G.R. No.

L-26317

January 29, 1927

Estate of Miguel Mamuyac, deceased.

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

testament. Narcisa Gago in a way corroborates the testimony of Jose Fenoy,

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

After a careful examination of the entire record, we are fully persuaded that the will
presented for probate had been cancelled by the testator in 1920. Therefore the judgment
appealed from is hereby affirmed. And without any finding as to costs, it is so ordered.

Appellate Court which, on June 7, 1985, affirmed the order. The petitioners' motion for
reconsideration of the adverse decision proved to be of no avail, hence, this petition.
For a better understanding of the controversy, a factual account would be a great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the
petitioners Aldina Maloto-Casiano and Constancio, Maloto, and the private respondents
Panfilo Maloto and Felino Maloto. Believing that the deceased did not leave behind a last
will and testament, these four heirs commenced on November 4, 1963 an intestate
proceeding for the settlement of their aunt's estate. The case was instituted in the then
Court of First Instance of Iloilo and was docketed as Special Proceeding No. 1736.
However, while the case was still in progress, or to be exact on February 1, 1964, the
parties Aldina, Constancio, Panfilo, and Felino executed an agreement of extrajudicial
settlement of Adriana's estate. The agreement provided for the division of the estate into
four equal parts among the parties. The Malotos then presented the extrajudicial
settlement agreement to the trial court for approval which the court did on March 21,
1964. That should have signalled the end of the controversy, but, unfortunately, it had
not.

G.R. No. 76464 February 29, 1988

TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO,
CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF
MOLO, AND ASILO DE MOLO,petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.

SARMIENTO, J.:
This is not the first time that the parties to this case come to us. In fact, two other cases
directly related to the present one and involving the same parties had already been
decided by us in the past. In G.R. No. L-30479, 1which was a petition for certiorari and
mandamus instituted by the petitioners herein, we dismissed the petition ruling that the
more appropriate remedy of the petitioners is a separate proceeding for the probate of
the will in question. Pursuant to the said ruling, the petitioners commenced in the then
Court of First Instance of Iloilo, Special Proceeding No. 2176, for the probate of the
disputed will, which was opposed by the private respondents presently, Panfilo and Felino
both surnamed Maloto. The trial court dismissed the petition on April 30, 1970.
Complaining against the dismissal, again, the petitioners came to this Court on a petition
for review by certiorari. 2 Acting on the said petition, we set aside the trial court's order
and directed it to proceed to hear the case on the merits. The trial court, after hearing,
found the will to have already been revoked by the testatrix. Adriana Maloto, and thus,
denied the petition. The petitioners appealed the trial court's decision to the Intermediate

Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of
Adriana's counsel, the late Atty. Eliseo Hervas, discovered a document entitled
"KATAPUSAN NGA PAGBUBULAT-AN (Testamento)," dated January 3,1940, and purporting
to be the last will and testament of Adriana. Atty. Palma claimed to have found the
testament, the original copy, while he was going through some materials inside the
cabinet drawer formerly used by Atty. Hervas. The document was submitted to the office
of the clerk of the Court of First Instance of Iloilo on April 1, 1967. Incidentally, while
Panfilo and Felino are still named as heirs in the said will, Aldina and Constancio are
bequeathed much bigger and more valuable shares in the estate of Adriana than what
they received by virtue of the agreement of extrajudicial settlement they had earlier
signed. The will likewise gives devises and legacies to other parties, among them being
the petitioners Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees
named in the will, filed in Special Proceeding No. 1736 a motion for reconsideration and
annulment of the proceedings therein and for the allowance of the will When the trial
court denied their motion, the petitioner came to us by way of a petition for certiorari and
mandamus assailing the orders of the trial court . 3 As we stated earlier, we dismissed that
petition and advised that a separate proceeding for the probate of the alleged will would
be the appropriate vehicle to thresh out the matters raised by the petitioners.
Significantly, the appellate court while finding as inconclusive the matter on whether or
not the document or papers allegedly burned by the househelp of Adriana, Guadalupe
Maloto Vda. de Coral, upon instructions of the testatrix, was indeed the will, contradicted
itself and found that the will had been revoked. The respondent court stated that the
presence of animus revocandi in the destruction of the will had, nevertheless, been
sufficiently proven. The appellate court based its finding on the facts that the document

was not in the two safes in Adriana's residence, by the testatrix going to the residence of
Atty. Hervas to retrieve a copy of the will left in the latter's possession, and, her seeking
the services of Atty. Palma in order to have a new will drawn up. For reasons shortly to be
explained, we do not view such facts, even considered collectively, as sufficient bases for
the conclusion that Adriana Maloto's will had been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the due execution
of the will. The heart of the case lies on the issue as to whether or not the will was
revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can be found in Article 830.
Art. 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of
wills: or
(3) By burning, tearing, cancelling, or obliterating the will with the
intention of revoking it, by the testator himself, or by some other person
in his presence, and by his express direction. If burned, torn cancelled,
or obliterated by some other person, without the express direction of
the testator, the will may still be established, and the estate distributed
in accordance therewith, if its contents, and due execution, and the fact
of its unauthorized destruction, cancellation, or obliteration are
established according to the Rules of Court. (Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like burning in this case, does not
per se constitute an effective revocation, unless the destruction is coupled with animus
revocandi on the part of the testator. It is not imperative that the physical destruction be
done by the testator himself. It may be performed by another person but under
the express direction and in the presence of the testator. Of course, it goes without saying
that the document destroyed must be the will itself.
In this case, while animus revocandi or the intention to revoke, may be conceded, for that
is a state of mind, yet that requisite alone would not suffice. "Animus revocandi is only
one of the necessary elements for the effective revocation of a last will and testament.
The intention to revoke must be accompanied by the overt physical act of burning,
tearing, obliterating, or cancelling the will carried out by the testator or by another person
in his presence and under his express direction. There is paucity of evidence to show
compliance with these requirements. For one, the document or papers burned by
Adriana's maid, Guadalupe, was not satisfactorily established to be a will at all, much less
the will of Adriana Maloto. For another, the burning was not proven to have been done
under the express direction of Adriana. And then, the burning was not in her presence.

