G.R. No. 76464 February 29, 1988 Three years later, or sometime in March 1967, Atty.
ars later, or sometime in March 1967, Atty. Sulpicio Palma,
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, 1 which was a petition for certiorari and mandamus
instituted by the petitioners herein, we dismissed the petition ruling
that the more appropriate remedy of the petitioners is a separate
proceeding for the probate of the will in question. Pursuant to the said
ruling, the petitioners commenced in the then Court of First Instance
of Iloilo, Special Proceeding No. 2176, for the probate of the disputed
will, which was opposed by the private respondents presently, Panfilo
and Felino both surnamed Maloto. The trial court dismissed the
petition on April 30, 1970. Complaining against the dismissal, again,
the petitioners came to this Court on a petition for review by
certiorari. 2 Acting on the said petition, we set aside the trial court's
order and directed it to proceed to hear the case on the merits. The
trial court, after hearing, found the will to have already been revoked
by the testatrix. Adriana Maloto, and thus, denied the petition. The
petitioners appealed the trial court's decision to the Intermediate
Appellate Court which, on June 7, 1985, affirmed the order. The
petitioners' motion for reconsideration of the adverse decision proved
to be of no avail, hence, this petition.
For a better understanding of the controversy, a factual account
would be a great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece
and nephews, the petitioners Aldina Maloto-Casiano and
Constancio, Maloto, and the private respondents Panfilo Maloto and
Felino Maloto. Believing that the deceased did not leave behind a last
will and testament, these four heirs commenced on November 4,
1963 an 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.
(1) By implication of law; or
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:
(2) By some will, codicil, or other writing executed as provided in
case of wills: or
(3) By burning, tearing, cancelling, or obliterating the will with the
intention of revoking it, by the testator himself, or by some other
person in his presence, and by his express direction. If burned,
torn cancelled, or obliterated by some other person, without the
express direction of the testator, the will may still be established,
and the estate distributed in accordance therewith, if its contents,
and due execution, and the fact of its unauthorized destruction,
cancellation, or obliteration are established according to the
Rules of Court. (Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like burning in
this case, does not per se constitute an effective revocation, unless
the destruction is coupled with animus revocandi on the part of the
testator. It is not imperative that the physical destruction be done by
the testator himself. It may be performed by another person but under
theexpress direction and in the presence of the testator. Of course, it
goes without saying that the document destroyed must be the will
itself.
In this case, while animus revocandi or the intention to revoke, may
be conceded, for that is a state of mind, yet that requisite alone would
not suffice. "Animus revocandi is only one of the necessary elements
for the effective revocation of a last will and testament. The intention
to revoke must be accompanied by the overt physical act of burning,
tearing, obliterating, or cancelling the will carried out by the testator
or by another person in his presence and under his express direction.
There is paucity of evidence to show compliance with these
requirements. For one, the document or papers burned by Adriana's
maid, Guadalupe, was not satisfactorily established to be a will at all,
much less the will of Adriana Maloto. For another, the burning was
not proven to have been done under the express direction of Adriana.
And then, the burning was not in her presence. Both witnesses,
Guadalupe and Eladio, were one in stating that they were the only
ones present at the place where the stove (presumably in the kitchen)
was located in which the papers proffered as a will were burned.
The respondent appellate court in assessing the evidence presented
by the private respondents as oppositors in the trial court, concluded
that the testimony of the two witnesses who testified in favor of the
will's revocation appear "inconclusive." We share the same view.
Nowhere in the records before us does it appear that the two
witnesses, Guadalupe Vda. de Corral and Eladio Itchon, both
illiterates, were unequivocably positive that the document burned
was indeed Adriana's will. Guadalupe, we think, believed that the
papers she destroyed was the will only because, according to her,
Adriana told her so. Eladio, on the other hand, obtained his
information that the burned document was the will because
Guadalupe told him so, thus, his testimony on this point is double
hearsay.
At this juncture, we reiterate that "(it) is an important matter of public
interest that a purported win is not denied legalization on dubious
grounds. Otherwise, the very institution of testamentary succession
will be shaken to its very foundations ...."4
The private respondents in their bid for the dismissal of the present
action for probate instituted by the petitioners argue that the same is
already barred by res adjudicata. They claim that this bar was
brought about by the petitioners' failure to appeal timely from the
order dated November 16, 1968 of the trial court in the intestate
proceeding (Special Proceeding No. 1736) denying their (petitioners')
motion to reopen the case, and their prayer to annul the previous
proceedings therein and to allow the last will and testament of the
late Adriana Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the present
controversy. For a judgment to be a bar to a subsequent case, the
following requisites must concur: (1) the presence of a final former
judgment; (2) the former judgment was rendered by a court having
jurisdiction over the subject matter and the parties; (3) the former
judgment is a judgment on the merits; and (4) there is, between the
first and the second action, Identity of parties, of subject matter, and
of cause of action. 5 We do not find here the presence of all the
enumerated requisites.
For one, there is yet, strictly speaking, no final judgment rendered
insofar as the probate of Adriana Maloto's will is concerned. The
decision of the trial court in Special Proceeding No. 1736, although
final, involved only the intestate settlement of the estate of Adriana.
As such, that judgment could not in any manner be construed to be
final with respect to the probate of the subsequently discovered will
of the decedent. Neither is it a judgment on the merits of the action
for probate. This is understandably so because the trial court, in the
intestate proceeding, was without jurisdiction to rule on the probate
of the contested will . 6 After all, an action for probate, as it implies, is
founded on the presence of a will and with the objective of proving its
due execution and validity, something which can not be properly
done in an intestate settlement of estate proceeding which is
predicated on the assumption that the decedent left no will. Thus,
there is likewise no Identity between the cause of action in intestate
proceeding and that in an action for probate. Be that as it may, it
would be remembered that it was precisely because of our ruling in
G.R. No. L-30479 that the petitioners instituted this separate action
for the probate of the late Adriana Maloto's will. Hence, on these
grounds alone, the position of the private respondents on this score
can not be sustained.
One last note. The private respondents point out that revocation
could be inferred from the fact that "(a) major and substantial bulk of
the properties mentioned in the will had been disposed of: while an
insignificant portion of the properties remained at the time of death
(of the testatrix); and, furthermore, more valuable properties have
been acquired after the execution of the will on January
3,1940." 7 Suffice it to state here that as these additional matters
raised by the private respondents are extraneous to this special
proceeding, they could only be appropriately taken up after the will
has been duly probated and a certificate of its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and
SETTING ASIDE the Decision dated June 7, 1985 and the
Resolution dated October 22, 1986, of the respondent Court of
Appeals, and a new one ENTERED for the allowance of Adriana
Maloto's last will and testament. Costs against the private
respondents.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
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.
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.
G.R. No. L-2538 September 21, 1951
Testate Estate of the Deceased MARIANO MOLO Y LEGASPI.
JUANA JUAN VDA. DE MOLO, petitioner-appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.
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.1âwphïl.nêt
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.
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 revocandi constitutes, in itself, a
sufficient revocation. (Sec. 623, Code of Civil
Procedure.)lävvphì1·né+
From the evidence submitted in this case, it appears that the testator,
shortly after the execution of the first will in question, asked that the
same be returned to him. The instrument was returned to the testator
who ordered his servant to tear the document. This was done in his
presence and before a nurse who testified to this effect. After some
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.
G.R. No. L-48840 December 29, 1943
ERNESTO M. GUEVARA, petitioner-appellant,
vs.
ROSARIO GUEVARA and her husband PEDRO
BUISON, respondent-appellees.
OZAETA, J.:
Ernesto M. Guevarra and Rosario Guevara, ligitimate son and natural
daughter, respectively, of the deceased Victorino L. Guevara, are
litigating here over their inheritance from the latter. The action was
commenced on November 12, 1937, by Rosario Guevara to recover
from Ernesto Guevara what she claims to be her strict ligitime as an
acknowledged natural daughter of the deceased — to wit, a portion
of 423,492 square meters of a large parcel of land described in
original certificate of title No. 51691 of the province of Pangasinan,
issued in the name of Ernesto M. Guervara — and to order the latter
to pay her P6,000 plus P2,000 a year as damages for withholding
such legitime from her. The defendant answered the complaint
contending that whatever right or rights the plaintiff might have had,
had been barred by the operation of law.
It appears that on August 26, 1931, Victorino L. Guevara executed a
will (exhibit A), apparently with all the formalities of the law, wherein
he made the following bequests: To his stepdaughter Candida
Guevara, a pair of earrings worth P150 and a gold chain worth P40;
to his son Ernesto M. Guevara, a gold ring worth P180 and all the
furniture, pictures, statues, and other religious objects found in the
residence of the testator in Poblacion Sur, Bayambang, Pangasinan;
"a mi hija Rosario Guevara," a pair of earrings worth P120; to his
stepson Piuo Guevara, a ring worth P120; and to his wife by second
marriage, Angustia Posadas, various pieces of jewelry worth P1,020.
He also made the following devises: "A mis hijos Rosario Guevara y
Ernesto M. Guevara y a mis hijastros, Vivencio, Eduviges, Dionisia,
Candida y Pio, apellidados Guevara," a residential lot with its
improvements situate in the town of Bayambang, Pangasinan, having
an area of 960 square meters and assessed at P540; to his wife
Angustia Posadas he confirmed the donation propter
nuptias theretofore made by him to her of a portion of 25 hectares of
the large parcel of land of 259-odd hectares described in plan Psu-
66618. He also devised to her a portion of 5 hectares of the same
parcel of land by way of complete settlement of her usufructurary
right.1awphil.net
He set aside 100 hectares of the same parcel of land to be disposed
of either by him during his lifetime or by his attorney-in-fact Ernesto
M. Guevara in order to pay all his pending debts and to degray his
expenses and those of his family us to the time of his death.
The remainder of said parcel of land his disposed of in the following
manner:
(d). — Toda la porcion restante de mi terreno arriba
descrito, de la extension superficial aproximada de ciento
veintinueve (129) hectareas setenta (70) areas, y
veiticinco (25) centiares, con todas sus mejoras existentes
en la misma, dejo y distribuyo, pro-indiviso, a mis
siguientes herederos como sigue:
A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108)
hectareas, ocho (8) areas y cincuenta y cuatro (54)
centiareas, hacia la parte que colinda al Oeste de las cien
(100) hectareas referidas en el inciso (a) de este parrafo
del testamento, como su propiedad absoluta y exclusiva,
en la cual extension superficial estan incluidas cuarenta y
tres (43) hectareas, veintitres (23) areas y cuarenta y dos
(42) centiareas que le doy en concepto de mejora.
