Contributor: Borces, Nicole Blanche D.

THIRD DIVISION

[G.R. No. 168733. March 27, 2006]

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF PETE
ROXAS DE JESUS v. DE JESUS

RESOLUTION

DOCTRINE:

Under Article 739 of the Civil Code, donations made between persons in a state of adultery or
concubinage are void.

QUESTION:

Pete Roxas de Jesus married respondent Salve Barican on September 4, 1960 and had 3 children named:
Francis Gilbert, Maria Jocelyn, and Jennifer. On 1977, Pete emigrated to the United States of America.
There, he obtained a divorce decree against Salve and married petitioner, Maria Teresa Lazatin de Jesus,
in the state of Nevada. However, he only became a citizen of the United States in 1988. He died in Daly
City, California on December 1994. After which, Maria Teresa filed for a petition for the probate of the
holographic will…. in the Regional Trial Court. In his will, the decedent instituted Maria Teresa as his
sole heir and disinherited the respondents Salve and her 3 children.

The Regional Trial Court denied the petition as it is intrinsically void for containing illegal dispositions
and institution of an heir.

The CA affirmed the RTC’s decision and ruled in favor of Salve concerning the illegal dispositions and
heir institution. Furthermore, the Court of Appeals held that the decedent was not yet a citizen of the
United States at the time he obtained the divorce decree against Salve. Being a Filipino, decedent could
not at the time validly obtain a divorce decree. Since the first marriage still subsisted at the time the
decedent married petitioner, the second marriage is bigamous and, therefore, void.

Is the donation valid? // Whether or not the CA erred in its decision.

Argument of Maria:
Maria argues that since the lower courts upheld the intrinsic validity of the will, the testamentary
provision stipulated in her favor should be given effect even if only to the extent that it does not affect the
legitime of the respondents. She argues that the pronouncement of her marriage with the decedent as
bigamous does not detract from the fact that the testator had intended to leave something for her, entitling
her to at least the free portion of the decedent's estate.

SUGGESTED ANSWER:

No, the donation is invalid. // No, the CA correctly ruled in its decision.
Pursuant to Article 739 of the Civil Code, donations made between persons in a state of adultery or
concubinage are void.

SC affirmed the factual findings made by the lower court in which it tackles that the marriage between
petitioner Maria and the decedent Pete was indeed bigamous. As such, the petitioner and decedent are
considered as having been in a state of concubinage in the context of Article 739. Significantly it should
be noted that, a conviction for adultery or concubinage need not be had before the disabilities mentioned
in paragraph (1) of Article 739 may effectuate.

Thus, in a case for the probate of a will where the testator bequeathed to his bigamous wife the free
portion of his estate, this Court ruled, inter alia, that the disposition of Pete instituting Maria as his sole
heir is void under Article 739 in relation to Article 1028 of the Civil Code.

In the present case, Maria Teresa is considered a concubine of Pete because the latter was not yet a
citizen of the United States at the time he obtained the divorce decree against Salve. Being a Filipino, he
could not at the time validly obtain a divorce decree. Since the first marriage still subsisted at the time
the decedent married petitioner, the second marriage is bigamous and void. Pete is prohibited from
donating to his concubine as it expressly prohibited by law.

Hence, the donation is invalid.

NOTES:
The second aspect, which is the intrinsic validity of the will, deals with dispositions stipulated by the
testator. It refers to the legality of the provisions of the will for the right granted to a person to designate
the person or persons who are to succeed him or her.

When a person reduces in writing the division of his properties after his demise, he is making his last will
and testament. As he is no longer around to attest to its genuineness, due execution and, more
importantly, its provisions, our laws subject this last will to a two-stage test. Extrinsic validity first, then
intrinsic.

Examining extrinsic validity is known as probate. During probate proceedings, the court determines
whether the will is compliant with formal requirements of the law, if the testator executed and
signed it, with sound mind, on his own free will. When it passes these rigorous requirements, its
intrinsic validity is next under scrutiny.

Under our laws, a testator can only bequeath the free portion of his properties. The legitime, which is half
his estate, is reserved for the compulsory heirs, typically the surviving spouse and children. Thus, in an
estate of P100 million, only P50 million, the free portion, can be bequeathed to whomever the testator
wishes.

