositions preceding it, whatever be the
time of prior dispositions.
Art. 814: In case of insertion, cancellation, erasure or
alteration in a holographic will, the testator must
authenticate the same by his full signature.
It alluded to certain dispositions in the will which were either
unsigned and undated, or signed but not dated. It also found that the
erasures, alterations and cancellations made thereon had not been
authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall be
disallowed in any of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its execution;
(c) If it was executed under duress, or the influence of
fear, or threats;
These lists are exclusive; no other grounds can serve to disallow a
will. 5 Thus, in a petition to admit a holographic will to probate, the
(d) If it was procured by undue and improper pressure
and influence, on the part of the beneficiary, or of some
other person for his benefit;
(e) If the signature of the testator was procured by
fraud or trick, and he did not intend that the
instrument should be his will at the time of fixing his
signature thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of the
following cases;
(1) If the formalities required by law
have not been complied with;
(2) If the testator was insane, or
otherwise mentally incapable of making
a will, at the time of its execution;
(3) If it was executed through force or
under duress, or the influence of fear, or
threats;
(4) If it was procured by undue and
improper pressure and influence, on the
part of the beneficiary or of some other
person;
(5) If the signature of the testator was
procured by fraud;
(6) If the testator acted by mistake or did
not intend that the instrument he signed
should be his will at the time of affixing
his signature thereto.
only issues to be resolved are: (1) whether the instrument submitted
is, indeed, the decedent's last will and testament; (2) whether said will
was executed in accordance with the formalities prescribed by law; (3)
whether the decedent had the necessary testamentary capacity at the
time the will was executed; and, (4) whether the execution of the will
and its signing were the voluntary acts of the decedent. 6
In the case at bench, respondent court held that the holographic will
of Anne Sand was not executed in accordance with the formalities
prescribed by law. It held that Articles 813 and 814 of the New Civil
Code, ante, were not complied with, hence, it disallowed the probate
of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479
(1919),  that:
The object of the solemnities surrounding the execution
of wills is to close the door against bad faith and fraud,
to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore, the
laws on this subject should be interpreted in such a
way as to attain these primordial ends. But, on the
other hand, also one must not lose sight of the fact that
it is not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an
interpretation already given assures such ends, any
other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless
and frustrative of the testator's last will, must be
disregarded.
For purposes of probating non-holographic wills, these formal
solemnities include the subscription, attestation, and
acknowledgment requirements under Articles 805 and 806 of the New
Civil Code.
In the case of holographic wills, on the other hand, what assures
authenticity is the requirement that they be totally autographic or
handwritten by the testator himself, 7 as provided under Article 810 of
the New Civil Code, thus:
A person may execute a holographic will which must
be entirely written, dated, and signed by the hand of
the testator himself. It is subject to no other form, and
may be made in or out of the Philippines, and need not
be witnessed. (Emphasis supplied.)
Failure to strictly observe other formalities will not result in
the disallowance of a holographic will that is unquestionably
handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its
requirement affects the validity of the dispositions contained in the
holographic will, but not its probate. If the testator fails to sign and
date some of the dispositions, the result is that these
dispositions  cannot be effectuated. Such failure, however, does not
render the whole testament void.
Likewise, a holographic will can still be admitted to probate,
notwithstanding non-compliance with the provisions of Article 814.
In the case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court
held:
Ordinarily, when a number of erasures, corrections,
and interlineations made by the testator in a
holographic Will have not been noted under his
signature, . . . the Will is not thereby invalidated as a
whole, but at most only as respects the particular
words erased, corrected or interlined. Manresa gave an
identical commentary when he said "la omission de la
salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril
de 1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or
insertions were made on the date of the holographic will or on
testator's signature, 9 their presence does not invalidate the will
itself. 10 The lack of authentication will only result in disallowance of
such changes.
It is also proper to note that the requirements of authentication of
changes and signing and dating of dispositions appear in provisions
(Articles 813 and 814) separate from that which provides for the
necessary conditions for the validity of the holographic will (Article
810). The distinction can be traced to Articles 678 and 688 of the
Spanish Civil Code, from which the present provisions covering
holographic wills are taken. They read as follows:
Art. 678: A will is called holographic when the testator
writes it himself in the form and with the requisites
required in Article 688.
Art. 688: Holographic wills may be executed only by
persons of full age.
In order that the will be valid it must be drawn on
stamped paper corresponding to the year of its
execution, written in its entirety by the testator and
signed by him, and must contain a statement of the
year, month and day of its execution.
what the situation constrains them to do, and pass upon certain
provisions of the will. 11 In the case at bench, decedent herself
indubitably stated in her holographic will that the Cabadbaran
property is in the name of her late father, John H. Sand (which led
oppositor Dr. Jose Ajero to question her conveyance of the same in its
entirety). Thus, as correctly held by respondent court, she cannot
validly dispose of the whole property, which she shares with her
father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision
of the Court of Appeals in CA-G.R. CV No. 22840, dated March 30,
1992, is REVERSED and SET ASIDE, except with respect to the
invalidity of the disposition of the entire house and lot in Cabadbaran,
Agusan del Norte. The Decision of the Regional Trial Court of
Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19,
1988, admitting to probate the holographic will of decedent Annie
Sand, is hereby REINSTATED, with the above qualification as regards
the Cabadbaran property. No costs.
SO ORDERED.

If it should contain any erased, corrected, or interlined Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.
words, the testator must identify them over his
signature.

Foreigners may execute holographic wills in their own

language.

This separation and distinction adds support to the interpretation that

only the requirements of Article 810 of the New Civil Code — and not
those found in Articles 813 and 814 of the same Code — are essential
to the probate of a holographic will.

The Court of Appeals further held that decedent Annie Sand could
not validly dispose of the house and lot located in Cabadbaran,
Agusan del Norte, in its entirety. This is correct and must be affirmed.

As a general rule, courts in probate proceedings are limited to pass

only upon the extrinsic validity of the will sought to be probated.
However, in exceptional instances, courts are not powerless to do
 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,  docketed as special proceeding No. 56, in the same court. Again, the
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.
Claro M. Recto and Serafin C. Dizon for appellants.  manner required by law and (3) that the will has been subsequently
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
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
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.1âwphïl.nêt

Paras, C.J. Feria, Pablo Bengzon, Tuason and Jugo JJ., concur.
 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,  intestate proceeding for the settlement of their aunt's estate. The case
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, 1 which 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
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
theexpress 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.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-26317             January 29, 1927
Estate of Miguel Mamuyac, deceased.  said will of April 16, 1919, upon the ground that the same had been
FRANCISCO GAGO, petitioner-appellant,  cancelled and revoked in the year 1920. Judge Teodoro, after
vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA,  been satisfactorily proved:
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
examining the evidence adduced, found that the following facts had
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 with all the formalities and requirements of the law, then the
revoked and cancelled in 1920 before his death; that the said will was duplicate may be admitted in evidence when it is made to appear that
a mere carbon copy and that the oppositors were not estopped from the original has been lost and was not cancelled or destroyed by the
alleging that fact. testator. (Borromeo vs. Casquijo, G.R. No. L-26063.)1

With reference to the said cancellation, it may be stated that there is After a careful examination of the entire record, we are fully
positive proof, not denied, which was accepted by the lower court, persuaded that the will presented for probate had been cancelled by
that will in question had been cancelled in 1920. The law does not the testator in 1920. Therefore the judgment appealed from is hereby
require any evidence of the revocation or cancellation of a will to be affirmed. And without any finding as to costs, it is so ordered.
preserved. It therefore becomes difficult at times to prove the
revocation or cancellation of wills. The fact that such cancellation or Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.
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 Footnotes
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 1
Promulgated December 14, 1926, not reported.
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
 Republic of the Philippines time, the testator, being asked by Dr. Cornelio Mapa about the will,
SUPREME COURT said that it had been destroyed.
Manila
The intention of revoking the will is manifest from the established fact
EN BANC 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
G.R. No. 17714             May 31, 1922 statements to the witnesses Canto and the Mother Superior of the
Hospital where he was confined.
In the mater of the estate of Jesus de Leon. 
IGNACIA DIAZ, petitioner-appellant,  The original will herein presented for probate having been destroyed
vs. with animo revocandi, cannot now be probated as the will and last
ANA DE LEON, opponent-appellee. testament of Jesus de Leon.

Montinola, Montinola & Hontiveros and Jose Lopez Vito for appellant. Judgement is affirmed with costs against the petitioner. So ordered.
Francisco A. Delgado, Powell & Hill and Padilla & Treñas for appellee.
Araullo, C.J., Malcolm, Avanceña, Ostrand and Johns, JJ., concur.
ROMUALDEZ, J.: Villamor, J., took no part.

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 revocandi  constitutes, in itself, a
sufficient revocation. (Sec. 623, Code of Civil Procedure.)lävvphì1·né+

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
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-48840 December 29, 1943
ERNESTO M. GUEVARA, petitioner-appellant,  Ernesto M. Guevara y a mis hijastros, Vivencio, Eduviges, Dionisia,
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
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 dueño 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
 (Leaño vs. Leaño, 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 Leaño vs. Leaño (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 Leaño, 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 Dña. 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 Leaño case, by holding that
an extrajudicial partition is not proper in testate succession. In the
Riosa case the Court, speaking thru Chief Justice Avanceña, 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 Leaño vs. Leaño  (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
183–184).
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 Leaño 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. 877-878).
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.

 
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-20234      December 23, 1964
PAULA DE LA CERNA, ET AL., petitioners,  testadora al propio tiempo segun el Exhibit A de gozar de los
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
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 años
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 CA-G.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,  Case No. 2233 of the Court of First Instance of Sorsogon.
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.
HITOSIS-VILLANUEVA, 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 HITOSIS-PENAFLOR,
GENOVEVA HITOSIS-ADRIATICO, MANUEL HITOSIS, PEDRO
HITOSIS, LIBRATA HITOSIS-BALMES, JUANITA HITOSIS-
GABITO VDA. DE GABAS, MAURA HITOSIS-GABITO VDA. DE
GANOLA and LEONA HITOSIS-GABITO 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
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 dueño 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. Mañalac dismiss the complaint
on the ground of res judicatain 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 re-docketed 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 Mañalac 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, L-29689. 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: Peñalosa 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 void contracts, 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 Dinglecase 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,  Art. III. That I have the following legal heirs, namely:
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:
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
THIRD DIVISION
G.R. No. 175720               September 11, 2007
CRESENCIANA TUBO RODRIGUEZ (now deceased), substituted
by SUSANA A. LLAGAS, Petitioner, 
vs.
EVANGELINE RODRIGUEZ, BELEN RODRIGUEZ and
BUENAVENTURA RODRIGUEZ, Respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari assails the Decision1 of the Court
of Appeals in CA-G.R. SP No. 91442 dated June 27, 2006, which set
aside the Decision of the Regional Trial Court (RTC) of Makati City,
Branch 134, in Civil Case No. 03-517, and reinstated the Decision of
the Metropolitan Trial Court (MTC) of Makati City, Branch 63, in Civil
Case No. 75717, dismissing the complaint for ejectment; as well as the
Resolution denying the motion for reconsideration.
Juanito Rodriguez owned a five-door apartment located at San Jose
Street, Guadalupe Nuevo, Makati City, and covered by TCT No.
144865.2 On October 27, 1983, Juanito executed a "Huling Habilin at
Testamento" giving petitioner Cresenciana Tubo Rodriguez, his live-
in partner, apartments D and E, and his children Benjamin Rodriguez
(the deceased husband of respondent Evangeline Rodriguez),
apartment A, respondent Buenaventura Rodriguez, apartment B, and
respondent Belen Rodriguez, apartment C.3
However, on June 14, 1984, Juanito executed a Deed of Absolute Sale
over the property in favor of petitioner.4Thus, TCT No. 144865 was
cancelled and a new TCT No. 150431 was issued in the name of the
petitioner.5
The case arose when petitioner filed on September 20, 2001 a
complaint for unlawful detainer against the respondents, alleging that
she is the lawful and registered owner of the property; and that in
1984, she allowed respondents Evangeline, Buenaventura and Belen,
out of kindness and tolerance, to personally occupy units A, B and D,
respectively. However, without her knowledge and consent,
respondents separately leased the units to Montano Magpantay, Mel
Navarro and Socorro Escota, who despite repeated demands, failed
and refused to vacate the premises and to pay the rentals thereof. 6
In their Answer, respondents claimed ownership over the subject
property by succession. They alleged that while petitioner is the
registered owner of the property, however, she is not the lawful
owner thereof because the June 14, 1984 Deed of Absolute Sale was
simulated and void. As in Civil Case No. 01-1641 now pending before
the RTC of Makati City, Branch 141, which they filed to assail the
validity of the said sale, respondents maintain that petitioner exerted
undue influence over their father, who at that time was seriously ill,
to agree to the sale of the property for only ₱20,000.00 after knowing
that only two apartments were given to her in the Huling Habilin at
Testamento. Further, she had no cause of action against them for
being a party to the August 23, 1990 Partition Agreement wherein
they recognized each other as co-owners and partitioned the property
in accordance with the provision of the last will and testament. 7
On February 26, 2002, the MTC rendered a judgment in favor of the
respondents and held that the deed of sale was simulated otherwise
petitioner would not have entered into the Partition Agreement,
which legally conferred upon each heir exclusive ownership over
their respective shares, thus:
WHEREFORE, the Complaint is DISMISSED. Plaintiff is ordered to
pay attorney’s fees of ₱10,000.00 and the costs of suit in favor of
defendants.
SO ORDERED.8
On appeal, the RTC reversed the decision of the MTC. It held that
petitioner’s certificate of title is a conclusive evidence of ownership of
the land described therein; and that unless and until said title has
been annulled by a court of competent jurisdiction, such title is
existing and valid. This is true also with respect to the deed of sale.
The present action, which involves only the issue of physical or
material possession, is not the proper action to challenge it. Further,
the MTC erred when it relied heavily on the "Huling Habilin at
Testamento," which was not probated hence has no effect and no right
can be claimed therein. The Partition Agreement which was allegedly
entered into pursuant to the Huling Habilin at Testamento should not
also be considered. Thus:
WHEREFORE, premises considered, the decision rendered by the
Metropolitan Trial Court, Branch 63, Makati City, is hereby ordered
REVERSED AND SET ASIDE. Consequently, judgment is hereby
rendered ordering the defendants and all persons claiming rights
under them to vacate the premises and surrender the possession
thereof to the plaintiff. Defendants are likewise ordered to pay jointly
and severally the plaintiff an amount of ₱5,000.00 a month per unit
beginning 13 August 2001 until they finally vacate the premises and
the costs of this suit.
SO ORDERED.9
Aggrieved, respondents filed a petition for review before the Court of
Appeals which reversed and set aside the decision of the RTC and
reinstated the decision of the MTC. It held that the MTC correctly
received evidence on ownership since the question of possession
could not be resolved without deciding the issue of ownership.
Further, the Huling Habilin at Testamento transmitted ownership of
the specific apartments not only to the respondents but also to the
petitioner; and pursuant thereto, the parties executed the Partition
Agreement in accordance with the wishes of the testator, thus:
WHEREFORE, this Court resolves to REVERSE and SET ASIDE the
Decision of the Regional Trial Court. The decision dated February 26,
2002 of the Metropolitan Trial Court, Branch 63, Makati City in Civil
Case No. 75717 dismissing the complaint for ejectment is hereby
REINSTATED.
SO ORDERED.10
The motion for reconsideration was denied hence, petitioner filed the
present petition for review raising the following errors:
I.
THE COURT OF APPEALS COMMITTED A REVERSIBLE
ERROR OF LAW AND GRAVE ABUSE OF DISCRETION IN
REVERSING AND SETTING ASIDE THE DECISION OF THE
REGIONAL TRIAL COURT AND REINSTATING THE
DECISION OF THE METROPOLITAN TRIAL COURT
DISMISSING PETITIONER’S COMPLAINT FOR
UNLAWFUL DETAINER.
II.
THE COURT OF APPEALS COMMITTED A REVERSIBLE
ERROR OF LAW AND GRAVE ABUSE OF DISCRETION IN
DECLARING THAT THE PROPERTY, A PARCEL OF LAND
UPON WHICH A FIVE-UNIT APARTMENT STANDS,
BECAME THE SUBJECT OF JUANITO RODRIGUEZ’S
HULING HABILIN AT TESTAMENTO WHEREIN THE
PROPERTY WAS DISTRIBUTED TO HIS HEIRS (HEREIN
RESPONDENTS) INCLUDING THE RESPONDENT
(PETITIONER HEREIN).11
Petitioner alleges that as the registered owner of the subject property,
she enjoys the right of possession thereof and that question of
ownership cannot be raised in an ejectment case unless it is
intertwined with the issue of possession. While the court may look
into the evidence of title or ownership and possession de jure to
determine the nature of possession, it cannot resolve the issue of
ownership because the resolution of said issue would effect an
adjudication on ownership which is not proper in the summary action
for unlawful detainer. Petitioner insists that the Court of Appeals
erred in ruling that the Huling Habilin at Testamento transmitted
ownership of the specific apartments disregarding the fact that the
same is not probated yet and that the testator changed or revoked his
will by selling the property to petitioner prior to his death.
Contrarily, respondents pray that the instant petition for review be
dismissed since the resolution of the question of ownership by the
MTC and the Court of Appeals was provisional only to resolve the
issue of possession. Petitioner can always avail of legal remedies to
have the issue of ownership passed upon by the proper court. Aware
of the provisional nature of the resolution on ownership in ejectment
cases, respondents filed Civil Case No. 01-1641 to assail the validity of
the deed of sale of the property and the registration thereof in
petitioner’s name.
The petition has merit.
An action for unlawful detainer exists when a person unlawfully
withholds possession of any land or building against or from a lessor,
vendor, vendee or other persons, after the expiration or termination of
the right to hold possession, by virtue of any contract, express or
implied.12 The sole issue to be resolved is the question as to who is
entitled to the physical or material possession of the premises or
possession de facto.13 Being a summary proceeding intended to
provide an expeditious means of protecting actual possession or right
to possession of property, the question of title is not involved14 and
should be raised by the affected party in an appropriate action in the
proper court.15
However, when the issue of ownership is raised the court is not
ousted of its jurisdiction. Section 16 of Rule 70 of the Rules of Court
provides:
SEC 16. Resolving defense of ownership. – When the defendant raises
the defense of ownership in his pleadings and the question of
possession cannot be resolved without deciding the issue of
ownership, the issue of ownership shall be resolved only to determine
the issue of possession.
Thus, all that the trial court can do is to make an initial determination
of who is the owner of the property so that it can resolve who is
entitled to its possession absent other evidence to resolve
ownership.16 But this adjudication is only provisional and does not
bar or prejudice an action between the same parties involving title to
the property.17
In the case at bar, petitioner’s cause of action for unlawful detainer
was based on her alleged ownership of land covered by TCT No.
150431 and that she merely tolerated respondents’ stay thereat.
However, when respondents leased the apartments to other persons
without her consent, their possession as well as those persons
claiming right under them became unlawful upon their refusal to
vacate the premises and to pay the rent. On the other hand,
respondents assailed petitioner’s title by claiming that the deed of sale
upon which it was based was simulated and void. They insisted that
they were co-owners thus, they have the right to possess the said
property. To prove their claim, they presented the Huling Habilin at
Testamento of Juanito Rodriguez and the Partition Agreement.
The lower courts considered the following documentary evidence in
arriving at their respective decisions, albeit the RTC decision
contradicts that of the MTC and Court of Appeals: 1) Huling Habilin
at Testamento executed by Juanito Rodriguez on October 27, 1983; 2)
Deed of Sale of the property executed by Juanito Rodriguez and the
petitioner on June 14, 1984; 3) TCT No. 150431 in the name of the
petitioner; and 4) the August 23, 1990 Partition Agreement executed
by both the respondents and the petitioner.
Based on the foregoing documentary evidence, we find that there is
preponderance of evidence in favor of the petitioner’s claim.
Respondents failed to prove their right of possession, as the Huling
Habilin at Testamento and the Partition Agreement have no legal
effect since the will has not been probated. Before any will can have
force or validity it must be probated. This cannot be dispensed with
and is a matter of public policy.18 Article 838 of the Civil Code
mandates that "[n]o will shall pass either real or personal property
unless it is proved and allowed in accordance with the Rules of
Court." As the will was not probated, the Partition Agreement which
was executed pursuant thereto can not be given effect. Thus, the fact
that petitioner was a party to said agreement becomes immaterial in
the determination of the issue of possession.
Moreover, at the time the deed of sale was executed in favor of the
petitioner, Juanito Rodriguez remained the owner thereof since
ownership would only pass to his heirs at the time of his death. Thus,
as owner of the property, he had the absolute right to dispose of it
during his lifetime. Now, whether or not the disposition was valid is
an issue that can be resolved only in Civil Case No. 01-1641, an action
instituted by the respondents for that purpose.
We are, thus, left with the deed of sale and the certificate of title over
the property to consider.
We agree with the RTC that a certificate of title is a conclusive
evidence of ownership of the land described therein; the validity of
which shall not be subject to a collateral attack, especially in an
ejectment case which is summary in nature.
In Ross Rica Sales Center, Inc. v. Ong,19 the Court held that:
The long settled rule is that the issue of ownership cannot be subject
of a collateral attack.
In Apostol v. Court of Appeals, this Court had the occasion to clarify
this:
. . . Under Section 48 of Presidential Decree No. 1529, a certificate of
title shall not be subject to collateral attack. It cannot be altered,
modified or cancelled, except in a direct proceeding for that purpose
in accordance with law. The issue of the validity of the title of the
respondents can only be assailed in an action expressly instituted for
that purpose. Whether or not the petitioners have the right to claim
ownership over the property is beyond the power of the court a quo
to determine in an action for unlawful detainer.
Further, in Co v. Militar,20 it was held that:
[T]he Torrens System was adopted in this country because it was
believed to be the most effective measure to guarantee the integrity of
land titles and to protect their indefeasibility once the claim of
ownership is established and recognized.
It is settled that a Torrens Certificate of title is indefeasible and
binding upon the whole world unless and until it has been nullified
by a court of competent jurisdiction. Under existing statutory and
decisional law, the power to pass upon the validity of such certificate
of title at the first instance properly belongs to the Regional Trial
Courts in a direct proceeding for cancellation of title.1âwphi1
As the registered owner, petitioner had a right to the possession of the
property, which is one of the attributes of ownership. x x x
We emphasize, however, that our ruling on the issue of ownership is
only provisional to determine who between the parties has the better
right of possession. It is, therefore, not conclusive as to the issue of
ownership, which is the subject matter of Civil Case No. 01-1641. Our
ruling that petitioner has a better right of possession was arrived at on
the basis of evidence without prejudice to the eventual outcome of the
annulment case, where the issue as to who has title to the property in
question is fully threshed out. As the law now stands, in an ejectment
suit, the question of ownership may be provisionally ruled upon for
the sole purpose of determining who is entitled to possession de facto.
WHEREFORE, in view of the foregoing, the Decision of the Court of
Appeals in CA-G.R. SP No. 91442 dated June 27, 2006 is REVERSED
and SET ASIDE. The Decision of the Regional Trial Court of Makati
City, Branch 134, in Civil Case No. 03-517, reversing the Decision of
the Metropolitan Trial Court (MTC) of Makati City, Branch 63, in Civil
Case No. 75717, is REINSTATED.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice
WE CONCUR:
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
MINITA V. CHICO- ANTONIO EDUARDO B.
NAZARIO NACHURA
Associate Justice Associate Justice
RUBEN T. REYES
Associate Justice
 ATTESTATION

I attest that the conclusions in the above decision were reached in

consultation before the case was assigned to the writer of the opinion
of the Court’s Division.

CONSUELO YNARES-SANTIAGO
Associate Justice 
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the

Division Chairperson’s Attestation, it is hereby certified that the
conclusions in the above Decision were reached in consultation before
the case was assigned to the writer of the opinion of the Court’s
Division.