A mi hija natural reconocida, Rosario Guevara, veintiun
(21) hectareas, sesenta y un (61) areas y setenta y un (71)
centiareas, que es la parte restante.
Duodecimo. — Nombro por la presente como Albacea
Testamentario a mi hijo Ernesto M. Guevara, con
relevacion de fianza. Y una vez legalizado este
testamento, y en cuanto sea posible, es mi deseo, que los
herederos y legatarios aqui nombrados se repartan
extrajudicialmente mis bienes de conformidad con mis
disposiciones arriba consignadas.
Subsequently, and on July 12, 1933, Victorino L. Guevarra executed
whereby he conveyed to him the southern half of the large parcel of
land of which he had theretofore disposed by the will above
mentioned, inconsideration of the sum of P1 and other valuable
considerations, among which were the payment of all his debts and
obligations amounting to not less than P16,500, his maintenance up
to his death, and the expenses of his last illness and funeral
expenses. As to the northern half of the same parcel of land, he
declared: "Hago constar tambien que reconozco a mi referido hijo
Ernesto M. guevara como dueño de la mitad norte de la totalidad y
conjunto de los referidos terrenos por haberlos comprado de su
propio peculio del Sr. Rafael T. Puzon a quien habia vendido con
anterioridad."
On September 27, 1933, final decree of registration was issued in
land registration case No. 15174 of the Court of First Instance of
Pangasinan, and pursuant thereto original certificate of title No.
51691 of the same province was issued on October 12 of the same
year in favor of Ernesto M. Guevara over the whole parcel of land
described in the deed of sale above referred to. The registration
proceeding had been commenced on November 1, 1932, by
Victorino L. Guevara and Ernesto M. Guevara as applicants, with
Rosario, among others, as oppositor; but before the trial of the case
Victorino L. Guevara withdrew as applicant and Rosario Guevara and
her co-oppositors also withdrew their opposition, thereby facilitating
the issuance of the title in the name of Ernesto M. Guevara alone.
On September 27, 1933, Victorino L. Guevarra died. His last will and
testament, however, was never presented to the court for probate,
nor has any administration proceeding ever been instituted for the
settlement of his estate. Whether the various legatees mentioned in
the will have received their respective legacies or have even been
given due notice of the execution of said will and of the dispositions
therein made in their favor, does not affirmatively appear from the
record of this case. Ever since the death of Victorino L. Guevara, his
only legitimate son Ernesto M. Guevara appears to have possessed
the land adjudicated to him in the registration proceeding and to have
disposed of various portions thereof for the purpose of paying the
debts left by his father.
In the meantime Rosario Guevara, who appears to have had her
father's last will and testament in her custody, did nothing judicially to
invoke the testamentary dispositions made therein in her favor,
whereby the testator acknowledged her as his natural daughter and,
aside from certain legacies and bequests, devised to her a portion of
21.6171 hectares of the large parcel of land described in the will. But
a little over four years after the testor's demise, she (assisted by her
husband) commenced the present action against Ernesto M.
Guevara alone for the purpose hereinbefore indicated; and it was
only during the trial of this case that she presented the will to the
court, not for the purpose of having it probated but only to prove that
the deceased Victirino L. Guevara had acknowledged her as his
natural daughter. Upon that proof of acknowledgment she claimed
her share of the inheritance from him, but on the theory or assumption
that he died intestate, because the will had not been probated, for
which reason, she asserted, the betterment therein made by the
testator in favor of his legitimate son Ernesto M. Guevara should be
disregarded. Both the trial court and the Court of appeals sustained
that theory.
Two principal questions are before us for determination: (1) the
legality of the procedure adopted by the plaintiff (respondent herein)
Rosario Guevara; and (2) the efficacy of the deed of sale exhibit 2
and the effect of the certificate of title issued to the defendant
(petitioner herein) Ernesto M. Guevara.
I Rule 77), the due execution of the will and the fact that the testator at
We cannot sanction the procedure adopted by the respondent
Rosario Guevara, it being in our opinion in violation of procedural law
and an attempt to circumvent and disregard the last will and
testament of the decedent. The Code of Civil Procedure, which was
in force up to the time this case was decided by the trial court,
contains the following pertinent provisions:
Sec. 625. Allowance Necessary, and Conclusive as to
Execution. — No will shall pass either the real or personal
estate, unless it is proved and allowed in the Court of First
Instance, or by appeal to the Supreme Court; and the
allowance by the court of a will of real and personal estate
shall be conclusive as to its due execution.
Sec. 626. Custodian of Will to Deliver. — The person who
has the custody of a will shall, within thirty days after he
knows of the death of the testator, deliver the will into the
court which has jurisdiction, or to the executor named in
the will.
Sec. 627. Executor to Present Will and Accept or Refuse
Trust. — A person named as executor in a will, shall within
thirty days after he knows of the death of the testor, or
within thirty days after he knows that he is named executor,
if he obtained such knowledge after knowing of the death
of the testor, present such will to the court which has
jurisdiction, unless the will has been otherwise returned to
said court, and shall, within such period, signify to the court
his acceptance of the trust, or make known in writing his
refusal to accept it.
Sec. 628. Penalty. — A person who neglects any of the
duties required in the two proceeding sections, unless he
gives a satisfactory excuse to the court, shall be subject to
a fine not exceeding one thousand dollars.
Sec. 629. Person Retaining Will may be Committed. — If
a person having custody of a will after the death of the
testator neglects without reasonable cause to deliver the
same to the court having jurisdiction, after notice by the
court so to do, he may be committed to the prison of the
province by a warrant issued by the court, and there kept
in close confinement until he delivers the will.
The foregoing provisions are now embodied in Rule 76 of the new
Rules of Court, which took effect on July 1, 1940.
The proceeding for the probate of a will is one in rem, with notice by
publication to the whole world and with personal notice to each of the
known heirs, legatees, and devisees of the testator (section 630, C.
c. P., and sections 3 and 4, Rule 77). Altho not contested (section 5,
the time of its execution was of sound and disposing mind and not
acting under duress, menace, and undue influence or fraud, must be
proved to the satisfaction of the court, and only then may the will be
legalized and given effect by means of a certificate of its allowance,
signed by the judge and attested by the seal of the court; and when
the will devises real property, attested copies thereof and of the
certificate of allowance must be recorded in the register of deeds of
the province in which the land lies. (Section 12, Rule 77, and section
624, C. C. P.)
It will readily be seen from the above provisions of the law that the
presentation of a will to the court for probate is mandatory and its
allowance by the court is essential and indispensable to its efficacy.
To assure and compel the probate of will, the law punishes a person
who neglects his duty to present it to the court with a fine not
exceeding P2,000, and if he should persist in not presenting it, he
may be committed to prision and kept there until he delivers the will.
The Court of Appeals took express notice of these requirements of
the law and held that a will, unless probated, is ineffective.
Nevertheless it sanctioned the procedure adopted by the respondent
for the following reasons:
The majority of the Court is of the opinion that if this case
is dismissed ordering the filing of testate proceedings, it
would cause injustice, incovenience, delay, and much
expense to the parties, and that therefore, it is preferable
to leave them in the very status which they themselves
have chosen, and to decide their controversy once and for
all, since, in a similar case, the Supreme Court applied that
same criterion (Leaño vs. Leaño, supra), which is now
sanctioned by section 1 of Rule 74 of the Rules of Court.
Besides, section 6 of Rule 124 provides that, if the
procedure which the court ought to follow in the exercise
of its jurisdiction is not specifically pointed out by the Rules
of Court, any suitable process or mode of procedure may
be adopted which appears most consistent to the spirit of
the said Rules. Hence, we declare the action instituted by
the plaintiff to be in accordance with law.
Let us look into the validity of these considerations. Section 1 of Rule
74 provides as follows:
Section 1. Extrajudicial settlement by agreement between
heirs. — If the decedent left no debts and the heirs and
legatees are all of age, or the minors are represented by
their judicial guardians, the parties may, without securing
letters of administration, divide the estate among
themselves as they see fit by means of a public instrument
filed in the office of the register of deeds, and should they
disagree, they may do so in an ordinary action of partition.
If there is only one heir or one legatee, he may adjudicate
to himself the entire estate by means of an affidavit filed in
the office of the register of deeds. It shall be presumed that
the decedent left no debts if no creditor files a petition for
letters of administration within two years after the death of
the decedent.
That is a modification of section 596 of the Code of Civil Procedure,
which reads as follows:
Sec. 596. Settlement of Certain Intestates Without Legal
Proceedings. — Whenever all the heirs of a person who died
intestate are of lawful age and legal capacity and there are no
debts due from the estate, or all the debts have been paid the
heirs may, by agreement duly executed in writing by all of them,
and not otherwise, apportion and divide the estate among
themselves, as they may see fit, without proceedings in court.
The implication is that by the omission of the word "intestate" and the
use of the word "legatees" in section 1 of Rule 74, a summary
extrajudicial settlement of a deceased person's estate, whether he
died testate or intestate, may be made under the conditions specified.
Even if we give retroactive effect to section 1 of Rule 74 and apply it
here, as the Court of Appeals did, we do not believe it sanctions the
nonpresentation of a will for probate and much less the nullification
of such will thru the failure of its custodian to present it to the court
for probate; for such a result is precisely what Rule 76 sedulously
provides against. Section 1 of Rule 74 merely authorizes the
extrajudicial or judicial partition of the estate of a decedent "without
securing letter of administration." It does not say that in case the
decedent left a will the heirs and legatees may divide the estate
among themselves without the necessity of presenting the will to the
court for probate. The petition to probate a will and the petition to
issue letters of administration are two different things, altho both may
be made in the same case. the allowance of a will precedes the
issuance of letters testamentary or of administration (section 4, Rule
78). One can have a will probated without necessarily securing letters
testamentary or of administration. We hold that under section 1 of
Rule 74, in relation to Rule 76, if the decedent left a will and no debts
and the heirs and legatees desire to make an extrajudicial partition of
the estate, they must first present that will to the court for probate and
divide the estate in accordance with the will. They may not disregard
the provisions of the will unless those provisions are contrary to law.
Neither may they so away with the presentation of the will to the court
for probate, because such suppression of the will is contrary to law
and public policy. The law enjoins the probate of the will and public
policy requires it, because unless the will is probated and notice
thereof given to the whole world, the right of a person to dispose of
his property by will may be rendered nugatory, as is attempted to be
done in the instant case. Absent legatees and devisees, or such of
them as may have no knowledge of the will, could be cheated of their
inheritance thru the collusion of some of the heirs who might agree
to the partition of the estate among themselves to the exclusion of
others.