Both witnesses, Guadalupe and Eladio, were one in stating that they were the only ones
present at the place where the stove (presumably in the kitchen) was located in which the
papers proffered as a will were burned.
The respondent appellate court in assessing the evidence presented by the private
respondents as oppositors in the trial court, concluded that the testimony of the two
witnesses who testified in favor of the will's revocation appear "inconclusive." We share
the same view. Nowhere in the records before us does it appear that the two witnesses,
Guadalupe Vda. de Corral and Eladio Itchon, both illiterates, were unequivocably positive
that the document burned was indeed Adriana's will. Guadalupe, we think, believed that
the papers she destroyed was the will only because, according to her, Adriana told her so.
Eladio, on the other hand, obtained his information that the burned document was the will
because Guadalupe told him so, thus, his testimony on this point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter of public interest that a
purported win is not denied legalization on dubious grounds. Otherwise, the very
institution of testamentary succession will be shaken to its very foundations ...." 4
The private respondents in their bid for the dismissal of the present action for probate
instituted by the petitioners argue that the same is already barred by res adjudicata. They
claim that this bar was brought about by the petitioners' failure to appeal timely from the
order dated November 16, 1968 of the trial court in the intestate proceeding (Special
Proceeding No. 1736) denying their (petitioners') motion to reopen the case, and their
prayer to annul the previous proceedings therein and to allow the last will and testament
of the late Adriana Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the present controversy. For a
judgment to be a bar to a subsequent case, the following requisites must concur: (1) the
presence of a final former judgment; (2) the former judgment was rendered by a court
having jurisdiction over the subject matter and the parties; (3) the former judgment is a
judgment on the merits; and (4) there is, between the first and the second action, Identity
of parties, of subject matter, and of cause of action. 5 We do not find here the presence of
all the enumerated requisites.
For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate
of Adriana Maloto's will is concerned. The decision of the trial court in Special Proceeding
No. 1736, although final, involved only the intestate settlement of the estate of Adriana.
As such, that judgment could not in any manner be construed to be final with respect to
the probate of the subsequently discovered will of the decedent. Neither is it a judgment
on the merits of the action for probate. This is understandably so because the trial court,
in the intestate proceeding, was without jurisdiction to rule on the probate of the
contested will . 6 After all, an action for probate, as it implies, is founded on the presence
of a will and with the objective of proving its due execution and validity, something which
can not be properly done in an intestate settlement of estate proceeding which is
predicated on the assumption that the decedent left no will. Thus, there is likewise no
Identity between the cause of action in intestate proceeding and that in an action for

probate. Be that as it may, it would be remembered that it was precisely because of our
ruling in G.R. No. L-30479 that the petitioners instituted this separate action for the
probate of the late Adriana Maloto's will. Hence, on these grounds alone, the position of
the private respondents on this score can not be sustained.
One last note. The private respondents point out that revocation could be inferred from
the fact that "(a) major and substantial bulk of the properties mentioned in the will had
been disposed of: while an insignificant portion of the properties remained at the time of
death (of the testatrix); and, furthermore, more valuable properties have been acquired
after the execution of the will on January 3,1940." 7 Suffice it to state here that as these
additional matters raised by the private respondents are extraneous to this special
proceeding, they could only be appropriately taken up after the will has been duly
probated and a certificate of its allowance issued.
G.R. No. L-2538
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.

September 21, 1951

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE
MOLO, petitioner-appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.

This Decision is IMMEDIATELY EXECUTORY.

SO ORDERED.

Claro M. Recto and Serafin C. Dizon for appellants.

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

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

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

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

A subsequent will, containing a clause revoking a previous will, having been

disallowed, for the reason that it was not executed in conformity with the
provisions of section 618 of the Code of Civil Procedure as to the making of wills,
cannot produce the effect of annulling the previous will, inasmuch as said
revocatory clause is void. (41 Phil., 838.)
Apropos of this question, counsel for oppositors make the remark that, while they do not
disagree with the soundness of the ruling laid down in the Samson case, there is reason to
abandon said ruling because it is archaic or antiquated and runs counter to the modern
trend prevailing in American jurisprudence. They maintain that said ruling is no longer
controlling but merely represents the point of view of the minority and should, therefore,
be abandoned, more so if we consider the fact that section 623 of our Code of Civil
Procedure, which governs the revocation of wills, is of American origin and as such should
follow the prevailing trend of the majority view in the United States. A long line of
authorities is cited in support of this contention. And these authorities hold the view, that
"an express revocation is immediately effective upon the execution of the subsequent will,
and does not require that it first undergo the formality of a probate proceeding". (p. 63,
appellants' brief .
While they are many cases which uphold the view entertained by counsel for oppositors,
and that view appears to be in controlling the states where the decisions had been
promulgated, however, we are reluctant to fall in line with the assertion that is now the
prevailing view in the United States. In the search we have made of American authorities
on the subject, we found ourselves in a pool of conflicting opinions perhaps because of the
peculiar provisions contained in the statutes adopted by each State in the subject of
revocation of wills. But the impression we gathered from a review and the study of the
pertinent authorities is that the doctrine laid down in the Samson case is still a good law.
On page 328 of the American Jurisprudence Vol. 57, which is a revision Published in 1948,
we found the following passages which in our opinion truly reflect the present trend of
American jurisprudence on this matter affecting the revocation of wills:
SEC. 471. Observance of Formalities in Execution of Instrument. Ordinarily,
statutes which permit the revocation of a will by another writing provide that to
be effective as a revocation, the writing must be executed with the same
formalities which are required to be observed in the execution of a will.
Accordingly, where, under the statutes, attestation is necessary to the making of
a valid will, an unattested non testamentary writing is not effective to revoke a
prior will. It has been held that a writing fails as a revoking instrument where it is
not executed with the formalities requisite for the execution of a will, even
though it is inscribed on the will itself, although it may effect a revocation by
cancellation or obliteration of the words of the will. A testator cannot reserve to
himself the power to modify a will by a written instrument subsequently prepared
but not executed in the manner required for a will.
SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. A will
which is invalid because of the incapacity of the testator, or of undue influence
can have no effect whatever as a revoking will. Moreover, a will is not revoked by

the unexecuted draft of a later one. Nor is a will revoked by a defectively

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

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

This is the doctrine of dependent relative revocation. The failure of a new

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

G.R. No. 17714

May 31, 1922

In the mater of the estate of Jesus de Leon.

IGNACIA DIAZ, petitioner-appellant,
vs.
ANA DE LEON, opponent-appellee.
Montinola, Montinola & Hontiveros and Jose Lopez Vito for appellant.
Francisco A. Delgado, Powell & Hill and Padilla & Treas for appellee.