REYNATO S. PUNO
Chief Justice

FIRST DIVISION
G.R. No. 168156             December 6, 2006
HEIRS OF ROSENDO LASAM, Represented by Rogelio Lasam and
Atty. Edward P. Llonillo, petitioners,  said spouses conveyed the ownership of Lots Nos. 990 and 5427 in
vs.
VICENTA UMENGAN, respondent.
DECISION
CALLEJO, SR., J.:
Before the Court is the petition for review on certiorari filed by the
Heirs of Rosendo Lasam, represented by Rogelio M. Lasam and Atty.
Edward P. Llonillo, seeking the reversal of the Decision1 dated
February 16, 2005 of the Court of Appeals (CA) in CA-G.R. SP No.
80032. The assailed decision reversed and set aside the decision of the
Regional Trial Court (RTC) of Tuguegarao City, Cagayan and
dismissed, for lack of merit, the complaint for unlawful detainer file
by the said heirs against respondent Vicenta Umengan.
The RTC decision affirmed that of the Municipal Trial Court in Cities
(MTCC) of the same city, Branch III, which had rendered judgment in
favor of the heirs of Rosendo Lasam and directed the ejectment of
respondent Vicenta Umengan from the lot subject of litigation.
The present petition likewise seeks the reversal of the CA Resolution
dated May 17, 2005 denying the motion for reconsideration filed by
the heirs of Rosendo Lasam.
As culled from the records, the backdrop of the present case is as
follows –
The lot subject of the unlawful detainer case is situated in Tuguegarao
City, Cagayan. It is the eastern half portion of Lot No. 5427 and Lot
No. 990. The first lot, Lot No. 5427 containing an area of 1,037 square
meters, is covered by Original Certificate of Title (OCT) No. 196. The
second lot, Lot No. 990 containing an area of 118 sq m, is covered by
OCT No. 1032. These lots are registered in the names of the original
owners, spouses Pedro Cuntapay and Leona Bunagan.
In an instrument denominated as Deed of Confirmation and
acknowledged before a notary public on June 14, 1979, the heirs of the
favor of their two children, Irene Cuntapay and Isabel Cuntapay. In
another instrument entitled Partition Agreement and acknowledged
before a notary public on December 28, 1979, it was agreed that the
eastern half portion (subject lot) of Lots Nos. 990 and 5427 shall
belong to the heirs of Isabel Cuntapay. On the other hand, the
remaining portion thereof (the west portion) shall belong to the heirs
of Irene Cuntapay. The subject lot (eastern half portion) has an area of
554 sq m.
Isabel Cuntapay had four children by her first husband, Domingo
Turingan, namely: Abdon, Sado (deceased), Rufo and Maria. When
Domingo Turingan passed away, Isabel Cuntapay remarried Mariano
Lasam. She had two other children by him, namely: Trinidad and
Rosendo.
Sometime in January 2001, the heirs of Rosendo Lasam (son of Isabel
Cuntapay by her second husband) filed with the MTCC a complaint
for unlawful detainer against Vicenta Umengan, who was then
occupying the subject lot. Vicenta Umengan is the daughter of Abdon
Turingan (son of Isabel Cuntapay by her first husband).
In their complaint, the heirs of Rosendo Lasam alleged that they are
the owners of the subject lot, having inherited it from their father.
Rosendo Lasam was allegedly the sole heir of the deceased Pedro
Cuntapay through Isabel Cuntapay. During his lifetime, Rosendo
Lasam allegedly temporarily allowed Vicenta Umengan to occupy the
subject lot sometime in 1955. The latter and her husband allegedly
promised that they would vacate the subject lot upon demand.
However, despite written notice and demand by the heirs of Rosendo
Lasam, Vicenta Umengan allegedly unlawfully refused to vacate the
subject lot and continued to possess the same. Accordingly, the heirs
of Rosendo Lasam were constrained to institute the action for
ejectment.
In her Answer with Counterclaim, Vicenta Umengan specifically
denied the material allegations in the complaint. She countered that
when Isabel Cuntapay passed away, the subject lot was inherited by
her six children by her first and second marriages through intestate
succession. Each of the six children allegedly had a pro indiviso share
of 1/6 of the subject lot.
It was further alleged by Vicenta Umengan that her father, Abdon
Turingan, purchased the respective 1/6 shares in the subject lot of his
siblings Maria and Sado. These conveyances were allegedly
evidenced by the Deed of Sale dated March 3, 1975, appearing as Doc.
No. 88, Page No. 36, Book No. XIV, series of 1975 of the notarial book
of Atty. Pedro Lagui.
Prior thereto, Rufo already sold his 1/6 share in the subject lot to
Vicenta Umengan and her husband as evidenced by the Deed of Sale
dated June 14, 1961, appearing as Doc. No. 539, Page No. 41, Book No.
V, series of 1961 of the notarial book of Atty. Pedro Lagui. Also on
June 14, 1961, Abdon donated his 1/6 share in the subject lot to her
daughter Vicenta Umengan as evidenced by the Deed of Donation
appearing as Doc. No. 538, Page No. 41, Book No. V, series of 1961 of
the notarial book of the same notary public.
According to Vicenta Umengan, the children of Isabel Cuntapay by
her second husband (Rosendo and Trinidad Lasam) own only 2/6
portion of the subject lot. She thus prayed that the complaint for
ejectment be dismissed and that the heirs of Rosendo Lasam be
ordered to pay her damages.
The MTCC rendered judgment in favor of the heirs of Rosendo Lasam
and directed the ejectment of Vicenta Umengan. In so ruling, the
MTCC gave credence to the newly discovered last will and testament
(entitled Testamento Abierto) purportedly executed by Isabel Cuntapay
where she bequeathed the subject lot to her son, Rosendo Lasam,
thus:
x x x my share 1/5th (one-fifth) of the Cuntapay heirs,
bordered on the North by Sr. Elia Canapi; to the South, by
Calle Aguinaldo; to the East, by Calle P. Burgos and the West,
by the late Don Luis Alonso; on the property which is my
share stands a house of light materials where I presently
reside; this 1/5th (one-fifth) share of my inheritance from the
Cuntapays I leave to my son Rosendo Lasam and also the
aforementioned house of light material x x x2
The MTCC reasoned that the heirs of Rosendo Lasam anchored their
claim over the subject lot on the last will and testament of Isabel
Cuntapay while Vicenta Umengan hinged hers on intestate succession
and legal conveyances. Citing jurisprudence3 and Article 10804 of the
Civil Code, the MTCC opined that testacy was favored and that
intestacy should be avoided and the wishes of the testator should
prevail. It observed that the last will and testament of Isabel Cuntapay
was not yet probated as required by law; nonetheless, the institution
of a probate proceeding was not barred by prescription.
With the finding that the subject lot was already bequeathed by Isabel
Cuntapay to Rosendo Lasam, the MTCC held that the siblings Abdon,
Sado, Rufo and Maria Turingan no longer had any share therein.
Consequently, they could not convey to Vicenta Umengan what they
did not own. On the issue then of who was entitled to possession of
the subject lot, the MTCC ruled in favor of the heirs of Rosendo
Lasam as it found that Vicenta Umengan’s possession thereof was by
mere tolerance. The dispositive portion of the MTCC decision reads:
WHEREFORE, in the light of the foregoing considerations, this
Court Resolve[d] to order the EJECTMENT of VICENTA T.
UMENGAN and in her place INSTITUTE THE HEIRS OF
ROSENDO LASAM.
It is further ordered the defendant shall pay the Heirs of
Rosendo Lasam the sum of P500.00 pesos representing the
monthly rental of the land from August 2000 to the time this
case shall have been terminated.
 Ordering the defendant to pay the plaintiffs the amount
of P20,000.00 attorney’s fees plus cost of this litigation.
So Ordered.5
On appeal, the RTC affirmed in toto the decision of the MTCC. The
RTC echoed the reasoning of the MTCC that the testamentary
disposition of the property of Isabel Cuntapay should be respected,
and that the heirs of Rosendo Lasam have a better right to possess the
subject lot.
Undaunted, Vicenta Umengan filed an appeal with the CA. She
argued that the MTCC had no jurisdiction over the case as it involved
the recovery of ownership of the subject lot, not merely recovery
of possession or unlawful detainer. She also assailed the RTC’s and the
MTCC’s holding that the purported Testamento Abierto of Isabel
Cuntapay prevails over Vicenta Umengan’s muniments of title and,
consequently, the heirs of Rosendo Lasam have a better right to the
subject lot than Vicenta Umengan.
In the assailed Decision dated February 16, 2005, the CA reversed and
set aside the decision of the RTC. The appellate court preliminarily
upheld the jurisdiction of the MTCC over the subject matter as it
found that the allegations in the complaint made out a case for
unlawful detainer. The heirs of Rosendo Lasam in their complaint,
according to the CA, only sought for Vicenta Umengan to vacate and
surrender possession of the subject lot. The CA also rejected the
contention of the heirs of Rosendo Lasam that the issue of ownership
of the subject lot had already been settled in another case, Civil Case
No. 4917, before RTC (Branch 3) of Tuguegarao City. The CA stated
that the trial court’s order dismissing the said case was not a
"judgment on the merits" as to constitute res judicata.
However, the CA declared that the RTC, as well as the MTCC, erred
in ruling that, by virtue of the purported last will and testament of
Isabel Cuntapay, the heirs of Rosendo Lasam have a better right to the
subject lot over Vicenta Umengan. The CA explained that the said last
will and testament did not comply with the formal requirements of
the law on wills.6
Specifically, the CA found that the pages of the purported last will
and testament were not numbered in accordance with the law.
Neither did it contain the requisite attestation clause. Isabel Cuntapay
as testator and the witnesses to the will did not affix their respective
signatures on the second page thereof. The said instrument was
likewise not acknowledged before a notary public by the testator and
the witnesses. The CA even raised doubts as to its authenticity, noting
that while Isabel Cuntapay died in 1947 and the heirs of Rosendo
Lasam claimed that they discovered the same only in 1997, a date –
May 19, 1956 – appears on the last page of the purported will. The CA
opined that if this was the date of execution, then the will was
obviously spurious. On the other hand, if this was the date of its
discovery, then the CA expressed bafflement as to why the heirs of
Rosendo Lasam, through their mother, declared in the Partition
Agreement dated December 28, 1979 that Isabel Cuntapay died
intestate.
It was observed by the CA that as against these infirmities in the claim
of the heirs of Rosendo Lasam, Vicenta Umengan presented a Deed of
Sale and a Deed of Donation to justify her possession of the subject
lot. The CA noted that she has also possessed the subject property
since 1955. Such prior possession, the CA held, gave Vicente
Umengan the right to remain in the subject lot until a person with a
better right lawfully ejects her. The heirs of Rosendo Lasam do not
have such a better right. The CA stressed that the ruling on the issue
of physical possession does not affect the title to the subject lot nor
constitute a binding and conclusive adjudication on the merits on the
issue of ownership. The parties are not precluded from filing the
appropriate action to directly contest the ownership of or the title to
the subject lot.
The decretal portion of the assailed decision of the CA reads:
WHEREFORE, premises considered, the appeal is GRANTED.
The August 29, 2003 decision of the RTC, Branch 1,
Tuguegarao City, Cagayan in Civil Case No. 5924 is hereby
REVERSED and SET ASIDE. Private respondents’ complaint
for unlawful detainer against petitioner is dismissed for lack of
merit.
 SO ORDERED.7
The heirs of Rosendo Lasam sought the reconsideration thereof but
their motion was denied by the CA in its Resolution dated May 17,
2005.
The heirs of Rosendo Lasam (petitioners) now come to the Court
alleging that the CA committed reversible error in setting aside the
decision of the RTC, which had affirmed that of the MTCC, and
dismissing their complaint for unlawful detainer against respondent
Vicenta Umengan.
Petitioners argue that the CA erred when it held, on one hand, that
the MTCC had jurisdiction over the subject matter of the complaint as
the allegations therein make out a case for unlawful detainer but, on
the other hand, proceeded to discuss the validity of the last will and
testament of Isabel Cuntapay.
Petitioners insist that respondent is holding the subject lot by mere
tolerance and that they, as the heirs of Rosendo Lasam who was the
rightful owner of the subject lot, have a better right thereto. It was
allegedly error for the CA to declare the last will and testament of
Isabel Cuntapay as null and void for its non-compliance with the
formal requisites of the law on wills. The said matter cannot be
resolved in an unlawful detainer case, which only involves the issue
of material or physical possession of the disputed property. In any
case, they maintain that the said will complied with the formal
requirements of the law.
It was allegedly also erroneous for the CA to consider in respondent’s
favor the deed of sale and deed of donation covering portions of the
subject lot, when these documents had already been passed upon by
the RTC (Branch 3) of Tuguegarao City in Civil Case No. 4917 when it
dismissed the respondent’s complaint for partition of the subject lot.
The said order allegedly constituted res judicata and may no longer be
reviewed by the CA.
Petitioners emphasize that in an unlawful detainer case, the only issue
to be resolved is who among the parties is entitled to the physical or
material possession of the property in dispute. On this point, the
MTCC held (and the same was affirmed by the RTC) that petitioners
have a better right since the "merely tolerated" possession of the
respondent had already expired upon the petitioners’ formal demand
on her to vacate. In support of this claim, they point to the affidavit of
Heliodoro Turingan, full brother of the respondent, attesting that the
latter’s possession of the subject lot was by mere tolerance of Rosendo
Lasam who inherited the same from Isabel Cuntapay.
According to petitioners, respondent’s predecessors-in-interest from
whom she derived her claim over the subject lot by donation and sale
could not have conveyed portions thereof to her, as she had claimed,
because until the present, it is still covered by OCT Nos. 196 and 1032
under the names of Pedro and Leona Cuntapay. Their respective
estates have not been settled up to now.
It is also the contention of petitioners that the CA should have
dismissed outright respondent’s petition filed therewith for failure to
comply with the technical requirements of the Rules of Court.
Specifically, the petition was not allegedly properly verified, lacked
statement of material dates and written explanation on why personal
service was not made.
This last contention of petitioners deserves scant consideration. The
technical requirements for filing an appeal are not sacrosanct. It has
been held that while the requirements for perfecting an appeal must
be strictly followed as they are considered indispensable interdictions
against needless delays and for orderly discharge of judicial business,
the law does admit of exceptions when warranted by
circumstances.8 In the present case, the CA cannot be faulted in
choosing to overlook the technical defects of respondent’s appeal.
After all, technicality should not be allowed to stand in the way of
equitably and completely resolving the rights and obligations of the
parties.9
The Court shall now resolve the substantive issues raised by
petitioners.
It is well settled that in ejectment suits, the only issue for resolution is
the physical or material possession of the property involved,
independent of any claim of ownership by any of the party litigants.
However, the issue of ownership may be provisionally ruled upon for
the sole purpose of determining who is entitled to possession de
facto.10
In the present case, petitioners base their claim of right to possession
on the theory that their father, Rosendo Lasam, was the sole owner of
the subject lot by virtue of the newly discovered last will and
testament of Isabel Cuntapay bequeathing the same to him.
Respondent is allegedly holding the subject lot by mere tolerance of
Rosendo Lasam and, upon the petitioners’ formal demand on her to
vacate the same, respondent’s right to possess it has expired.
On the other hand, respondent hinges her claim of possession on the
legal conveyances made to her by the children of Isabel Cuntapay by
her first husband, namely, Maria, Rufo, Sado and Abdon. These
conveyances were made through the sale and donation by the said
siblings of their respective portions in the subject lot to respondent as
evidenced by the pertinent deeds.
The CA correctly held that, as between the respective claims of
petitioners and respondent, the latter has a better right to possess the
subject lot.
As earlier stated, petitioners rely on the last will and testament of
Isabel Cuntapay that they had allegedly newly discovered. On the
basis of this instrument, the MTCC and RTC ruled that petitioners
have a better right to the possession of the subject lot because,
following the law on succession, it should be respected and should
prevail over intestate succession.
However, contrary to the ruling of the MTCC and RTC, the purported
last will and testament of Isabel Cuntapay could not properly be
relied upon to establish petitioners’ right to possess the subject lot
because, without having been probated, the said last will and
testament could not be the source of any right.
Article 838 of the Civil Code is instructive:
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 testator’s death shall govern.
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.
In Cañiza v. Court of Appeals,11 the Court ruled that: "[a] will is
essentially ambulatory; at any time prior to the testator’s death, it may
be changed or revoked; and until admitted to probate, it has no effect
whatever and no right can be claimed thereunder, the law being quite
explicit: ‘No will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court.’"12
Dr. Tolentino, an eminent authority on civil law, also explained that
"[b]efore any will can have force or validity it must be probated. To
probate a will means to prove before some officer or tribunal, vested
by law with authority for that purpose, that the instrument offered to
be proved is the last will and testament of the deceased person whose
testamentary act it is alleged to be, and that it has been executed,
attested and published as required by law, and that the testator was of
sound and disposing mind. It is a proceeding to establish the validity
of the will."13 Moreover, the presentation of the will for probate is
mandatory and is a matter of public policy.14
Following the above truisms, the MTCC and RTC, therefore,
erroneously ruled that petitioners have a better right to possess the
subject lot on the basis of the purported last will and testament of
Isabel Cuntapay, which, to date, has not been probated. Stated in
another manner, Isabel Cuntapay’s last will and testament, which has
not been probated, has no effect whatever and petitioners cannot
claim any right thereunder.
Hence, the CA correctly held that, as against petitioners’ claim,
respondent has shown a better right of possession over the subject lot
as evidenced by the deeds of conveyances executed in her favor by
the children of Isabel Cuntapay by her first marriage.
Contrary to the claim of petitioners, the dismissal of respondent’s
action for partition in Civil Case No. 4917 before the RTC (Branch 3)
of Tuguegarao City does not constitute res judicata on the matter of
the validity of the said conveyances or even as to the issue of the
ownership of the subject lot. The order dismissing respondent’s action
for partition in Civil Case No. 4917 stated thus:
For resolution is a motion to dismiss based on defendants’
[referring to the petitioners herein] affirmative defenses
consisting inter alia in the discovery of a last will and
testament of Isabel Cuntapay, the original owner of the land in
dispute.
xxx
It appears, however, that the last will and testament of the late
Isabel Cuntapay has not yet been allowed in probate, hence,
there is an imperative need to petition the court for the
allowance of said will to determine once and for all the proper
legitimes of legatees and devisees before any partition of the
property may be judicially adjudicated.
It is an elementary rule in law that testate proceedings take
precedence over any other action especially where the will
evinces the intent of the testator to dispose of his whole estate.
With the discovery of the will of the late Isabel Cuntapay in
favor of the defendants, the Court can order the filing of a
petition for the probate of the same by the interested party.
WHEREFORE, in light of the foregoing considerations, let the
above-entitled case be as it is hereby DISMISSED.
SO ORDERED.15
For there to be res judicata, the following elements must be present: (1)
finality of the former judgment; (2) the court which rendered it had
jurisdiction over the subject matter and the parties; (3) it must be a
judgment on the merits; and (4) there must be, between the first and
second actions, identity of parties, subject matter and causes of
action.16 The third requisite, i.e., that the former judgment must be a
judgment on the merits, is not present between the action for partition
and the complaint a quo for unlawful detainer. As aptly observed by
the CA:
Our reading of the Orders (dated June 16, 1997 and October
13, 1997) in Civil Case No. 4917 reveals that the RTC, Branch 3,
Tuguegarao, Cagayan, dismissed the complaint for partition
because of the discovery of the alleged last will and testament
of Isabel Cuntapay. The court did not declare respondents
[referring to the petitioners herein] the owners of the disputed
property. It simply ordered them to petition the court for the
allowance of the will to determine the proper legitimes of the
heirs prior to any partition. Instead of filing the appropriate
petition for the probate of Isabel Cuntapay’s will, the
respondents filed the present complaint for unlawful detainer.
Viewed from this perspective, we have no doubt that the
court’s Orders cited by the respondents are not "judgments on
the merits" that would result in the application of the principle
of res judicata. Where the trial court merely refrained from
proceeding with the case and granted the motion to dismiss with
some clarification without conducting a trial on the merits, there is
no res judicata.17
Further, it is not quite correct for petitioners to contend that the
children of Isabel Cuntapay by her first marriage could not have
conveyed portions of the subject lot to respondent, as she had
claimed, because until the present, it is still covered by OCT Nos. 196
and 1032 under the names of Pedro and Leona Cuntapay. To recall, it
was already agreed by the heirs of the said spouses in a Partition
Agreement dated December 28, 1979 that the subject lot would belong
to Isabel Cuntapay. The latter died leaving her six children by both
marriages as heirs. Considering that her purported last will and
testament has, as yet, no force and effect for not having been
probated, her six children are deemed to be co-owners of the subject
lot having their respective pro indiviso shares. The conveyances made
by the children of Isabel Cuntapay by her first marriage of their
respective pro indiviso shares in the subject lot to respondent are valid
because the law recognizes the substantive right of heirs to dispose of
their ideal share in the co-heirship and/co-ownership among the heirs.
The Court had expounded the principle in this wise:
This Court had the occasion to rule that there is no doubt that
an heir can sell whatever right, interest, or participation he
may have in the property under administration. This is a
matter which comes under the jurisdiction of the probate
court.
The right of an heir to dispose of the decedent’s property, even
if the same is under administration, is based on the Civil Code
provision stating that the possession of hereditary property is
deemed transmitted to the heir without interruption and from
the moment of the death of the decedent, in case the
inheritance is accepted. Where there are however, two or more
heirs, the whole estate of the decedent is, before its partition,
owned in common by such heirs.
The Civil Code, under the provisions of co-ownership, further
qualifies this right. Although it is mandated that each co-
owner shall have the full ownership of his part and of the
fruits and benefits pertaining thereto, and thus may alienate,
assign or mortgage it, and even substitute another person in
its enjoyment, the effect of the alienation or the mortgage, with
respect to the co-owners, shall be limited to the portion which
may be allotted to him in the division upon the termination of
the co-ownership. In other words, the law does not prohibit a
co-owner from selling, alienating or mortgaging his ideal
share in the property held in common.
As early as 1942, this Court has recognized said right of an
heir to dispose of property under administration. In the case
of Teves de Jakosalem vs. Rafols, et al., it was said that the sale
made by an heir of his share in an inheritance, subject to the
result of the pending administration, in no wise, stands in the
way of such administration. The Court then relied on the
provision of the old Civil Code, Article 440 and Article 399
which are still in force as Article 533 and Article 493,
respectively, in the new Civil Code. The Court also cited the
words of a noted civilist, Manresa: "Upon the death of a
person, each of his heirs ‘becomes the undivided owner of the
whole estate left with respect to the part or portion which
might be adjudicated to him, a community of ownership being
thus formed among the co-owners of the estate which remains
undivided.’"18
Contrary to the assertion of petitioners, therefore, the conveyances
made by the children of Isabel Cuntapay by her first marriage to
respondent are valid insofar as their pro indiviso shares are concerned.
Moreover, the CA justifiably held that these conveyances, as
evidenced by the deed of donation and deed of sale presented by
respondent, coupled with the fact that she has been in possession of
the subject lot since 1955, establish that respondent has a better right
to possess the same as against petitioners whose claim is largely based
on Isabel Cuntapay’s last will and testament which, to date, has not
been probated; hence, has no force and effect and under which no
right can be claimed by petitioners. Significantly, the probative value
of the other evidence relied upon by petitioners to support their
claim, which was the affidavit of Heliodoro Turingan, was not passed
upon by the MTCC and the RTC. Their respective decisions did not
even mention the same.
In conclusion, it is well to stress the CA’s admonition that –
x x x our ruling on the issue of physical possession does not
affect title to the property nor constitute a binding and
conclusive adjudication on the merits on the issue of
ownership. The parties are not precluded from filing the
appropriate action directly contesting the ownership of or the
title to the property.19
Likewise, it is therefore in this context that the CA’s finding on the
validity of Isabel Cuntapay’s last will and testament must be
considered. Such is merely a provisional ruling thereon for the sole
purpose of determining who is entitled to possession de facto.

WHEREFORE, premises considered, the petition is DENIED. The

assailed Decision dated February 16, 2005 and the Resolution dated
May 17, 2005 of the Court of Appeals in CA-G.R. SP No. 80032
are AFFIRMED.

SO ORDERED.

Panganiban,  C.J. (Chairperson), Ynares-Santiago, Austria-Martinez, and

Chico-Nazario, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
 
G.R. No. 108581 December 8, 1999
LOURDES L. DOROTHEO, petitioner,  some compensation since she took care of Alejandro prior to his death
vs.
COURT OF APPEALS, NILDA D. QUINTANA, for Herself and as
Attorney-in-Fact of VICENTE DOROTHEO and JOSE
DOROTHEO, respondents.
 