In terms of extrinsic validity, our laws allow a Filipino testator to follow the formal requirements of the
place where he is residing abroad. It is different, however, in intrinsic validity. We follow the nationality
principle. Philippine laws govern the Filipino citizen, regardless of wherever he is. Ergo, the rule on
legitime is followed even if not required in the country where the Filipino testator resides. 
 It provides that “the following donations shall be void: 1. Those made between persons who were guilty
of adultery and concubinage at the time of the donation… xxx

POSSIBLE REMEDY:
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 739, Ibid.). Further, the Civil Code on the rules on succession also
provides that “the prohibitions mentioned in Article 739, concerning donations inter vivos shall apply to
testamentary provisions” (Article 1028, Id.).

Despite the absence of a court pronouncement convicting you and your partner of concubinage, you are
still prohibited from donating or bequeathing anything to your partner because a court
pronouncement is not necessary for the prohibition to apply.

In the case of The Insular Life Assurance Company, Ltd vs. Ebrado (GR L-44059, Oct. 28, 1977,
Ponente: Associate Justice Ruperto Martin), the Supreme Court explained that “no criminal conviction
for the offense is a condition precedent. xxx On the contrary, the law plainly states that the guilt of the
party may be proved in the same acting for declaration of nullity of donation. And, it would be
sufficient if evidence preponderates upon the guilt of the consort for the offense indicated.

The quantum of proof in criminal cases is not demanded.” Thus, should your wife decide to oppose your
donation to your partner; she only needs to file a petition for nullity of the said donation, and show
through preponderance of evidence that you and your partner are guilty of concubinage.

The same rule applies with regard to inheritance. If you leave a last will and testament bequeathing the
house and lot to your partner, your spouse may petition the court to nullify the said testamentary
provision on your last will and testament on the basis of the prohibition provided in Article 1028 of the
Civil Code of the Philippines barring any inheritance between parties who are guilty of concubinage.

What are the requisites of donation?

 Donor must have Capacity to make the donation.
 He must have donative Intent (animus donandi)
 There must be Delivery.
 Donee must Accept or consent to the donation during the lifetime of the donor and of the donee
in case of donation inter vivos

Donation is an act of liberality whereby a person disposes gratuitously of a thing or right in favor of
another, who accepts it.

Under the provisions of article 334 of the Revised Penal Code, concubinage may be committed in either
of the following ways:(1) by keeping a mistress in the conjugal dwelling; (2) by having sexual
intercourse, under scandalous circumstances, with a woman who is not his wife; and (3) by cohabiting
with such woman in any other place.
We are here concerned only with the third way of committing the offense under which petitioner was
convicted. The term "cohabit" means to dwell together, in the manner of husband and wife, for some
period of time, as distinguished from occasional, transient interviews for unlawful intercourse. 

Preterition is the omission in testator’s will of one, some or all of the compulsory heirs in the direct line,
whether living at the time of execution of the will or born after the death of the testator.

What are the requisites of preterition?

1. There is a total omission in the inheritance;
2. The person omitted is a compulsory heir in the direct line;
3. The omitted compulsory heir must survive the testator, or in case the compulsory heir predeceased the
testator, there is a right of representation;
What are the effects of preterition?
1. Preterition annuls the institution of heirs;
2. Devices and legacies are valid insofar as they are not inofficious;
3. If the omitted compulsory heir dies before testator, institution shall be effectual, without prejudice to
right of representation
 
What is the effect of preterition on the will itself?
General Rule: The effect of annulling the institution of heirs will be, necessarily, the opening of a total
intestacy except that proper legacies and devises must be respected. Here, the will is not abrogated.
Exception: If the will contains a universal institution of heirs to the entire inheritance of the testator, the
will is totally abrogated.
Reason: The nullification of such institution of the universal heirs without any other testamentary
disposition in the will amounts to a declaration that nothing at all was written. 
 
What are the rights of the preterited heirs?
They are entitled not only to their shares of the legitime but also to those of the free portion which was
not expressly disposed of by the testator by way of devises and legacies.

Bigamy - When a person contracts a second or subsequent marriage before the former
marriage has been legally dissolved, or before the absent spouse has been declared
presumptively dead by means of judgment rendered in the proper proceedings

“Specially disqualified’’ does not refer to those incapacitated to contract like minors or those of unsound
mind, but to people such as those mentioned in Art. 739 and husbands and wives with respect to
immoderate donations from each other (donations of spouses inter se).
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