ROMUALDEZ, J.:
The only question raised in this case is whether or to the will executed by Jesus de Leon,
now, was revoked by him.
The petitioner denies such revocation, while the contestant affirms the same by alleging
that the testator revoked his will by destroying it, and by executing another will expressly
revoking the former.
We find that the second will Exhibit 1 executed by the deceased is not cloth with all the
necessary requisites to constitute a sufficient revocation.
But according to the statute governing the subject in this jurisdiction, the destruction of a
will animo revocandiconstitutes, in itself, a sufficient revocation. (Sec. 623, Code of Civil
Procedure.)lvvph1n+
From the evidence submitted in this case, it appears that the testator, shortly after the
execution of the first will in question, asked that the same be returned to him. The
instrument was returned to the testator who ordered his servant to tear the document.
This was done in his presence and before a nurse who testified to this effect. After some
time, the testator, being asked by Dr. Cornelio Mapa about the will, said that it had been
destroyed.
The intention of revoking the will is manifest from the established fact that the testator
was anxious to withdraw or change the provisions he had made in his first will. This fact is
disclosed by the testator's own statements to the witnesses Canto and the Mother
Superior of the Hospital where he was confined.
The original will herein presented for probate having been destroyed with animo
revocandi, cannot now be probated as the will and last testament of Jesus de Leon.
Judgement is affirmed with costs against the petitioner. So ordered.

In the matter of the will of Donata Manahan. TIBURCIA MANAHAN, petitionerappellee,

vs.
ENGRACIA MANAHAN, opponent-appellant.
J. Fernando Rodrigo for appellant.
Heraclio H. del Pilar for appellee.
IMPERIAL, J.:
This is an appeal taken by the appellant herein, Engracia Manahan, from the order of the
Court of the First Instance of Bulacan dated July 1, 1932, in the matter of the will of the
deceased Donata Manahan, special proceedings No. 4162, denying her motion for
reconsideration and new trial filed on May 11, 1932.
The fact in the case are as follows:
On August 29, 1930, Tiburcia Manahan instituted special proceedings No. 4162, for the
probate of the will of the deceased Donata Manahan, who died in Bulacan, Province of
Bulacan, on August 3, 1930. The petitioner herein, niece of the testatrix, was named the
executrix in said will. The court set the date for the hearing and the necessary notice
required by law was accordingly published. On the day of the hearing of the petition, no
opposition thereto was filed and, after the evidence was presented, the court entered the
decree admitting the will to probate as prayed for. The will was probated on September
22, 1930. The trial court appointed the herein petitioner executrix with a bond of P1,000,
and likewise appointed the committed on claims and appraisal, whereupon the
testamentary proceedings followed the usual course. One year and seven months later,
that is, on My 11, 1932, to be exact, the appellant herein filed a motion for
reconsideration and a new trial, praying that the order admitting the will to probate be
vacated and the authenticated will declared null and void ab initio. The appellee herein,
naturally filed her opposition to the petition and, after the corresponding hearing thereof,
the trial court erred its over of denial on July 1, 1932. Engracia Manahan, under the
pretext of appealing from this last order, likewise appealed from the judgment admitting
the will to probate.

G.R. No. 38050

September 22, 1933

In this instance, the appellant assigns seven (7) alleged errors as committed by the trial
court. Instead of discussing them one by one, we believe that, essentially, her claim
narrows down to the following: (1) That she was an interested party in the testamentary
proceedings and, as such, was entitled to and should have been notified of the probate of
the will; (2) that the court, in its order of September 22, 1930, did not really probate the
will but limited itself to decreeing its authentication; and (3) that the will is null and
void ab initio on the ground that the external formalities prescribed by the Code of Civil
Procedure have not been complied with in the execution thereof.
The appellant's first contention is obviously unfounded and untenable. She was not
entitled to notification of the probate of the will and neither had she the right to expect it,

inasmuch as she was not an interested party, not having filed an opposition to the petition
for the probate thereof. Her allegation that she had the status of an heir, being the
deceased's sister, did not confer on her the right to be notified on the ground that the
testatrix died leaving a will in which the appellant has not been instituted heir.
Furthermore, not being a forced heir, she did not acquire any successional right.
The second contention is puerile. The court really decreed the authentication and probate
of the will in question, which is the only pronouncement required of the trial court by the
law in order that the will may be considered valid and duly executed in accordance with
the law. In the phraseology of the procedural law, there is no essential difference between
the authentication of a will and the probate thereof. The words authentication and probate
are synonymous in this case. All the law requires is that the competent court declared
that in the execution of the will the essential external formalities have been complied with
and that, in view thereof, the document, as a will, is valid and effective in the eyes of the
law.
The last contention of the appellant may be refuted merely by stating that, once a will has
been authenticated and admitted to probate, questions relative to the validity thereof can
no more be raised on appeal. The decree of probate is conclusive with respect to the due
execution thereof and it cannot impugned on any of the grounds authorized by law,
except that of fraud, in any separate or independent action or proceedings (sec. 625,
Code of Civil Procedure; Castaeda vs. Alemany, 3 Phil., 426; Pimentel vs. Palanca, 5 Phil.,
436; Sahagun vs. De Gorostiza, 7 Phil., 347; Limjuco vs. Ganara, 11 Phil., 393;
Montaano vs. Suesa, 14 Phil., 676; In re Estate of Johnson, 39 Phil., 156; Riera vs.
Palmaroli, 40 Phil., 105; Austria vs. Ventenilla, 21 Phil., 180; Ramirez vs. Gmur, 42 Phil.,
855; and Chiong Joc-Soy vs. Vao, 8 Phil., 119).
But there is another reason which prevents the appellant herein from successfully
maintaining the present action and it is that inasmuch as the proceedings followed in a
testamentary case are in rem, the trial court's decree admitting the will to probate was
effective and conclusive against her, in accordance with the provisions of section 306 of
the said Code of Civil Procedure which reads as follows:
SEC. 306. EFFECT OF JUDGMENT. . . . .
1. 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 relation of a particular
person the judgment or order is conclusive upon the title of the thing, the will or
administration, or the condition or relation of the person: Provided, That 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; . . . .
On the other hand, we are at a loss to understand how it was possible for the herein
appellant to appeal from the order of the trial court denying her motion for
reconsideration and a new trial, which is interlocutory in character. In view of this

erroneous interpretation, she succeeded in appealing indirectly from the order admitting
the will to probate which was entered one year and seven months ago.
Before closing, we wish to state that it is not timely to discuss herein the validity and
sufficiency of the execution of the will in question. As we have already said, this question
can no more be raised in this case on appeal. After due hearing, the court found that the
will in question was valid and effective and the order admitting it to probate, thus
promulgated, should be accepted and respected by all. The probate of the will in question
now constitutesres judicata.
Wherefore, the appeal taken herein is hereby dismissed, with costs against the appellant.
So ordered.

