ARTICLES FOR MEMORIZATION

804 805 806 


815 816 817

828 829 830

838 839 

840 841 842 843
CASES FOR RECITATION

828-830 CASES


GAGO vs.MAMUYAC


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.

LIPANA vs LIPANA
A petition for certiorari.

One Eliodora Lipana filed in the respondent court an application for the probate of a will supposedly
executed by the deceased, Manuela Lipana, a carbon copy of which was attached to the application.
Natividad Lipana filed an opposition, and her "oposicion supletoria" she claimed that evidence was
unnecessary upon the facts alleged in the application, the copy of the will attached thereto showing, in itself,
that the will had not been executed in accordance with law. The respondent court, after inspecting the copy
of the will, dismissed the application on the ground that such copy could not be admitted to probate, it not
having been signed by the testatrix and the attesting witnesses at the end thereof and on the left margin of
each page. It is against this order of dismissal that the petition for certiorari has been filed with this court.

There can be no doubt that the respondent court acted in excess of its jurisdiction in rendering a judgment
upon the merits of the case without a previous hearing. The pronouncement made by the respondent court
that the will had not been executed in accordance with law, is founded undoubtedly on the erroneous
assumption that the probate of the carbon copy of the will was being applied for. Such copy was attached to
the application merely to corroborate the allegation as to the existence of its original and not to establish a
full compliance with the requirements of the law as to the execution of the will. Such requirements are
alleged in the application to have been complied with and may proved at the hearing.

It is apparent from the application that what is sought to be admitted to probate is the original of the will. It is
alleged therein that the original was in the possession of a third person or that it was either lost or destroyed
by some person other than the testatrix. Under section 623 of Act No. 190. if a will is shown to have been
torn by some other person without the express direction of the testator. it may be admitted to probate, if its
contents, due execution and its unauthorized destruction are established by satisfactory evidence. The
applicant, therefore, was entitled to hearing to prove the due execution of the original will and its loss or
destruction, and the respondent court had no statutory authority to dismiss the application without such
hearing.

It is alleged that, according to sections 217 and 514 of Act No. 190, a writ of certiorari may be granted only
where "there is no plain, speedy and adequate remedy by bill of exceptions, or otherwise." This rule,
however, recognizes an exception. There the order or judgment is a nullity by virtue of its recitals, as, in the
instant case, wherein the order complained of recites that there had been no hearing of the facts alleged in
the application, it may be attacked in any way and at any time, even when no appeal has been taken. (Banco
Español-Filipino vs. Palanca, 37 Phil., 921, 949.) This is a exactly the same as a judgment in a criminal case
wherein it is stated that there is no need of trial and the accused is convicted merely upon the allegations of
the information. Such judgment may be "held to be 'a dead limb on the judicial tree, which should be lopped
of' or wholly disregarded as the circumstances require." (Anuran vs. Aquino, 38 Phil., 29, 36.) Indeed, we
have once held that a judgment with absolutely nothing to support it, is a nullity, and may be voided at least
by a proceeding in certiorari. (Yangco vs. Court of First Instance of Manila, 29 Phil., 183, 191.)

A motion for contempt is filed by the petitioner against attorney Fortunato Jose due to certain statements
made by the latter in his written argument and which are derogatory to the good name of petitioner's
attorney. We reiterate here what we have observed on several occasions, that attorneys should not abuse
the privilege accorded them in their defense of cases in courts of justice, by indulging in offensive
personalities which can in no way aid in the proper elucidation of the issues. We disapprove of the conduct of
attorney Fortunato Jose and he is hereby warned that a similar misbehavior on his part in the future will be
appropriate dealt with.

The order of the respondent court of November 29, 1939, issued in its civil case No. 3626, is hereby set
aside, with costs against respondents.

MALOTO vs. CA

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.

Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of Adriana's counsel,
the late Atty. Eliseo Hervas, discovered a document entitled "KATAPUSAN NGA PAGBUBULAT-AN
(Testamento)," dated January 3,1940, and purporting to be the last will and testament of Adriana. Atty. Palma
claimed to have found the testament, the original copy, while he was going through some materials inside the
cabinet drawer formerly used by Atty. Hervas. The document was submitted to the office of the clerk of the
Court of First Instance of Iloilo on April 1, 1967. Incidentally, while Panfilo and Felino are still named as heirs
in the said will, Aldina and Constancio are bequeathed much bigger and more valuable shares in the estate
of Adriana than what they received by virtue of the agreement of extrajudicial settlement they had earlier
signed. The will likewise gives devises and legacies to other parties, among them being the petitioners Asilo
de Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor.

Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees named in the will,
filed in Special Proceeding No. 1736 a motion for reconsideration and annulment of the proceedings therein
and for the allowance of the will When the trial court denied their motion, the petitioner came to us by way of
a petition for certiorari and mandamus assailing the orders of the trial court . 3 As we stated earlier, we
dismissed that petition and advised that a separate proceeding for the probate of the alleged will would be
the appropriate vehicle to thresh out the matters raised by the petitioners.