YNARES-SANTIAGO, J.:
May a last will and testament admitted to probate but declared
intrinsically void in an order that has become final and executory still
be given effect? This is the issue that arose from the following
antecedents:
Private respondents were the legitimate children of Alejandro
Dorotheo and Aniceta Reyes. The latter died in 1969 without her
estate being settled. Alejandro died thereafter. Sometime in 1977, after
Alejandro's death, petitioner, who claims to have taken care of
Alejandro before he died, filed a special proceeding for the probate of
the latter's last will and testament. In 1981, the court issued an order
admitting Alejandro's will to probate. Private respondents did not
appeal from said order. In 1983, they filed a "Motion To Declare The
Will Intrinsically Void." The trial court granted the motion and issued
an order, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, Order is
hereby issued declaring Lourdes Legaspi not the wife
of the late Alejandro Dorotheo, the provisions of the
last will and testament of Alejandro Dorotheo as
intrinsically void, and declaring the oppositors Vicente
Dorotheo, Jose Dorotheo and Nilda Dorotheo Quintana
as the only heirs of the late spouses Alejandro
Dorotheo and Aniceta Reyes, whose respective estates
shall be liquidated and distributed according to the
laws on intestacy upon payment of estate and other
taxes due to the government.1
Petitioner moved for reconsideration arguing that she is entitled to
although she admitted that they were not married to each other. Upon
denial of her motion for reconsideration, petitioner appealed to the
Court of Appeals, but the same was dismissed for failure to file
appellant's brief within the extended period
granted.2 This dismissal became final and executory on February 3,
1989 and a corresponding entry of judgment was forthwith issued by
the Court of Appeals on May 16, 1989. A writ of execution was issued
by the lower court to implement the final and executory Order.
Consequently, private respondents filed several motions including a
motion to compel petitioner to surrender to them the Transfer
Certificates of Titles (TCT) covering the properties of the late
Alejandro. When petitioner refused to surrender the TCT's, private
respondents filed a motion for cancellation of said titles and for
issuance of new titles in their names. Petitioner opposed the motion.
An Order was issued on November 29, 1990 by Judge Zain B. Angas
setting aside the final and executory Order dated January 30, 1986, as
well as the Order directing the issuance of the writ of execution, on
the ground that the order was merely "interlocutory", hence not final
in character. The court added that the dispositive portion of the said
Order even directs the distribution of the estate of the deceased
spouses. Private respondents filed a motion for reconsideration which
was denied in an Order dated February 1, 1991. Thus, private
respondents filed a petition before the Court of Appeals, which
nullified the two assailed Orders dated November 29, 1990 and
February 1, 1991.
Aggrieved, petitioner instituted a petition for review arguing that the
case filed by private respondents before the Court of Appeals was a
petition under Rule 65 on the ground of grave abuse of discretion or
lack of jurisdiction. Petitioner contends that in issuing the two
assailed orders, Judge Angas cannot be said to have no jurisdiction
because he was particularly designated to hear the case. Petitioner
likewise assails the Order of the Court of Appeals upholding the
validity of the January 30, 1986 Order which declared the intrinsic
invalidity of Alejandro's will that was earlier admitted to probate.
Petitioner also filed a motion to reinstate her as executrix of the estate
of the late Alejandro and to maintain the status quo or lease of the
premises thereon to third parties.3 Private respondents opposed the
motion on the ground that petitioner has no interest in the estate since
she is not the lawful wife of the late Alejandro.
The petition is without merit. A final and executory decision or order
can no longer be disturbed or reopened no matter how erroneous it
may be. In setting aside the January 30, 1986 Order that has attained
finality, the trial court in effect nullified the entry of judgment made
by the Court of Appeals. It is well settled that a lower court cannot
reverse or set aside decisions or orders of a superior court, for to do so
would be to negate the hierarchy of courts and nullify the essence of
review. It has been ruled that a final judgment on probated will, albeit
erroneous, is binding on the whole world. 4
It has been consistently held that if no appeal is taken in due time
from a judgment or order of the trial court, the same attains finality by
mere lapse of time. Thus, the order allowing the will became final and
the question determined by the court in such order can no longer be
raised anew, either in the same proceedings or in a different motion.
The matters of due execution of the will and the capacity of the
testator acquired the character of res judicata and cannot again be
brought into question, all juridical questions in connection therewith
being for once and forever closed.5 Such final order makes the will
conclusive against the whole world as to its extrinsic validity and due
execution.6
It should be noted that probate proceedings deals generally with the
extrinsic validity of the will sought to be probated,7 particularly on
three aspects:
n whether the will
submitted is indeed, the
decedent's last will and
testament;
n compliance with the
prescribed formalities for
the execution of wills;
n the testamentary
capacity of the testator; 8
n and the due execution
of the last will and
testament.9
Under the Civil Code, due execution includes a determination of
whether the testator was of sound and disposing mind at the time of
its execution, that he had freely executed the will and was not acting
under duress, fraud, menace or undue influence and that the will is
genuine and not a forgery, 10 that he was of the proper testamentary
age and that he is a person not expressly prohibited by law from
making a will. 11
The intrinsic validity is another matter and questions regarding the
same may still be raised even after the will has been
authenticated. 12 Thus, it does not necessarily follow that an
extrinsically valid last will and testament is always intrinsically valid.
Even if the will was validly executed, if the testator provides for
dispositions that deprives or impairs the lawful heirs of their legitime
or rightful inheritance according to the laws on succession, 13 the
unlawful provisions/dispositions thereof cannot be given effect. This
is specially so when the courts had already determined in a final and
executory decision that the will is intrinsically void. Such
determination having attained that character of finality is binding on
this Court which will no longer be disturbed. Not that this Court finds
the will to be intrinsically valid, but that a final and executory
decision of which the party had the opportunity to challenge before
the higher tribunals must stand and should no longer be reevaluated.
Failure to avail of the remedies provided by law constitutes waiver.
And if the party does not avail of other remedies despite its belief that
it was aggrieved by a decision or court action, then it is deemed to
have fully agreed and is satisfied with the decision or order. As early
as 1918, it has been declared that public policy and sound practice
demand that, at the risk of occasional errors, judgments of courts
must at some point of time fixed by law 14 become final otherwise
there will be no end to litigation. Interes rei publicae ut finis sit litium —
the very object of which the courts were constituted was to put an end
to controversies. 15 To fulfill this purpose and to do so speedily,
certain time limits, more or less arbitrary, have to be set up to spur on
the slothful. 16 The only instance where a party interested in a probate
proceeding may have a final liquidation set aside is when he is left out
by reason of circumstances beyond his control or through mistake or
inadvertence not imputable to negligence, 17 which circumstances do
not concur herein.
Petitioner was privy to the suit calling for the declaration of the
intrinsic invalidity of the will, as she precisely appealed from an
unfavorable order therefrom. Although the final and executory Order
of January 30, 1986 wherein private respondents were declared as the
only heirs do not bind those who are not parties thereto such as the
alleged illegitimate son of the testator, the same constitutes res
judicata with respect to those who were parties to the probate
proceedings. Petitioner cannot again raise those matters anew for
relitigation otherwise that would amount to forum-shopping. It
should be remembered that forum shopping also occurs when the
same issue had already been resolved adversely by some other
court. 18 It is clear from the executory order that the estates of
Alejandro and his spouse should be distributed according to the laws
of intestate succession.
Petitioner posits that the January 30, 1986 Order is merely
interlocutory, hence it can still be set aside by the trial court. In
support thereof, petitioner argues that "an order merely declaring
who are heirs and the shares to which set of heirs is entitled cannot be
the basis of execution to require delivery of shares from one person to
another particularly when no project of partition has been
filed." 19 The trial court declared in the January 30, 1986 Order that
petitioner is not the legal wife of Alejandro, whose only heirs are his
three legitimate children (petitioners herein), and at the same time it
nullified the will. But it should be noted that in the same Order, the
trial court also said that the estate of the late spouses be distributed
according to the laws of intestacy. Accordingly, it has no option but to
implement that order of intestate distribution and not to reopen and
again re-examine the intrinsic provisions of the same will.
It can be clearly inferred from Article 960 of the Civil Code, on the law
of successional rights that testacy is preferred to intestacy. 20 But
before there could be testate distribution, the will must pass the
scrutinizing test and safeguards provided by law considering that the
deceased testator is no longer available to prove the voluntariness of
his actions, aside from the fact that the transfer of the estate is usually
onerous in nature and that no one is presumed to give — Nemo
praesumitur donare. 21 No intestate distribution of the estate can be
done until and unless the will had failed to pass both its extrinsic and
intrinsic validity. If the will is extrinsically void, the rules of intestacy
apply regardless of the intrinsic validity thereof. If it is extrinsically
valid, the next test is to determine its intrinsic validity — that is
whether the provisions of the will are valid according to the laws of
succession. In this case, the court had ruled that the will of Alejandro
was extrinsically valid but the intrinsic provisions thereof were void.
Thus, the rules of intestacy apply as correctly held by the trial court.
Furthermore, Alejandro's disposition in his will of the alleged share in
the conjugal properties of his late spouse, whom he described as his
"only beloved wife", is not a valid reason to reverse a final and
executory order. Testamentary dispositions of properties not
belonging exclusively to the testator or properties which are part of
the conjugal regime cannot be given effect. Matters with respect to
who owns the properties that were disposed of by Alejandro in the
void will may still be properly ventilated and determined in the
intestate proceedings for the settlement of his and that of his late
spouse's estate.
Petitioner's motion for appointment as administratrix is rendered
moot considering that she was not married to the late Alejandro and,
therefore, is not an heir.

WHEREFORE, the petition is DENIED and the decision appealed

from is AFFIRMED.

SO ORDERED.

Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.

 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,  of the legacy and which were in the names of the spouses PASTOR,
vs.
THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF BRANCH
I, COURT OF FIRST INSTANCE OF CEBU and LEWELLYN
BARLITO QUEMADA, 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
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 ex- parte 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 oppositorfor 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.

 
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 75773               April 17, 1990
TOMAS JIMENEZ, VISITACION JIMENEZ, DIGNO JIMENEZ,
ANTONIO JIMENEZ, AMADEO JIMENEZ, MODESTO JIMENEZ
and VIRGINIA JIMENEZ, petitioners,  father's name and those of Alberto, Alejandra, and Angeles from the
vs.
HONORABLE INTERMEDIATE APPELLATE COURT, HON.
AMANDA VALERA-CABIGAO, in her capacity as Presiding Judge,
Regional Trial Court, Branch XXXVII, Lingayen, Pangasinan,
LEONARDO JIMENEZ, JR. and CORAZON
JIMENEZ, respondents.
FERNAN, CJ.:
This is a petition for review on certiorari seeking to reverse and set
aside the decision 1 of the Court of Appeals dated May 29, 1986 which
dismissed the petition for certiorari and mandamus in AC-G.R. No.
06578 entitled "Tomas Jimenez, et. al. vs. Hon. Amanda Valera-
Cabigao."
The facts are as follows:
The marriage of Leonardo (Lino) Jimenez and Consolacion Ungson
produced four (4) children, namely: Alberto, Leonardo, Sr., Alejandra
and Angeles. During the existence of the marriage, Lino Jimenez
acquired five (5) parcels of land in Salomague, Bugallon, Pangasinan.
After the death of Consolacion Ungson, Lino married Genoveva
Caolboy with whom he begot the seven petitioners herein: Tomas,
Visitacion, Digno, Antonio, Amadeo, Modesto and Virginia, all
surnamed Jimenez. Lino Jimenez died on August 11, 1951 while
Genoveva Caolboy died on November 21, 1978.
Thereafter, in April 1979, Virginia Jimenez filed a petition before the
Court of First Instance of Pangasinan, Branch V, docketed as Special
Proceedings No. 5346, praying to be appointed as administratrix of
the properties of the deceased spouses Lino and Genoveva.
Enumerated in her petition were the supposed heirs of the deceased
spouses which included herein co-petitioners and the four children of
Lino Jimenez by Consolacion Ungson, his previous wife.2
In October, 1979, herein private respondent Leonardo Jimenez, Jr., son
of Leonardo Jimenez, Sr., filed a motion for the exclusion of his
petition, inasmuch as they are children of the union of Lino Jimenez
and Consolacion Ungson and not of Lino Jimenez and Genoveva
Caolboy and because they have already received their inheritance
consisting of five (5) parcels of lands in Salomague, Bugallon,
Pangasinan.3
On March 23, 1981, petitioner Virginia Jimenez was appointed
administrator of the Intestate Estate of Lino Jimenez and Genoveva
Caolboy.4 On May 21, 1981, she filed an inventory of the estate of the
spouses Lino Jimenez and Genoveva Caolboy wherein she included
the five (5) parcels of land in Salomague, Bugallon, Pangasinan. As a
consequence, Leonardo Jimenez, Jr. moved for the exclusion of these
properties from the inventory on the ground that these had already
been adjudicated to Leonardo Sr., Alberto, Alejandra and Angeles by
their deceased father Lino Jimenez. Private respondent Leonardo
Jimenez, Jr. presented testimonial and documentary evidence in
support of his motion while petitioner Virginia Jimenez, other than
cross-examining the witnesses of Leonardo, presented no evidence of
her own, oral or documentary.
On September 29, 1981, the probate court ordered the exclusion of the
five (5) parcels of land from the inventory on the basis of the evidence
of private respondent Leonardo Jimenez, Jr. which consisted among
others of: (1) Tax Declaration showing that the subject properties were
acquired during the conjugal partnership of Lino Jimenez and
Consolacion Ungson; and, (2) a Deed of Sale dated May 12, 1964
wherein Genoveva Caolboy stated, that the subject properties had
been adjudicated by Lino Jimenez to his children by a previous
marriage, namely: Alberto, Leonardo, Alejandra and Angeles.5 The
motion for reconsideration of said order was denied on January 26,
1982.6
Petitioner Virginia Jimenez then went to the Court of Appeals on a
petition for certiorari and prohibition, docketed thereat as CA-G.R.
No. SP-13916, seeking the annulment of the order dated September
29, 1981 as well as the order of January 26, 1982. On November 18,
1982, the Court of Appeals dismissed the petition because (1)
Genoveva Caolboy, petitioners' mother, had admitted that the subject
parcels of land had been adjudicated to the children of the previous
nuptial; (2) the subject properties could not have been acquired
during the marriage of Lino Jimenez to Genoveva Caolboy because
they were already titled in the name of Lino Jimenez even prior to
1921, long before Lino's marriage to Genoveva in 1940; (3) the claim of
Virginia Jimenez was barred by prescription because it was only in
1981 when they questioned the adjudication of the subject properties,
more than ten (10) years after Genoveva had admitted such
adjudication in a public document in 1964; and, (4) petitioner Virginia
Jimenez was guilty of laches. This decision became final and
executory.7
Two (2) years after, petitioners filed an amended complaint dated
December 10, 1984 before the Regional Trial Court of Pangasinan,
Branch XXXVII, docketed thereat as Civil Case No. 16111, to recover
possession/ownership of the subject five (5) parcels of land as part of
the estate of Lino Jimenez and Genoveva Caolboy and to order
private respondents to render an accounting of the produce
therefrom. Private respondents moved for the dismissal of the
complaint on the grounds that the action was barred by prior
judgment in CA-G.R. No. SP-13916 dated November 18, 1982 and by
prescription and laches. However, petitioners opposed the motion to
dismiss contending that (1) the action was not barred by prior
judgment because the probate court had no jurisdiction to determine
with finality the question of ownership of the lots which must be
ventilated in a separate action; and, (2) the action instituted in 1981
was not barred by prescription or laches because private respondents'
forcible acquisition of the subject properties occurred only after the
death of petitioners' mother, Genoveva Caolboy in 1978.
On February 13, 1985, the trial court resolved to dismiss the complaint
on the ground of res judicata. 8 On May 31, 1985, petitioners' motion
for reconsideration of the resolution was denied. As earlier intimated,
the petition for certiorari and  mandamus filed by petitioners before the
appellate court was likewise denied due course and dismissed in a
decision dated May 29, 1986.9
Hence, this recourse.
The issue in this case is whether in a settlement proceeding (testate or
intestate) the lower court has jurisdiction to settle questions of
ownership and whether res judicata  exists as to bar petitioners' present
action for the recovery of possession and ownership of the five (5)
parcels of land. In the negative, is the present action for reconveyance
barred by prescription and/or laches?
We reverse. Petitioners' present action for recovery of possession and
ownership is appropriately filed because as a general rule, a probate
court can only pass upon questions of title provisionally. Since the
probate, court's findings are not conclusive being prima facie, 10 a
separate proceeding is necessary to establish the ownership of the five
(5) parcels of land. 11
The patent reason is the probate court's limited jurisdiction and the
principle that questions of title or ownership, which result in
inclusion or exclusion from the inventory of the property, can only be
settled in a separate action. 12
All that the said court could do as regards said properties is
determine whether they should or should not be included in the
inventory or list of properties to be administered by the
administrator. If there is a dispute as to the ownership, then the
opposing parties and the administrator have to resort to an ordinary
action for a final determination of the conflicting claims of title
because the probate court cannot do so. 13
The provisional character of the inclusion in the inventory of a
contested property was again reiterated in the following cases: Pio
Barreto Realty Development, Inc. vs. Court of Appeals, 14 Junquera vs.
Borromeo, 15 Borromeo vs. Canonoy, 16 Recto vs. de la Rosa. 17 It has
also been held that in a special proceeding for the probate of a will,
the question of ownership is an extraneous matter which the probate
court cannot resolve with finality. 18 This pronouncement no doubt
applies with equal force to an intestate proceeding as in the case at
bar.
as the fact itself of adjudication, there being no showing that the
conjugal partnership of Lino Jimenez and Consolacion Ungson had
been liquidated nor that a judicial or extra-judicial settlement of the
estate of Lino Jimenez was undertaken whereby such adjudication
could have been effected.

Res judicata  19 does not exist because of the difference in the causes of The grounds stated in the motion to dismiss not being indubitable, the
actions. Specifically in S.P. No. 5346, the action was for the settlement trial court committed grave abuse of discretion in dismissing the
of the intestate estate of Lino Jimenez and Genoveva Caolboy while complaint in Civil Case No. 16111.
Civil Case No. 16111 was an action for the recovery of possession and
ownership of the five (5) parcels of land. Moreover, while admittedly, WHEREFORE, the questioned decision of the respondent appellate
the Court of First Instance of Pangasinan, Branch V in S.P. No. 5346 court is hereby REVERSED. Civil Case No. 16111 is reinstated and the
had jurisdiction, the same was merely limited jurisdiction. Any Regional Trial Court of Pangasinan, Branch XXXVII is directed to
pronouncement by said court as to title is not conclusive and could proceed in said case with dispatch.
still be attacked in a separate proceeding. Civil Case No. 16111, on the
other hand. was lodged before the Regional Trial Court of SO ORDERED.
Pangasinan, Branch XXXVII in the exercise of the court's general
jurisdiction. It was, in fact, such "separate or ordinary proceedings" Feliciano, Bidin and Cortes, JJ., concur.
contemplated by the rules for a final determination of the issue of Gutierrez, Jr., J, is on leave.
ownership of the disputed properties. To repeat, since the
determination of the question of title to the subject properties in S.P.
5346 was merely provisional, petitioners are not barred from
instituting the appropriate action in Civil Case No. 16111.

Indeed, the grounds relied upon by private respondents in their

motion to dismiss do not appear to be indubitable.1âwphi1Res
judicata has been shown here to be unavailable and the other grounds
of prescription and laches pleaded by private respondents are
seriously disputed. The allegation in the complaint is that the heirs of
Leonardo Jimenez, Sr. (referring to private respondents,) forcibly
intruded into and took possession of the disputed properties only in
1978, after the death of Genoveva Caolboy. Since the action for
reconveyance was instituted in 1984, it would appear that the same
has not yet prescribed or otherwise barred by laches.

There are a number of factual issues raised by petitioners before the

lower court which cannot be resolved without the presentation of
evidence at a full-blown trial and which make the grounds for
dismissal dubitable. Among others, the alleged admission made by
petitioners' mother in the deed of sale is vehemently denied, as well
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 177099               June 8, 2011
EDUARDO G. AGTARAP, Petitioner,  without issue), Milagros, and Jose (survived by three children,
vs.
SEBASTIAN AGTARAP, JOSEPH AGTARAP, TERESA
AGTARAP, WALTER DE SANTOS, and ABELARDO
DAGORO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 177192
SEBASTIAN G. AGTARAP, Petitioner,  Eduardo further alleged that there was an imperative need to appoint
vs.
EDUARDO G. AGTARAP, JOSEPH AGTARAP, TERESA
AGTARAP, WALTER DE SANTOS, and ABELARDO
DAGORO, Respondents.
DECISION
NACHURA, J.:
Before us are the consolidated petitions for review on certiorari of
petitioners Sebastian G. Agtarap (Sebastian)1 and Eduardo G. Agtarap
(Eduardo),2 assailing the Decision dated November 21, 20063 and the
Resolution dated March 27, 20074 of the Court of Appeals (CA) in CA-
G.R. CV No. 73916.
The antecedent facts and proceedings—
On September 15, 1994, Eduardo filed with the Regional Trial Court
(RTC), Branch 114, Pasay City, a verified petition for the judicial
settlement of the estate of his deceased father Joaquin Agtarap
(Joaquin). It was docketed as Special Proceedings No. 94-4055.
The petition alleged that Joaquin died intestate on November 21, 1964
in Pasay City without any known debts or obligations. During his
lifetime, Joaquin contracted two marriages, first with Lucia Garcia
(Lucia),5 and second with Caridad Garcia (Caridad). Lucia died on
April 24, 1924. Joaquin and Lucia had three children—Jesus (died
namely, Gloria,6 Joseph, and Teresa7). Joaquin married Caridad on
February 9, 1926. They also had three children—Eduardo, Sebastian,
and Mercedes (survived by her daughter Cecile). At the time of his
death, Joaquin left two parcels of land with improvements in Pasay
City, covered by Transfer Certificates of Title (TCT) Nos. 873-(38254)
and 874-(38255). Joseph, a grandson of Joaquin, had been leasing and
improving the said realties and had been appropriating for himself
₱26,000.00 per month since April 1994.
him as special administrator to take possession and charge of the
estate assets and their civil fruits, pending the appointment of a
regular administrator. In addition, he prayed that an order be issued
(a) confirming and declaring the named compulsory heirs of Joaquin
who would be entitled to participate in the estate; (b) apportioning
and allocating unto the named heirs their aliquot shares in the estate
in accordance with law; and (c) entitling the distributees the right to
receive and enter into possession those parts of the estate individually
awarded to them.
On September 26, 1994, the RTC issued an order setting the petition
for initial hearing and directing Eduardo to cause its publication.
On December 28, 1994, Sebastian filed his comment, generally
admitting the allegations in the petition, and conceding to the
appointment of Eduardo as special administrator.
Joseph, Gloria, and Teresa filed their answer/opposition. They
alleged that the two subject lots belong to the conjugal partnership of
Joaquin with Lucia, and that, upon Lucia’s death in April 1924, they
became the pro indiviso owners of the subject properties. They said
that their residence was built with the exclusive money of their late
father Jose, and the expenses of the extensions to the house were
shouldered by Gloria and Teresa, while the restaurant (Manong’s
Restaurant) was built with the exclusive money of Joseph and his
business partner. They opposed the appointment of Eduardo as
administrator on the following grounds: (1) he is not physically and
mentally fit to do so; (2) his interest in the lots is minimal; and (3) he
does not possess the desire to earn. They claimed that the best
interests of the estate dictate that Joseph be appointed as special or
regular administrator.
On February 16, 1995, the RTC issued a resolution appointing
Eduardo as regular administrator of Joaquin’s estate. Consequently, it
issued him letters of administration.
the estate is perforce accounted by the second marriage and the
compulsory heirs thereunder.
The Administrator, Eduardo Agtarap rendered a true and just
accounting of his administration from his date of assumption up to
the year ending December 31, 1996 per Financial and Accounting
Report dated June 2, 1997 which was approved by the Court. The
accounting report included the income earned and received for the
period and the expenses incurred in the administration, sustenance
and allowance of the widow. In accordance with said Financial and
Accounting Report which was duly approved by this Court in its
Resolution dated July 28, 1998 – the deceased JOAQUIN AGTARAP
left real properties consisting of the following:
I LAND:

On September 16, 1995, Abelardo Dagoro filed an answer in Two lots and two buildings with one garage quarter located at #3030
intervention, alleging that Mercedes is survived not only by her Agtarap St., Pasay City, covered by Transfer Certificate of Title Nos.
daughter Cecile, but also by him as her husband. He also averred that 38254 and 38255 and registered with the Registry of Deeds of Pasay
there is a need to appoint a special administrator to the estate, but City, Metro Manila, described as follows:
claimed that Eduardo is not the person best qualified for the task.
TCT LOT ZONAL
After the parties were given the opportunity to be heard and to AREA/SQ.M. AMOUNT
NO. NO. VALUE
submit their respective proposed projects of partition, the RTC, on
October 23, 2000, issued an Order of Partition, 8 with the following 38254 745- 1,335 sq. m. ₱5,000.00 ₱6,675,000.00
disposition— B-1

In the light of the filing by the heirs of their respective proposed 38255 745- 1,331 sq. m. ₱5,000.00 ₱6,655,000.00
projects of partition and the payment of inheritance taxes due the B-2
estate as early as 1965, and there being no claim in Court against the
estate of the deceased, the estate of JOAQUIN AGTARAP is now TOTAL------------------------------------------------ ₱13,330,000.00
consequently – ripe – for distribution among the heirs minus the -------------
surviving spouse Caridad Garcia who died on August 25, 1999.
II BUILDINGS AND IMPROVEMENTS:
Considering that the bulk of the estate property were acquired during
the existence of the second marriage as shown by TCT No. (38254)
BUILDING I (Lot # 745-B-1)
and TCT No. (38255) which showed on its face that decedent was ₱350,000.00
------------------------------
married to Caridad Garcia, which fact oppositors failed to contradict
by evidence other than their negative allegations, the greater part of BUILDING II (Lot # 745-B-2) 320,000.00
 ----------------------------- The share of Milagros Agtarap as compulsory heir in the amount of
₱1,181,548.30 and who died in 1996 will go to Teresa Agtarap and
Building Improvements 97,500.00 Joseph Agtarap, Walter de Santos and half brothers Eduardo and
-------------------------------------- Sebastian Agtarap in equal proportions.