G.R. No. L-29300 June 21, 1978

PEDRO D. H. GALLANOSA, CORAZON GRECIA-GALLONOSA and ADOLFO
FORTAJADA, the deceased Pedro Gallanosa being substituted by his legal heirs,
namely his above-named widow and his children, ISIDRO GALLANOSA and LEDY
GALLANOSA, and grandchildren named IMELDA TECLA GALLANOSA and
ROSARIO BRIGIDA GALLANOSA, children of the late SIKATUNA GALLANOSA, son
of Pedro D.H. GALLONOSA, petitioners,
vs.
HON. UBALDO Y. ARCANGEL, Judge of Branch I of the Court of First Instance of
Sorsogon and FLORENTINO G. HITOSIS, CASIANO G. HITOSIS, TEOTIMO G.
HITOSIS, VICTORIO G. HITOSIS, EMILIA G. HITOSIS VDA. DE CRUZ, JOAQUIN R.
HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS, FLORENTINO R. HITOSIS, VIRGINIA
R. MITOSIS, DEBORAH R. HITOSIS, EDILBERTO R. HITOSIS, LEONOR R. HITOSIS,
NORMA R. 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 HITOSISBANARES 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 Case No. 2233 of the Court of First Instance of Sorsogon.
The case involves the sixty-one parcels of land in Sorsogon left by Florentino Hitosis, with
an estimated value of P50,000, trial claims for damages exceeding one million pesos. The
undisputed facts are as follows:
1. Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when he was
eighty years old. He died on May 26, 1939 at Irosin, Sorsogon. A childless widower, he as
survived by his brother, Leon Hitosis. His other brothers, named Juan, Tito (Juancito),
Leoncio (Aloncio) trial Apolonio and only sister, Teodora, were all dead.
2. On June 24, 1939 a petition for the probate of his will was filed in the Court of First
Instance of Sorsogon (Special Proceeding No. 3171). The notice of hearing was duly
published. In that will, Florentino bequeathed his one-half share in the conjugal estate to
his second wife, Tecla Dollentas, and, should Tecla predecease him, as was the case, his
one-half share would be assigned to the spouses Pedro Gallanosa and Corazon Grecia, the
reason being that Pedro, Tecla's son by her first marriage, grew up under the care of
Florentino; he had treated Pedro as his foster child, and Pedro has rendered services to
Florentino and Tecla. Florentino likewise bequeathed his separate properties consisting of
three parcels of abaca land and parcel of riceland to his protege (sasacuyang ataman),
Adolfo Fortajada, a minor.
3. Opposition to the probate of the will was registered by the testator's legal heirs,
namely, his surviving brother, Leon, trial his nephews trial nieces. After a hearing, wherein
the oppositors did not present any evidence in support of their opposition, Judge Pablo S.
Rivera, in his decision of October 27, 1939, admitted the will to probate and appointed
Gallanosa as executor. Judge Rivera specifically found that the testator executed his last
will "gozando de buena salud y facultades mentales y no obrando en virtud de amenaza,
fraude o influencia indebida."

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

In other words, the said decision of this Court in Civil Case special ) No.
3171, in which the herein plaintiffs or their predecessors-in-interest had
intervened as parties oppositors, constitutes a final judicial
determination of the issue that the said plaintiffs, as ordinary heirs,
have no legal rights to succeed to any of the properties of the late
Florentino Hitosis; consequently, their present claim to the ownership
trial possession of the 61 parcels of land in question is without any legal
merit or basis.
7. The plaintiffs did not appeal from that order of dismissal which should have set the
matter at rest. But the same plaintiffs or oppositors to the probate of the will, trial their
heirs, with a persistence befitting a more meritorious case, filed on September 21, 1967,
or fifteen years after the dismissal of Civil Case No. 696 trial twenty-eight years after the
probate of the will another action in the same court against the Gallanosa spouses trial
Adolfo Fortajada for the "annulment" of the will of Florentino Hitosis trial and for the
recovery of the same sixty-one parcels of land. They prayed for the appointment of a
receiver.
8. As basis of their complaint, they alleged that the Gallanosa spouses, through fraud trial
deceit, caused the execution trial simulation of the document purporting to be the last will
trial testament of Florentino Hitosis. While in their 1952 complaint the game plaintiffs
alleged that they were in possession of the lands in question, in their 1967 complaint they
admitted that since 1939, or from the death of Florentino Hitosis, the defendants (now the
petitioners) have been in possession of the disputed lands (Par. XIV of the complaint, p.
70, Rollo in Civil Case No. 555, Gubat Branch, which was transferred to Branch I in
Sorsogon town where Special Proceeding No. 3171 trial Civil Case No. 696 were decided
trial which was 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, L19872, December 3, 1974, 61 SCRA 284).
Our procedural law does not sanction an action for the "annulment" of a will. In order that
a will may take effect, it has to be probated, legalized or allowed in the proper
testamentary proceeding. The probate of the will is mandatory (Art. 838, Civil Code; sec.
1, Rule 75, formerly sec. 1, Rule 76, Rules of Court; Guevara vs. Guevara, 74 Phil. 479;
Guevara vs. Guevara, 98 Phil. 249).
The testamentary proceeding is a special proceeding for the settlement of the testator's
estate. A special proceeding is distinct trial different from an ordinary action (Secs. 1 trial
2, Rule 2 trial sec. 1, Rule 72, Rules of Court).
We say that the defense of res judicata, as a ground for the dismissal of plaintiffs' 1967
complaint, is a two-pronged defense because (1) the 1939 trial 1943 decrees of probate
trial distribution in Special Proceeding No. 3171 trial (2) the 1952 order of dismissal in Civil
Case No. 696 of the lower court constitute bars by former judgment, Rule 39 of the Rules
of Court provides:
SEC. 49. Effect of judgments. The effect of a judgment or final order
rendered by a court or judge of the Philippines, having jurisdiction to
pronounce the judgment or order, may be as follows:
(a) In case of a judgment or order against a specific thing, or in respect
to the probate of a will or the administration of the estate of a deceased
person, or in respect to the personal, political, or legal condition or
status of a particular person or his relationship to another, the judgment
or order is conclusive upon the title to the thing the will or
administration, or the condition, status or relationship of the person;
however, the probate of a will or granting of letters of administration
shall only be prima facie evidence of the death of the testator or
intestate;