Significantly, the appellate court while finding as inconclusive the matter on whether or not the document or
papers allegedly burned by the househelp of Adriana, Guadalupe Maloto Vda. de Coral, upon instructions of
the testatrix, was indeed the will, contradicted itself and found that the will had been revoked. The
respondent court stated that the presence of animus revocandi in the destruction of the will had,
nevertheless, been sufficiently proven. The appellate court based its finding on the facts that the document
was not in the two safes in Adriana's residence, by the testatrix going to the residence of Atty. Hervas to
retrieve a copy of the will left in the latter's possession, and, her seeking the services of Atty. Palma in order
to have a new will drawn up. For reasons shortly to be explained, we do not view such facts, even
considered collectively, as sufficient bases for the conclusion that Adriana Maloto's will had been effectively
revoked.

There is no doubt as to the testamentary capacity of the testatrix and the due execution of the will. The heart
of the case lies on the issue as to whether or not the will was revoked by Adriana.

The provisions of the new Civil Code pertinent to the issue can be found in Article 830.

Art. 830. No will shall be revoked except in the following cases:

(1) By implication of law; or

(2) By some will, codicil, or other writing executed as provided in case of wills: or

(3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator
himself, or by some other person in his presence, and by his express direction. If burned, torn cancelled, or
obliterated by some other person, without the express direction of the testator, the will may still be
established, and the estate distributed in accordance therewith, if its contents, and due execution, and the
fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of
Court. (Emphasis Supplied.)

It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute an
effective revocation, unless the destruction is coupled with animus revocandi on the part of the testator. It is
not imperative that the physical destruction be done by the testator himself. It may be performed by another
person but under theexpress direction and in the presence of the testator. Of course, it goes without saying
that the document destroyed must be the will itself.

In this case, while animus revocandi or the intention to revoke, may be conceded, for that is a state of mind,
yet that requisite alone would not suffice. "Animus revocandi is only one of the necessary elements for the
effective revocation of a last will and testament. The intention to revoke must be accompanied by the overt
physical act of burning, tearing, obliterating, or cancelling the will carried out by the testator or by another
person in his presence and under his express direction. There is paucity of evidence to show compliance
with these requirements. For one, the document or papers burned by Adriana's maid, Guadalupe, was not
satisfactorily established to be a will at all, much less the will of Adriana Maloto. For another, the burning was
not proven to have been done under the express direction of Adriana. And then, the burning was not in
her presence. Both witnesses, Guadalupe and Eladio, were one in stating that they were the only ones
present at the place where the stove (presumably in the kitchen) was located in which the papers proffered
as a will were burned.

The respondent appellate court in assessing the evidence presented by the private respondents as
oppositors in the trial court, concluded that the testimony of the two witnesses who testified in favor of the
will's revocation appear "inconclusive." We share the same view. Nowhere in the records before us does it
appear that the two witnesses, Guadalupe Vda. de Corral and Eladio Itchon, both illiterates, were
unequivocably positive that the document burned was indeed Adriana's will. Guadalupe, we think, believed
that the papers she destroyed was the will only because, according to her, Adriana told her so. Eladio, on the
other hand, obtained his information that the burned document was the will because Guadalupe told him so,
thus, his testimony on this point is double hearsay.

At this juncture, we reiterate that "(it) is an important matter of public interest that a purported win is not
denied legalization on dubious grounds. Otherwise, the very institution of testamentary succession will be
shaken to its very foundations ...."4

The private respondents in their bid for the dismissal of the present action for probate instituted by the
petitioners argue that the same is already barred by res adjudicata. They claim that this bar was brought
about by the petitioners' failure to appeal timely from the order dated November 16, 1968 of the trial court in
the intestate proceeding (Special Proceeding No. 1736) denying their (petitioners') motion to reopen the
case, and their prayer to annul the previous proceedings therein and to allow the last will and testament of
the late Adriana Maloto. This is untenable.

The doctrine of res adjudicata finds no application in the present controversy. For a judgment to be a bar to a
subsequent case, the following requisites must concur: (1) the presence of a final former judgment; (2) the
former judgment was rendered by a court having jurisdiction over the subject matter and the parties; (3) the
former judgment is a judgment on the merits; and (4) there is, between the first and the second action,
Identity of parties, of subject matter, and of cause of action. 5 We do not find here the presence of all the
enumerated requisites.