In the instant case there is no showing that the various legatees other
than the present litigants had received their respective legacies or
that they had knowledge of the existence and of the provisions of the
will. Their right under the will cannot be disregarded, nor may those
rights be obliterated on account of the failure or refusal of the
custodian of the will to present it to the court for probate.
Even if the decedent left no debts and nobdy raises any question as
to the authenticity and due execution of the will, none of the heirs
may sue for the partition of the estate in accordance with that will
without first securing its allowance or probate by the court, first,
because the law expressly provides that "no will shall pass either real
or personal estate unless it is proved and allowed in the proper court";
and, second, because the probate of a will, which is a proceeding in
rem, cannot be dispensed with the substituted by any other
proceeding, judicial or extrajudicial, without offending against public
policy designed to effectuate the testator's right to dispose of his
property by will in accordance with law and to protect the rights of the
heirs and legatees under the will thru the means provided by law,
among which are the publication and the personal notices to each
and all of said heirs and legatees. Nor may the court approve and
allow the will presented in evidence in such an action for partition,
which is one in personam, any more than it could decree the
registration under the Torrens system of the land involved in an
ordinary action for reinvindicacion or partition.
We therefore believe and so hold that section 1 of Rule 74, relied
upon by the Court of Appeals, does not sanction the procedure
adopted by the respondent.
The case of Leaño vs. Leaño (25 Phil., 180), cited by the Court of
Appeals, like section 1 of Rule 74, sanctions the extrajudicial partition
by the heirs of the properties left by a decedent, but not the
nonpresentation of a will for probate. In that case one Paulina Ver
executed a will on October 11, 1902, and died on November 1, 1902.
Her will was presented for probate on November 10, 1902, and was
approved and allowed by the Court on August 16, 1904. In the
meantime, and on November 10, 1902, the heirs went ahead and
divided the properties among themselves and some of them
subsequently sold and disposed of their shares to third persons. It
does not affirmatively appear in the decision in that case that the
partition made by the heirs was not in accordance with the will or that
they in any way disregarded the will. In closing the case by its order
dated September 1, 1911, the trial court validated the partition, and
one of the heirs, Cunegunda Leaño, appealed. In deciding the appeal
this Court said:
The principal assignment of error is that the lower court
committed an error in deciding that the heirs and legatees
of the estate of Dña. Paulina Ver had voluntarily divided
the estate among themselves.
In resolving that question this Court said:
In view of the positive finding of the judge of the lower court
that there had been a voluntary partition of the estate
among the heirs and legatees, and in the absence of
positive proof to the contrary, we must conclude that the
lower court had some evidence to support its conclusion.
Thus it will be seen that as a matter of fact no question of law was
raised and decided in that case. That decision cannot be relied upon
as an authority for the unprecedented and unheard of procedure
adopted by the respondent whereby she seeks to prove her status
as an acknowledged natural child of the decedent by his will and
attempts to nullify and circumvent the testamentary dispositions
made by him by not presenting the will to the court for probate and
by claiming her legitime as an acknowledged natural child on the
basis of intestacy; and that in the face of express mandatory
provisions of the law requiring her to present the will to the court for
probate.
In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this
Court departed from the procedure sanctioned by the trial court and
impliedly approved by this Court in the Leaño case, by holding that
an extrajudicial partition is not proper in testate succession. In the
Riosa case the Court, speaking thru Chief Justice Avanceña, held:
1. EXTRAJUDICIAL PARTITION; NOT PROPER IN
TESTATE SUCCESSION. — Section 596 of the Code of
Civil Procedure, authorizing the heirs of a person who dies
intestate to make extrajudicial partition of the property of
the deceased, without going into any court of justice,
makes express reference to intestate succession, and
therefore excludes testate succession.
2. ID.; EFFECTS OF; TESTATE SUCCESSION. — In the
instant case, which is a testate succession, the heirs made
an extrajudicial partition of the estate and at the same time
instituted proceeding for the probate of the will and the
administration of the estate. When the time came for
making the partition, they submitted to the court the
extrajudicial partition previously made by them, which the
court approved. Held: That for the purposes of the
reservation and the rights and obligations created thereby,
in connection with the relatives benefited, the property
must not be deemed transmitted to the heirs from the time
the extrajudicial partition was made, but from the time said
partition was approved by the court. (Syllabus.)
The Court of Appeals also cites section 6 of Rule 124, which provides
that if the procedure which the court ought to follow in the exercise of
its jurisdiction is not specifically pointed out by the Rules of Court,
any suitable process for mode of proceeding may be adopted which
appears most conformable to the spirit of the said Rules. That
provision is not applicable here for the simple reason that the
procedure which the court ought to follow in the exercise of its
jurisdiction is specifically pointed out and prescribed in detail by
Rules 74, 76, and 77 of the Rules of Court.
The Court of Appeals also said "that if this case is dismissed, ordering
the filing of testate proceedings, it would cause injustice,
inconvenience, delay, and much expense to the parties." We see no
injustice in requiring the plaintiff not to violate but to comply with the
law. On the contrary, an injustice might be committed against the
other heirs and legatees mentioned in the will if the attempt of the
plaintiff to nullify said will by not presenting it to the court for probate
should be sanctioned. As to the inconvenience, delay, and expense,
the plaintiff herself is to blame because she was the custodian of the
will and she violated the duty imposed upon her by sections 2, 4, and
5 of Rule 76, which command her to deliver said will to the court on
pain of a fine not exceeding P2,000 and of imprisonment for contempt
of court. As for the defendant, he is not complaining of
inconvenience, delay, and expense, but on the contrary he is insisting
that the procedure prescribed by law be followed by the plaintiff.
Our conclusion is that the Court of Appeals erred in declaring the
action instituted by the plaintiff to be in accordance with law. It also
erred in awarding relief to the plaintiff in this action on the basis of
intestacy of the decedent notwithstanding the proven existence of a
will left by him and solely because said will has not been probated
due to the failure of the plaintiff as custodian thereof to comply with
the duty imposed upon her by the law.
It is apparent that the defendant Ernesto M. Guevara, who was
named executor in said will, did not take any step to have it presented
to the court for probate and did not signify his acceptance of the trust
or refusal to accept it as required by section 3 of Rule 76 (formerly
section 627 of the Code of Civil Procedure), because his contention
is that said will, insofar as the large parcel of land in litigation is
concerned, has been superseded by the deed of sale exhibit 2 and
by the subsequent issuance of the Torrens certificate of title in his
favor.
II
This brings us to the consideration of the second question, referring
to the efficacy of the deed of sale exhibit 2 and the effect of the
certificate of titled issued to the defendant Ernesto M. Guevara. So
that the parties may not have litigated here in vain insofar as that
question is concerned, we deem it proper to decide it now and obviate
the necessity of a new action.
The deed of sale exhibit 2 executed by and between Victorino L.
Guevara and Ernesto M. Guevara before a notary public on July 12,
1933, may be divided into two parts: (a) insofar as it disposes of and
conveys to Ernesto M. Guevara the southern half of Victorino L.
Guevara's hacienda of 259-odd hectares in consideration of P1 and
other valuable considerations therein mentioned; and (b) insofar as it
declares that Ernesto M. Guevara became the owner of the northern
half of the same hacienda by repurchasing it with his own money from
Rafael T. Puzon.
A. As to the conveyance of the southern half of the hacienda to
Ernesto M. Guevara in consideration of the latter's assumption of the
obligation to pay all the debts of the deceased, the Court of Appeals
found it to be valid and efficacious because: "(a) it has not been
proven that the charges imposed as a condition is [are] less than the
value of the property; and (b) neither has it been proven that the
defendant did not comply with the conditions imposed upon him in
the deed of transfer." As a matter of fact the Court of Appeals found"
"It appears that the defendant has been paying the debts left by his
father. To accomplish this, he had to alienate considerable portions
of the above-mentioned land. And we cannot brand such alienation
as anomalous unless it is proven that they have exceeded the value
of what he has acquired by virtue of the deed of July 12, 1933, and
that of his corresponding share in the inheritance." The finding of the
Court of Appeals on this aspect of the case is final and conclusive
upon the respondent, who did not appeal therefrom.
B. With regard to the northern half of the hacienda, the findings of
fact and of law made by the Court of Appeals are as follows:
The defendant has tried to prove that with his own money,
he bought from Rafael Puzon one-half of the land in
question, but the Court a quo, after considering the
evidence, found it not proven; we hold that such conclusion
is well founded. The acknowledgment by the deceased,
Victorino L. Guevara, of the said transactions, which was
inserted incidentally in the document of July 12, 1933, is
clearly belied by the fact that the money paid to Rafael
Puzon came from Silvestre P. Coquia, to whom Victorino
L. Guevara had sold a parcel of land with the right of
repurchase. The defendant, acting for his father, received
the money and delivered it to Rafael Puzon to redeem the
land in question, and instead of executing a deed of
redemption in favor of Victorino L. Guevara, the latter
executed a deed of sale in favor of the defendant.
The plaintiff avers that she withdrew her opposition to the
registration of the land in the name of the defendant,
because of the latter's promise that after paying all the debt
of their father, he would deliver to her and to the widow
their corresponding shares. As their father then was still
alive, there was no reason to require the delivery of her
share and that was why she did not insist on her
opposition, trusting on the reliability and sincerity of her
brother's promise. The evidence shows that such promise
was really made. The registration of land under the Torrens
system does not have the effect of altering the laws of
succession, or the rights of partition between coparceners,
joint tenants, and other cotenants nor does it change or
affect in any other way any other rights and liabilities
created by law and applicable to unregistered land (sec.
70, Land Registration Law). The plaintiff is not, then, in
estoppel, nor can the doctrine of res judicata be invoked
against her claim. Under these circumstances, she has the
right to compel the defendant to deliver her corresponding
share in the estate left by the deceased, Victorino L.
Guevara.
In his tenth to fourteenth assignments of error the petitioner assails
the foregoing findings of the Court of Appeals. But the findings of fact
made by said court are final and not reviewable by us on certiorari.