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

no appeal is taken from an order probating a will, the heirs can not, in
subsequent litigation in the same proceedings, raise questions relating
to its due execution. The probate of a will is conclusive as to its due
execution trial as to the testamentary capacity of The testator. (See
Austria vs. Heirs of Ventenilla. 99 Phil. 1069).
On the other hand, the 1943 decree of adjudication rendered by the trial court in the
testate proceeding for the settlement of the estate of Florentino Hitosis, having been
rendered in a proceeding in rem, is under the abovequoted section 49(a), binding upon
the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil. 156; De
la Cerna vs. Potot, 120 Phil. 1361, 1364; McMaster vs. Hentry Reissmann & Co., 68 Phil.
142).
It is not only the 1939 probate proceeding that can be interposed as res judicata with
respect to private respondents' complaint, The 1952 order of dismissal rendered by Judge
Maalac in Civil Case No. 696, a judgment in personam was an adjudication on the merits
(Sec. 4, Rule 30, old Rules of Court). It constitutes a bar by former judgment under the
aforequoted section 49(b) (Anticamara vs. Ong, 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: Pealosa vs. Tuason, 22 Phil, 303; De la Cerna vs.
Potot, supra).
After the period for seeking relief from a final order or judgment under Rule 38 of the
Rules of Court has expired, a final judgment or order can be set aside only on the grounds
of (a) lack of jurisdiction or lack of due process of law or (b) that the judgment was
obtained by means of extrinsic or collateral fraud. In the latter case, the period for
annulling the judgment is four years from the discovery of the fraud (2 Moran's Comments
on the Rules of Court, 1970 Edition, pp. 245-246; Mauricio vs. Villanueva, 106 Phil. 1159).
To hurdle over the obstacle of prescription, the trial court, naively adopting the theory of
plaintiffs' counsel, held that the action for the recovery of the lands had not prescribed
because the rule in article 1410 of the Civil Code, that "the action or defense for the
declaration of the inexistence of a contract does not prescribe", applies to wills.
That ruling is a glaring error. Article 1410 cannot possibly apply to last wills trial
testaments. The trial court trial plaintiffs' counsel relied upon the case of Dingle vs.

Guillermo, 48 0. G. 4410, allegedly decided by this Court, which cited the ruling in Tipton
vs. Velasco, 6 Phil. 67, that mere lapse of time cannot give efficacy to voidcontracts, a
ruling elevated to the category of a codal provision in article 1410. The Dingle case was
decided by the Court of Appeals. Even the trial court did not take pains to verify the
misrepresentation of plaintiffs' counsel that the Dingle case was decided by this Court. An
elementary knowledge of civil law could have alerted the trial court to the egregious error
of plaintiffs' counsel in arguing that article 1410 applies to wills.
WHEREFORE, the lower court's orders of May 3 trial June 17, 1968 are reversed trial set
aside trial its order of dismissal dated January 10, 1968 is affirmed. Costs against the
private respondents.
SO ORDERED.

SOFIA J. NEPOMUCENO, petitioner,

vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG,
CARMELITA JUGO,respondents.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside that portion of the decision of the respondent
Court of Appeals (now intermediate Appellate Court) dated June 3, 1982, as amended by
the resolution dated August 10, 1982, declaring as null and void the devise in favor of the
petitioner and the resolution dated December 28, 1982 denying petitioner's motion for
reconsideration.
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly
signed by him at the end of the Will on page three and on the left margin of pages 1, 2
and 4 thereof in the presence of Celestina Alejandro, Myrna C. Cortez, and Leandro Leano,
who in turn, affixed their signatures below the attestation clause and on the left margin of
pages 1, 2 and 4 of the Will in the presence of the testator and of each other and the
Notary Public. The Will was acknowledged before the Notary Public Romeo Escareal by the
testator and his three attesting witnesses.
In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno
as his sole and only executor of his estate. It is clearly stated in the Will that the testator
was legally married to a certain Rufina Gomez by whom he had two legitimate children,
Oscar and Carmelita, but since 1952, he had been estranged from his lawfully wedded
wife and had been living with petitioner as husband and wife. In fact, on December 5,
1952, the testator Martin Jugo and the petitioner herein, Sofia J. Nepomuceno were
married in Victoria, Tarlac before the Justice of the Peace. The testator devised to his
forced heirs, namely, his legal wife Rufina Gomez and his children Oscar and Carmelita his
entire estate and the free portion thereof to herein petitioner. The Will reads in part:
Art. III. That I have the following legal heirs, namely: my aforementioned
legal wife, Rufina Gomez, and our son, Oscar, and daughter Carmelita,
both surnamed Jugo, whom I declare and admit to be legally and
properly entitled to inherit from me; that while I have been estranged
from my above-named wife for so many years, I cannot deny that I was
legally married to her or that we have been separated up to the present
for reasons and justifications known fully well by them:

G.R. No. L-62952 October 9, 1985

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.

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):

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

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.

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

The records do not sustain a finding of innocence or good faith. As argued by the private
respondents:

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.

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 said spouses conveyed the ownership of Lots
Nos. 990 and 5427 in 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).
G.R. No. 168156
HEIRS OF ROSENDO LASAM versus - CALLEJO, SR., and
CHICO-NAZARIO, JJ.
December 6, 2006
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 Decision[1] 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.

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 x[2]
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 jurisprudence[3] and
Article 1080[4] 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
Umengans 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.

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 RTCs and
the MTCCs holding that the purported Testamento Abierto of Isabel Cuntapay prevails over
Vicenta Umengans 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 courts 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.

Ordering the defendant to pay the plaintiffs the amount of P20,000.00 attorneys fees plus
cost of this litigation.

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.

So Ordered.[5]

The decretal portion of the assailed decision of the CA reads:

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.

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 respondents 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 respondents 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 latters possession of the subject lot was by mere tolerance of Rosendo
Lasam who inherited the same from Isabel Cuntapay.
According to petitioners, respondents 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
respondents 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
respondents 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, respondents 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 testators 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.

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.

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.

WHEREFORE, in light of the foregoing considerations, let the above-entitled case be as it

is hereby DISMISSED.