Restaurant 80,000.00
TERESA AGTARAP - ₱236,291.66
------------------------------------------------------
JOSEPH AGTARAP - ₱236,291.66
TOTAL ₱847,500.00
--------------------------------------------------------- WALTER DE SANTOS - ₱236,291.66
TOTAL NET WORTH ₱14,177,500.00 SEBASTIAN AGTARAP - ₱236,291.66
-----------------------------------------
EDUARDO AGTARAP - ₱236,291.66
WHEREFORE, the net assets of the estate of the late JOAQUIN
AGTARAP with a total value of ₱14,177,500.00, together with Jose Agtarap died in 1967. His compulsory heirs are as follows:
whatever interest from bank deposits and all other incomes or
increments thereof accruing after the Accounting Report of December COMPULSORY HEIRS:
31, 1996, after deducting therefrom the compensation of the
administrator and other expenses allowed by the Court, are hereby
1) GLORIA – (deceased) – represented by Walter de Santos
ordered distributed as follows:
–
TOTAL ESTATE – ₱14,177,500.00 - ₱295,364.57

CARIDAD AGTARAP – ½ of the estate as her conjugal share – 2) JOSEPH AGTARAP - ₱295,364.57
₱7,088,750.00, the other half of ₱7,088,750.00 – to be divided among
the compulsory heirs as follows: 3) TERESA AGTARAP - ₱295,364.57

4) PRISCILLA AGTARAP - ₱295,364.57

1) JOSE (deceased) - ₱1,181,548.30

2) MILAGROS (deceased) - ₱1,181,548.30 Hence, Priscilla Agtarap will inherit ₱295,364.57.

3) MERCEDES (deceased) - ₱1,181,548.30 Adding their share from Milagros Agtarap, the following heirs of the
first marriage stand to receive the total amount of:
4) SEBASTIAN - ₱1,181,548.30
HEIRS OF THE FIRST MARRIAGE:
5) EDUARDO - ₱1,181,548.30

6) CARIDAD - ₱1,181,548.30 1avvphi1

1) JOSEPH AGTARAP ₱236,291.66 – share from Milagros
 - Agtarap ₱ 236,291.66 – share from
Milagros
₱295,364.57 – as compulsory heir of
d) MERCEDES - as represented by Abelardo Dagoro
₱531,656.23 Jose Agtarap as the
surviving spouse of a compulsory
2) TERESA AGTARAP ₱236,291.66 – share from Milagros heir
- Agtarap
₱1,181,458.38
₱295,364.57 – as compulsory heir of
REMAINING HEIRS OF CARIDAD AGTARAP:
₱531,656.23 Jose Agtarap
1) SEBASTIAN AGTARAP
3) WALTER DE ₱236,291.66 – share from Milagros
SANTOS - Agtarap 2) EDUARDO AGTARAP
MERCEDES AGTARAP (Predeceased Caridad Agtarap)
₱295,364.57 – as compulsory heir of
In sum, Sebastian Agtarap and Eduardo Agtarap stand to
₱531,656.23 Jose Agtarap inherit:

HEIRS OF THE SECOND MARRIAGE: SEBASTIAN ₱4,135,104.10 – share from Caridad

– ₱1,181,458.30 Garcia
a) CARIDAD AGTARAP - died on August 25, 1999 ₱ 236,291.66 - as compulsory heir
- share from Milagros
₱7,088,750.00 - as conjugal share ₱5,522,854.06
₱1,181,458.30 - as compulsory EDUARDO – ₱4,135,104.10 – share from Caridad
heir ₱1,181,458.30 Garcia
₱ 236,291.66 – as compulsory heir
Total of ₱8,270,208.30 – share from
b) SEBASTIAN ₱1,181,458.38 – as compulsory ₱5,522,854.06 Milagros
AGTARAP - heir
SO ORDERED.9
₱ 236,291.66 – share from
Milagros Eduardo, Sebastian, and oppositors Joseph and Teresa filed their
c) EDUARDO ₱1,181,458.38 – as compulsory respective motions for reconsideration.
AGTARAP - heir
On August 27, 2001, the RTC issued a resolution10 denying the
motions for reconsideration of Eduardo and Sebastian, and granting
that of Joseph and Teresa. It also declared that the real estate
properties belonged to the conjugal partnership of Joaquin and Lucia.
It also directed the modification of the October 23, 2000 Order of
Partition to reflect the correct sharing of the heirs. However, before
the RTC could issue a new order of partition, Eduardo and Sebastian
both appealed to the CA.
On November 21, 2006, the CA rendered its Decision, the dispositive
portion of which reads—
WHEREFORE, premises considered, the instant appeals are
DISMISSED for lack of merit. The assailed Resolution dated August
27, 2001 is AFFIRMED and pursuant thereto, the subject properties
(Lot No. 745-B-1 [TCT No. 38254] and Lot No. 745-B-2 [TCT No.
38255]) and the estate of the late Joaquin Agtarap are hereby
partitioned as follows:
The two (2) properties, together with their improvements, embraced
by TCT No. 38254 and TCT No. 38255, respectively, are first to be
distributed among the following:
Lucia Mendietta - ½ of the property. But since she is deceased, her
share shall be inherited by Joaquin, Jesus, Milagros and Jose in equal
shares.
Joaquin Agtarap - ½ of the property and ¼ of the other half of the
property which pertains to Lucia Mendietta’s share.
Jesus Agtarap - ¼ of Lucia Mendietta’s share. But since he is already
deceased (and died without issue), his inheritance shall, in turn, be
acquired by Joaquin Agtarap.
Milagros Agtarap - ¼ of Lucia Mendietta’s share. But since she died in
1996 without issue, 5/8 of her inheritance shall be inherited by Gloria
(represented by her husband Walter de Santos and her daughter
Samantha), Joseph Agtarap and Teresa Agtarap, (in representation of
Milagros’ brother Jose Agtarap) and 1/8 each shall be inherited by
Mercedes (represented by her husband Abelardo Dagoro and her
daughter Cecile), Sebastian Eduardo, all surnamed Agtarap.
Jose Agtarap - ¼ of Lucia Mendietta’s share. But since he died in 1967,
his inheritance shall be acquired by his wife Priscilla, and children
Gloria (represented by her husband Walter de Santos and her
daughter Samantha), Joseph Agtarap and Teresa in equal shares.
Then, Joaquin Agtarap’s estate, comprising three-fourths (3/4) of the
subject properties and its improvements, shall be distributed as
follows:
Caridad Garcia - 1/6 of the estate. But since she died in 1999, her
share shall be inherited by her children namely Mercedes Agtarap
(represented by her husband Abelardo Dagoro and her daughter
Cecilia), Sebastian Agtarap and Eduardo Agtarap in their own right,
dividing the inheritance in equal shares.
Milagros Agtarap - 1/6 of the estate. But since she died in 1996
without issue, 5/8 of her inheritance shall be inherited by Gloria
(represented by her husband Walter de Santos and her daughter
Samantha), Joseph Agtarap and Teresa Agtarap, (in representation of
Milagros’ brother Jose Agtarap) and 1/8 each shall be inherited by
Mercedes (represented by her husband Abelardo Dagoro and her
daughter Cecile), Sebastian and Eduardo, all surnamed Agtarap.
Jose Agtarap - 1/6 of the estate. But since he died in 1967, his
inheritance shall be acquired by his wife Priscilla, and children Gloria
(represented by her husband Walter de Santos and her daughter
Samantha), Joseph Agtarap and Teresa Agtarap in equal shares.
Mercedes Agtarap - 1/6 of the estate. But since she died in 1984, her
inheritance shall be acquired by her husband Abelardo Dagoro and
her daughter Cecile in equal shares.
Sebastian Agtarap - 1/6 of the estate.
Eduardo Agtarap - 1/6 of the estate.
SO ORDERED.11
Aggrieved, Sebastian and Eduardo filed their respective motions for
reconsideration.
In its Resolution dated March 27, 2007, the CA denied both motions.
Hence, these petitions ascribing to the appellate court the following
errors:
G.R. No. 177192
1. – The Court of Appeals erred in not considering the
aforementioned important facts12 which alter its Decision;
2. – The Court of Appeals erred in not considering the
necessity of hearing the issue of legitimacy of respondents as
heirs;
3. – The Court of Appeals erred in allowing violation of the
law and in not applying the doctrines of collateral attack,
estoppel, and res judicata.13
G.R. No. 177099
THE COURT OF APPEALS (FORMER TWELFTH DIVISION) DID
NOT ACQUIRE JURISDICTION OVER THE ESTATE OF MILAGROS
G. AGTARAP AND ERRED IN DISTRIBUTING HER INHERITANCE
FROM THE ESTATE OF JOAQUIN AGTARAP
NOTWITHSTANDING THE EXISTENCE OF HER LAST WILL AND
TESTAMENT IN VIOLATION OF THE DOCTRINE OF
PRECEDENCE OF TESTATE PROCEEDINGS OVER INTESTATE
PROCEEDINGS.
II.
THE COURT OF APPEALS (FORMER TWELFTH DIVISION) ERRED
IN DISMISSING THE DECISION APPEALED FROM FOR LACK OF
MERIT AND IN AFFIRMING THE ASSAILED RESOLUTION
DATED AUGUST 27, 2001 OF THE LOWER COURT HOLDING
THAT THE PARCELS OF LAND COVERED BY TCT NO. 38254 AND
TCT (NO.) 38255 OF THE REGISTRY OF DEEDS FOR THE CITY OF
PASAY BELONG TO THE CONJUGAL PARTNERSHIP OF
JOAQUIN AGTARAP MARRIED TO LUCIA GARCIA MENDIETTA
NOTWITHSTANDING THEIR REGISTRATION UNDER THEIR
EXISTING CERTIFICATES OF TITLE AS REGISTERED IN THE
NAME OF JOAQUIN AGTARAP, CASADO CON CARIDAD
GARCIA. UNDER EXISTING JURISPRUDENCE, THE PROBATE
COURT HAS NO POWER TO DETERMINE THE OWNERSHIP OF
THE PROPERTY DESCRIBED IN THESE CERTIFICATES OF TITLE
WHICH SHOULD BE RESOLVED IN AN APPROPRIATE
SEPARATE ACTION FOR A TORRENS TITLE UNDER THE LAW IS
ENDOWED WITH INCONTESTABILITY UNTIL IT HAS BEEN SET
ASIDE IN THE MANNER INDICATED IN THE LAW ITSELF.14
As regards his first and second assignments of error, Sebastian
contends that Joseph and Teresa failed to establish by competent
evidence that they are the legitimate heirs of their father Jose, and
thus of their grandfather Joaquin. He draws attention to the certificate
of title (TCT No. 8026) they submitted, stating that the wife of their
father Jose is Presentacion Garcia, while they claim that their mother
is Priscilla. He avers that the marriage contracts proffered by Joseph
and Teresa do not qualify as the best evidence of Jose’s marriage with
Priscilla, inasmuch as they were not authenticated and formally
offered in evidence. Sebastian also asseverates that he actually
questioned the legitimacy of Joseph and Teresa as heirs of Joaquin in
his motion to exclude them as heirs, and in his reply to their
opposition to the said motion. He further claims that the failure of
Abelardo Dagoro and Walter de Santos to oppose his motion to
exclude them as heirs had the effect of admitting the allegations
therein. He points out that his motion was denied by the RTC without
a hearing.
With respect to his third assigned error, Sebastian maintains that the
certificates of title of real estate properties subject of the controversy
are in the name of Joaquin Agtarap, married to Caridad Garcia, and as
such are conclusive proof of their ownership thereof, and thus, they
are not subject to collateral attack, but should be threshed out in a
separate proceeding for that purpose. He likewise argues that
estoppel applies against the children of the first marriage, since none
of them registered any objection to the issuance of the TCTs in the
name of Caridad and Joaquin only. He avers that the estate must have
already been settled in light of the payment of the estate and
inheritance tax by Milagros, Joseph, and Teresa, resulting to the
issuance of TCT No. 8925 in Milagros’ name and of TCT No. 8026 in
the names of Milagros and Jose. He also alleges that res judicata is
applicable as the court order directing the deletion of the name of
Lucia, and replacing it with the name of Caridad, in the TCTs had
long become final and executory.
In his own petition, with respect to his first assignment of error,
Eduardo alleges that the CA erroneously settled, together with the
settlement of the estate of Joaquin, the estates of Lucia, Jesus, Jose,
Mercedes, Gloria, and Milagros, in contravention of the principle of
settling only one estate in one proceeding. He particularly questions
the distribution of the estate of Milagros in the intestate proceedings
despite the fact that a proceeding was conducted in another court for
the probate of the will of Milagros, bequeathing all to Eduardo
whatever share that she would receive from Joaquin’s estate. He
states that this violated the rule on precedence of testate over intestate
proceedings.
Anent his second assignment of error, Eduardo contends that the CA
gravely erred when it affirmed that the bulk of the realties subject of
this case belong to the first marriage of Joaquin to Lucia,
notwithstanding that the certificates of title were registered in the
name of Joaquin Agtarap casado con ("married to") Caridad Garcia.
According to him, the RTC, acting as an intestate court with limited
jurisdiction, was not vested with the power and authority to
determine questions of ownership, which properly belongs to another
court with general jurisdiction.
The Court’s Ruling
As to Sebastian’s and Eduardo’s common issue on the ownership of
the subject real properties, we hold that the RTC, as an intestate court,
had jurisdiction to resolve the same.
The general rule is that the jurisdiction of the trial court, either as a
probate or an intestate court, relates only to matters having to do with
the probate of the will and/or settlement of the estate of deceased
persons, but does not extend to the determination of questions of
ownership that arise during the proceedings.15 The patent rationale
for this rule is that such court merely exercises special and limited
jurisdiction.16 As held in several cases,17 a probate court or one in
charge of estate proceedings, whether testate or intestate, cannot
adjudicate or determine title to properties claimed to be a part of the
estate and which are claimed to belong to outside parties, not by
virtue of any right of inheritance from the deceased but by title
adverse to that of the deceased and his estate. All that the said court
could do as regards said properties is to determine whether or not
they should be included in the inventory of properties to be
administered by the administrator. If there is no dispute, there poses
no problem, but if there is, then the parties, the administrator, and the
opposing parties have to resort to an ordinary action before a court
exercising general jurisdiction for a final determination of the
conflicting claims of title.
However, this general rule is subject to exceptions as justified by
expediency and convenience.
First, the probate court may provisionally pass upon in an intestate or
a testate proceeding the question of inclusion in, or exclusion from,
the inventory of a piece of property without prejudice to the final
determination of ownership in a separate action.18 Second, if the
interested parties are all heirs to the estate, or the question is one of
collation or advancement, or the parties consent to the assumption of
jurisdiction by the probate court and the rights of third parties are not
impaired, then the probate court is competent to resolve issues on
ownership.19 Verily, its jurisdiction extends to matters incidental or
collateral to the settlement and distribution of the estate, such as the
determination of the status of each heir and whether the property in
the inventory is conjugal or exclusive property of the deceased
spouse.20
We hold that the general rule does not apply to the instant case
considering that the parties are all heirs of Joaquin and that no rights
of third parties will be impaired by the resolution of the ownership
issue. More importantly, the determination of whether the subject
properties are conjugal is but collateral to the probate court’s
jurisdiction to settle the estate of Joaquin.1auuphi1
It should be remembered that when Eduardo filed his verified
petition for judicial settlement of Joaquin’s estate, he alleged that the
subject properties were owned by Joaquin and Caridad since the
TCTs state that the lots were registered in the name of Joaquin
Agtarap, married to Caridad Garcia. He also admitted in his petition
that Joaquin, prior to contracting marriage with Caridad, contracted a
first marriage with Lucia. Oppositors to the petition, Joseph and
Teresa, however, were able to present proof before the RTC that TCT
Nos. 38254 and 38255 were derived from a mother title, TCT No. 5239,
dated March 17, 1920, in the name of FRANCISCO VICTOR BARNES
Y JOAQUIN AGTARAP, el primero casado con Emilia Muscat, y el
Segundo con Lucia Garcia Mendietta (FRANCISCO VICTOR
BARNES y JOAQUIN AGTARAP, the first married to Emilia Muscat,
and the second married to Lucia Garcia Mendietta).21 When TCT No.
5239 was divided between Francisco Barnes and Joaquin Agtarap,
TCT No. 10864, in the name of Joaquin Agtarap, married to Lucia
Garcia Mendietta, was issued for a parcel of land, identified as Lot
No. 745 of the Cadastral Survey of Pasay, Cadastral Case No. 23,
G.L.R.O. Cadastral Record No. 1368, consisting of 8,872 square
meters. This same lot was covered by TCT No. 5577 (32184)22 issued
on April 23, 1937, also in the name of Joaquin Agtarap, married to
Lucia Garcia Mendietta.
The findings of the RTC and the CA show that Lucia died on April 24,
1924, and subsequently, on February 9, 1926, Joaquin married
Caridad. It is worthy to note that TCT No. 5577 (32184) contained an
annotation, which reads—
Ap-4966 – NOTA: Se ha enmendado el presente certificado de titulo,
tal como aparece, tanchando las palabras "con Lucia Garcia
Mendiet[t]a" y poniendo en su lugar, entre lineas y en tinta
encarnada, las palabras "en segundas nupcias con Caridad Garcia", en
complimiento de un orden de fecha 28 de abril de 1937, dictada por el
Hon. Sixto de la Costa, juez del Juzgado de Primera Instancia de
Rizal, en el expediente cadastal No. 23, G.L.R.O. Cad. Record No.
1368; copia de cual orden has sido presentada con el No. 4966 del
Libro Diario, Tomo 6.0 y, archivada en el Legajo T-No. 32184.
Pasig, Rizal, a 29 abril de 1937.23
Thus, per the order dated April 28, 1937 of Hon. Sixto de la Costa,
presiding judge of the Court of First Instance of Rizal, the phrase con
Lucia Garcia Mendiet[t]a was crossed out and replaced by en
segundas nuptias con Caridad Garcia, referring to the second
marriage of Joaquin to Caridad. It cannot be gainsaid, therefore, that
prior to the replacement of Caridad’s name in TCT No. 32184, Lucia,
upon her demise, already left, as her estate, one-half (1/2) conjugal
share in TCT No. 32184. Lucia’s share in the property covered by the
said TCT was carried over to the properties covered by the certificates
of title derivative of TCT No. 32184, now TCT Nos. 38254 and 38255.
And as found by both the RTC and the CA, Lucia was survived by her
compulsory heirs – Joaquin, Jesus, Milagros, and Jose.
Section 2, Rule 73 of the Rules of Court provides that when the
marriage is dissolved by the death of the husband or the 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, and if both spouses have died,
the conjugal partnership shall be liquidated in the testate or intestate
proceedings of either. Thus, the RTC had jurisdiction to determine
whether the properties are conjugal as it had to liquidate the conjugal
partnership to determine the estate of the decedent. In fact, should
Joseph and Teresa institute a settlement proceeding for the intestate
estate of Lucia, the same should be consolidated with the settlement
proceedings of Joaquin, being Lucia’s spouse.24 Accordingly, the CA
correctly distributed the estate of Lucia, with respect to the properties
covered by TCT Nos. 38254 and 38255 subject of this case, to her
compulsory heirs.
Therefore, in light of the foregoing evidence, as correctly found by the
RTC and the CA, the claim of Sebastian and Eduardo that TCT Nos.
38254 and 38255 conclusively show that the owners of the properties
covered therein were Joaquin and Caridad by virtue of the
registration in the name of Joaquin Agtarap casado con (married to)
Caridad Garcia, deserves scant consideration. This cannot be said to
be a collateral attack on the said TCTs. Indeed, simple possession of a
certificate of title is not necessarily conclusive of a holder’s true
ownership of property.25 A certificate of title under the Torrens
system aims to protect dominion; it cannot be used as an instrument
for the deprivation of ownership.26 Thus, the fact that the properties
were registered in the name of Joaquin Agtarap, married to Caridad
Garcia, is not sufficient proof that the properties were acquired
during the spouses’ coverture.27The phrase "married to Caridad
Garcia" in the TCTs is merely descriptive of the civil status of Joaquin
as the registered owner, and does not necessarily prove that the
realties are their conjugal properties.28
Neither can Sebastian’s claim that Joaquin’s estate could have already
been settled in 1965 after the payment of the inheritance tax be
upheld. Payment of the inheritance tax, per se, does not settle the
estate of a deceased person. As provided in Section 1, Rule 90 of the
Rules of Court—
SECTION 1. When order for distribution of residue made. -- When the
debts, funeral charges, and expenses of administration, the allowance
to the widow, and inheritance tax, if any, chargeable to the estate in
accordance with law, have been paid, the court, on the application of
the executor or administrator, or of a person interested in the estate,
and after hearing upon notice, shall assign the residue of the estate to
the persons entitled to the same, naming them and the proportions, or
parts, to which each is entitled, and such persons may demand and
recover their respective shares from the executor or administrator, or
any other person having the same in his possession. If there is a
controversy before the court as to who are the lawful heirs of the
deceased person or as to the distributive share to which each person is
entitled under the law, the controversy shall be heard and decided as
in ordinary cases.
No distribution shall be allowed until the payment of the obligations
above mentioned has been made or provided for, unless the
distributees, or any of them, give a bond, in a sum to be fixed by the
court, conditioned for the payment of said obligations within such
time as the court directs.
Thus, an estate is settled and distributed among the heirs only after
the payment of the debts of the estate, funeral charges, expenses of
administration, allowance to the widow, and inheritance tax. The
records of these cases do not show that these were complied with in
1965.
As regards the issue raised by Sebastian on the legitimacy of Joseph
and Teresa, suffice it to say that both the RTC and the CA found them
to be the legitimate children of Jose. The RTC found that Sebastian did
not present clear and convincing evidence to support his averments in
his motion to exclude them as heirs of Joaquin, aside from his
negative allegations. The RTC also noted the fact of Joseph and Teresa
being the children of Jose was never questioned by Sebastian and
Eduardo, and the latter two even admitted this in their petitions, as
well as in the stipulation of facts in the August 21, 1995
hearing.29 Furthermore, the CA affirmed this finding of fact in its
November 21, 2006 Decision.30
Also, Sebastian’s insistence that Abelardo Dagoro and Walter de
Santos are not heirs to the estate of Joaquin cannot be sustained. Per
its October 23, 2000 Order of Partition, the RTC found that Gloria
Agtarap de Santos died on May 4, 1995, and was later substituted in
the proceedings below by her husband Walter de Santos. Gloria begot
a daughter with Walter de Santos, Georgina Samantha de Santos. The
RTC likewise noted that, on September 16, 1995, Abelardo Dagoro
filed a motion for leave of court to intervene, alleging that he is the
surviving spouse of Mercedes Agtarap and the father of Cecilia
Agtarap Dagoro, and his answer in intervention. The RTC later
granted the motion, thereby admitting his answer on October 18,
1995.31 The CA also noted that, during the hearing of the motion to
intervene on October 18, 1995, Sebastian and Eduardo did not
interpose any objection when the intervention was submitted to the
RTC for resolution.32
Indeed, this Court is not a trier of facts, and there appears no
compelling reason to hold that both courts erred in ruling that Joseph,
Teresa, Walter de Santos, and Abelardo Dagoro rightfully
participated in the estate of Joaquin. It was incumbent upon Sebastian
to present competent evidence to refute his and Eduardo’s admissions
that Joseph and Teresa were heirs of Jose, and thus rightful heirs of
Joaquin, and to timely object to the participation of Walter de Santos
and Abelardo Dagoro. Unfortunately, Sebastian failed to do so.
Nevertheless, Walter de Santos and Abelardo Dagoro had the right to
participate in the estate in representation of the Joaquin’s compulsory
heirs, Gloria and Mercedes, respectively.33
This Court also differs from Eduardo’s asseveration that the CA erred
in settling, together with Joaquin’s estate, the respective estates of
Lucia, Jesus, Jose, Mercedes, and Gloria. A perusal of the November
21, 2006 CA Decision would readily show that the disposition of the
properties related only to the settlement of the estate of Joaquin.
Pursuant to Section 1, Rule 90 of the Rules of Court, as cited above,
the RTC was specifically granted jurisdiction to determine who are
the lawful heirs of Joaquin, as well as their respective shares after the
payment of the obligations of the estate, as enumerated in the said
provision. The inclusion of Lucia, Jesus, Jose, Mercedes, and Gloria in
the distribution of the shares was merely a necessary consequence of
the settlement of Joaquin’s estate, they being his legal heirs.
be represented by his wife Teresita B. Agtarap and his children
Joaquin Julian B. Agtarap and Ana Ma. Agtarap Panlilio.
These cases are hereby remanded to the Regional Trial Court, Branch
114, Pasay City, for further proceedings in the settlement of the estate
of Joaquin Agtarap. No pronouncement as to costs.
SO ORDERED.

However, we agree with Eduardo’s position that the CA erred in ANTONIO EDUARDO B. NACHURA
distributing Joaquin’s estate pertinent to the share allotted in favor of Associate Justice
Milagros. Eduardo was able to show that a separate proceeding was
instituted for the probate of the will allegedly executed by Milagros WE CONCUR:
before the RTC, Branch 108, Pasay City.34 While there has been no
showing that the alleged will of Milagros, bequeathing all of her share ANTONIO T. CARPIO
from Joaquin’s estate in favor of Eduardo, has already been probated Associate Justice
and approved, prudence dictates that this Court refrain from Chairperson
distributing Milagros’ share in Joaquin’s estate.
DIOSDADO M. PERALTA ROBERTO A. ABAD
It is also worthy to mention that Sebastian died on January 15, 2010, Associate Justice Associate Justice
per his Certificate of Death.35 He is survived by his wife Teresita B.
Agtarap (Teresita) and his children Joaquin Julian B. Agtarap (Joaquin JOSE CATRAL MENDOZA
Julian) and Ana Ma. Agtarap Panlilio (Ana Ma.). Associate Justice

Henceforth, in light of the foregoing, the assailed November 21, 2006

Decision and the March 27, 2007 Resolution of the CA should be
affirmed with modifications such that the share of Milagros shall not
yet be distributed until after the final determination of the probate of
her purported will, and that Sebastian shall be represented by his
compulsory heirs.