The Court of Appeals found that the money with which the petitioner
repurchased the northern half of the land in question from Rafael
Puzon was not his own but his father's, it being the proceeds of the
sale of a parcel of land made by the latter to Silvestre P. Coquia. Said
court also found that the respondent withdrew her opposition to the
registration of the land in the name of the petitioner upon the latter's
promise that after paying all the debts of their father he would deliver
to her and to the widow their corresponding shares. From these facts,
it results that the interested parties consented to the registration of
the land in question in the name of Ernesto M. Guevara alone subject
to the implied trust on account of which he is under obligation to
deliver and convey to them their corresponding shares after all the
debts of the original owner of said land had been paid. Such finding
does not constitute a reversal of the decision and decree of
registration, which merely confirmed the petitioner's title; and in the
absence of any intervening innocent third party, the petitioner may be
compelled to fulfill the promise by virtue of which he acquired his title.
That is authorized by section 70 of the Land Registration Act, cited
by the Court of Appeals, and by the decision of this Court in Severino
vs. Severino, 44 Phil., 343, and the cases therein cited.
Upon this phase of the litigation, we affirm the finding of the Court of
Appeals that the northern half of the land described in the will exhibit
A and in original certificate of title No. 51691 still belongs to the estate
of the deceased Victorino L. Guevara. In the event the petitioner
Ernesto M. Guevara has alienated any portion thereof, he is under
obligation to compensate the estate with an equivalent portion from
the southern half of said land that has not yet been sold. In other
words, to the estate of Victorino L. Guevara still belongs one half of
the total area of the land described in said original certificate of title,
to be taken from such portions as have not yet been sold by the
petitioner, the other half having been lawfully acquired by the latter in
consideration of his assuming the obligation to pay all the debts of
the deceased.
Wherefore, that part of the decision of the Court of Appeals which
declares in effect that notwithstanding exhibit 2 and the issuance of
original certificate of title No. 51691 in the name of Ernesto M.
Guevara, one half of the land described in said certificate of title
belongs to the estate of Victorino L. Guevara and the other half to
Ernesto M. Guevara in consideration of the latter's assumption of the
obligation to pay all the debts of the deceased, is hereby affirmed;
but the judgment of said court insofar as it awards any relief to the
respondent Rosario Guevara in this action is hereby reversed and
set aside, and the parties herein are hereby ordered to present the
document exhibit A to the proper court for probate in accordance with
law, without prejudice to such action as the provincial fiscal of
Pangasinan may take against the responsible party or parties under
section 4 of Rule 76. After the said document is approved and
allowed by the court as the last will and testament of the deceased
Victorino L. Guevara, the heirs and legatees therein named may take
such action, judicial or extrajudicial, as may be necessary to partition
the estate of the testator, taking into consideration the
pronouncements made in part II of this opinion. No finding as to costs
in any of the three instances.
G.R. No. L-20234 December 23, 1964
PAULA DE LA CERNA, ET AL., petitioners,
vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE
COURT OF APPEALS, respondents.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision of the Court
of Appeals, Sixth Division (C.A.-G.R. No. 23763-R) reversing that of
the Court of First Instance of Cebu (Civ. Case No. R-3819) and
ordering the dismissal of an action for partition.
The factual background appears in the following portion of the
decision of the Court of Appeals (Petition, Annex A, pp. 2-4):
It appears that on May 9, 1939, the spouses, Bernabe de
la Serna and Gervasia Rebaca, executed a joint last will
and testament in the local dialect whereby they willed that
"our two parcels of land acquired during our marriage
together with all improvements thereon shall be given to
Manuela Rebaca, our niece, whom we have nurtured since
childhood, because God did not give us any child in our
union, Manuela Rebaca being married to Nicolas Potot",
and that "while each of the testators is yet living, he or she
will continue to enjoy the fruits of the two lands
 aforementioned", the said two parcels of land being
covered by Tax No. 4676 and Tax No. 6677, both situated
in sitio Bucao, barrio Lugo, municipality of Borbon,
province of Cebu. Bernabe dela Serna died on August 30,
1939, and the aforesaid will was submitted to probate by
said Gervasia and Manuela before the Court of First
Instance of Cebu which, after due publication as required
by law and there being no opposition, heard the evidence,
and, by Order of October 31, 1939; in Special Proceedings
No. 499, "declara legalizado el documento Exhibit A como
el testamento y ultima voluntad del finado Bernabe de la
Serna con derecho por parte du su viuda superstite
Gervasia Rebaca y otra testadora al propio tiempo segun
el Exhibit A de gozar de los frutos de los terranos descritos
en dicho documents; y habido consideracion de la cuantia
de dichos bienes, se decreta la distribucion sumaria de los
mismos en favor de la logataria universal Manuela Rebaca
de Potot previa prestacion por parte de la misma de una
fianza en la sum de P500.00 para responder de
cualesquiera reclamaciones que se presentare contra los
bienes del finado Bernabe de la Serna de los años desde
esta fecha" (Act Esp. 499, Testamentaria Finado Bernabe
de la Serna) Upon the death of Gervasia Rebaca on
October 14, 1952, another petition for the probate of the
same will insofar as Gervasia was concerned was filed on
November 6, 1952, being Special Proceedings No. 1016-
R of the same Court of First Instance of Cebu, but for
failure of the petitioner, Manuela R. Potot and her attorney,
Manuel Potot to appear, for the hearing of said petition, the
case was dismissed on March 30, 1954 Spec. Proc. No.
1016-R, In the matter of the Probate of the Will of Gervasia
Rebaca).
The Court of First Instance ordered the petition heard and declared
the testament null and void, for being executed contrary to the
prohibition of joint wills in the Civil Code (Art. 669, Civil Code of 1889
and Art. 818, Civil Code of the Philippines); but on appeal by the
testamentary heir, the Court of Appeals reversed, on the ground that
the decree of probate in 1939 was issued by a court of probate
jurisdiction and conclusive on the due execution of the testament.
Further, the Court of Appeals declared that:
... . It is true the law (Art. 669, old Civil Code; Art. 818, new
Civil Code). prohibits the making of a will jointly by two or
more persons either for their reciprocal benefit or for the
benefit of a third person. However, this form of will has long
been sanctioned by use, and the same has continued to
be used; and when, as in the present case, one such joint
last will and testament has been admitted to probate by
final order of a Court of competent jurisdiction, there seems
to be no alternative except to give effect to the provisions
thereof that are not contrary to law, as was done in the
case of Macrohon vs. Saavedra, 51 Phil. 267, wherein our
Supreme Court gave effect to the provisions of the joint will
therein mentioned, saying, "assuming that the joint will in
question is valid."
Whence this appeal by the heirs intestate of the deceased husband,
Bernabe de la Cerna.
The appealed decision correctly held that the final decree of probate,
entered in 1939 by the Court of First Instance of Cebu (when the
testator, Bernabe de la Cerna, died), has conclusive effect as to his
last will and testament despite the fact that even then the Civil Code
already decreed the invalidity of joint wills, whether in favor of the
joint testators, reciprocally, or in favor of a third party (Art. 669, old
Civil Code). The error thus committed by the probate court was an
error of law, that should have been corrected by appeal, but which
did not affect the jurisdiction of the probate court, nor the conclusive
effect of its final decision, however erroneous. A final judgment
rendered on a petition for the probate of a will is binding upon the
whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estates of
Johnson, 39 Phil. 156); and public policy and sound practice demand
that at the risk of occasional errors judgment of courts should become
final at some definite date fixed by law. Interest rei publicae ut finis
set litium (Dy Cay vs. Crossfield, 38 Phil, 521, and other cases cited
in 2 Moran, Comments on the Rules of Court (1963 Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe de la Cerna,
are concluded by the 1939 decree admitting his will to probate. The
contention that being void the will cannot be validated, overlooks that
the ultimate decision on Whether an act is valid or void rests with the
courts, and here they have spoken with finality when the will was
probated in 1939. On this court, the dismissal of their action for
partition was correct.
But the Court of Appeals should have taken into account also, to
avoid future misunderstanding, that the probate decree in 1989 could
only affect the share of the deceased husband, Bernabe de la Cerna.
It could not include the disposition of the share of the wife, Gervasia
Rebaca, who was then still alive, and over whose interest in the
conjugal properties the probate court acquired no jurisdiction,
precisely because her estate could not then be in issue. Be it
remembered that prior to the new Civil Code, a will could not be
probated during the testator's lifetime.
It follows that the validity of the joint will, in so far as the estate of the
wife was concerned, must be, on her death, reexamined and
adjudicated de novo, since a joint will is considered a separate will of
each testator. Thus regarded, the holding of the court of First
Instance of Cebu that the joint will is one prohibited by law was
correct as to the participation of the deceased Gervasia Rebaca in
the properties in question, for the reasons extensively discussed in
our decision in Bilbao vs. Bilbao, 87 Phil. 144, that explained the
previous holding in Macrohon vs. Saavedra, 51 Phil. 267.
Therefore, the undivided interest of Gervasia Rebaca should pass
upon her death to her heirs intestate, and not exclusively to the
testamentary heir, unless some other valid will in her favor is shown
to exist, or unless she be the only heir intestate of said Gervasia.
It is unnecessary to emphasize that the fact that joint wills should be
in common usage could not make them valid when our Civil Codes
consistently invalidated them, because laws are only repealed by
other subsequent laws, and no usage to the contrary may prevail
against their observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code
of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the Court
of Appeals in CA-G.R. No. 23763-R is affirmed. No Costs.
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
HITOSIS-BANARES VDA. DE BORRAS, CONRADA HITOSIS-
BANARES FRANCHE, RESTITUTO HITOSIS-BANARES,
DAMIAN HITOSIS-BANARES, FIDEL HITOSIS-BANARES,
SUSANA HITOSIS-BANARES RODRIGUEZ, JOSE HITOSIS,
LOLITA HITOSIS-BANEGA, minors MILAGROS HITOSIS-
BANEGA, ALICIA HITOSIS-BANEGA AND ELISA HITOSIS-
BANEGA, represented by their legal guardian and father
ERNESTO BANEGA, FELICITAS HITOSIS-PENAFLOR,
GENOVEVA HITOSIS-ADRIATICO, MANUEL HITOSIS, PEDRO
HITOSIS, LIBRATA HITOSIS-BALMES, JUANITA HITOSIS-
GABITO VDA. DE GABAS, MAURA HITOSIS-GABITO VDA. DE
GANOLA and LEONA HITOSIS-GABITO GAMBA, respondents.
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 dueño trial that Gallanosa
entered those lands in 1951 trial asserted ownership over the lands.
They prayed that they be declared the owners of the lands trial that
they be restored to the possession thereof. They also claimed
damages (Civil Case No. 696).