In Caiza v. Court of Appeals,[11] the Court ruled that: [a] will is essentially ambulatory; at
any time prior to the testators 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]

SO ORDERED.[15]

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 Cuntapays 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 respondents 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 respondents 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.

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 Cuntapays will, the
respondents filed the present complaint for unlawful detainer. Viewed from this
perspective, we have no doubt that the courts 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 decedents 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.

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 CAG.R. SP No. 80032 are AFFIRMED.
SO ORDERED.

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 Cuntapays 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 CAs 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 CAs finding on the validity of Isabel
Cuntapays 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.

December 29, 1943

G.R. No. 48840
ERNESTO M. GUEVARA, petitioner-appellant,
vs.
ROSARIO GUEVARA and her husband PEDRO BUISON, respondent-appellees.
Primacias, Abad, Mencias & Castillo for appellant.
Pedro C. Quinto for appellees.
OZAETA, J.:
Ernesto M. Guevarra and Rosario Guevara, ligitimate son and natural daughter,
respectively, of the deceased Victorino L. Guevara, are litigating here over their

inheritance from the latter. The action was commenced on November 12, 1937, by Rosario
Guevara to recover from Ernesto Guevara what she claims to be her strict ligitime as an
acknowledged natural daughter of the deceased to wit, a portion of 423,492 square
meters of a large parcel of land described in original certificate of title No. 51691 of the
province of Pangasinan, issued in the name of Ernesto M. Guervara and to order the
latter to pay her P6,000 plus P2,000 a year as damages for withholding such legitime from
her. The defendant answered the complaint contending that whatever right or rights the
plaintiff might have had, had been barred by the operation of law.
It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit A),
apparently with all the formalities of the law, wherein he made the following bequests: To
his stepdaughter Candida Guevara, a pair of earrings worth P150 and a gold chain worth
P40; to his son Ernesto M. Guevara, a gold ring worth P180 and all the furniture, pictures,
statues, and other religious objects found in the residence of the testator in Poblacion Sur,
Bayambang, Pangasinan; "a mi hija Rosario Guevara," a pair of earrings worth P120; to his
stepson Piuo Guevara, a ring worth P120; and to his wife by second marriage, Angustia
Posadas, various pieces of jewelry worth P1,020.
He also made the following devises: "A mis hijos Rosario Guevara y Ernesto M. Guevara y
a mis hijastros, Vivencio, Eduviges, Dionisia, Candida y Pio, apellidados Guevara," a
residential lot with its improvements situate in the town of Bayambang, Pangasinan,
having an area of 960 square meters and assessed at P540; to his wife Angustia Posadas
he confirmed the donation propter nuptias theretofore made by him to her of a portion of
25 hectares of the large parcel of land of 259-odd hectares described in plan Psu-66618.
He also devised to her a portion of 5 hectares of the same parcel of land by way of
complete settlement of her usufructurary right.
He set aside 100 hectares of the same parcel of land to be disposed of either by him
during his lifetime or by his attorney-in-fact Ernesto M. Guevara in order to pay all his
pending debts and to degray his expenses and those of his family us to the time of his
death.
The remainder of said parcel of land his disposed of in the following manner:
(d). Toda la porcion restante de mi terreno arriba descrito, de la extension superficial
aproximada de ciento veintinueve (129) hectareas setenta (70) areas, y veiticinco (25)
centiares, con todas sus mejoras existentes en la misma, dejo y distribuyo, pro-indiviso, a
mis siguientes herederos como sigue:
A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas, ocho (8) areas y
cincuenta y cuatro (54) centiareas, hacia la parte que colinda al Oeste de las cien (100)
hectareas referidas en el inciso (a) de este parrafo del testamento, como su propiedad
absoluta y exclusiva, en la cual extension superficial estan incluidas cuarenta y tres (43)
hectareas, veintitres (23) areas y cuarenta y dos (42) centiareas que le doy en concepto
de mejora.
A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas, sesenta y un (61)
areas y setenta y un (71) centiareas, que es la parte restante.
Duodecimo. Nombro por la presente como Albacea Testamentario a mi hijo Ernesto M.
Guevara, con relevacion de fianza. Y una vez legalizado este testamento, y en cuanto sea
posible, es mi deseo, que los herederos y legatarios aqui nombrados se repartan
extrajudicialmente mis bienes de conformidad con mis disposiciones arriba consignadas.

Subsequently, and on July 12, 1933, Victorino L. Guevarra executed whereby he conveyed
to him the southern half of the large parcel of land of which he had theretofore disposed
by the will above mentioned, inconsideration of the sum of P1 and other valuable
considerations, among which were the payment of all his debts and obligations amounting
to not less than P16,500, his maintenance up to his death, and the expenses of his last
illness and funeral expenses. As to the northern half of the same parcel of land, he
declared: "Hago constar tambien que reconozco a mi referido hijo Ernesto M. guevara
como dueo de la mitad norte de la totalidad y conjunto de los referidos terrenos por
haberlos comprado de su propio peculio del Sr. Rafael T. Puzon a quien habia vendido con
anterioridad."
On September 27, 1933, final decree of registration was issued in land registration case
No. 15174 of the Court of First Instance of Pangasinan, and pursuant thereto original
certificate of title No. 51691 of the same province was issued on October 12 of the same
year in favor of Ernesto M. Guevara over the whole parcel of land described in the deed of
sale above referred to. The registration proceeding had been commenced on November 1,
1932, by Victorino L. Guevara and Ernesto M. Guevara as applicants, with Rosario, among
others, as oppositor; but before the trial of the case Victorino L. Guevara withdrew as
applicant and Rosario Guevara and her co-oppositors also withdrew their opposition,
thereby facilitating the issuance of the title in the name of Ernesto M. Guevara alone.
On September 27, 1933, Victorino L. Guevarra died. His last will and testament, however,
was never presented to the court for probate, nor has any administration proceeding ever
been instituted for the settlement of his estate. Whether the various legatees mentioned
in the will have received their respective legacies or have even been given due notice of
the execution of said will and of the dispositions therein made in their favor, does not
affirmatively appear from the record of this case. Ever since the death of Victorino L.
Guevara, his only legitimate son Ernesto M. Guevara appears to have possessed the land
adjudicated to him in the registration proceeding and to have disposed of various portions
thereof for the purpose of paying the debts left by his father.
In the meantime Rosario Guevara, who appears to have had her father's last will and
testament in her custody, did nothing judicially to invoke the testamentary dispositions
made therein in her favor, whereby the testator acknowledged her as his natural daughter
and, aside from certain legacies and bequests, devised to her a portion of 21.6171
hectares of the large parcel of land described in the will. But a little over four years after
the testor's demise, she (assisted by her husband) commenced the present action against
Ernesto M. Guevara alone for the purpose hereinbefore indicated; and it was only during
the trial of this case that she presented the will to the court, not for the purpose of having
it probated but only to prove that the deceased Victirino L. Guevara had acknowledged
her as his natural daughter. Upon that proof of acknowledgment she claimed her share of
the inheritance from him, but on the theory or assumption that he died intestate, because
the will had not been probated, for which reason, she asserted, the betterment therein
made by the testator in favor of his legitimate son Ernesto M. Guevara should be
disregarded. Both the trial court and the Court of appeals sustained that theory.
Two principal questions are before us for determination: (1) the legality of the procedure
adopted by the plaintiff (respondent herein) Rosario Guevara; and (2) the efficacy of the
deed of sale exhibit 2 and the effect of the certificate of title issued to the defendant
(petitioner herein) Ernesto M. Guevara.
I
We cannot sanction the procedure adopted by the respondent Rosario Guevara, it being in
our opinion in violation of procedural law and an attempt to circumvent and disregard the