WHEREFORE, the petition in G.R. No. 177192 is DENIED for lack of

merit, while the petition in G.R. No. 177099 is PARTIALLY
GRANTED, such that the Decision dated November 21, 2006 and the
Resolution dated March 27, 2007 of the Court of Appeals are
AFFIRMED with the following MODIFICATIONS: that the share
awarded in favor of Milagros Agtarap shall not be distributed until
the final determination of the probate of her will, and that petitioner
Sebastian G. Agtarap, in view of his demise on January 15, 2010, shall
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-57848 June 19, 1982
RAFAEL E. MANINANG and SOLEDAD L.
MANINANG, petitioners,  xxx xxx xxx
vs.
COURT OF APPEALS, HON. RICARDO L. PRONOVE, JR., as
Judge of the Court of First Instance of Rizal and BERNARDO S.
ASENETA, respondents.
MELENCIO-HERRERA, J.:
A Petition to Review the Decision of April 28, 1981 of respondent
Appellate Court in CA-G.R. No. 12032-R entitled "Rafael E. Maninang
and Soledad L. Maninang vs. Hon. Ricardo Pronove, Judge of the Court of
First Instance of Rizal, Pasig, Branch XI, and Bernardo S. Aseneta".
Pertinent to the controversy are the following antecedental facts:
On May 21, 1977, Clemencia Aseneta, single, died at the Manila
Sanitarium Hospital at age 81. She left a holographic will, the
pertinent portions of which are quoted hereunder:
xxx xxx xxx
It is my will that all my real properties located in
Manila, Makati, Quezon City, Albay and Legaspi City
and all my personal properties shagllbe inherited upon
my death by Dra. Soledad L. Maninang with whose
family I have lived continuously for around the last 30
years now. Dra. Maninang and her husband Pamping
have been kind to me. ... I have found peace and
happiness with them even during the time when my
sisters were still alive and especially now when I am
now being troubled by my nephew Bernardo and niece
Salvacion. I am not incompetent as Nonoy would like
me to appear. I know what is right and wrong. I can
decide for myself. I do not consider Nonoy as my
adopted son. He has made me do things against my
will.
On June 9, 1977, petitioner Soledad Maninang filed a Petition for
probate of the Will of the decedent with the Court of First Instance-
Branch IV, Quezon City (Sp. Proc. No. Q-23304, hereinafter referred to
as the Testate Case).
On July 25, 1977, herein respondent Bernardo Aseneta, who, as the
adopted son, claims to be the sole heir of decedent Clemencia
Aseneta, instituted intestate proceedings with the Court of First
Instance-Branch XI, Pasig, Rizal (Sp. Proc. No. 8569, called hereinafter
the Intestate Case" for brevity).
On December 23, 1977, the Testate and Intestate Cases were ordered
consolidated before Branch XI, presided by respondent Judge.
Respondent Bernardo then filed a Motion to Dismiss the Testate Case
on the ground that the holographic will was null and void because he,
as the only compulsory heir, was preterited and, therefore, intestacy
should ensue. In support of said Motion to Dismiss, respondent
Bernardo cited the cases of Neri vs. Akutin (72 Phil. 322); Nuguid vs.
Nuguid (17 SCRA 449), and Ramos vs. Baldovino (2 CA Rep. 2nd, 878). 1
In her Opposition to said Motion to Dismiss, petitioner Soledad
averred that it is still the rule that in a case for 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; and that respondent Bernardo was
effectively disinherited by the decedent. 2
On September 8, 1980, the lower Court ordered the dismissal of the
Testate Case in this wise:
For reasons stated in the motion to dismiss filed by
petitioner Bernardo S. Aseneta which the Court finds
meritorious, the petition for probate of will filed by
Soledad L. Maninang and which was docketed as Sp.
Proc. No. Q-23304 is DISMISSED, without
pronouncement as to costs.
On December 19, 1980, the lower Court denied reconsideration for
lack of merit and in the same Order appointed Bernardo as the
administrator of the intestate estate of the deceased Clemencia
Aseneta "considering that he is a forced heir of said deceased while
oppositor Soledad Maninang is not, and considering further that
Bernardo Aseneta has not been shown to be unfit to perform the
duties of the trust. "
Petitioners Maninang resorted to a certiorari Petition before
respondent Court of Appeals alleging that the lower Court exceeded
its jurisdiction in issuing the Orders of dismissal of the Testate Case
(September 8, 1980) and denial of reconsideration (December 19,
1980).
On April 28, 1981, respondent Court 3 denied certiorari and ruled that
the trial Judge's Order of dismissal was final in nature as it finally
disposed of the Testate Case and, therefore, appeal was the proper
remedy, which petitioners failed to avail of. Continuing, it said that
even granting that the lower Court committed errors in issuing the
questioned Orders, those are errors of judgment reviewable only by
appeal and not by Certiorari. 'Thus, this Petition before us.
We find that the Court a quo a quo acted in excess of its jurisdiction
when it dismissed the Testate Case. Generally, the probate of a Will is
mandatory.
No will shall pass either real or personal property
unless it is proved and allowed in accordance with the
Rules of Court. 4
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. 5
Normally, the probate of a Will does not look into its intrinsic
validity.
... The authentication of a will decides no other
question than such as touch upon the capacity of the
testator and the compliance with those requisites or
solemnities which the law prescribes for the validity of
wills. It does not determine nor even by implication
prejudge the validity or efficiency (sic) of the
provisions, these may be impugned as being vicious or
null, notwithstanding its authentication. The
que0stions relating to these points remain entirely
unaffected, and may be raised even after the will has
been authenticated .... 6
Opposition to the intrinsic validity or legality of the
provisions of the will cannot be entertained in Probate
proceeding because its only purpose is merely to
determine if the will has been executed in accordance
with the requirements of the law. 7
Respondent Bernardo, however, relies on the pronouncement
in Nuguid vs. Nuguid  8, reading:
In a proceeding 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
prescribed by law. The intrinsic validity of the will
normally comes only after the court has declared that
the will has been duly authenticated. However, where
practical considerations demand that the intrinsic validity of
the will be passed upon, even before it is probated, the Court
should meet that issue. (Emphasis supplied)
Our ruling in Balanay vs. Hon. Martinez  9 had a similar thrust:
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.
The Nuguid  and the Balanay  cases provide the exception rather than
the rule. The intrinsic validity of the Wills in those cases was passed
upon even before probate because "practical considerations" so
demanded. Moreover, for the parties in the Nuguid case, the "meat of
the controversy" was the intrinsic validity of the Will; in fact, the
parties in that case "shunted aside the question of whether or not the
Will should be allowed probate." Not so in the case before us now
where the probate of the Will is insisted on by petitioners and a
resolution on the extrinsic validity of the Will demanded.
Moreover, in the Nuguid case, this Court ruled that the Will was
intrinsically invalid as it completely preterited the parents of the
testator. In the instant case, a crucial issue that calls for resolution is
whether under the terms of the decedent's Will, private respondent
had been preterited or disinherited, and if the latter, whether it was a
valid disinheritance. Preterition and disinheritance are two diverse
concepts.
... 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." (Neri vs. Akutin, 72 Phil. 325).
Disinheritance, in turn, "is a testamentary disposition
depriving any compulsory heirs of his share in the
legitimate for a cause authorized by law." (Justice J.B.L.
Reyes and R.C. Puno, "An Outline of Philippine Civil
Law", 1956 ed., Vol. III, p. 8, citing cases)
Disinheritance is always "voluntary", preterition upon
the other hand, is presumed to be "involuntary"
(Sanchez Roman, Estudios de Derecho Civil 2nd
edition, Volume 2.o p. 1131). 10
The effects of preterition and disinheritance are also totally different.
... The effects flowing from preterition are totally
different from those of disinheritance. Pretention under
Article 854 of the New Civil Code shall annul the
institution of heir. This annulment is in toto, unless in
the wail 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", but only "insofar as it may
prejudice the person disinherited", which last phrase
was omitted in the case of preterition (III Tolentino,
Civil Code of the Philippines, 1961 Edition, p. 172).
Better stated yet, in disinheritance the nullity is limited
to that portion of the estate of which the disinherited
heirs have been illegally deprived. 11
By virtue of the dismissal of the Testate Case, the determination of
that controversial issue has not been thoroughly considered. We
gather from the assailed Order of the trial Court that its conclusion
was that respondent Bernardo has been preterited We are of opinion,
however, that from the face of the Will, that conclusion is not
indubitable.
As held in the case of Vda. de Precilla vs. Narciso  12
... it is as important a matter of public interest that a
purported will is not denied legalization on dubious
grounds. Otherwise, the very institution of
testamentary succession will be shaken to its
foundation, ...
Coming now to the procedural aspect, suffice it to state that in view of
our finding that respondent Judge had acted in excess of his
jurisdiction in dismissing the Testate Case, certiorari is a proper
remedy. An act done by a Probate Court in excess of its jurisdiction
may be corrected by Certiorari. 13 And even assuming the existence of
the remedy of appeal, we harken to the rule that in the broader
interests of justice, a petition for certiorari may be entertained,
particularly where appeal would not afford speedy and adequate
relief.

WHEREFORE, the Decision in question is set aside and the Orders of

the Court of First Instance-Branch XI, Rizal, dated September 8, 1980
and December 19, 1980, are nullified. Special Proceeding No. Q-23304
is hereby remanded to said Court of First Instance-Branch XI. Rizal,
therein to be reinstated and consolidated with Special Proceeding No.
8569 for further proceedings.

No pronouncement as to costs.

SO ORDERED.

Teehankee (Chairman), Makasiar, Plana and Relova JJ., concur.

Vasquez, J., took no part.

Gutierrez, Jr., J., I concur.