6. Gallanosa moved to dismiss the above complaint for lack of cause
of action trial on the ground of bar by the prior judgment in the probate
proceeding. Judge Anatolio C. Mañalac dismiss the complaint on the
ground of res judicatain his order of August 14, 1952 wherein he said:
It also appears that the plaintiffs and/or their predecessors-
in-interest had intervened in the testate proceedings in Civil
Case No. 3171 of this Court for- the purpose of contesting
the probate of the will of (the) late Florentino Hitosis; trial had
their opposition prospered trial the will denied of probate, the
proceedings would have been converted into one of intestacy
(Art. 960 Civil Code) and the settlement of the estate of the
said deceased would have been made in accordance with
the provisions of law governing legal or intestate succession
... , in which case the said plaintiffs, as the nearest of kin or
legal heirs of said Florentino Mitosis, would have succeeded
to the ownership and possession of the 61 parcels of land in
question forming part of his estate (art. 1003, Civil Code).
However, the derision of the Court was adverse to them,
when it their opposition trial ordered the probate of his will.
From this decision (Annex K) legalizing the said will, the
oppositors did not file any appeal within the period fixed by
law, despite the fact that they were duly notified thereof, so
that the said decision had become final trial it now constitutes
a bar to any action that the plaintiffs may institute for the
purpose of a redetermination of their rights to inherit the
properties of the late Florentino Hitosis.
In other words, the said decision of this Court in Civil Case
special ) No. 3171, in which the herein plaintiffs or their
predecessors-in-interest had intervened as parties
oppositors, constitutes a final judicial determination of the
issue that the said plaintiffs, as ordinary heirs, have no legal
rights to succeed to any of the properties of the late
Florentino Hitosis; consequently, their present claim to the
ownership trial possession of the 61 parcels of land in
question is without any legal merit or basis.
7. The plaintiffs did not appeal from that order of dismissal which
should have set the matter at rest. But the same plaintiffs or
oppositors to the probate of the will, trial their heirs, with a persistence
befitting a more meritorious case, filed on September 21, 1967, or
fifteen years after the dismissal of Civil Case No. 696 trial twenty-
eight years after the probate of the will another action in the same
court against the Gallanosa spouses trial Adolfo Fortajada for the
"annulment" of the will of Florentino Hitosis trial and for the recovery
of the same sixty-one parcels of land. They prayed for the
appointment of a receiver.
8. As basis of their complaint, they alleged that the Gallanosa
spouses, through fraud trial deceit, caused the execution trial
simulation of the document purporting to be the last will trial
testament of Florentino Hitosis. While in their 1952 complaint the
game plaintiffs alleged that they were in possession of the lands in
question, in their 1967 complaint they admitted that since 1939, or
from the death of Florentino Hitosis, the defendants (now the
petitioners) have been in possession of the disputed lands (Par. XIV
of the complaint, p. 70, Rollo in Civil Case No. 555, Gubat Branch,
which was transferred to Branch I in Sorsogon town where Special
Proceeding No. 3171 trial Civil Case No. 696 were decided trial which
was re-docketed as Civil Case No. 2233).
9. As already stated, that 1967 complaint, upon motion of the
defendants, now the petitioners, was dismissed by respondent
Judge. The plaintiffs filed a motion for reconsideration Respondent
Judge. granted it trial set aside the order of dismissal. He denied
defendants' motion for the reconsideration of his order setting aside
that dismissal order.
The petitioners or the defendants below contend in this certiorari
case that the lower court has no jurisdiction to set aside the 1939
decree of probate trial the 1952 order of dismissal in Civil Case No.
696 trial that it acted with grave abuse of discretion in not dismissing
private respondents' 1967 complaint.
The issue is whether, under the facts set forth above, the private
respondents have a cause of action the "annulment" of the will of
Florentino Hitosis trial for the recovery of the sixty-one parcels of land
adjudicated under that will to the petitioners.
We hold that the lower court committed a grave abuse of discretion
in reconsideration its order of dismissal trial in ignoring the 1939
testamentary case trial the 1952 Civil Case No. 696 which is the
same as the instant 1967 case.
A rudimentary knowledge of substantive law trial procedure is
sufficient for an ordinary lawyer to conclude upon a causal perusal of
the 1967 complaint that it is baseless trial unwarranted.
What the plaintiffs seek is the "annulment" of a last will trial testament
duly probated in 1939 by the lower court itself. The proceeding is
coupled with an action to recover the lands adjudicated to the
defendants by the same court in 1943 by virtue of the probated will,
which action is a resuscitation of The complaint of the same parties
that the same court dismissed in 1952.
It is evident from the allegations of the complaint trial from
defendants' motion to dismiss that plaintiffs' 1967 action is barred
by res judicata, a double-barrelled defense, trial by prescription,
acquisitive trial extinctive, or by what are known in the jus civile trial
the jus gentium as usucapio, longi temporis
possesio and praescriptio (See Ramos vs. Ramos, L-19872,
December 3, 1974, 61 SCRA 284).
Our procedural law does not sanction an action for the "annulment"
of a will. In order that a will may take effect, it has to be probated,
legalized or allowed in the proper testamentary proceeding. The
probate of the will is mandatory (Art. 838, Civil Code; sec. 1, Rule 75,
formerly sec. 1, Rule 76, Rules of Court; Guevara vs. Guevara, 74
Phil. 479; Guevara vs. Guevara, 98 Phil. 249).
The testamentary proceeding is a special proceeding for the
settlement of the testator's estate. A special proceeding is distinct
trial different from an ordinary action (Secs. 1 trial 2, Rule 2 trial sec.
1, Rule 72, Rules of Court).
We say that the defense of res judicata, as a ground for the dismissal
of plaintiffs' 1967 complaint, is a two-pronged defense because (1)
the 1939 trial 1943 decrees of probate trial distribution in Special
Proceeding No. 3171 trial (2) the 1952 order of dismissal in Civil Case
No. 696 of the lower court constitute bars by former judgment, Rule
39 of the Rules of Court provides:
SEC. 49. Effect of judgments. — The effect of a judgment or
final order rendered by a court or judge of the Philippines,
having jurisdiction to pronounce the judgment or order, may
be as follows:
(a) In case of a judgment or order against a specific thing, or
in respect to the probate of a will or the administration of the
estate of a deceased person, or in respect to the personal,
political, or legal condition or status of a particular person or
his relationship to another, the judgment or order is
conclusive upon the title to the thing the will or administration,
or the condition, status or relationship of the person;
however, the probate of a will or granting of letters of
administration shall only be prima facie evidence of the death
of the testator or intestate;
(b) In other cases the judgment or order is, with respect to
the matter directly adjudged or as to any other matter that
could have been raised in relation thereto, conclusive
between the parties trial their successors in interest by title
subsequent to the commencement of the action or special
proceeding, litigating of the same thing trial under the same
title trial in the same capacity;
(c) In any other litigation between the same parties or their
successors in interest, that only is deemed to have been
adjudged in a former judgment which appears upon its face
to have been so adjudged, or which was actually trial
necessarily included therein or necessary thereto.
The 1939 decree of probate is conclusive as to the due execution or
formal validity of the will (Sec. 625, Act 190, sec. 1, Rule 76, now sec.
1, Rule 75, Rules of Court; Last par. of art. 838, Civil Code).
That means that the testator was of sound trial disposing mind at the
time when he executed the will and was not acting under duress,
menace, fraud, or undue influence; that the will was signed by him in
the presence of the required number of witnesses, and that the will is
genuine trial is not a forgery. Accordingly, these facts cannot again
be questioned in a subsequent proceeding, not even in a criminal
action for the forgery of the will. (3 Moran's Comments on the Rules
of Court, 1970 Edition, p. 395; Manahan vs. Manahan, 58 Phil. 448).
After the finality of the allowance of a will, the issue as to the
voluntariness of its execution cannot be raised anymore (Santos vs.
De Buenaventura, L-22797, September 22, 1966, 18 SCRA 47).
In Austria vs. Ventenilla, 21 Phil. 180, a "petition for annulment of a
will" was not entertained after the decree of probate had become
final. That case is summarized as follows:
Wills; Probate; Alledged Fraudulent Will; Appeal.— V.
died. His will was admitted to probate without objection.
No appeal was taken from said order. It was admitted
that due trial legal notice had been given to all parties.
Fifteen months after the date of said order, a motion was
presented in the lower court to have said will declared
null and void, for the reason that fraud had been
practised upon the deceased in the making of his will.
Held: That under section 625 of Act No. 190, the only
time given parties who are displeased with the order
admitting to probate a will, for an appeal is the time given
for appeals in ordinary actions; but without deciding
whether or not an order admitting a will to probate will be
opened for fraud, after the time allowed for an appeal has
expired, when no appeal is taken from an order probating
a will, the heirs can not, in subsequent litigation in the
same proceedings, raise questions relating to its due
execution. The probate of a will is conclusive as to its due
execution trial as to the testamentary capacity of The
testator. (See Austria vs. Heirs of Ventenilla. 99 Phil.
1069).
On the other hand, the 1943 decree of adjudication rendered by the
trial court in the testate proceeding for the settlement of the estate of
Florentino Hitosis, having been rendered in a proceeding in rem, is
under the abovequoted section 49(a), binding upon the whole world
(Manalo vs. Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil.
156; De la Cerna vs. Potot, 120 Phil. 1361, 1364; McMaster vs.
Hentry Reissmann & Co., 68 Phil. 142).
It is not only the 1939 probate proceeding that can be interposed
as res judicata with respect to private respondents' complaint, The
1952 order of dismissal rendered by Judge Mañalac in Civil Case No.
696, a judgment in personam was an adjudication on the merits (Sec.
4, Rule 30, old Rules of Court). It constitutes a bar by former
judgment under the aforequoted section 49(b) (Anticamara vs. Ong,
L-29689. April 14, 1978).
The plaintiffs or private respondents did not even bother to ask for
the annulment of the testamentary proceeding trial the proceeding in
Civil Case No. 696. Obviously, they realized that the final
adjudications in those cases have the binding force of res
judicata and that there is no ground, nor is it timely, to ask for the
nullification of the final orders trial judgments in those two cases.
It is a fundamental concept in the organization of every jural system,
a principle of public policy, that, at the risk of occasional errors,
judgments of courts should become final at some definite date fixed
by law. Interest rei publicae ut finis sit litum. "The very object for
which the courts were constituted was to put an end to
controversies." (Dy Cay vs. Crossfield and O'Brien, 38 Phil. 521:
Peñalosa vs. Tuason, 22 Phil, 303; De la Cerna vs. Potot, supra).