last will and testament of the decedent. The Code of Civil Procedure, which was in force
up to the time this case was decided by the trial court, contains the following pertinent
provisions:

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:

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.

The majority of the Court is of the opinion that if this case is dismissed ordering the filing
of testate proceedings, it would cause injustice, incovenience, delay, and much expense
to the parties, and that therefore, it is preferable to leave them in the very status which
they themselves have chosen, and to decide their controversy once and for all, since, in a
similar case, the Supreme Court applied that same criterion (Leao vs. Leao, supra),
which is now sanctioned by section 1 of Rule 74 of the Rules of Court. Besides, section 6
of Rule 124 provides that, if the procedure which the court ought to follow in the exercise
of its jurisdiction is not specifically pointed out by the Rules of Court, any suitable process
or mode of procedure may be adopted which appears most consistent to the spirit of the
said Rules. Hence, we declare the action instituted by the plaintiff to be in accordance
with law.

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.

Let us look into the validity of these considerations. Section 1 of Rule 74 provides as
follows:
Section 1. Extrajudicial settlement by agreement between heirs. If the decedent left no
debts and the heirs and legatees are all of age, or the minors are represented by their
judicial guardians, the parties may, without securing letters of administration, divide the
estate among themselves as they see fit by means of a public instrument filed in the
office of the register of deeds, and should they disagree, they may do so in an ordinary
action of partition. If there is only one heir or one legatee, he may adjudicate to himself
the entire estate by means of an affidavit filed in the office of the register of deeds. It shall
be presumed that the decedent left no debts if no creditor files a petition for letters of
administration within two years after the death of the decedent.
That is a modification of section 596 of the Code of Civil Procedure, which reads as
follows:
Sec. 596. Settlement of Certain Intestates Without Legal Proceedings. Whenever all the
heirs of a person who died intestate are of lawful age and legal capacity and there are no
debts due from the estate, or all the debts have been paid the heirs may, by agreement
duly executed in writing by all of them, and not otherwise, apportion and divide the estate
among themselves, as they may see fit, without proceedings in court.
The implication is that by the omission of the word "intestate" and the use of the word
"legatees" in section 1 of Rule 74, a summary extrajudicial settlement of a deceased
person's estate, whether he died testate or intestate, may be made under the conditions
specified. Even if we give retroactive effect to section 1 of Rule 74 and apply it here, as
the Court of Appeals did, we do not believe it sanctions the nonpresentation of a will for
probate and much less the nullification of such will thru the failure of its custodian to
present it to the court for probate; for such a result is precisely what Rule 76 sedulously
provides against. Section 1 of Rule 74 merely authorizes the extrajudicial or judicial
partition of the estate of a decedent "without securing letter of administration." It does
not say that in case the decedent left a will the heirs and legatees may divide the estate
among themselves without the necessity of presenting the will to the court for probate.
The petition to probate a will and the petition to issue letters of administration are two
different things, altho both may be made in the same case. the allowance of a will
precedes the issuance of letters testamentary or of administration (section 4, Rule 78).
One can have a will probated without necessarily securing letters testamentary or of
administration. We hold that under section 1 of Rule 74, in relation to Rule 76, if the
decedent left a will and no debts and the heirs and legatees desire to make an

extrajudicial partition of the estate, they must first present that will to the court for
probate and divide the estate in accordance with the will. They may not disregard the
provisions of the will unless those provisions are contrary to law. Neither may they so
away with the presentation of the will to the court for probate, because such suppression
of the will is contrary to law and public policy. The law enjoins the probate of the will and
public policy requires it, because unless the will is probated and notice thereof given to
the whole world, the right of a person to dispose of his property by will may be rendered
nugatory, as is attempted to be done in the instant case. Absent legatees and devisees, or
such of them as may have no knowledge of the will, could be cheated of their inheritance
thru the collusion of some of the heirs who might agree to the partition of the estate
among themselves to the exclusion of others.
In the instant case there is no showing that the various legatees other than the present
litigants had received their respective legacies or that they had knowledge of the
existence and of the provisions of the will. Their right under the will cannot be
disregarded, nor may those rights be obliterated on account of the failure or refusal of the
custodian of the will to present it to the court for probate.
Even if the decedent left no debts and nobdy raises any question as to the authenticity
and due execution of the will, none of the heirs may sue for the partition of the estate in
accordance with that will without first securing its allowance or probate by the court, first,
because the law expressly provides that "no will shall pass either real or personal estate
unless it is proved and allowed in the proper court"; and, second, because the probate of
a will, which is a proceeding in rem, cannot be dispensed with the substituted by any
other proceeding, judicial or extrajudicial, without offending against public policy designed
to effectuate the testator's right to dispose of his property by will in accordance with law
and to protect the rights of the heirs and legatees under the will thru the means provided
by law, among which are the publication and the personal notices to each and all of said
heirs and legatees. Nor may the court approve and allow the will presented in evidence in
such an action for partition, which is one in personam, any more than it could decree the
registration under the Torrens system of the land involved in an ordinary action for
reinvindicacion or partition.
We therefore believe and so hold that section 1 of Rule 74, relied upon by the Court of
Appeals, does not sanction the procedure adopted by the respondent.
The case of Leao vs. Leao (25 Phil., 180), cited by the Court of Appeals, like section 1 of
Rule 74, sanctions the extrajudicial partition by the heirs of the properties left by a
decedent, but not the nonpresentation of a will for probate. In that case one Paulina Ver
executed a will on October 11, 1902, and died on November 1, 1902. Her will was
presented for probate on November 10, 1902, and was approved and allowed by the Court
on August 16, 1904. In the meantime, and on November 10, 1902, the heirs went ahead
and divided the properties among themselves and some of them subsequently sold and
disposed of their shares to third persons. It does not affirmatively appear in the decision in
that case that the partition made by the heirs was not in accordance with the will or that
they in any way disregarded the will. In closing the case by its order dated September 1,
1911, the trial court validated the partition, and one of the heirs, Cunegunda Leao,
appealed. In deciding the appeal this Court said:
The principal assignment of error is that the lower court committed an error in deciding
that the heirs and legatees of the estate of Da. Paulina Ver had voluntarily divided the
estate among themselves.
In resolving that question this Court said:

In view of the positive finding of the judge of the lower court that there had been a
voluntary partition of the estate among the heirs and legatees, and in the absence of
positive proof to the contrary, we must conclude that the lower court had some evidence
to support its conclusion.
Thus it will be seen that as a matter of fact no question of law was raised and decided in
that case. That decision cannot be relied upon as an authority for the unprecedented and
unheard of procedure adopted by the respondent whereby she seeks to prove her status
as an acknowledged natural child of the decedent by his will and attempts to nullify and
circumvent the testamentary dispositions made by him by not presenting the will to the
court for probate and by claiming her legitime as an acknowledged natural child on the
basis of intestacy; and that in the face of express mandatory provisions of the law
requiring her to present the will to the court for probate.
In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this Court departed from
the procedure sanctioned by the trial court and impliedly approved by this Court in the
Leao case, by holding that an extrajudicial partition is not proper in testate succession. In
the Riosa case the Court, speaking thru Chief Justice Avancea, held:
1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION. Section 596 of the
Code of Civil Procedure, authorizing the heirs of a person who dies intestate to make
extrajudicial partition of the property of the deceased, without going into any court of
justice, makes express reference to intestate succession, and therefore excludes testate
succession.
2. ID.; EFFECTS OF; TESTATE SUCCESSION. In the instant case, which is a testate
succession, the heirs made an extrajudicial partition of the estate and at the same time
instituted proceeding for the probate of the will and the administration of the estate.
When the time came for making the partition, they submitted to the court the
extrajudicial partition previously made by them, which the court approved. Held: That for
the purposes of the reservation and the rights and obligations created thereby, in
connection with the relatives benefited, the property must not be deemed transmitted to
the heirs from the time the extrajudicial partition was made, but from the time said
partition was approved by the court. (Syllabus.)
The Court of Appeals also cites section 6 of Rule 124, which provides that if the procedure
which the court ought to follow in the exercise of its jurisdiction is not specifically pointed
out by the Rules of Court, any suitable process for mode of proceeding may be adopted
which appears most conformable to the spirit of the said Rules. That provision is not
applicable here for the simple reason that the procedure which the court ought to follow in
the exercise of its jurisdiction is specifically pointed out and prescribed in detail by Rules
74, 76, and 77 of the Rules of Court.
The Court of Appeals also said "that if this case is dismissed, ordering the filing of testate
proceedings, it would cause injustice, inconvenience, delay, and much expense to the
parties." We see no injustice in requiring the plaintiff not to violate but to comply with the
law. On the contrary, an injustice might be committed against the other heirs and
legatees mentioned in the will if the attempt of the plaintiff to nullify said will by not
presenting it to the court for probate should be sanctioned. As to the inconvenience,
delay, and expense, the plaintiff herself is to blame because she was the custodian of the
will and she violated the duty imposed upon her by sections 2, 4, and 5 of Rule 76, which
command her to deliver said will to the court on pain of a fine not exceeding P2,000 and
of imprisonment for contempt of court. As for the defendant, he is not complaining of
inconvenience, delay, and expense, but on the contrary he is insisting that the procedure
prescribed by law be followed by the plaintiff.

Our conclusion is that the Court of Appeals erred in declaring the action instituted by the
plaintiff to be in accordance with law. It also erred in awarding relief to the plaintiff in this
action on the basis of intestacy of the decedent notwithstanding the proven existence of a
will left by him and solely because said will has not been probated due to the failure of the
plaintiff as custodian thereof to comply with the duty imposed upon her by the law.
It is apparent that the defendant Ernesto M. Guevara, who was named executor in said
will, did not take any step to have it presented to the court for probate and did not signify
his acceptance of the trust or refusal to accept it as required by section 3 of Rule 76
(formerly section 627 of the Code of Civil Procedure), because his contention is that said
will, insofar as the large parcel of land in litigation is concerned, has been superseded by
the deed of sale exhibit 2 and by the subsequent issuance of the Torrens certificate of title
in his favor.
II
This brings us to the consideration of the second question, referring to the efficacy of the
deed of sale exhibit 2 and the effect of the certificate of titled issued to the defendant
Ernesto M. Guevara. So that the parties may not have litigated here in vain insofar as that
question is concerned, we deem it proper to decide it now and obviate the necessity of a
new action.
The deed of sale exhibit 2 executed by and between Victorino L. Guevara and Ernesto M.
Guevara before a notary public on July 12, 1933, may be divided into two parts: (a) insofar
as it disposes of and conveys to Ernesto M. Guevara the southern half of Victorino L.
Guevara's hacienda of 259-odd hectares in consideration of P1 and other valuable
considerations therein mentioned; and (b) insofar as it declares that Ernesto M. Guevara
became the owner of the northern half of the same hacienda by repurchasing it with his
own money from Rafael T. Puzon.
A. As to the conveyance of the southern half of the hacienda to Ernesto M. Guevara in
consideration of the latter's assumption of the obligation to pay all the debts of the
deceased, the Court of Appeals found it to be valid and efficacious because: "(a) it has not
been proven that the charges imposed as a condition is [are] less than the value of the
property; and (b) neither has it been proven that the defendant did not comply with the
conditions imposed upon him in the deed of transfer." As a matter of fact the Court of
Appeals found" "It appears that the defendant has been paying the debts left by his
father. To accomplish this, he had to alienate considerable portions of the abovementioned 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.

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.

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:

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.

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

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.