 
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
 
G.R. No. L-28040 August 18, 1972
TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA,
administrator-appellee; JOSE DE BORJA, as administrator,
CAYETANO DE BORJA, MATILDE DE BORJA and CRISANTO
DE BORJA (deceased) as Children of Josefa Tangco, appellees, 
vs.
TASIANA VDA. DE DE BORJA, Special Administratrix of the
Testate Estate of Francisco de Borja, appellant. .
G.R. No L-28568 August 18, 1972
TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA,
TASIANA O. VDA. DE DE BORJA, special Administratrix appellee,  Ongsingco Vda. de de Borja, special administratrix of the testate estate
vs.
JOSE DE BORJA, oppositor-appellant.
G.R. No. L-28611 August 18, 1972
TASIANA 0. VDA. DE BORJA, as Administratrix of the Testate
Estate of the late Francisco de Borja, plaintiff-appellee,  disapproval of the same compromise agreement by the Court of First
vs.
JOSE DE BORJA, as Administrator of the Testate Estate of the late
Josefa Tangco, defendant-appellant.
L-28040
Pelaez, Jalandoni & Jamir for administrator-appellee.
Quiogue & Quiogue for appellee Matilde de Borja.
Andres Matias for appellee Cayetano de Borja.
Sevilla & Aquino for appellant.
L-28568
Sevilla & Aquino for special administratrix-appellee.
Pelaez, Jalandoni & Jamir for oppositor-appellant.
L-28611
Sevilla & Aquino for plaintiff-appellee.
Pelaez, Jalandoni & Jamir and David Gueverra for defendant-appellant.
REYES, J.B.L., J.:p
Of these cases, the first, numbered L-28040 is an appeal by Tasiana
of Francisco de Borja,1 from the approval of a compromise agreement
by the Court of First Instance of Rizal, Branch I, in its Special
Proceeding No. R-7866, entitled, "Testate Estate of Josefa Tangco, Jose
de Borja, Administrator".
Case No. L-28568 is an appeal by administrator Jose Borja from the
Instance of Nueva Ecija, Branch II, in its Special Proceeding No. 832,
entitled, "Testate Estate of Francisco de Borja, Tasiana O. Vda. de de
Borja, Special Administratrix".
And Case No. L-28611 is an appeal by administrator Jose de Borja
from the decision of the Court of First Instance of Rizal, Branch X, in
its Civil Case No. 7452, declaring the Hacienda Jalajala Poblacion,
which is the main object of the aforesaid compromise agreement, as
the separate and exclusive property of the late Francisco de Borja and
not a conjugal asset of the community with his first wife, Josefa
Tangco, and that said hacienda pertains exclusively to his testate
estate, which is under administrator in Special Proceeding No. 832 of
the Court of First Instance of Nueva Ecija, Branch II.
It is uncontested that Francisco de Borja, upon the death of his wife
Josefa Tangco on 6 October 1940, filed a petition for the probate of her
will which was docketed as Special Proceeding No. R-7866 of the
Court of First Instance of Rizal, Branch I. The will was probated on 2
April 1941. In 1946, Francisco de Borja was appointed executor and
administrator: in 1952, their son, Jose de Borja, was appointed co-
administrator. When Francisco died, on 14 April 1954, Jose became
the sole administrator of the testate estate of his mother, Josefa
Tangco. While a widower Francisco de Borja allegedly took unto
himself a second wife, Tasiana Ongsingco. Upon Francisco's death,
Tasiana instituted testate proceedings in the Court of First Instance of
Nueva Ecija, where, in 1955, she was appointed special administratrix.
The validity of Tasiana's marriage to Francisco was questioned in said
proceeding.
The relationship between the children of the first marriage and
Tasiana Ongsingco has been plagued with several court suits and
counter-suits; including the three cases at bar, some eighteen (18)
cases remain pending determination in the courts. The testate estate of
Josefa Tangco alone has been unsettled for more than a quarter of a
century. In order to put an end to all these litigations, a compromise
agreement was entered into on 12 October 1963,2 by and between
"[T]he heir and son of Francisco de Borja by his first marriage,
namely, Jose de Borja personally and as administrator of the Testate
Estate of Josefa Tangco," and "[T]he heir and surviving spouse of
Francisco de Borja by his second marriage, Tasiana Ongsingco Vda.
de Borja, assisted by her lawyer, Atty. Luis Panaguiton Jr." The terms
and conditions of the compromise agreement are as follows:
AGREEMENT
THIS AGREEMENT made and entered into by and
between
The heir and son of Francisco de Borja by his first
marriage, namely, Jose de Borja personally and as
administrator of the Testate Estate of Josefa Tangco,
AND
The heir and surviving spouse of Francisco de Borja by
his second marriage, Tasiana Ongsingco Vda. de Borja,
assisted by her lawyer, Atty. Luis Panaguiton Jr.
WITNESSETH
THAT it is the mutual desire of all the parties herein
terminate and settle, with finality, the various court
litigations, controversies, claims, counterclaims, etc.,
between them in connection with the administration,
settlement, partition, adjudication and distribution of
the assets as well as liabilities of the estates of Francisco
de Borja and Josefa Tangco, first spouse of Francisco de
Borja.
THAT with this end in view, the parties herein have
agreed voluntarily and without any reservations to
enter into and execute this agreement under the
following terms and conditions:
1. That the parties agree to sell the Poblacion portion of
the Jalajala properties situated in Jalajala, Rizal,
presently under administration in the Testate Estate of
Josefa Tangco (Sp. Proc. No. 7866, Rizal), more
specifically described as follows:
Linda al Norte con el Rio Puwang que la
separa de la jurisdiccion del Municipio
de Pililla de la Provincia de Rizal, y con
el pico del Monte Zambrano; al Oeste
con Laguna de Bay; por el Sur con los
herederos de Marcelo de Borja; y por el
Este con los terrenos de la Familia
Maronilla
with a segregated area of approximately 1,313 hectares
at the amount of P0.30 per square meter.
2. That Jose de Borja agrees and obligates himself to
pay Tasiana Ongsingco Vda. de de Borja the total
amount of Eight Hundred Thousand Pesos (P800,000)
Philippine Currency, in cash, which represent P200,000
as his share in the payment and P600,000 as pro-rata
shares of the heirs Crisanto, Cayetano and Matilde, all
surnamed de Borja and this shall be considered as full
and complete payment and settlement of her
hereditary share in the estate of the late Francisco de
Borja as well as the estate of Josefa Tangco, Sp. Proc.
No. 832-Nueva Ecija and Sp. Proc. No. 7866-Rizal,
respectively, and to any properties bequeathed or
devised in her favor by the late Francisco de Borja by
Last Will and Testament or by Donation Inter Vivos or
Mortis Causa or purportedly conveyed to her for
consideration or otherwise. The funds for this payment
shall be taken from and shall depend upon the receipt
of full payment of the proceeds of the sale of Jalajala,
"Poblacion."
3. That Tasiana Ongsingco Vda. de de Borja hereby
assumes payment of that particular obligation incurred
by the late Francisco de Borja in favor of the
Rehabilitation Finance Corporation, now Development
Bank of the Philippines, amounting to approximately
P30,000.00 and also assumes payment of her 1/5 share
of the Estate and Inheritance taxes on the Estate of the
late Francisco de Borja or the sum of P3,500.00, more or
less, which shall be deducted by the buyer of Jalajala,
"Poblacion" from the payment to be made to Tasiana
Ongsingco Vda. de Borja under paragraph 2 of this
Agreement and paid directly to the Development Bank
of the Philippines and the heirs-children of Francisco
de Borja.
4. Thereafter, the buyer of Jalajala "Poblacion" is hereby
authorized to pay directly to Tasiana Ongsingco Vda.
de de Borja the balance of the payment due her under
paragraph 2 of this Agreement (approximately
P766,500.00) and issue in the name of Tasiana
Ongsingco Vda. de de Borja, corresponding certified
checks/treasury warrants, who, in turn, will issue the
corresponding receipt to Jose de Borja.
5. In consideration of above payment to Tasiana
Ongsingco Vda. de de Borja, Jose de Borja personally
and as administrator of the Testate Estate of Josefa
Tangco, and Tasiana Ongsingco Vda. de de Borja, for
themselves and for their heirs, successors, executors,
administrators, and assigns, hereby forever mutually
renounce, withdraw, waive, remise, release and
discharge any and all manner of action or actions,
cause or causes of action, suits, debts, sum or sums of
money, accounts, damages, claims and demands
whatsoever, in law or in equity, which they ever had,
or now have or may have against each other, more
specifically Sp. Proceedings Nos. 7866 and 1955, CFI-
Rizal, and Sp. Proc. No. 832-Nueva Ecija, Civil Case
No. 3033, CFI Nueva Ecija and Civil Case No. 7452-
CFI, Rizal, as well as the case filed against Manuel
Quijal for perjury with the Provincial Fiscal of Rizal,
the intention being to completely, absolutely and
finally release each other, their heirs, successors, and
assigns, from any and all liability, arising wholly or
partially, directly or indirectly, from the
administration, settlement, and distribution of the
assets as well as liabilities of the estates of Francisco de
Borja and Josefa Tangco, first spouse of Francisco de
Borja, and lastly, Tasiana Ongsingco Vda. de de Borja
expressly and specifically renounce absolutely her
rights as heir over any hereditary share in the estate of
Francisco de Borja.
6. That Tasiana Ongsingco Vda. de de Borja, upon
receipt of the payment under paragraph 4 hereof, shall
deliver to the heir Jose de Borja all the papers, titles
and documents belonging to Francisco de Borja which
 are in her possession and said heir Jose de Borja shall
issue in turn the corresponding receive thereof.
7. That this agreement shall take effect only upon the
fulfillment of the sale of the properties mentioned
under paragraph 1 of this agreement and upon receipt
of the total and full payment of the proceeds of the sale
of the Jalajala property "Poblacion", otherwise, the non-
fulfillment of the said sale will render this instrument
NULL AND VOID AND WITHOUT EFFECT
THEREAFTER.
IN WITNESS WHEREOF, the parties hereto have her
unto set their hands in the City of Manila, Philippines,
the 12th of October, 1963.
On 16 May 1966, Jose de Borja submitted for Court approval the
agreement of 12 October 1963 to the Court of First Instance of Rizal, in
Special Proceeding No. R-7866; and again, on 8 August 1966, to the
Court of First Instance of Nueva Ecija, in Special Proceeding No. 832.
Tasiana Ongsingco Vda. de de Borja opposed in both instances. The
Rizal court approved the compromise agreement, but the Nueva Ecija
court declared it void and unenforceable. Special administratrix
Tasiana Ongsingco Vda. de de Borja appealed the Rizal Court's order
of approval (now Supreme Court G.R. case No. L-28040), while
administrator Jose de Borja appealed the order of disapproval (G.R.
case No. L-28568) by the Court of First Instance of Nueva Ecija.
The genuineness and due execution of the compromised agreement of
12 October 1963 is not disputed, but its validity is, nevertheless,
attacked by Tasiana Ongsingco on the ground that: (1) the heirs
cannot enter into such kind of agreement without first probating the
will of Francisco de Borja; (2) that the same involves a compromise on
the validity of the marriage between Francisco de Borja and Tasiana
Ongsingco; and (3) that even if it were valid, it has ceased to have
force and effect.
In assailing the validity of the agreement of 12 October 1963, Tasiana
Ongsingco and the Probate Court of Nueva Ecija rely on this Court's
decision in Guevara vs. Guevara. 74 Phil. 479, wherein the Court's
majority held the view that the presentation of a will for probate is
mandatory and that the settlement and distribution of an estate on the
basis of intestacy when the decedent left a will, is against the law and
public policy. It is likewise pointed out by appellant Tasiana
Ongsingco that Section 1 of Rule 74 of the Revised Rules explicitly
conditions the validity of an extrajudicial settlement of a decedent's
estate by agreement between heirs, upon the facts that "(if) the
decedent left no will and no debts, and the heirs are all of age, or the
minors are represented by their judicial and legal representatives ..."
The will of Francisco de Borja having been submitted to the Nueva
Ecija Court and still pending probate when the 1963 agreement was
made, those circumstances, it is argued, bar the validity of the
agreement.
Upon the other hand, in claiming the validity of the compromise
agreement, Jose de Borja stresses that at the time it was entered into,
on 12 October 1963, the governing provision was Section 1, Rule 74 of
the original Rules of Court of 1940, which allowed the extrajudicial
settlement of the estate of a deceased person regardless of whether he
left a will or not. He also relies on the dissenting opinion of Justice
Moran, in Guevara vs. Guevara, 74 Phil. 479, wherein was expressed the
view that if the parties have already divided the estate in accordance
with a decedent's will, the probate of the will is a useless ceremony;
and if they have divided the estate in a different manner, the probate
of the will is worse than useless.
The doctrine of Guevara vs. Guevara, ante, is not applicable to the case
at bar. This is apparent from an examination of the terms of the
agreement between Jose de Borja and Tasiana Ongsingco. Paragraph 2
of said agreement specifically stipulates that the sum of P800,000
payable to Tasiana Ongsingco —
shall be considered as full — complete payment —
settlement of her hereditary share in the estate of the
late Francisco de Borja as well as the estate of Josefa
Tangco, ... and to any properties bequeathed or
devised in her favor by the late Francisco de Borja by
Last Will and Testament or by Donation Inter Vivos or
Mortis Causa or purportedly conveyed to her for
consideration or otherwise.
This provision evidences beyond doubt that the ruling in the Guevara
case is not applicable to the cases at bar. There was here no attempt to
settle or distribute the estate of Francisco de Borja among the heirs
thereto before the probate of his will. The clear object of the contract
was merely the conveyance by Tasiana Ongsingco of any and all her
individual share and interest, actual or eventual in the estate of
Francisco de Borja and Josefa Tangco. There is no stipulation as to any
other claimant, creditor or legatee. And as a hereditary share in a
decedent's estate is transmitted or vested immediately from the
moment of the death of such causante or predecessor in interest (Civil
Code of the Philippines, Art. 777)3 there is no legal bar to a successor
(with requisite contracting capacity) disposing of her or his hereditary
share immediately after such death, even if the actual extent of such
share is not determined until the subsequent liquidation of the
estate.4 Of course, the effect of such alienation is to be deemed limited
to what is ultimately adjudicated to the vendor heir. However, the
aleatory character of the contract does not affect the validity of the
transaction; neither does the coetaneous agreement that the numerous
litigations between the parties (the approving order of the Rizal Court
enumerates fourteen of them, Rec. App. pp. 79-82) are to be
considered settled and should be dismissed, although such
stipulation, as noted by the Rizal Court, gives the contract the
character of a compromise that the law favors, for obvious reasons, if
only because it serves to avoid a multiplicity of suits.
It is likewise worthy of note in this connection that as the surviving
spouse of Francisco de Borja, Tasiana Ongsingco was his compulsory
heir under article 995 et seq. of the present Civil Code. Wherefore,
barring unworthiness or valid disinheritance, her successional interest
existed independent of Francisco de Borja's last will and testament
and would exist even if such will were not probated at all. Thus, the
prerequisite of a previous probate of the will, as established in the
Guevara and analogous cases, can not apply to the case of Tasiana
Ongsingco Vda. de de Borja.
Since the compromise contract Annex A was entered into by and
between "Jose de Borja personally and as administrator of the Testate
Estate of Josefa Tangco" on the one hand, and on the other, "the heir
and surviving spouse of Francisco de Borja by his second marriage,
Tasiana Ongsingco Vda. de de Borja", it is clear that the transaction
was binding on both in their individual capacities, upon the
perfection of the contract, even without previous authority of the
Court to enter into the same. The only difference between an
extrajudicial compromise and one that is submitted and approved by
the Court, is that the latter can be enforced by execution proceedings.
Art. 2037 of the Civil Code is explicit on the point:
8. Art. 2037. A compromise has upon the parties the
effect and authority of res judicata; but there shall be no
execution except in compliance with a judicial
compromise.
It is argued by Tasiana Ongsingco that while the
agreement Annex A expressed no definite period for
its performance, the same was  intended to have a
resolutory period of 60 days for its effectiveness. In
support of such contention, it is averred that such a
limit was expressly stipulated in an agreement in
similar terms entered into by said Ongsingco with the
brothers and sister of Jose de Borja, to wit, Crisanto,
Matilde and Cayetano, all surnamed de Borja, except
that the consideration was fixed at P600,000
(Opposition, Annex/Rec. of Appeal, L-28040, pp. 39-
46) and which contained the following clause:
III. That this agreement shall take effect only upon the
consummation of the sale of the property mentioned
herein and upon receipt of the total and full payment
of the proceeds of the sale by the herein owner heirs-
children of Francisco de Borja, namely, Crisanto,
Cayetano and Matilde, all surnamed de Borja;
Provided that if no sale of the said property mentioned
herein is consummated, or the non-receipt of the
purchase price thereof by the said owners within the
period of sixty (60) days from the date hereof, this
agreement will become null and void and of no further
effect.
Ongsingco's argument loses validity when it is considered that Jose de
Borja was not a party to this particular contract (Annex 1), and that
the same appears not to have been finalized, since it bears no date, the
day being left blank "this — day of October 1963"; and while signed
by the parties, it was not notarized, although plainly intended to be so
done, since it carries a proposed notarial ratification clause.
Furthermore, the compromise contract with Jose de Borja (Annex A),
provides in its par. 2 heretofore transcribed that of the total
consideration of P800, 000 to be paid to Ongsingco, P600,000 represent
the "prorata share of the heirs Crisanto, Cayetano and Matilde all
surnamed de Borja" which corresponds to the consideration of
P600,000 recited in Annex 1, and that circumstance is proof that the
duly notarized contract entered into wit Jose de Borja under date 12
October 1963 (Annex A), was designed to absorb and supersede the
separate unformalize agreement with the other three Borja heirs.
Hence, the 60 days resolutory term in the contract with the latter
(Annex 1) not being repeated in Annex A, can not apply to the formal
compromise with Jose de Borja. It is moreover manifest that the
stipulation that the sale of the Hacienda de Jalajala was to be made
within sixty days from the date of the agreement with Jose de Borja's
co-heirs (Annex 1) was plainly omitted in Annex A as improper and
ineffective, since the Hacienda de Jalajala (Poblacion) that was to be
sold to raise the P800,000 to be paid to Ongsingco for her share
formed part of the estate of Francisco de Borja and could not be sold
until authorized by the Probate Court. The Court of First Instance of
Rizal so understood it, and in approving the compromise it fixed a
term of 120 days counted from the finality of the order now under
appeal, for the carrying out by the parties for the terms of the contract.
This brings us to the plea that the Court of First Instance of Rizal had
no jurisdiction to approve the compromise with Jose de Borja (Annex
A) because Tasiana Ongsingco was not an heir in the estate of Josefa
Tangco pending settlement in the Rizal Court, but she was an heir of
Francisco de Borja, whose estate was the object of Special Proceeding
No. 832 of the Court of First Instance of Nueva Ecija. This
circumstance is irrelevant, since what was sold by Tasiana Ongsingco
was only her eventual share in the estate of her late husband, not the
estate itself; and as already shown, that eventual share she owned
from the time of Francisco's death and the Court of Nueva Ecija could
not bar her selling it. As owner of her undivided hereditary share,
Tasiana could dispose of it in favor of whomsoever she chose. Such
alienation is expressly recognized and provided for by article 1088 of
the present Civil Code:
Art. 1088. Should any of the heirs sell his hereditary
rights to a stranger before the partition, any or all of
the co-heirs may be subrogated to the rights of the
purchaser by reimbursing him for the price of the sale,
provided they do so within the period of one month
from the time they were notified in writing of the sale
of the vendor.
If a sale of a hereditary right can be made to a stranger, then a
fortiori  sale thereof to a coheir could not be forbidden.
Tasiana Ongsingco further argues that her contract with Jose de Borja
(Annex "A") is void because it amounts to a compromise as to her
status and marriage with the late Francisco de Borja. The point is
without merit, for the very opening paragraph of the agreement with
Jose de Borja (Annex "A") describes her as "the heir and surviving
spouse of Francisco de Borja by his second marriage, Tasiana
Ongsingco Vda. de de Borja", which is in itself definite admission of
her civil status. There is nothing in the text of the agreement that
would show that this recognition of Ongsingco's status as the
surviving spouse of Francisco de Borja was only made in
consideration of the cession of her hereditary rights.
It is finally charged by appellant Ongsingco, as well as by the Court of
First Instance of Nueva Ecija in its order of 21 September 1964, in
Special Proceedings No. 832 (Amended Record on Appeal in L-28568,
page 157), that the compromise agreement of 13 October 1963 (Annex
"A") had been abandoned, as shown by the fact that, after its
execution, the Court of First Instance of Nueva Ecija, in its order of 21
September 1964, had declared that "no amicable settlement had been
arrived at by the parties", and that Jose de Borja himself, in a motion
of 17 June 1964, had stated that the proposed amicable settlement
"had failed to materialize".
It is difficult to believe, however, that the amicable settlement referred
to in the order and motion above-mentioned was the compromise
agreement of 13 October 1963, which already had been formally
signed and executed by the parties and duly notarized. What the
record discloses is that some time after its formalization, Ongsingco
had unilaterally attempted to back out from the compromise
agreement, pleading various reasons restated in the opposition to the
Court's approval of Annex "A" (Record on Appeal, L-20840, page 23):
that the same was invalid because of the lapse of the allegedly
intended resolutory period of 60 days and because the contract was
not preceded by the probate of Francisco de Borja's will, as required
by this Court's Guevarra vs. Guevara ruling; that Annex "A" involved a
compromise affecting Ongsingco's status as wife and widow of
Francisco de Borja, etc., all of which objections have been already
discussed. It was natural that in view of the widow's attitude, Jose de
Borja should attempt to reach a new settlement or novatory
agreement before seeking judicial sanction and enforcement of Annex
"A", since the latter step might ultimately entail a longer delay in
attaining final remedy. That the attempt to reach another settlement
failed is apparent from the letter of Ongsingco's counsel to Jose de
Borja quoted in pages 35-36 of the brief for appellant Ongsingco in
G.R. No. 28040; and it is more than probable that the order of 21
September 1964 and the motion of 17 June 1964 referred to the failure
of the parties' quest for a more satisfactory compromise. But the
inability to reach a novatory accord can not invalidate the original
compromise (Annex "A") and justifies the act of Jose de Borja in
finally seeking a court order for its approval and enforcement from
the Court of First Instance of Rizal, which, as heretofore described,
decreed that the agreement be ultimately performed within 120 days
from the finality of the order, now under appeal.
We conclude that in so doing, the Rizal court acted in accordance with
law, and, therefore, its order should be upheld, while the contrary
resolution of the Court of First Instance of Nueva Ecija should be, and
is, reversed.
In her brief, Tasiana Ongsingco also pleads that the time elapsed in
the appeal has affected her unfavorably, in that while the purchasing
power of the agreed price of P800,000 has diminished, the value of the
Jalajala property has increased. But the fact is that her delay in
receiving the payment of the agreed price for her hereditary interest
was primarily due to her attempts to nullify the agreement (Annex
"A") she had formally entered into with the advice of her counsel,
Attorney Panaguiton. And as to the devaluation de facto  of our
currency, what We said in Dizon Rivera vs. Dizon, L-24561, 30 June
1970, 33 SCRA 554, that "estates would never be settled if there were
to be a revaluation with every subsequent fluctuation in the values of
currency and properties of the estate", is particularly opposite in the
present case.
Coming now to Case G.R. No. L-28611, the issue is whether the
Hacienda de Jalajala (Poblacion), concededly acquired by Francisco de
Borja during his marriage to his first wife, Josefa Tangco, is the
husband's private property (as contended by his second spouse,
Tasiana Ongsingco), or whether it forms part of the conjugal
(ganancial) partnership with Josefa Tangco. The Court of First
Instance of Rizal (Judge Herminio Mariano, presiding) declared that
there was adequate evidence to overcome the presumption in favor of
its conjugal character established by Article 160 of the Civil Code.
We are of the opinion that this question as between Tasiana
Ongsingco and Jose de Borja has become moot and academic, in view
of the conclusion reached by this Court in the two preceding cases
(G.R. No. L-28568), upholding as valid the cession of Tasiana
Ongsingco's eventual share in the estate of her late husband,
Francisco de Borja, for the sum of P800,000 with the accompanying
reciprocal quit-claims between the parties. But as the question may
affect the rights of possible creditors and legatees, its resolution is still
imperative.
It is undisputed that the Hacienda Jalajala, of around 4,363 hectares,
had been originally acquired jointly by Francisco de Borja, Bernardo
de Borja and Marcelo de Borja and their title thereto was duly
registered in their names as co-owners in Land Registration Case No.
528 of the province of Rizal, G.L.R.O. Rec. No. 26403 (De Barjo vs.
Jugo, 54 Phil. 465). Subsequently, in 1931, the Hacienda was
partitioned among the co-owners: the Punta section went to Marcelo
de Borja; the Bagombong section to Bernardo de Borja, and the part in
Jalajala proper (Poblacion) corresponded to Francisco de Borja (V. De
Borja vs. De Borja 101 Phil. 911, 932).
The lot allotted to Francisco was described as —
 Una Parcela de terreno en Poblacion, Jalajala: N. Puang
River; E. Hermogena Romero; S. Heirs of Marcelo de
Borja O. Laguna de Bay; containing an area of
13,488,870 sq. m. more or less, assessed at P297,410.
(Record on Appeal, pages 7 and 105)
On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix of
the Testate Estate of Francisco de Borja, instituted a complaint in the
Court of First Instance of Rizal (Civil Case No. 7452) against Jose de
Borja, in his capacity as Administrator of Josefa Tangco (Francisco de
Borja's first wife), seeking to have the Hacienda above described
declared exclusive private property of Francisco, while in his answer
defendant (now appellant) Jose de Borja claimed that it was conjugal
property of his parents (Francisco de Borja and Josefa Tangco),
conformably to the presumption established by Article 160 of the
Philippine Civil Code (reproducing Article 1407 of the Civil Code of
1889), to the effect that:
Art. 160. All property of the marriage is presumed to
belong to the conjugal partnership, unless it be proved
that it pertains exclusively to the husband or to the
wife.
Defendant Jose de Borja further counterclaimed for damages,
compensatory, moral and exemplary, as well as for attorney's fees.
After trial, the Court of First Instance of Rizal, per Judge Herminio
Mariano, held that the plaintiff had adduced sufficient evidence to
rebut the presumption, and declared the Hacienda de Jalajala
(Poblacion) to be the exclusive private property of the late Francisco
de Borja, and his Administratrix, Tasiana Ongsingco Vda. de Borja, to
be entitled to its possession. Defendant Jose de Borja then appealed to
this Court.
The evidence reveals, and the appealed order admits, that the
character of the Hacienda in question as owned by the conjugal
partnership De Borja-Tangco was solemnly admitted by the late
Francisco de Borja no less than two times: first, in the Reamended
Inventory that, as executor of the estate of his deceased wife Josefa
Tangco, he filed in the Special Proceedings No. 7866 of the Court of
First Instance of Rizal on 23 July 1953 (Exhibit "2"); and again, in the
Reamended Accounting of the same date, also filed in the proceedings
aforesaid (Exhibit "7"). Similarly, the plaintiff Tasiana O. Vda. de
Borja, herself, as oppositor in the Estate of Josefa Tangco, submitted
therein an inventory dated 7 September 1954 (Exhibit "3") listing the
Jalajala property among the "Conjugal Properties of the Spouses
Francisco de Borja and Josefa Tangco". And once more, Tasiana
Ongsingco, as administratrix of the Estate of Francisco de Borja, in
Special Proceedings No. 832 of the Court of First Instance of Nueva
Ecija, submitted therein in December, 1955, an inventory wherein she
listed the Jalajala Hacienda under the heading "Conjugal Property of
the Deceased Spouses Francisco de Borja and Josefa Tangco, which
are in the possession of the Administrator of the Testate Estate of the
Deceased Josefa Tangco in Special Proceedings No. 7866 of the Court
of First Instance of Rizal" (Exhibit "4").
Notwithstanding the four statements aforesaid, and the fact that they
are plain admissions against interest made by both Francisco de Borja
and the Administratrix of his estate, in the course of judicial
proceedings in the Rizal and Nueva Ecija Courts, supporting the legal
presumption in favor of the conjugal community, the Court below
declared that the Hacienda de Jalajala (Poblacion) was not conjugal
property, but the private exclusive property of the late Francisco de
Borja. It did so on the strength of the following evidences: (a) the
sworn statement by Francis de Borja on 6 August 1951 (Exhibit "F")
that —
He tomado possession del pedazo de terreno ya
delimitado (equivalente a 1/4 parte, 337 hectareas)
adjunto a mi terreno personal y exclusivo (Poblacion
de Jalajala, Rizal).
and (b) the testimony of Gregorio de Borja, son of Bernardo de Borja,
that the entire Hacienda had been bought at a foreclosure sale for
P40,100.00, of which amount P25,100 was contributed by Bernardo de
Borja and P15,000. by Marcelo de Borja; that upon receipt of a
subsequent demand from the provincial treasurer for realty taxes the
sum of P17,000, Marcelo told his brother Bernardo that Francisco (son
of Marcelo) wanted also to be a co-owner, and upon Bernardo's assent
to the proposal, Marcelo issue a check for P17,000.00 to pay the back
taxes and said that the amount would represent Francisco's
contribution in the purchase of the Hacienda. The witness further
testified that —
Marcelo de Borja said that that money was entrusted to
him by Francisco de Borja when he was still a
bachelor and which he derived from his business
transactions. (Hearing, 2 February 1965, t.s.n., pages
13-15) (Emphasis supplied)
The Court below, reasoning that not only Francisco's sworn statement
overweighed the admissions in the inventories relied upon by
defendant-appellant Jose de Borja since probate courts can not finally
determine questions of ownership of inventoried property, but that
the testimony of Gregorio de Borja showed that Francisco de Borja
acquired his share of the original Hacienda with his private funds, for
which reason that share can not be regarded as conjugal partnership
property, but as exclusive property of the buyer, pursuant to Article
1396(4) of Civil Code of 1889 and Article 148(4) of the Civil Code of
the Philippines.
The following shall be the exclusive property of each spouse:
xxx xxx xxx
(4) That which is purchased with exclusive money of
the wife or of the husband.
We find the conclusions of the lower court to be untenable. In the first
place, witness Gregorio de Borja's testimony as to the source of the
money paid by Francisco for his share was plain hearsay, hence
inadmissible and of no probative value, since he was merely repeating
what Marcelo de Borja had told him (Gregorio). There is no way of
ascertaining the truth of the statement, since both Marcelo and
Francisco de Borja were already dead when Gregorio testified. In
addition, the statement itself is improbable, since there was no need
or occasion for Marcelo de Borja to explain to Gregorio how and when
Francisco de Borja had earned the P17,000.00 entrusted to Marcelo. A
ring of artificiality is clearly discernible in this portion of Gregorio's
testimony.
As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion
thereof (ante, page 14) does not clearly demonstrate that the "mi
terreno personal y exclusivo (Poblacion de Jalajala, Rizal) " refers
precisely to the Hacienda in question. The inventories (Exhibits 3 and
4) disclose that there were two real properties in Jalajala owned by
Francisco de Borja, one of 72.038 sq. m., assessed at P44,600, and a
much bigger one of 1,357.260.70 sq. m., which is evidently the
Hacienda de Jalajala (Poblacion). To which of these lands did the
affidavit of Francisco de Borja (Exhibit "F") refer to? In addition,
Francisco's characterization of the land as "mi terreno personal y
exclusivo" is plainly self-serving, and not admissible in the absence of
cross examination.
It may be true that the inventories relied upon by defendant-appellant
(Exhibits "2", "3", "4" and "7") are not conclusive on the conjugal
character of the property in question; but as already noted, they are
clear admissions against the pecuniary interest of the declarants,
Francisco de Borja and his executor-widow, Tasiana Ongsingco, and
as such of much greater probative weight than the self-serving
statement of Francisco (Exhibit "F"). Plainly, the legal presumption in
favor of the conjugal character of the Hacienda de Jalajala (Poblacion)
now in dispute has not been rebutted but actually confirmed by proof.
Hence, the appealed order should be reversed and the Hacienda de
Jalajala (Poblacion) declared property of the conjugal partnership of
Francisco de Borja and Josefa Tangco.
No error having been assigned against the ruling of the lower court
that claims for damages should be ventilated in the corresponding
special proceedings for the settlement of the estates of the deceased,
the same requires no pro announcement from this Court.
IN VIEW OF THE FOREGOING, the appealed order of the Court of
First Instance of Rizal in Case No. L-28040 is hereby affirmed; while
those involved in Cases Nos. L-28568 and L-28611 are reversed and
set aside. Costs against the appellant Tasiana Ongsingco Vda. de Borja
in all three (3) cases.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo,
Makasiar, Antonio and Esguerra, JJ., concur.
Fernando, J., took no part.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-55509 April 27, 1984
ETHEL GRIMM ROBERTS, petitioner,  have provided for each of them in a separate will
vs.
JUDGE TOMAS R. LEONIDAS, Branch 38, Court of First Instance
of Manila; MAXINE TATE-GRIMM, EDWARD MILLER GRIMM
II and LINDA GRIMM, respondents.
N. J. Quisumbing and Associates for petitioners.
Angara, Abello, Concepcion, Regala and Cruz for respondents.
AQUINO, J.:ñé+.£ªwph!1
The question in this case is whether a petition for allowance of wills
and to annul a partition, approved in an intestateproceeding
by Branch 20  of the Manila Court of First Instance, can be entertained
by its Branch 38  (after a probate in the Utah district court).
Antecedents. — Edward M. Grimm an American resident of Manila,
died at 78 in the Makati Medical Center on November 27, 1977. He
was survived by his second wife, Maxine Tate Grimm and their two
children, named Edward Miller Grimm II (Pete) and Linda Grimm
and by Juanita Grimm Morris and Ethel Grimm Roberts (McFadden),
his two children by a first marriage which ended in divorce (Sub-
Annexes A and B. pp. 36-47, Rollo).
He executed on January 23, 1959 two wills in San Francisco, California.
One will disposed of his Philippine estate which he described as
conjugal property of himself and his second wife. The second win
disposed of his estate outside the Philippines.
In both wills, the second wife and two children were favored. The two
children of the first marriage were given their legitimes in the will
disposing of the estate situated in this country. In the will dealing
with his property outside this country, the testator said: têñ.£îhqwâ£
I purposely have made no provision in this will for my
daughter, Juanita Grimm Morris, or my daughter, Elsa
Grimm McFadden (Ethel Grimm Roberts), because I
disposing of my Philippine property. (First clause, pp.
43-47, Rollo).
The two wills and a codicil were presented for probate by Maxine
Tate Grimm and E. LaVar Tate on March 7, 1978 in Probate No. 3720
of the Third Judicial District Court of Tooele County, Utah. Juanita
Grimm Morris of Cupertino, California and Mrs. Roberts of 15 C.
Benitez Street, Horseshoe Village, Quezon City were notified of the
probate proceeding (Sub-Annex C, pp. 48-55, Rollo).
Maxine admitted that she received notice of the intestate petition  filed
in Manila by Ethel in January, 1978 (p. 53, Rollo). In its order dated
April 10, 1978, the Third Judicial District Court admitted to probate the
two wills and the codicil It was issued upon consideration of
the stipulation dated April 4, 1978 "by and between the attorneys for
Maxine Tate Grimm, Linda Grimm, Edward Miller Grimm II, E.
LaVar Tate, Juanita Kegley Grimm (first wife), Juanita Grimm Morris
and Ethel Grimm Roberts" (Annex C, pp. 48-51, Rollo).
Two weeks later, or on April 25, 1978, Maxine and her two children
Linda and Pete, as the first parties, and Ethel, Juanita Grimm Morris
and their mother Juanita Kegley Grimm as the second parties, with
knowledge of the intestate proceeding in Manila, entered into a compromise
agreement in Utah regarding the estate. It was signed by David E.
Salisbury and Donald B. Holbrook, as lawyers of the parties, by Pete
and Linda and the attorney-in-fact of Maxine and by the attorney-in-
fact of Ethel, Juanita Grimm Morris and Juanita Kegley Grimm.
In that agreement, it was stipulated that Maxine, Pete and Ethel
would be designated as personal representatives (administrators) of
Grimm's Philippine estate (par. 2). It was also stipulated that Maxine's
one-half conjugal share in the estate should be reserved for her and
that would not be less than $1,500,000 plus the homes in Utah and
Santa Mesa, Manila (par. 4). The agreement indicated the computation
of the "net distributable estate". It recognized that the estate was liable
to pay the fees of the Angara law firm (par. 5).
It was stipulated in paragraph 6 that the decedent's four children
"shall share equally in the Net Distributable Estate" and that Ethel and
Juanita Morris should each receive at least 12-1/2% of the total of the
net distributable estate and marital share. A supplemental
memorandum also dated April 25, 1978 was executed by the parties
(Sub-Annex F, pp. 49-61, Annex, F-1, pp. 75-76, Testate case).
Intestate proceeding No. 113024.-At this juncture, it should be stated
that forty- three days after Grimm's death, or January 9, 1978, his
daughter of the first marriage, Ethel, 49, through lawyers Deogracias
T. Reyes and. Gerardo B. Macaraeg, filed with Branch 20 of the Manila
Court of First Instance intestate proceeding No. 113024 for the
settlement of his estate. She was named special administratrix.
On March 11, the second wife, Maxine, through the Angara law office,
filed an opposition and motion to dismiss the intestate proceeding on the
ground of the pendency of Utah of a proceeding for the probate of
Grimm's will. She also moved that she be appointed special
administratrix, She submitted to the court a copy of Grimm's will
disposing of his Philippine estate. It is found in pages 58 to 64 of the
record.
The intestate court in its orders of May 23 and June 2 noted that
Maxine, through a new lawyer, William C. Limqueco (partner of
Gerardo B. Macaraeg, p. 78, testate case withdrew that opposition and
motion to dismiss and, at the behest of Maxine, Ethel and Pete,
appointed them joint administrators. Apparently, this was done
pursuant to the aforementioned Utah compromise agreement. The
court ignored the will already found in the record.
The three administrators submitted an inventory. With the authority
and approval of the court, they sold for P75,000 on March 21, 1979 the
so-called Palawan Pearl Project, a business owned by the deceased.
Linda and Juanita allegedly conformed with the sale (pp. 120-129,
Record). It turned out that the buyer, Makiling Management Co., Inc.,
was incorporated by Ethel and her husband, Rex Roberts, and by
lawyer Limqueco (Annex L, p. 90, testate case).
Also with the court's approval and the consent of Linda and Juanita,
they sold for P1,546,136 to Joseph Server and others 193,267 shares of
RFM Corporation (p. 135, Record).
Acting on the declaration of heirs and project of partition signed and
filed by lawyers Limqueco and Macaraeg (not signed by Maxine and
her two children), Judge Conrado M. Molina in his order of July 27,
1979 adjudicated to Maxine onehalf (4/8) of the decedent's Philippine
estate and one-eighth (1/8) each to his four children or 12-1/2% (pp.
140-142, Record). No mention at all was made of the will in that order.
Six days later, or on August 2, Maxine and her two children replaced
Limqueco with Octavio del Callar as their lawyer who on August 9,
moved to defer approval of the project of partition. The court
considered the motion moot considering that it had already approved
the declaration of heirs and project of partition (p. 149, Record).
Lawyer Limqueco in a letter to Maxine dated August 2, 1979 alleged
that he was no longer connected with Makiling Management Co., Inc.
when the Palawan Pearl Project was sold: that it was Maxine's son
Pete who negotiated the sale with Rex Roberts and that he (Limqueco)
was going to sue Maxine for the lies she imputed to him (Annex H, p.
78, testate case).
Ethel submitted to the court a certification of the Assistant
Commissioner of Internal Revenue dated October 2, 1979. It was
stated therein that Maxine paid P1,992,233.69 as estate tax and
penalties and that he interposed no objection to the transfer of the
estate to Grimm's heirs (p. 153, Record). The court noted the
certification as in conformity with its order of July 27, 1979.
After November, 1979 or for a period of more than five months, there was
no movement or activity in the intestate case. On April 18, 1980
Juanita Grimm Morris, through Ethel's lawyers, filed a motion for
accounting "so that the Estate properties can be partitioned among the
heirs and the present intestate estate be closed." Del Callar, Maxine's
lawyer was notified of that motion.
Before that motion could be heard, or on June 10, 1980, the Angara
law firm filed again its appearance in collaboration with Del Callar as
counsel for Maxine and her two children, Linda and Pete. It should be
recalled that the firm had previously appeared in the case as Maxine's
counsel on March 11, 1978, when it filed a motion to dismiss the
intestate proceeding and furnished the court with a copy of Grimm's
will. As already noted, the firm was then superseded by lawyer
Limqueco.
Petition to annul partition and testate proceeding No. 134559. — On
September 8, 1980, Rogelio A. Vinluan of the Angara law firm in
behalf of Maxine, Pete and Linda, filed in Branch 38 of the lower court
a petition praying for the probate of Grimm's two wills (already
probated in Utah), that the 1979 partition approved by the intestate
court be set aside and the letters of administration revoked, that
Maxine be appointed executrix and that Ethel and Juanita Morris be
ordered to account for the properties received by them and to return
the same to Maxine (pp. 25-35, Rollo).
Grimm's second wife and two children alleged that they were defraud
due to the machinations of the Roberts spouses, that the 1978 Utah
compromise agreement was illegal, that the intestate proceeding is
void because Grimm died testate and that the partition was contrary
to the decedent's wills.
Ethel filed a motion to dismiss the petition. Judge Leonidas denied it
for lack of merit in his order of October 27, 1980. Ethel then filed a
petition for certiorari and prohibition in this Court, praying that the
testate proceeding be dismissed, or. alternatively that the two
proceedings be consolidated and heard in Branch 20 and that the
matter of the annulment of the Utah compromise agreement be heard
prior to the petition for probate (pp. 22-23, Rollo).
Ruling. — We hold that respondent judge did not commit any grave
abuse of discretion, amounting to lack of jurisdiction, in denying
Ethel's motion to dismiss.
A testate proceeding is proper in this case because Grimm died with
two wills and "no will shall pass either real or personal property
unless it is proved and allowed" (Art. 838, Civil Code; sec. 1, Rule 75,
Rules of Court).
The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil.
479 and 98 Phil. 249; Baluyot vs. Panio, L-42088, May 7, 1976, 71 SCRA
86). It is anomalous that the estate of a person who died testate should
be settled in an intestate proceeding. Therefore, the intestate case
should be consolidated with the testate proceeding and the judge
assigned to the testate proceeding should continue hearing the two
cases.
Ethel may file within twenty days from notice of the finality of this
judgment an opposition and answer to the petition unless she
considers her motion to dismiss and other pleadings sufficient for the
purpose. Juanita G. Morris, who appeared in the intestate case, should
be served with copies of orders, notices and other papers in the testate
case.
WHEREFORE the petition is dismissed. The temporary restraining
order is dissolved. No costs.
SO ORDERED.1äwphï1.ñët
Makasiar (Chairman), Guerrero and De Castro, JJ., concur.
Escolin, J., concur in the result.
Concepcion, Jr. and Abad Santos, JJ., took no part.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 169144               January 26, 2011
IN RE: IN THE MATTER OF THE PETITION TO APPROVE THE
WILL OF RUPERTA PALAGANAS WITH PRAYER FOR THE
APPOINTMENT OF SPECIAL ADMINISTRATOR, MANUEL
MIGUEL PALAGANAS and BENJAMIN GREGORIO
PALAGANAS, Petitioners,  Ruperta’s U.S. will may be probated in and allowed by a court in the
vs.
ERNESTO PALAGANAS, Respondent.
DECISION
ABAD, J.:
This case is about the probate before Philippine court of a will
executed abroad by a foreigner although it has not been probated in
its place of execution.
The Facts and the Case
On November 8, 2001 Ruperta C. Palaganas (Ruperta), a Filipino who
became a naturalized United States (U.S.) citizen, died single and
childless. In the last will and testament she executed in California, she
designated her brother, Sergio C. Palaganas (Sergio), as the executor
of her will for she had left properties in the Philippines and in the U.S.
On May 19, 2003 respondent Ernesto C. Palaganas (Ernesto), another
brother of Ruperta, filed with the Regional Trial Court (RTC) of
Malolos, Bulacan, a petition for the probate of Ruperta’s will and for
his appointment as special administrator of her estate.1 On October
15, 2003, however, petitioners Manuel Miguel Palaganas (Manuel)
and Benjamin Gregorio Palaganas (Benjamin), nephews of Ruperta,
opposed the petition on the ground that Ruperta’s will should not be
probated in the Philippines but in the U.S. where she executed it.
Manuel and Benjamin added that, assuming Ruperta’s will could be
probated in the Philippines, it is invalid nonetheless for having been
executed under duress and without the testator’s full understanding
of the consequences of such act. Ernesto, they claimed, is also not
qualified to act as administrator of the estate.
Meantime, since Ruperta’s foreign-based siblings, Gloria Villaluz and
Sergio, were on separate occasions in the Philippines for a short visit,
respondent Ernesto filed a motion with the RTC for leave to take their
deposition, which it granted. On April, 13, 2004 the RTC directed the
parties to submit their memorandum on the issue of whether or not
Philippines.
On June 17, 2004 the RTC issued an order:2 (a) admitting to probate
Ruperta’s last will; (b) appointing respondent Ernesto as special
administrator at the request of Sergio, the U.S.-based executor
designated in the will; and (c) issuing the Letters of Special
Administration to Ernesto.
Aggrieved by the RTC’s order, petitioner nephews Manuel and
Benjamin appealed to the Court of Appeals (CA),3arguing that an
unprobated will executed by an American citizen in the U.S. cannot
be probated for the first time in the Philippines.
On July 29, 2005 the CA rendered a decision,4 affirming the assailed
order of the RTC,5 holding that the RTC properly allowed the probate
of the will, subject to respondent Ernesto’s submission of the
authenticated copies of the documents specified in the order and his
posting of required bond. The CA pointed out that Section 2, Rule 76
of the Rules of Court does not require prior probate and allowance of
the will in the country of its execution, before it can be probated in the
Philippines. The present case, said the CA, is different from reprobate,
which refers to a will already probated and allowed abroad.
Reprobate is governed by different rules or procedures. Unsatisfied
with the decision, Manuel and Benjamin came to this Court.
The Issue Presented
The key issue presented in this case is whether or not a will executed
by a foreigner abroad may be probated in the Philippines although it
has not been previously probated and allowed in the country where it
was executed.
The Court’s Ruling
Petitioners Manuel and Benjamin maintain that wills executed by
foreigners abroad must first be probated and allowed in the country
of its execution before it can be probated here. This, they claim,
ensures prior compliance with the legal formalities of the country of
its execution. They insist that local courts can only allow probate of
such wills if the proponent proves that: (a) the testator has been
admitted for probate in such foreign country, (b) the will has been
admitted to probate there under its laws, (c) the probate court has
jurisdiction over the proceedings, (d) the law on probate procedure in
that foreign country and proof of compliance with the same, and (e)
the legal requirements for the valid execution of a will.
But our laws do not prohibit the probate of wills executed by
foreigners abroad although the same have not as yet been probated
and allowed in the countries of their execution. A foreign will can be
given legal effects in our jurisdiction. Article 816 of the Civil Code
states that the will of an alien who is abroad produces effect in the
Philippines if made in accordance with the formalities prescribed by
the law of the place where he resides, or according to the formalities
observed in his country.6
In this connection, Section 1, Rule 73 of the 1997 Rules of Civil
Procedure provides that if the decedent is an inhabitant of a foreign
country, the RTC of the province where he has an estate may take
cognizance of the settlement of such estate. Sections 1 and 2 of Rule 76
further state that the executor, devisee, or legatee named in the 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.
Our rules require merely that the petition for the allowance of a will
must show, so far as known to the petitioner: (a) the jurisdictional
facts; (b) the names, ages, and residences of the heirs, legatees, and
devisees of the testator or decedent; (c) the probable value and
character of the property of the estate; (d) the name of the person for
whom letters are prayed; and (e) if the will has not been delivered to
the court, the name of the person having custody of it. Jurisdictional
facts refer to the fact of death of the decedent, his residence at the time
of his death in the province where the probate court is sitting, or if he
is an inhabitant of a foreign country, the estate he left in such
province.7The rules do not require proof that the foreign will has
already been allowed and probated in the country of its execution.
In insisting that Ruperta’s will should have been first probated and
allowed by the court of California, petitioners Manuel and Benjamin
obviously have in mind the procedure for the reprobate of will before
admitting it here. But, reprobate or re-authentication of a will already
probated and allowed in a foreign country is different from that
probate where the will is presented for the first time before a
competent court. Reprobate is specifically governed by Rule 77 of the
Rules of Court. Contrary to petitioners’ stance, since this latter rule
applies only to reprobate of a will, it cannot be made to apply to the
present case. In reprobate, the local court acknowledges as binding
the findings of the foreign probate court provided its jurisdiction over
the matter can be established.
Besides, petitioners’ stand is fraught with impractically.1âwphi1 If the
instituted heirs do not have the means to go abroad for the probate of
the will, it is as good as depriving them outright of their inheritance,
since our law requires that no will shall pass either real or personal
property unless the will has been proved and allowed by the proper
court.8
Notably, the assailed RTC order of June 17, 2004 is nothing more than
an initial ruling that the court can take cognizance of the petition for
probate of Ruperta’s will and that, in the meantime, it was
designating Ernesto as special administrator of the estate. The parties
have yet to present evidence of the due execution of the will, i.e. the
testator’s state of mind at the time of the execution and compliance
with the formalities required of wills by the laws of California. This
explains the trial court’s directive for Ernesto to submit the duly
authenticated copy of Ruperta’s will and the certified copies of the
Laws of Succession and Probate of Will of California.