After the period for seeking relief from a final order or judgment under
Rule 38 of the Rules of Court has expired, a final judgment or order
can be set aside only on the grounds of (a) lack of jurisdiction or lack
of due process of law or (b) that the judgment was obtained by means
of extrinsic or collateral fraud. In the latter case, the period for
annulling the judgment is four years from the discovery of the fraud
(2 Moran's Comments on the Rules of Court, 1970 Edition, pp. 245-
246; Mauricio vs. Villanueva, 106 Phil. 1159).
To hurdle over the obstacle of prescription, the trial court, naively
adopting the theory of plaintiffs' counsel, held that the action for the
recovery of the lands had not prescribed because the rule in article
1410 of the Civil Code, that "the action or defense for the declaration
of the inexistence of a contract does not prescribe", applies to wills.
That ruling is a glaring error. Article 1410 cannot possibly apply to
last wills trial testaments. The trial court trial plaintiffs' counsel relied
upon the case of Dingle vs. Guillermo, 48 0. G. 4410, allegedly
decided by this Court, which cited the ruling in Tipton vs. Velasco, 6
Phil. 67, that mere lapse of time cannot give efficacy to
void contracts, a ruling elevated to the category of a codal provision
in article 1410. The Dingle case was decided by the Court of
Appeals. Even the trial court did not take pains to verify the
misrepresentation of plaintiffs' counsel that the Dinglecase was
decided by this Court. An elementary knowledge of civil law could
have alerted the trial court to the egregious error of plaintiffs' counsel
in arguing that article 1410 applies to wills.
WHEREFORE, the lower court's orders of May 3 trial June 17, 1968
are reversed trial set aside trial its order of dismissal dated January
10, 1968 is affirmed. Costs against the private respondents.
SO ORDERED.
G.R. No. L-62952 October 9, 1985
SOFIA J. NEPOMUCENO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ,
OSCAR JUGO ANG, CARMELITA JUGO, respondents.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside that portion of the decision
of the respondent Court of Appeals (now intermediate Appellate
Court) dated June 3, 1982, as amended by the resolution dated
August 10, 1982, declaring as null and void the devise in favor of the
petitioner and the resolution dated December 28, 1982 denying
petitioner's motion for reconsideration.
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last
Will and Testament duly signed by him at the end of the Will on page
three and on the left margin of pages 1, 2 and 4 thereof in the
presence of Celestina Alejandro, Myrna C. Cortez, and Leandro
Leano, who in turn, affixed their signatures below the attestation
clause and on the left margin of pages 1, 2 and 4 of the Will in the
presence of the testator and of each other and the Notary Public. The
Will was acknowledged before the Notary Public Romeo Escareal by
the testator and his three attesting witnesses.
In the said Will, the testator named and appointed herein petitioner
Sofia J. Nepomuceno as his sole and only executor of his estate. It
is clearly stated in the Will that the testator was legally married to a
certain Rufina Gomez by whom he had two legitimate children, Oscar
and Carmelita, but since 1952, he had been estranged from his
lawfully wedded wife and had been living with petitioner as husband
and wife. In fact, on December 5, 1952, the testator Martin Jugo and
the petitioner herein, Sofia J. Nepomuceno were married in Victoria,
Tarlac before the Justice of the Peace. The testator devised to his
forced heirs, namely, his legal wife Rufina Gomez and his children
Oscar and Carmelita his entire estate and the free portion thereof to
herein petitioner. The Will reads in part:
Art. III. That I have the following legal heirs, namely: my
aforementioned legal wife, Rufina Gomez, and our son,
Oscar, and daughter Carmelita, both surnamed Jugo,
whom I declare and admit to be legally and properly
entitled to inherit from me; that while I have been estranged
from my above-named wife for so many years, I cannot
deny that I was legally married to her or that we have been
separated up to the present for reasons and justifications
known fully well by them:
Art. IV. That since 1952, 1 have been living, as man and
wife with one Sofia J. Nepomuceno, whom I declare and
avow to be entitled to my love and affection, for all the
things which she has done for me, now and in the past; that
while Sofia J. Nepomuceno has with my full knowledge and
consent, did comport and represent myself as her own
husband, in truth and in fact, as well as in the eyes of the
law, I could not bind her to me in the holy bonds of
matrimony because of my aforementioned previous
marriage;
On August 21, 1974, the petitioner filed a petition for the probate of
the last Will and Testament of the deceased Martin Jugo in the Court
of First Instance of Rizal, Branch XXXIV, Caloocan City and asked
for the issuance to her of letters testamentary.
On May 13, 1975, the legal wife of the testator, Rufina Gomez and
her children filed an opposition alleging inter alia that the execution
of the Will was procured by undue and improper influence on the part
of the petitioner; that at the time of the execution of the Will, the
testator was already very sick and that petitioner having admitted her
living in concubinage with the testator, she is wanting in integrity and
thus, letters testamentary should not be issued to her.
On January 6, 1976, the lower court denied the probate of the Will on
the ground that as the testator admitted in his Will to cohabiting with
the petitioner from December 1952 until his death on July 16, 1974,
the Will's admission to probate will be an Idle exercise because on
the face of the Will, the invalidity of its intrinsic provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the
Court of First Instance of Rizal denying the probate of the will. The
respondent court declared the Will to be valid except that the devise
in favor of the petitioner is null and void pursuant to Article 739 in
relation with Article 1028 of the Civil Code of the Philippines. The
dispositive portion of the decision reads:
WHEREFORE, the decision a quo is hereby set aside, the
will in question declared valid except the devise in favor of
the appellant which is declared null and void. The
properties so devised are instead passed on in intestacy to
the appellant in equal shares, without pronouncement as
to cost.
On June 15, 1982, oppositors Rufina Gomez and her children filed a
"Motion for Correction of Clerical Error" praying that the word
"appellant" in the last sentence of the dispositive portion of the
decision be changed to "appellees" so as to read: "The properties so
devised are instead passed on intestacy to the appellees in equal
shares, without pronouncement as to costs." The motion was granted
by the respondent court on August 10, 1982.
On August 23, 1982, the petitioner filed a motion for reconsideration.
This was denied by the respondent court in a resolution dated
December 28, 1982.
The main issue raised by the petitioner is whether or not the
respondent court acted in excess of its jurisdiction when after
declaring the last Will and Testament of the deceased Martin Jugo
validly drawn, it went on to pass upon the intrinsic validity of the
testamentary provision in favor of herein petitioner.
The petitioner submits that the validity of the testamentary provision
in her favor cannot be passed upon and decided in the probate
proceedings but in some other proceedings because the only
purpose of the probate of a Will is to establish conclusively as against
everyone that a Will was executed with the formalities required by
law and that the testator has the mental capacity to execute the
same. The petitioner further contends that even if the provisions of
paragraph 1 of Article 739 of the Civil Code of the Philippines were
applicable, the declaration of its nullity could only be made by the
proper court in a separate action brought by the legal wife for the
specific purpose of obtaining a declaration of the nullity of the
testamentary provision in the Will in favor of the person with whom
the testator was allegedly guilty of adultery or concubinage.
The respondents on the other hand contend that the fact that the last
Will and Testament itself expressly admits indubitably on its face the
meretricious relationship between the testator and the petitioner and
the fact that petitioner herself initiated the presentation of evidence
on her alleged ignorance of the true civil status of the testator, which
led private respondents to present contrary evidence, merits the
application of the doctrine enunciated in Nuguid v. Felix Nuguid, et
al. (17 SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio Martinez,
et al. (G.R. No. L- 39247, June 27, 1975). Respondents also submit
that the admission of the testator of the illicit relationship between him
and the petitioner put in issue the legality of the devise. We agree
with the respondents.
The respondent court acted within its jurisdiction when after declaring
the Will to be validly drawn, it went on to pass upon the intrinsic
validity of the Will and declared the devise in favor of the petitioner
null and void.
The general rule is that in probate proceedings, the court's area of
inquiry is limited to an examination and resolution of the extrinsic
validity of the Will. The rule is expressed thus:
xxx xxx xxx
 ... It is elementary that a probate decree finally and
definitively settles all questions concerning capacity of
the testator and the proper execution and witnessing of
his last Will and testament, irrespective of whether its
provisions are valid and enforceable or
otherwise. (Fernandez v. Dimagiba, 21 SCRA 428)
The petition below being for the probate of a Will, the
court's area of inquiry is limited to the extrinsic validity
thereof. The testators testamentary capacity and the
compliance with the formal requisites or solemnities
prescribed by law are the only questions presented for
the resolution of the court. Any inquiry into
the intrinsic validity or efficacy of the provisions of the will
or the legality of any devise or legacy is premature.
xxx xxx xxx
True or not, the alleged sale is no ground for the
dismissal of the petition for probate. Probate is one thing;
the validity of the testamentary provisions is another. The
first decides the execution of the document and the
testamentary capacity of the testator; the second relates
to descent and distribution (Sumilang v. Ramagosa, 21
SCRA 1369)
xxx xxx xxx
To establish conclusively as against everyone, and once
for all, the facts that a will was executed with the
formalities required by law and that the testator was in a
condition to make a will, is the only purpose of the
proceedings under the new code for the probate of a will.
(Sec. 625). The judgment in such proceedings
determines and can determine nothing more. In them the
court has no power to pass upon the validity of any
provisions made in the will. It can not decide, for
example, that a certain legacy is void and another one
valid. ... (Castaneda v. Alemany, 3 Phil. 426)
The rule, however, is not inflexible and absolute. Given exceptional
circumstances, the probate court is not powerless to do what the
situation constrains it to do and pass upon certain provisions of the
Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the
testator instituted the petitioner as universal heir and completely
preterited her surviving forced heirs. A will of this nature, no matter
how valid it may appear extrinsically, would be null and void.
Separate or latter proceedings to determine the intrinsic validity of
the testamentary provisions would be superfluous.
Even before establishing the formal validity of the will, the Court
in Balanay .Jr. v. Martinez (64 SCRA 452) passed upon the validity
of its intrinsic provisions.
Invoking "practical considerations", we stated:
The basic issue is whether the probate court erred in
passing upon the intrinsic validity of the will, before ruling
on its allowance or formal validity, and in declaring it void.
We are of the opinion that in view of certain unusual
provisions of the will, which are of dubious legality, and
because of the motion to withdraw the petition for
probate (which the lower court assumed to have been
filed with the petitioner's authorization) the trial court
acted correctly in passing upon the will's intrinsic validity
even before its formal validity had been established. The
probate of a will might become an Idle ceremony if on its
face it appears to be intrinsically void. Where practical
considerations demand that the intrinsic validity of the
will be passed upon, even before it is probated, the court
should meet the issue (Nuguid v. Nuguid, 64 O.G. 1527,
17 SCRA 449. Compare with Sumilang vs. Ramagosa L-
23135, December 26, 1967, 21 SCRA 1369; Cacho v.
Udan L-19996, April 30, 1965, 13 SCRA 693).
There appears to be no more dispute at this time over the extrinsic
validity of the Will. Both parties are agreed that the Will of Martin Jugo
was executed with all the formalities required by law and that the
testator had the mental capacity to execute his Will. The petitioner
states that she completely agrees with the respondent court when in
resolving the question of whether or not the probate court correctly
denied the probate of Martin Jugo's last Will and Testament, it ruled:
This being so, the will is declared validly drawn.
(Page 4, Decision, Annex A of Petition.)
On the other hand the respondents pray for the affirmance of the
Court of Appeals' decision in toto.
The only issue, therefore, is the jurisdiction of the respondent court
to declare the testamentary provision in favor of the petitioner as null
and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid v.
Nuguid, (supra):
We pause to reflect. If the case were to be remanded
for probate of the will, nothing will be gained. On the
contrary, this litigation will be protracted. And for aught
that appears in the record, in the record, in the event
of probate or if the court rejects the will, probability
exists that the case will come up once again before us
on the same issue of the intrinsic validity or nullity of
the will. Result, waste of time, effort, expense, plus
added anxiety. These are the practical considerations
that induce us to a belief that we might as well meet
head-on the issue of the validity of the provisions of the
will in question. (Section 2, Rule 1, Rules of Court.
Case, et al. v. Jugo, et al., 77 Phil. 517, 522). After all,
there exists a justiciable controversy crying for
solution.
We see no useful purpose that would be served if we remand the
nullified provision to the proper court in a separate action for that
purpose simply because, in the probate of a will, the court does not
ordinarily look into the intrinsic validity of its provisions.
Article 739 of the Civil Code provides:
The following donations shall be void:
(1) Those made between persons who were guilty of
adultery or concubinage at the time of the donation;
(2) Those made between persons found guilty of the
same criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife,
descendants and ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration
of nullity may be brought by the spouse of the donor or
donee; and the guilt of the donor and donee may be
proved by preponderance of evidence in the same
action.
Article 1028 of the Civil Code provides:
The prohibitions mentioned in Article 739, concerning
donations inter vivos shall apply to testamentary
provisions.
In Article III of the disputed Will, executed on August 15, 1968, or
almost six years before the testator's death on July 16, 1974, Martin
Jugo stated that respondent Rufina Gomez was his legal wife from
whom he had been estranged "for so many years." He also declared
that respondents Carmelita Jugo and Oscar Jugo were his legitimate
children. In Article IV, he stated that he had been living as man and
wife with the petitioner since 1952. Testator Jugo declared that the
petitioner was entitled to his love and affection. He stated that
Nepomuceno represented Jugo as her own husband but "in truth and
in fact, as well as in the eyes of the law, I could not bind her to me in
the holy bonds of matrimony because of my aforementioned previous
marriage.
There is no question from the records about the fact of a prior existing
marriage when Martin Jugo executed his Will. There is also no
dispute that the petitioner and Mr. Jugo lived together in an ostensible
marital relationship for 22 years until his death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J.
Nepomuceno contracted a marriage before the Justice of the Peace
of Victoria, Tarlac. The man was then 51 years old while the woman
was 48. Nepomuceno now contends that she acted in good faith for
22 years in the belief that she was legally married to the testator.
The records do not sustain a finding of innocence or good faith. As
argued by the private respondents:
First. The last will and testament itself expressly admits
indubitably on its face the meretricious relationship
between the testator and petitioner, the devisee.
Second. Petitioner herself initiated the presentation of
evidence on her alleged ignorance of the true civil status of
the testator, which led private respondents to present
contrary evidence.
In short, the parties themselves dueled on the intrinsic
validity of the legacy given in the will to petitioner by the
deceased testator at the start of the proceedings.
Whether or not petitioner knew that testator Martin Jugo,
the man he had lived with as man and wife, as already
married, was an important and specific issue brought by
the parties before the trial court, and passed upon by the
Court of Appeals.
Instead of limiting herself to proving the extrinsic validity of
the will, it was petitioner who opted to present evidence on
her alleged good faith in marrying the testator. (Testimony
of Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 62-
64).
Private respondents, naturally, presented evidence that
would refute the testimony of petitioner on the point.
Sebastian Jugo, younger brother of the deceased testator,
testified at length on the meretricious relationship of his
brother and petitioner. (TSN of August 18,1975).
Clearly, the good faith of petitioner was by option of the
parties made a decisive issue right at the inception of the
case.
Confronted by the situation, the trial court had to make a
ruling on the question.
When the court a quo held that the testator Martin Jugo
and petitioner 'were deemed guilty of adultery or
concubinage', it was a finding that petitioner was not the
innocent woman she pretended to be.
xxx xxx xxx
3. If a review of the evidence must be made nonetheless,
then private respondents respectfully offer the following
analysis:
FIRST: The secrecy of the marriage of petitioner with the
deceased testator in a town in Tarlac where neither she nor
the testator ever resided. If there was nothing to hide from,
why the concealment' ? Of course, it maybe argued that
the marriage of the deceased with private respondent
Rufina Gomez was likewise done in secrecy. But it should
be remembered that Rufina Gomez was already in the
family way at that time and it would seem that the parents
of Martin Jugo were not in favor of the marriage so much
so that an action in court was brought concerning the
marriage. (Testimony of Sebastian Jugo, TSN of August
18, 1975, pp. 29-30)
SECOND: Petitioner was a sweetheart of the deceased
testator when they were still both single. That would be in
1922 as Martin Jugo married respondent Rufina Gomez on
November 29, 1923 (Exh. 3). Petitioner married the
testator only on December 5, 1952. There was a space of
about 30 years in between. During those 30 years, could it
be believed that she did not even wonder why Martin Jugo
did not marry her nor contact her anymore after November,
1923 - facts that should impel her to ask her groom before
she married him in secrecy, especially so when she was
already about 50 years old at the time of marriage.
THIRD: The fact that petitioner broke off from Martin Jugo
in 1923 is by itself conclusive demonstration that she new
that the man she had openly lived for 22 years as man and
wife was a married man with already two children.
FOURTH: Having admitted that she knew the children of
respondent Rufina Gomez, is it possible that she would not
have asked Martin Jugo whether or not they were his
illegitimate or legitimate children and by whom? That is un-
Filipino.
FIFTH: Having often gone to Pasig to the residence of the
parents of the deceased testator, is it possible that she
would not have known that the mother of private
respondent Oscar Jugo and Carmelita Jugo was
respondent Rufina Gomez, considering that the houses of
the parents of Martin Jugo (where he had lived for many
years) and that of respondent Rufina Gomez were just a
few meters away?
Such pretentions of petitioner Sofia Nepomuceno are
unbelievable. They are, to say the least, inherently
improbable, for they are against the experience in common
life and the ordinary instincts and promptings of human
nature that a woman would not bother at all to ask the man
she was going to marry whether or not he was already
married to another, knowing that her groom had children.
It would be a story that would strain human credulity to the
limit if petitioner did not know that Martin Jugo was already
a married man in view of the irrefutable fact that it was
precisely his marriage to respondent Rufina Gomez that
led petitioner to break off with the deceased during their
younger years.
Moreover, the prohibition in Article 739 of the Civil Code is against
the making of a donation between persons who are living in adultery
or concubinage. It is the donation which becomes void. The giver
cannot give even assuming that the recipient may receive. The very
wordings of the Will invalidate the legacy because the testator
admitted he was disposing the properties to a person with whom he
had been living in concubinage.
WHEREFORE, the petition is DISMISSED for lack of merit. The
decision of the Court of Appeals, now Intermediate Appellate Court,
is AFFIRMED. No costs.
SO ORDERED.
G.R. No. L-23079 February 27, 1970
RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA and LAURO
AUSTRIA MOZO, petitioners,
vs.
HON. ANDRES REYES, Judge, Court of First Instance of Rizal,
PERFECTO CRUZ, BENITA CRUZ-MENEZ ISAGANI CRUZ,
ALBERTO CRUZ and LUZ CRUZ-SALONGA respondents
CASTRO, J.:
On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of
First Instance of Rizal (Special Proceedings 2457) a petition for
probate, ante mortem, of her last will and testament. The probate was
opposed by the present petitioners Ruben Austria, Consuelo Austria-
Benta and Lauro Austria Mozo, and still others who, like the
petitioner, are nephews and nieces of Basilia. This opposition was,
however, dismissed and the probate of the will allowed after due
hearing.
The bulk of the estate of Basilia, admittedly, was destined under the
will to pass on to the respondents Perfecto Cruz, Benita Cruz-Meñez,
Isagani Cruz, Alberto Cruz, and Luz Cruz-Salonga, all of whom had
been assumed and declared by Basilia as her own legally adopted
children.
On April 23, 1959, more than two years after her will was allowed to
probate, Basilia died. The respondent Perfecto Cruz was appointed
executor without bond by the same court in accordance with the
provisions of the decedent's will, notwithstanding the blocking
attempt pursued by the petitioner Ruben Austria.
Finally, on November 5, 1959, the present petitioners filed in the
same proceedings a petition in intervention for partition alleging in
substance that they are the nearest of kin of Basilia, and that the five
respondents Perfecto Cruz, et al., had not in fact been adopted by
the decedent in accordance with law, in effect rendering these
respondents mere strangers to the decedent and without any right to
succeed as heirs.
Notwithstanding opposition by the respondent Perfecto Cruz, as
executor of the estate, the court a quo allowed the petitioners'
intervention by its order of December 22, 1959, couched in broad
terms, as follows: "The Petition in Intervention for Partition filed by
the above-named oppositors [Ruben Austria, et al.,] dated November
5, 1959 is hereby granted."
In the meantime, the contending sides debated the matter of
authenticity or lack of it of the several adoption papers produced and
presented by the respondents. On motion of the petitioners Ruben
Austria, et al., these documents were referred to the National Bureau
of Investigation for examination and advice. N.B.I. report seems to
bear out the genuineness of the documents, but the petitioners,
evidently dissatisfied with the results, managed to obtain a
preliminary opinion from a Constabulary questioned-document
examiner whose views undermine the authenticity of the said
documents. The petitioners Ruben Austria, et al., thus moved the
lower court to refer the adoption papers to the Philippine
Constabulary for further study. The petitioners likewise located
former personnel of the court which appeared to have granted the
questioned adoption, and obtained written depositions from two of
them denying any knowledge of the pertinent adoption proceedings.