WHEREFORE, the Court DENIES the petition and AFFIRMS the

Court of Appeals decision in CA-G.R. CV 83564 dated July 29, 2005.

SO ORDERED.

ROBERTO A. ABAD
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice

ANTONIO EDUARDO B.
NACHURA
Associate Justice
Associate Justice

MARIA LOURDES P. A. SERENO*

Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-24819               May 30, 1969
TESTATE ESTATE OF CATALINA DE LA CRUZ, deceased,
ANDRES PASCUAL, petitioner-appellee,  in giving credence to the testimonies of the subscribing witnesses and
vs.
PEDRO DE LA CRUZ, ET AL., oppositors-appellants.
Avelino Pascual for petitioner-appellee.
Raul Manglapus and Feria, Feria, Lugtu and La'O for oppositors-appellants.
REYES, J.B.L., J.:
This is an appeal from the decision of the Court of First Instance of
Rizal (in Sp. Proc. No. 3312) admitting to probate the purported will
of Catalina de la Cruz.
On 2 January 1960, Catalina de la Cruz, single and without any
surviving descendant or ascendant, died at the age of 89 in her
residence at San Roque, Navotas, Rizal. On 14 January 1960, a petition
for the probate of her alleged will was filed in the Court of First
Instance of Rizal by Andres Pascual, who was named in the said will
as executor and sole heir of the decedent. 1
Opposing the petition, Pedro de la Cruz and 26 other nephews and
nieces of the late Catalina de la Cruz contested the validity of the will
on the grounds that the formalities required by law were not
complied with; that the testatrix was mentally incapable of disposing
of her properties by will at the time of its execution; that the will was
procured by undue and improper pressure and influence on the part
of the petitioner; and that the signature of the testatrix was obtained
through fraud.
After hearing, during which the parties presented their respective
evidences, the probate court rendered judgment upholding the due
execution of the will, and, as therein provided, appointed petitioner
Andres Pascual executor and administrator of the estate of the late
Catalina de la Cruz without bond. The oppositors appealed directly to
the Court, the properties involved being valued at more than
P300,000.00, raising only the issue of the due execution of the will.
In this instance, oppositors-appellees claim that the lower court erred
the notary that the will was duly executed, notwithstanding the
existence of inconsistencies and contradictions in the testimonies, and
in disregarding their evidence that the will was not signed by all the
witnesses in the presence of one another, in violation of the
requirement of the law.
On this point, the lower court said:
Regarding the alleged contradictions and inconsistencies in
the testimony of the three attesting witnesses and of the
Notary Public, some of which have been enumerated in the
Memorandum of Oppositors' counsel, this Court has taken
pains in noting said inconsistencies but found the same not
substantial in nature sufficient to discredit their entire
testimony on the due execution of Exhibit "D". It is to be noted
that Exhibit "D" was signed in 1954 and that the attesting
witnesses testified in Court in 1962 or after a lapse of eight
years from the date of the signing of the document. It is,
therefore, understandable and reasonable to expect that said
witnesses will not retain a vivid picture of the details
surrounding the execution and signing of the will of Catalina
de la Cruz. What is important and essential is that there be
unanimity and certainty in their testimony regarding the
identity of the signatures of the testatrix, the attesting
witnesses, and the Notary Public, and the fact that they were
all present at the time those signatures were affixed on the
document Exhibit "D". ....
In this jurisdiction, it is the observed rule that, where a will is
contested, the subscribing with are generally regarded as the best
qualified to testify on its due execution. However, it is similarly
recognized that for the testimony of such witnesses to be entitled to
full credit, it must be reasonable and unbiased, and not overcome by
competent evidence, direct or circumstantial. 2 For it must be
remembered that the law does not simply require the presence of
three instrumental witnesses; it demands that the witnesses be
credible. 3
In connection with the issue under consideration, we agree with the
trial judge that the contradictions and inconsistencies appearing in the
testimonies of the witnesses and the notary, pointed out by the
oppositors-appellants (such as the weather condition at the time the
will was executed; the sequence of the signing by the witnesses; and
the length of time it took to complete the act), relate to unimportant
details of the impressions of the witnesses about certain details which
could have been affected by the lapse of time and the treachery of
human memory, and which inconsistencies, by themselves, would not
alter the probative value of their testimonies on the due execution of
the will [cf. Peo. vs. Sigue, 86 Phil. 139-140 (3 years interval)].
In Estate of Javellana vs. Javellana, L-13781, 30 January 1960, 106 Phil.
1076, this Court ruled:
For the purpose of determining the due execution of a will, it
is not necessary that the instrumental witnesses should give an
accurate and detailed account of the proceeding, such as
recalling the order of the signing of the document by the said
witnesses. It is sufficient that they have seen or at least were so
situated at the moment that they could have seen each other
sign, had they wanted to do so. In fact, in the instant case, at
least two witnesses, ... both testified that the testator and
the 3 witnesses signed in the presence of each and every one of
them (Jaboneta vs. Gustilo, 5 Phil. 451; Neyra vs. Neyra, 42
Off. Gaz. 2817; Fernandez vs. Tantoco, 49 Phil. 380.).
Neither do we believe that the fact that the witnesses were better
known to proponent Andres Pascual than to the testatrix suffices to
render their testimony suspect. Under the circumstances, considering
the admitted fact that when the will was executed (1954) the testatrix
was already 83 years old, suffering from rheumatism to the extent
that she had to wear thick socks and soft shoes, it did not unlikely that
she should have entrusted the task of requesting them to act as
witnesses to Andres Pascual himself, albeit the said witnesses,
testifying eight years later, should have stated that they were asked
by Catalina to witness her testament. The error of recall, considering
the eight-year interval, is consonant with the well known vagaries of
human memory and recollection, particularly since the main detail
that must have stuck in his minds is that they did witness the signing
of the will, upon which their attention must have principally
concentrated. That they did so is attested by their signatures and
those of the deceased testatrix, which are nowhere impugned; nor is
there any claim by appellants that the latter was incapable of reading
and understanding the will that she signed. In fact, the evidence is
that she did read it before signing. The authorities are to the effect
that friendly relations of the witnesses with the testator or the
beneficiaries do not affect the credibility of the former,  4 so that the
proven friendship between the proponent and the instrumental
witnesses would have no bearing on the latter's qualification to testify
on the circumstances surrounding the signing of the will.
Appellant's main reliance is the alleged tape recording of a
conversation between instrumental witness Manuel Jiongco and
oppositor Pedro B. Cruz at the latter's house sometime in 1960 (which
recording was admittedly taken without Jiongco's knowledge)
wherein said witness is supposed to have stated that when he signed
the will the other witnesses' signatures were already affixed, and were
not then present, and that he (Jiongco) signed the document in 1958 or
1959 (Exhibit 22; transcription; Exhibit 23 et. seq.).
There are two circumstances that militate against giving credence to
particular evidence. The first is that there is no adequate proof that
the declarations tape recorded were in fact made by Jiongco. The
latter denied that the voice was his, and in this respect the trial judge
stated (Record on Appeal, pages 83-84):
We do not doubt the fact that Manuel Jiongco was in the house
of Pedro Cruzon the occasion that Exhibit "23" was taken. But
it is important to note that when said recording was replayed
 before Manuel Jiongco in Court he denied that the voice which
uttered the above-quoted portions in the conversation was his.
So that with the denial of Manuel Jiongco, the Court was left
with no other recourse than to make its own comparison
between the natural voice of the witness, Manuel Jiongco,
while testifying on the witness stand and his supposed
recorded voice in Exhibit "23". It is to be admitted that we
noted some similarity between the two voices but it was not
enough to justify a categorical and definite conclusion that the
recorded voice identified by Pedro Cruz to be that of Manuel
Jiongco is in truth and in fact the voice of the latter. Between a
testimony given in Court under oath which was subjected to
and stood of rigorous cross-examination and loose statements
made out of Court which even then are of doubtful source,
this Court gives full faith and credence to the former. And this
is true even if this particular witness admits having a poor
memory, and his trustworthiness is assailed due to a previous
record of an administrative case filed against him wherein he
was fined for a charge of falsification of public document (see
Exh. "25"). This is so, because the veracity of his testimony in
Court regarding the due execution of Exhibit "D" is
corroborated and confirmed by the testimony of the two other
attesting witnesses to the document and the Notary Public
who notarized the same.
Not having heard Jiongco testify, this court is not in a position to
contradict the appreciation of the trial court that the voice in the tape
recording was not really that of Jiongco. And considering that he
denied that fact under oath, that the tape recording was not
supported by truly impartial evidence, and was done without the
knowledge of the witness, we cannot see our way clear to rule that
Jiongco has been successfully impeached, and shown guilty of false
testimony. It would be dangerous to rule otherwise.
The second point that renders incredible the alleged assertion of
Jiongco in the tape recording, that he signed the testament only in
1958 or 1959, is that in the Notarial Registry of the notary, Gatdula,
the ratification of the testament appears among the entries for 1954, as
well as in the corresponding copies (Exhibit I) filed by him with
Bonifacio Sumulong, the employee in charge of the Notarial Section of
the Clerk of Court's office, who produced them at the trial upon
subpoena, and who testified to his having searched for and found
them in the vaults of the Clerk of Court's office. No evidence exists
that these documents were not surrendered and filed at the Clerk of
Court's office, as required by law, and in the regular course of official
duty. Certainly, the notary could not have reported in 1954 what did
not happen until 1958.
In view of the evidence, we do not feel justified in concluding that the
trial court erred in accepting the concordant testimony of the
instrumental witnesses as warranting the probate of the will in
question, taking into account the unexcelled opportunity of the court
a quo to observe the demeanor, and judge the credibility, of the
witness thereby. Furthermore, it would not be the first time in this
jurisdiction that a will has been admitted to probate even if the
instrumental witness testified contrary to the other two, provided the
court is satisfied, as in this case, that the will was executed and
attested in the manner provided by law (Fernandez vs. Tantoco, 49
Phil. 380; Tolentino vs. Francisco, 57 Phil. 742; Cuyugan vs. Baron, 69
Phil. 639; Ramirez vs. Butte, 100 Phil 635). There is greater reason to
admit the will to probate where only the testimony of one witness is
subjected to serious, if unsuccessful attack.
Contestants further assail the admission to probate on the ground that
the execution of the will was tainted by fraud and undue influence
exerted by proponent on the testarix, and affirm that it was error for
the lower court to have rejected their claim. Said the court in this
regard (Record on Appeal, page 87):
It is a settled rule in this jurisdiction that the mere fact that a
Will was made in favor of a stranger is not in itself proof that
the same was obtained through fraud and undue pressure or
influence, for we have numerous instances where strangers
are preferred to blood relatives in the institution of heirs. But
in the case at bar, Andres Pascual, although not related by
blood to the deceased Catalina de la Cruz, was definitely not a
stranger to the latter for she considered him as her own son.
As a matter of fact it was not only Catalina de la Cruz who
loved and cared for Andres Pascual but also her sisters held
him with affection so much so that Catalina's sister, Florentina
 Cruz, made him also her sole heir to her property in her Will
without any objection from Catalina and Valentina Cruz.
Before considering the correctness of these findings, it is worthwhile
to recall the basic principles on undue pressure and influence as laid
down by the jurisprudence of this Court: 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 him express the will of another rather than his own (Coso vs.
Fernandez Deza, 42 Phil. 596; Icasiano vs. Icasiano, L-18979, 30 June
1964; Teotico vs. Del Val, L-18753, 26 March 196); that the contention
that a will was obtained by undue influence or improper pressure
cannot be sustained on mere conjecture or suspicion, as it is enough
that there was opportunity to exercise undue influence, or a
possibility that it may have been exercised (Ozaeta vs. Cuartero, L-
5597, 31 May 1956); that the exercise of improper pressure and undue
influence must be supported by substantial evidence that it was
actually exercised (Ozatea vs. Cuartero, ante; Teotico vs. Del Val, L-
18753, 26 March 1965); that the burden is on the person challenging
the will to show that such influence was exerted at the time of its
execution (Teotico vs. Del Val, ante); that mere general or reasonable
influence is not sufficient to invalidate a will (Coso vs. Fernandez
Deza, ante); nor is moderate and reasonable solicitation and entreaty
addressed to the testator (Barreto vs. Reyes, L-5831-31, 31 January
1956), or omission of relatives, not forced heirs, evidence of undue
influence (Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronel, 45 Phil.
416).
Tested against these rulings, the circumstances marshalled by the
contestants certainly fail to establish actual undue influence or
improper pressure exercised on the testarix by the proponent. Their
main reliance is on the assertion of the latter, in the course of his
testimony, that the deceased "did not like to sign anything unless I
knew it" (t.s.n., page 7, 27 January 1962), which does not amount to
proof that she would sign anything that proponent desired. On the
contrary, the evidence of contestants-appellants, that proponent
purchased a building in Manila for the testarix, placed the title in his
name, but caused the name "Catalina de la Cruz" to be painted
thereon in bold letters to mislead the deceased, even if true,
demonstrates that proponent's influence was not such as to
overpower to destroy the free will of the testarix. Because if the mind
of the latter were really subjugated by him to the extent pictured by
the contestants, then proponent had no need to recourse to the
deception averred.lawphi1.ñet
Nor is the fact that it was proponent, and not the testarix, who asked
Dr. Sanchez to be one of the instrumental witnesses evidence of such
undue influence, for the reason that the rheumetism of the testarix
made it difficult for her to look for all the witnesses. That she did not
resort to relatives or friends is, likewise explainable: it would have
meant the disclosure of the terms of her will to those interested in her
succession but who were not favored by her, thereby exposing her to
unpleasant importunity and recriminations that an aged person
would naturally seek to avoid. The natural desire to keep the making
of a will secret can, likewise, account for the failure to probate the
testament during her lifetime.
We conclude that the trial court committed no error in finding the
appellant's evidence established at most grounds for suspicion but fell
far short of establishing actual exercise of improper pressure or
influence. Considering that testarix considered proponent as her own
son, to the extent that she expressed no objection to his being made
the sole heir of her sister, Florentina Cruz, in derogation of her own
rights, we find nothing abnormalin her instituting proponent also as
her own beneficiary. As stated by the Court in the Knutson case —
The truth of the matter is that bequests and devises to those in
whom the testator has confidence and who have won his
affection are more likely to be free from undue influence that
bequests or devises to others. (In re Knutson's Will, 41 Pac. 2d
793).
Appellants invoked presumption of undue influence held to exist by
American authorities where the beneficiary participates in the
drafting of execution of the will favoring him; but since the will was
prepared by Atty. Pascual, although nephew of the proponent, we do
not think the presumption applies; for in the normal course of events,
said attorney would follow the instructions of the testatrix; and a
member of the bar in good standing may not be convicted of
unprofessional conduct, or of having conspired to falsify a statement,
except upon clear proof.

The charge of fraud, being premised on the existence of undue

influence, needs no separate discussion.

WHEREFORE, the decree of probate appealed from is affirmed; with

costs against contestants-appellants.