On February 6, 1963, more than three years after they were allowed in Basilia's will. This ruling apparently finds support in article, 842 of
to intervene, the petitioners Ruben Austria, let al., moved the lower the Civil Code which reads:
court to set for hearing the matter of the genuineness of the adoption
of the respondents Perfecto Cruz, et al., by the late Basilia. Before
One who has no compulsory heirs may dispose of by
the date set by the court for hearing arrived, however, the respondent
will all his estate or any part of it in favor of any
Benita Cruz-Meñez who entered an appearance separately from that
person having capacity to succeed.
of her brother Perfecto Cruz, filed on February 28, 1963 a motion
asking the lower court, by way of alternative relief, to confine the
petitioners' intervention, should it be permitted, to properties not One who has compulsory heirs may dispose of his
disposed of in the will of the decedent. estate provided he does not contravene the
provisions of this Code with regard to the legitime of
said heirs.
On March 4, 1963, the lower court heard the respondent Benita's
motion. Both sides subsequently submitted their respective
memoranda, and finally, the lower court issued an order on June 4, The lower court must have assumed that since the petitioners
1963, delimiting the petitioners' intervention to the properties of the nephews and niece are not compulsory heirs, they do not possess
deceased which were not disposed of in the will. that interest which can be prejudiced by a free-wheeling testamentary
disposition. The petitioners' interest is confined to properties, if any,
that have not been disposed of in the will, for to that extent intestate
The petitioners moved the lower court to reconsider this latest order,
succession can take place and the question of the veracity of the
eliciting thereby an opposition, from the respondents. On October 25,
adoption acquires relevance.
1963 the same court denied the petitioners' motion for
reconsideration.
The petitioners nephews and niece, upon the other hand, insist that
the entire estate should descend to them by intestacy by reason of
A second motion for reconsideration which set off a long exchange
the intrinsic nullity of the institution of heirs embodied in the
of memoranda from both sides, was summarily denied on April 21,
decedent's will. They have thus raised squarely the issue of whether
1964.
or not such institution of heirs would retain efficacy in the event there
exists proof that the adoption of the same heirs by the decedent is
Hence this petition for certiorari, praying this Court to annul the false.
orders of June 4 and October 25, 1963 and the order of April 21,
1964, all restricting petitioners' intervention to properties that were
The petitioners cite, as the controlling rule, article 850 of the Civil
not included in the decedent's testamentary dispositions.
Code which reads:
The uncontested premises are clear. Two interests are locked in
The statement of a false cause for the institution of an
dispute over the bulk of the estate of the deceased. Arrayed on one
heir shall be considered as not written, unless it
side are the petitioners Ruben Austria, Consuelo Austria-Benta and
appears from the will that the testator would not have
Lauro Austria Mozo, three of a number of nephews and nieces who
made such institution if he had known the falsity of
are concededly the nearest surviving blood relatives of the decedent.
such cause.
On the other side are the respondents brothers and sisters, Perfecto
Cruz, Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz and Luz Cruz-
Salonga, all of whom heirs in the will of the deceased Basilia, and all Coming closer to the center of the controversy, the petitioners have
of whom claim kinship with the decedent by virtue of legal adoption. called the attention of the lower court and this Court to the following
At the heart of the controversy is Basilia's last will — immaculate in pertinent portions of the will of the deceased which recite:
its extrinsic validity since it bears the imprimatur of duly conducted
probate proceedings.
III
The complaint in intervention filed in the lower court assails the
Ang aking mga sapilitang tagapagmana (herederos
legality of the tie which the respondent Perfecto Cruz and his brothers
forzosos) ay ang aking itinuturing na mga anak na tunay
and sisters claim to have with the decedent. The lower court had,
(Hijos legalmente adoptados) na sina Perfecto, Alberto,
however, assumed, by its orders in question, that the validity or
Luz, Benita at Isagani, na pawang may apelyidong Cruz.
invalidity of the adoption is not material nor decisive on the efficacy
of the institution of heirs; for, even if the adoption in question were
spurious, the respondents Perfecto Cruz, et al., will nevertheless xxx xxx xxx
succeed not as compulsory heirs but as testamentary heirs instituted
 Kung ako ay bawian ng Dios ng buhay, ay aking
ipinamamana ang aking mga ari-ariang maiiwan, sa
kaparaanang sumusunod:
A.—Aking ipinamamana sa aking nabanggit na limang
anak na sina Perfecto, Alberto, Luz, Benita at Isagani, na
pawang may apelyidong Cruz, na parepareho ang
kaparti ng bawa't isa at walang lamangan (en partes
iguales), bilang kanilang sapilitang mana (legiti[ma]), ang
kalahati (½) ng aking kaparti sa lahat ng aming ari-ariang
gananciales ng aking yumaong asawang Pedro Cruz na
napapaloob sa Actuacion Especial No. 640 ng
Hukumang Unang Dulugan ng Rizal at itinutukoy sa No.
1 ng parafo IV ng testamentong ito, ang kalahati (½) ng
mga lagay na lupa at palaisdaan na nasa Obando at
Polo, Bulacan, na namana ko sa aking yumaong ama na
si Calixto Austria, at ang kalahati (½) ng ilang lagay na
lupa na nasa Tinejeros, Malabon, Rizal, na aking
namana sa yumao kong kapatid na si Fausto Austria.
The tenor of the language used, the petitioners argue, gives rise to
the inference that the late Basilia was deceived into believing that she
was legally bound to bequeath one-half of her entire estate to the
respondents Perfecto Cruz, et al. as the latter's legitime. The
petitioners further contend that had the deceased known the adoption
to be spurious, she would not have instituted the respondents at all
— the basis of the institution being solely her belief that they were
compulsory heirs. Proof therefore of the falsity of the adoption would
cause a nullity of the institution of heirs and the opening of the estate
wide to intestacy. Did the lower court then abuse its discretion or act
in violation of the rights of the parties in barring the petitioners
nephews and niece from registering their claim even to properties
adjudicated by the decedent in her will?
Before the institution of heirs may be annulled under article 850 of
the Civil Code, the following requisites must concur: First, the cause
for the institution of heirs must be stated in the will; second, the cause
must be shown to be false; and third, it must appear from the face of
the will that the testator would not have made such institution if he
had known the falsity of the cause.
The petitioners would have us imply, from the use of the terms,
"sapilitang tagapagmana" (compulsory heirs) and "sapilitang mana"
(legitime), that the impelling reason or cause for the institution of the
respondents was the testatrix's belief that under the law she could
not do otherwise. If this were indeed what prompted the testatrix in
instituting the respondents, she did not make it known in her will.
Surely if she was aware that succession to the legitime takes place
by operation of law, independent of her own wishes, she would not
have found it convenient to name her supposed compulsory heirs to
their legitimes. Her express adoption of the rules on legitimes should
very well indicate her complete agreement with that statutory
scheme. But even this, like the petitioners' own proposition, is highly
speculative of what was in the mind of the testatrix when she
executed her will. One fact prevails, however, and it is that the avoided and the wishes of the testator allowed to prevail, that we
decedent's will does not state in a specific or unequivocal manner the could even vary the language of the will for the purpose of giving it
cause for such institution of heirs. We cannot annul the same on the effect.3 A probate court has found, by final judgment, that the late
basis of guesswork or uncertain implications. Basilia Austria Vda. de Cruz was possessed of testamentary capacity
and her last will executed free from falsification, fraud, trickery or
undue influence. In this situation, it becomes our duty to give full
And even if we should accept the petitioners' theory that the decedent
expression to her will.4
instituted the respondents Perfecto Cruz, et al. solely because she
believed that the law commanded her to do so, on the false
assumption that her adoption of these respondents was valid, still At all events, the legality of the adoption of the respondents by the
such institution must stand. testatrix can be assailed only in a separate action brought for that
purpose, and cannot be the subject of a collateral attack.5
Article 850 of the Civil Code, quoted above, is a positive injunction to
ignore whatever false cause the testator may have written in his will To the petitioners' charge that the lower court had no power to
for the institution of heirs. Such institution may be annulled only when reverse its order of December 22, 1959, suffice it to state that, as
one is satisfied, after an examination of the will, that the testator borne by the records, the subsequent orders complained of served
clearly would not have made the institution if he had known the cause merely to clarify the first — an act which the court could legally do.
for it to be false. Now, would the late Basilia have caused the Every court has the inherent power to amend and control its
revocation of the institution of heirs if she had known that she was processes and orders so as to make them conformable to law and
mistaken in treating these heirs as her legally adopted children? Or justices.6 That the court a quo has limited the extent of the
would she have instituted them nonetheless? petitioners' intervention is also within its powers as articulated by the
Rules of Court.7
The decedent's will, which alone should provide the answer, is mute
on this point or at best is vague and uncertain. The phrases, "mga ACCORDINGLY, the present petition is denied, at petitioners cost.
sapilitang tagapagmana" and "sapilitang mana," were borrowed from
the language of the law on succession and were used, respectively,
to describe the class of heirs instituted and the abstract object of the
inheritance. They offer no absolute indication that the decedent
would have willed her estate other than the way she did if she had
known that she was not bound by law to make allowance for
legitimes. Her disposition of the free portion of her estate (libre
disposicion) which largely favored the respondent Perfecto Cruz, the
latter's children, and the children of the respondent Benita Cruz,
shows a perceptible inclination on her part to give to the respondents
more than what she thought the law enjoined her to give to them.
Compare this with the relatively small devise of land which the
decedent had left for her blood relatives, including the petitioners
Consuelo Austria-Benta and Lauro Mozo and the children of the
petitioner Ruben Austria. Were we to exclude the respondents
Perfecto Cruz, et al. from the inheritance, then the petitioners and the
other nephews and nieces would succeed to the bulk of the testate
by intestacy — a result which would subvert the clear wishes of the
decedent.
Whatever doubts one entertains in his mind should be swept away
by these explicit injunctions in the Civil Code: "The words of a will are
to receive an interpretation which will give to every expression some
effect, rather than one which will render any of the expressions
inoperative; and of two modes of interpreting a will, that is to be
preferred which will prevent intestacy." 1
Testacy is favored and doubts are resolved on its side, especially
where the will evinces an intention on the part of the testator to
dispose of practically his whole estate,2 as was done in this case.
Moreover, so compelling is the principle that intestacy should be