Dizon, Makalintal, Zaldivar, Sanchez, Fernando, Capistrano and Barredo,

JJ., concur.
Teehankee, J., took no part.
Concepcion, C.J., and Castro, J., are on leave, took no part.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-9776             July 31, 1957
TESTATE ESTATE OF CARLOS PALANCA Y TAGUINLAY,
deceased. ROMAN OZAETA, Special Administrator,Appellant,  years in which Mr. Ozaeta was not yet the special administrator, and
vs.
TERESA PALANCA DEL RIO, CARMEN PALANCA, CONSUELO
PALANCA, MANUEL PALANCA and ALFREDO
PALANCA, oppositors-appellees.
G.R. No. L-9851             July 31, 1957
TESTATE ESTATE OF CARLOS PALANCA, deceased. SYCIP
GORRES, VELAYO & CO., movant-appellant,  have already assigned their rights, titles and participations in the said
vs.
ROMAN OZAETA, Special Administrator and appellee.
TERESA PALANCA DEL RIO, ET AL., oppositors-appellees.
Arturo S. Monzon for the movant and appellant.
Lichauco and Picazo for special administrator and appellant.
Sison and Sison for the Cuartero children.
De los Santos and De los Santos for Sebastian C. Palanca.
Rafael Dinglasan for Angel C. Palanca. Manuel V. San Jose for Rosa
Gonzales and her children.
LABRADOR, J.:
On May 5, 1955, the special administrator filed a petition in court for
authority to pay the accounting firm of Sycip, Gorres, Velayo & Co.
the sum of P3,650, for services rendered in taking inventory of assets
in 1950, tax consultations in 1950 to 1954, and preparation of income
tax returns for 1953 and 1954. The court below denied this motion, on
the ground that the services covered by the fees of the accounting firm
were rendered to the former special administrator Philippine Trust
Company. Upon being notified of the denial of the special
administrator's petition to pay it, the accounting firm appeared in
court and asked for the reconsideration of the order of denial.
Opposition to this motion for reconsideration was filed by heirs
Teresa, Carmen, Consuelo, Manuel, Elena and Alfredo, all surnamed
Palanca y Cuartero, on the following grounds: as to the fees for
services in the taking of the inventory in 1950, Mr. Ozaeta, who asked
for said services, was not yet the special administrator when said
services were rendered; the tax consultations from 1950 to 1954 cover
as the same was rendered during the incumbency of the Philippine
Trust, the fees should be paid for by Mr. Ozaeta himself. After various
arguments, the court refused to grant the reconsideration of its
original order denying the petition, and so appeal therefrom was
taken to this Court.
Since the pendency of the case in court, the oppositors-appellees have
presented a withdrawal of their opposition, on the ground that they
estate to the eight children of Rosa Gonzales Vda. de Palanca, and no
longer have any interest in the estate, nor do they have any
personality to further intervene in the proceedings. A similar motion
has also been filed by Sebastian Palanca, who states that he has
transferred his share to the inheritance to Carlos Palanca, Jr. For their
part Rosa Gonzales Vda. de Palanca and her eight children have filed
a statement expressing conformity to the payment of the fees.
The withdrawal of the objections notwithstanding, it seems that it is
still necessary to decide the questions raised, i.e., whether the services
rendered to the special administrator named in the will, previous to
his actual appointment as such and at his instance, are chargeable
against the estate.
There is no question that the services rendered were for the benefit of
the estate. The Rules require that the administrator should submit an
inventory of the properties of the estate within three months from his
appointment (Sec. 1, Rule 84, Rules of Court). As Mr. Ozaeta expected
to be appointed administrator of the estate immediately, in view of
his designation as executor of the will of the decedent, it was proper,
necessary and expedient for him, even before his actual appointment way open to appellees to secure payment for their services
to employ the services of accountants in order that they can prepare from the trust fund was to file the claim against the estate, and
the accounts or the inventory in due time and within the period proceed as the record shows they have done. We find no error
prescribed by the Rules. in the record. (Baker vs. Cauthorn, et al., supra, pp. 963-964.)

The general rule is that acts done by an executor in the interest of his
trust, prior to his qualification as such, become binding on the estate
upon his qualification (Baker vs. Cauthorn, et al., 55 N. E. 963). In the
said case the court held:
It is contended by appellant that the services rendered by
appellees were to the said James E. Baker before he actually
became the executor of decedent's will, and that said Baker is
individually liable for the value of whatever services were so
rendered, and not said estate. It is not contended that
appellees were not retained, nor that the advice was not given,
nor that the services were not of the value of $100, but the sole
contention seems to be that, because the actual work which
was done occupied prior to the time appellant in fact qualified
as executor, said Baker was individually liable, and appellees
had no claim against the estate which he (Baker) was
representing. . . .
The services rendered in the years 1953-54 were also as useful to the
estate as those rendered in connection with the preparation of the
inventory. Whoever may have contracted the services of the
accountants, whether it was Mr. Ozaeta before his appointment or the
Philippine Trust, such services were for the benefit of the estate and
have redounded to the estate's benefit.
For the foregoing considerations, the order denying payment to the
firm of Sycip, Gorres, Velayo & Co. of the sum of P3,650 is hereby
reversed, and the authority for the payment of the same by the special
administrator from the funds of the estate is hereby granted. Without
costs.
Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion,
Endencia and Felix, JJ., concur.

We think the evidence sustains the finding and judgment of

the lower court. It shows that the services rendered by
appellees were connected with the settlement of his decedent's
estate. There was no special agreement between James E.
Baker and appellees that they were to look to the estate alone
for payment; hence they could, if they so desired, look to said
James E. Baker personally for the value of such services. Long
vs. Rodman, 58 Ind. 58. Appellees waived the right to hold
said James E. Baker personally and elected to hold the estate,
for the value of such services. . . . After the executor has
qualified, his authority over the decedent's property reaches
back to the time of the decedent's death, and covers all acts
done by him in the interest of his trust. Gilkey vs. Hamilton, 22
Mich. 283. Under the evidence in this case, we think the
executor of the will of Nancy L. Baker could have the claim of
appellees, and rightfully insisted upon its allowance as a credit
in his settlement of the trust. Not having done this, the only
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-16763 December 22, 1921
PASCUAL COSO, petitioner-appellant,  influence exerted must be of a kind that so overpowers and
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
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, Avanceña, Villamor, Johns and Romualdez, JJ.,

concur.
 Republic of the Philippines
SUPREME COURT
THIRD DIVISION
G.R. No. 157451 December 16, 2005
LETICIA VALMONTE ORTEGA, Petitioner,  1980, Placido finally came home to stay in the Philippines, and he
vs.
JOSEFINA C. VALMONTE, Respondent.
DECISION
PANGANIBAN, J.:
The law favors the probate of a will. Upon those who oppose it rests
the burden of showing why it should not be allowed. In the present
case, petitioner has failed to discharge this burden satisfactorily. For
this reason, the Court cannot attribute any reversible error on the part
of the appellate tribunal that allowed the probate of the will.
The Case
Before the Court is a Petition for Review1 under Rule 45 of the Rules of
Court, seeking to reverse and set aside the December 12, 2002
Decision2 and the March 7, 2003 Resolution3 of the Court of Appeals
(CA) in CA-GR CV No. 44296. The assailed Decision disposed as
follows:
"WHEREFORE, the appeal is GRANTED, and the Decision appealed
from is REVERSED and SET ASIDE. In its place judgment is
rendered approving and allowing probate to the said last will and
testament of Placido Valmonte and ordering the issuance of letters
testamentary to the petitioner Josefina Valmonte. Let this case be
remanded to the court a quo  for further and concomitant
proceedings."4
The assailed Resolution denied petitioner’s Motion for
Reconsideration.
The Facts
The facts were summarized in the assailed Decision of the CA, as
follows:
"x x x: Like so many others before him, Placido toiled and lived for a
long time in the United States until he finally reached retirement. In
lived in the house and lot located at #9200 Catmon St., San Antonio
Village, Makati, which he owned in common with his sister Ciriaca
Valmonte and titled in their names in TCT 123468. Two years after his
arrival from the United States and at the age of 80 he wed Josefina
who was then 28 years old, in a ceremony solemnized by Judge
Perfecto Laguio, Jr. on February 5, 1982. But in a little more than two
years of wedded bliss, Placido died on October 8, 1984 of a cause
written down as COR PULMONALE.
"Placido executed a notarial last will and testament written in English
and consisting of two (2) pages, and dated June 15, 1983 but
acknowledged only on August 9, 1983. The first page contains the
entire testamentary dispositions and a part of the attestation clause,
and was signed at the end or bottom of that page by the testator and
on the left hand margin by the three instrumental witnesses. The
second page contains the continuation of the attestation clause and
the acknowledgment, and was signed by the witnesses at the end of
the attestation clause and again on the left hand margin. It provides in
the body that:
‘LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE
NAME OF THE LORD AMEN:
‘I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag
Valmonte, and a resident of 9200 Catmon Street, Makati, Metro
Manila, 83 years of age and being of sound and disposing mind and
memory, do hereby declare this to be my last will and testament:
1. It is my will that I be buried in the Catholic Cemetery, under the
auspices of the Catholic Church in accordance with the rites and said
Church and that a suitable monument to be erected and provided my
by executrix (wife) to perpetuate my memory in the minds of my
family and friends;
2. I give, devise and bequeath unto my loving wife, JOSEFINA C.
VALMONTE, one half (1/2) portion of the follow-described
properties, which belongs to me as [co-owner]:
a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO),
situated in Makati, Metro Manila, described and covered by TCT No.
123468 of the Register of Deeds of Pasig, Metro-Manila registered
jointly as co-owners with my deceased sister (Ciriaca Valmonte),
having share and share alike;
b. 2-storey building standing on the above-described property, made
of strong and mixed materials used as my residence and my wife and
located at No. 9200 Catmon Street, Makati, Metro Manila also covered
by Tax Declaration No. A-025-00482, Makati, Metro-Manila, jointly in
the name of my deceased sister, Ciriaca Valmonte and myself as co-
owners, share and share alike or equal co-owners thereof;
3. All the rest, residue and remainder of my real and personal
properties, including my savings account bank book in USA which is
in the possession of my nephew, and all others whatsoever and
wherever found, I give, devise and bequeath to my said wife, Josefina
C. Valmonte;
4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of
my last will and testament, and it is my will that said executrix be
exempt from filing a bond;
IN WITNESS WHEREOF, I have hereunto set my hand this 15th day
of June 1983 in Quezon City, Philippines.’
"The allowance to probate of this will was opposed by Leticia on the
grounds that:
1. Petitioner failed to allege all assets of the testator, especially those
found in the USA;
2. Petitioner failed to state the names, ages, and residences of the heirs
of the testator; or to give them proper notice pursuant to law;
3. Will was not executed and attested as required by law and legal
solemnities and formalities were not complied with;
4. Testator was mentally incapable to make a will at the time of the
alleged execution he being in an advance sate of senility;
5. Will was executed under duress, or the influence of fear or threats;
6. Will was procured by undue and improper influence and pressure
on the part of the petitioner and/or her agents and/or assistants;
and/or
7. Signature of testator was procured by fraud, or trick, and he did not
intend that the instrument should be his will at the time of affixing his
signature thereto;’
and she also opposed the appointment as Executrix of Josefina
alleging her want of understanding and integrity.
"At the hearing, the petitioner Josefina testified and called as
witnesses the notary public Atty. Floro Sarmiento who prepared and
notarized the will, and the instrumental witnesses spouses Eugenio
Gomez, Jr. and Feliza Gomez and Josie Collado. For the opposition,
the oppositor Leticia and her daughter Mary Jane Ortega testified.
"According to Josefina after her marriage with the testator they lived
in her parents house at Salingcob, Bacnotan, La Union but they came
to Manila every month to get his $366.00 monthly pension and stayed
at the said Makati residence. There were times though when to shave
off on expenses, the testator would travel alone. And it was in one of
his travels by his lonesome self when the notarial will was made. The
will was witnessed by the spouses Eugenio and Feliza Gomez, who
were their wedding sponsors, and by Josie Collado. Josefina said she
had no knowledge of the existence of the last will and testament of
her husband, but just serendipitously found it in his attache case after
his death. It was only then that she learned that the testator
bequeathed to her his properties and she was named the executrix in
the said will. To her estimate, the value of property both real and
personal left by the testator is worth more or less P100,000.00. Josefina
declared too that the testator never suffered mental infirmity because
despite his old age he went alone to the market which is two to three
kilometers from their home cooked and cleaned the kitchen and
sometimes if she could not accompany him, even traveled to Manila
alone to claim his monthly pension. Josefina also asserts that her
husband was in good health and that he was hospitalized only
because of a cold but which eventually resulted in his death.
"Notary Public Floro Sarmiento, the notary public who notarized the
testator’s will, testified that it was in the first week of June 1983 when
the testator together with the three witnesses of the will went to his
house cum law office and requested him to prepare his last will and
testament. After the testator instructed him on the terms and
dispositions he wanted on the will, the notary public told them to
come back on June 15, 1983 to give him time to prepare it. After he
had prepared the will the notary public kept it safely hidden and
locked in his drawer. The testator and his witnesses returned on the
appointed date but the notary public was out of town so they were
instructed by his wife to come back on August 9, 1983, and which
they did. Before the testator and his witnesses signed the prepared
will, the notary public explained to them each and every term thereof
in Ilocano, a dialect which the testator spoke and understood. He
likewise explained that though it appears that the will was signed by
the testator and his witnesses on June 15, 1983, the day when it should
have been executed had he not gone out of town, the formal execution
was actually on August 9, 1983. He reasoned that he no longer
changed the typewritten date of June 15, 1983 because he did not like
the document to appear dirty. The notary public also testified that to
his observation the testator was physically and mentally capable at
the time he affixed his signature on the will.
"The attesting witnesses to the will corroborated the testimony of the
notary public, and testified that the testator went alone to the house of
spouses Eugenio and Feliza Gomez at GSIS Village, Quezon City and
requested them to accompany him to the house of Atty. Floro
Sarmiento purposely for his intended will; that after giving his
instructions to Atty. Floro Sarmiento, they were told to return on June
15, 1983; that they returned on June 15, 1983 for the execution of the
will but were asked to come back instead on August 9, 1983 because
of the absence of the notary public; that the testator executed the will
in question in their presence while he was of sound and disposing
mind and that he was strong and in good health; that the contents of
the will was explained by the notary public in the Ilocano and
Tagalog dialect and that all of them as witnesses attested and signed
the will in the presence of the testator and of each other. And that
during the execution, the testator’s wife, Josefina was not with them.
"The oppositor Leticia declared that Josefina should not inherit alone
because aside from her there are other children from the siblings of
Placido who are just as entitled to inherit from him. She attacked the
mental capacity of the testator, declaring that at the time of the
execution of the notarial will the testator was already 83 years old and
was no longer of sound mind. She knew whereof she spoke because
in 1983 Placido lived in the Makati residence and asked Leticia’s
family to live with him and they took care of him. During that time,
the testator’s physical and mental condition showed deterioration,
aberrations and senility. This was corroborated by her daughter Mary
Jane Ortega for whom Placido took a fancy and wanted to marry.
"Sifting through the evidence, the court a quo held that [t]he evidence
adduced, reduces the opposition to two grounds, namely:
1. Non-compliance with the legal solemnities and formalities in the execution
and attestation of the will; and
2. Mental incapacity of the testator at the time of the execution of the will as
he was then in an advanced state of senility
"It then found these grounds extant and proven, and accordingly
disallowed probate."5
Ruling of the Court of Appeals
Reversing the trial court, the appellate court admitted the will of
Placido Valmonte to probate. The CA upheld the credibility of the
notary public and the subscribing witnesses who had acknowledged
the due execution of the will. Moreover, it held that the testator had
testamentary capacity at the time of the execution of the will. It added
that his "sexual exhibitionism and unhygienic, crude and impolite may be examined and the factual matters resolved by this Court
ways"6 did not make him a person of unsound mind. when, as in the instant case, the findings of fact of the appellate court
differ from those of the trial court.9
Hence, this Petition.7
The fact that public policy favors the probate of a will does not
Issues necessarily mean that every will presented for probate should be
allowed. The law lays down the procedures and requisites that must
Petitioner raises the following issues for our consideration: be satisfied for the probate of a will.10 Verily, Article 839 of the Civil
Code states the instances when a will may be disallowed, as follows:
"I.
"Article 839. The will shall be disallowed in any of the following cases:
Whether or not the findings of the probate court are entitled to great
respect. (1) If the formalities required by law have not been complied with;

"II. (2) If the testator was insane, or otherwise mentally incapable of

making a will, at the time of its execution;
Whether or not the signature of Placido Valmonte in the subject will
was procured by fraud or trickery, and that Placido Valmonte never (3) If it was executed through force or under duress, or the influence
intended that the instrument should be his last will and testament. of fear, or threats;

"III. (4) If it was procured by undue and improper pressure and influence,
on the part of the beneficiary or of some other person;
Whether or not Placido Valmonte has testamentary capacity at the
time he allegedly executed the subject will."8 (5) If the signature of the testator was procured by fraud;

In short, petitioner assails the CA’s allowance of the probate of the (6) If the testator acted by mistake or did not intend that the
will of Placido Valmonte. instrument he signed should be his will at the time of affixing his
signature thereto."
This Court’s Ruling
In the present case, petitioner assails the validity of Placido
The Petition has no merit. Valmonte’s will by imputing fraud in its execution and challenging
the testator’s state of mind at the time.
Main Issue:
Existence of Fraud in the
Probate of a Will
Execution of a Will
At the outset, we stress that only questions of law may be raised in a
Petition for Review under Section 1 of Rule 45 of the Rules of Court. Petitioner does not dispute the due observance of the formalities in
As an exception, however, the evidence presented during the trial the execution of the will, but maintains that the circumstances
surrounding it are indicative of the existence of fraud. Particularly,
she alleges that respondent, who is the testator’s wife and sole
beneficiary, conspired with the notary public and the three attesting
witnesses in deceiving Placido to sign it. Deception is allegedly
reflected in the varying dates of the execution and the attestation of
the will.
Petitioner contends that it was "highly dubious for a woman at the
prime of her young life [to] almost immediately plunge into marriage
with a man who [was] thrice her age x x x and who happened to be
[a] Fil-American pensionado,"11 thus casting doubt on the intention of
respondent in seeking the probate of the will. Moreover, it
supposedly "defies human reason, logic and common experience"12 for
an old man with a severe psychological condition to have willingly
signed a last will and testament.
We are not convinced. Fraud "is a trick, secret device, false statement,
or pretense, by which the subject of it is cheated. It may be of such
character that the testator is misled or deceived as to the nature or
contents of the document which he executes, or it may relate to some
extrinsic fact, in consequence of the deception regarding which the
testator is led to make a certain will which, but for the fraud, he
would not have made."13
We stress that the party challenging the will bears the burden of
proving the existence of fraud at the time of its execution. 14 The
burden to show otherwise shifts to the proponent of the will only
upon a showing of credible evidence of fraud.15 Unfortunately in this
case, other than the self-serving allegations of petitioner, no evidence
of fraud was ever presented.
It is a settled doctrine that the omission of some relatives does not
affect the due execution of a will.16 That the testator was tricked into
signing it was not sufficiently established by the fact that he had
instituted his wife, who was more than fifty years his junior, as the
sole beneficiary; and disregarded petitioner and her family, who were
the ones who had taken "the cudgels of taking care of [the testator] in
his twilight years."17
Moreover, as correctly ruled by the appellate court, the conflict
between the dates appearing on the will does not invalidate the
document, "because the law does not even require that a [notarial]
will x x x be executed and acknowledged on the same
occasion."18 More important, the will must be subscribed by the
testator, as well as by three or more credible witnesses who must also
attest to it in the presence of the testator and of one
another.19Furthermore, the testator and the witnesses must
acknowledge the will before a notary public.20 In any event, we agree
with the CA that "the variance in the dates of the will as to its
supposed execution and attestation was satisfactorily and
persuasively explained by the notary public and the instrumental
witnesses."21
The pertinent transcript of stenographic notes taken on June 11, 1985,
November 25, 1985, October 13, 1986, and October 21, 1987 -- as
quoted by the CA -- are reproduced respectively as follows:
"Atty. Floro Sarmiento:
Q You typed this document exhibit C, specifying the date June 15
when the testator and his witnesses were supposed to be in your
office?
A Yes sir.
Q On June 15, 1983, did the testator and his witnesses come to your
house?
A They did as of agreement but unfortunately, I was out of town.
xxxxxxxxx
Q The document has been acknowledged on August 9, 1983 as per
acknowledgement appearing therein. Was this the actual date when
the document was acknowledged?
A Yes sir.
Q What about the date when the testator and the three witnesses
affixed their respective signature on the first and second pages of
exhibit C?
A On that particular date when it was acknowledged, August 9, 1983.
Q Why did you not make the necessary correction on the date
appearing on the body of the document as well as the attestation
clause?
A Because I do not like anymore to make some alterations so I put it
in my own handwriting August 9, 1983 on the acknowledgement.
(tsn, June 11, 1985, pp. 8-10)
Eugenio Gomez:
Q It appears on the first page Mr. Witness that it is dated June 15,
1983, whereas in the acknowledgement it is dated August 9, 1983, will
you look at this document and tell us this discrepancy in the date?
A We went to Atty. Sarmiento together with Placido Valmonte and
the two witnesses; that was first week of June and Atty. Sarmiento
told us to return on the 15th of June but when we returned, Atty.
Sarmiento was not there.
Q When you did not find Atty. Sarmiento on June 15, 1983, did you
again go back?
A We returned on the 9th of August and there we signed.
Q This August 9, 1983 where you said it is there where you signed,
who were your companions?
A The two witnesses, me and Placido Valmonte. (tsn, November 25,
1985, pp. 7-8)
Felisa Gomez on cross-examination:
Q Why did you have to go to the office of Atty. Floro Sarmiento, three
times?
xxxxxxxxx
A The reason why we went there three times is that, the first week of
June was out first time. We went there to talk to Atty. Sarmiento and
Placido Valmonte about the last will and testament. After that what
they have talked what will be placed in the testament, what Atty.
Sarmiento said was that he will go back on the 15th of June. When we
returned on June 15, Atty. Sarmiento was not there so we were not
able to sign it, the will. That is why, for the third time we went there
on August 9 and that was the time we affixed our signature. (tsn,
October 13, 1986, pp. 4-6)
Josie Collado:
Q When you did not find Atty. Sarmiento in his house on June 15,
1983, what transpired?
A The wife of Atty. Sarmiento told us that we will be back on August
9, 1983.
Q And on August 9, 1983 did you go back to the house of Atty.
Sarmiento?
A Yes, Sir.
Q For what purpose?
A Our purpose is just to sign the will.
Q Were you able to sign the will you mentioned?
A Yes sir. (tsn, October 21, 1987, pp. 4-5)"22
Notably, petitioner failed to substantiate her claim of a "grand
conspiracy" in the commission of a fraud. There was no showing that
the witnesses of the proponent stood to receive any benefit from the
allowance of the will. The testimonies of the three subscribing
witnesses and the notary are credible evidence of its due
execution.23 Their testimony favoring it and the finding that it was
executed in accordance with the formalities required by law should be
affirmed, absent any showing of ill motives.24
Capacity to Make a Will
In determining the capacity of the testator to make a will, the Civil
Code gives the following guidelines:
"Article 798. In order to make a will it is essential that the testator be
of sound mind at the time of its execution.
"Article 799. To be of sound mind, it is not necessary that the testator
be in full possession of all his reasoning faculties, or that his mind be
wholly unbroken, unimpaired, or shattered by disease, injury or other
cause.
"It shall be sufficient if the testator was able at the time of making the
will to know the nature of the estate to be disposed of, the proper
objects of his bounty, and the character of the testamentary act.
"Article 800. The law presumes that every person is of sound mind, in
the absence of proof to the contrary.
"The burden of proof that the testator was not of sound mind at the
time of making his dispositions is on the person who opposes the
probate of the will; but if the testator, one month, or less, before
making his will was publicly known to be insane, the person who
maintains the validity of the will must prove that the testator made it
during a lucid interval."
According to Article 799, the three things that the testator must have
the ability to know to be considered of sound mind are as follows: (1)
the nature of the estate to be disposed of, (2) the proper objects of the
testator’s bounty, and (3) the character of the testamentary act.
Applying this test to the present case, we find that the appellate court
was correct in holding that Placido had testamentary capacity at the
time of the execution of his will.
It must be noted that despite his advanced age, he was still able to
identify accurately the kinds of property he owned, the extent of his
shares in them and even their locations. As regards the proper objects
of his bounty, it was sufficient that he identified his wife as sole
beneficiary. As we have stated earlier, the omission of some relatives
from the will did not affect its formal validity. There being no
showing of fraud in its execution, intent in its disposition becomes
irrelevant.
Worth reiterating in determining soundness of mind is Alsua-Betts v.
CA,25 which held thus:
"Between the highest degree of soundness of mind and memory
which unquestionably carries with it full testamentary capacity, and
that degrees of mental aberration generally known as insanity or
idiocy, there are numberless degrees of mental capacity or incapacity
and while on one hand it has been held that mere weakness of mind,
or partial imbecility from disease of body, or from age, will not render
a person incapable of making a will; a weak or feebleminded person
may make a valid will, provided he has understanding and memory
sufficient to enable him to know what he is about to do and how or to
whom he is disposing of his property. To constitute a sound and
disposing mind, it is not necessary that the mind be unbroken or
unimpaired or unshattered by disease or otherwise. It has been held
that testamentary incapacity does not necessarily require that a
person shall actually be insane or of unsound mind."26
WHEREFORE, the Petition is DENIED, and the assailed Decision and
Resolution of the Court of Appeals are AFFIRMED. Costs against
petitioner.
SO ORDERED.
ARTEMIO V. PANGANIBAN
Associate Justice
Chairman, Third Division