For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana Maloto's
will is concerned. The decision of the trial court in Special Proceeding No. 1736, although final, involved only
the intestate settlement of the estate of Adriana. As such, that judgment could not in any manner be
construed to be final with respect to the probate of the subsequently discovered will of the decedent. Neither
is it a judgment on the merits of the action for probate. This is understandably so because the trial court, in
the intestate proceeding, was without jurisdiction to rule on the probate of the contested will . 6 After all, an
action for probate, as it implies, is founded on the presence of a will and with the objective of proving its due
execution and validity, something which can not be properly done in an intestate settlement of estate
proceeding which is predicated on the assumption that the decedent left no will. Thus, there is likewise no
Identity between the cause of action in intestate proceeding and that in an action for probate. Be that as it
may, it would be remembered that it was precisely because of our ruling in G.R. No. L-30479 that the
petitioners instituted this separate action for the probate of the late Adriana Maloto's will. Hence, on these
grounds alone, the position of the private respondents on this score can not be sustained.

One last note. The private respondents point out that revocation could be inferred from the fact that "(a)
major and substantial bulk of the properties mentioned in the will had been disposed of: while an insignificant
portion of the properties remained at the time of death (of the testatrix); and, furthermore, more valuable
properties have been acquired after the execution of the will on January 3,1940." 7 Suffice it to state here that
as these additional matters raised by the private respondents are extraneous to this special proceeding, they
could only be appropriately taken up after the will has been duly probated and a certificate of its allowance
issued.

WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the Decision dated June 7,
1985 and the Resolution dated October 22, 1986, of the respondent Court of Appeals, and a new one
ENTERED for the allowance of Adriana Maloto's last will and testament. Costs against the private
respondents.

This Decision is IMMEDIATELY EXECUTORY.

SO ORDERED.

KALAW vs. RELOVA

On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of his
deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of Batangas, Branch
VI, Lipa City, for the probate of her holographic Will executed on December 24, 1968.

The holographic Will reads in full as follows:

My Last will and Testament

In the name of God, Amen.

I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound and disposing
mind and memory, do hereby declare thus to be my last will and testament.

1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In accordance with the
rights of said Church, and that my executrix hereinafter named provide and erect at the expose of my state a
suitable monument to perpetuate my memory.

xxx xxx xxx

The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir. Hence,
on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in substance, that the
holographic Will contained alterations, corrections, and insertions without the proper authentication by the full
signature of the testatrix as required by Article 814 of the Civil Code reading:

Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will the testator must
authenticate the same by his full signature.

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

After trial, respondent Judge denied probate in an Order, dated September 3, 197 3, reading in part:

The document Exhibit "C" was submitted to the National Bureau of Investigation for examination. The NBI
reported that the handwriting, the signature, the insertions and/or additions and the initial were made by one
and the same person. Consequently, Exhibit "C" was the handwriting of the decedent, Natividad K. Kalaw.
The only question is whether the win, Exhibit 'C', should be admitted to probate although the alterations and/
or insertions or additions above-mentioned were not authenticated by the full signature of the testatrix
pursuant to Art. 814 of the Civil Code. The petitioner contends that the oppositors are estopped to assert the
provision of Art. 814 on the ground that they themselves agreed thru their counsel to submit the Document to
the NBI FOR EXAMINATIONS. This is untenable. The parties did not agree, nor was it impliedly understood,
that the oppositors would be in estoppel.

The Court finds, therefore, that the provision of Article 814 of the Civil Code is applicable to Exhibit "C".
Finding the insertions, alterations and/or additions in Exhibit "C" not to be authenticated by the full signature
of the testatrix Natividad K. Kalaw, the Court will deny the admission to probate of Exhibit "C".

WHEREFORE, the petition to probate Exhibit "C" as the holographic will of Natividad K. Kalaw is hereby
denied.

SO ORDERED.

From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or insertions
were the testatrix, the denial to probate of her holographic Will would be contrary to her right of testamentary
disposition. Reconsideration was denied in an Order, dated November 2, 1973, on the ground that "Article
814 of the Civil Code being , clear and explicit, (it) requires no necessity for interpretation."

From that Order, dated September 3, 1973, denying probate, and the Order dated November 2, 1973
denying reconsideration, ROSA filed this Petition for Review on certiorari on the sole legal question of
whether or not the original unaltered text after subsequent alterations and insertions were voided by the Trial
Court for lack of authentication by the full signature of the testatrix, should be probated or not, with her as
sole heir.

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic
Will litem not been noted under his signature, ... the Will is not thereby invalidated as a whole, but at most
only as respects the particular words erased, corrected or interlined.1 Manresa gave an Identical
commentary when he said "la omision de la salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril de 1895." 2

However, when as in this case, the holographic Will in dispute had only one substantial provision, which was
altered by substituting the original heir with another, but which alteration did not carry the requisite of full
authentication by the full signature of the testator, the effect must be that the entire Will is voided or revoked
for the simple reason that nothing remains in the Will after that which could remain valid. To state that the
Will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix. But
that change of mind can neither be given effect because she failed to authenticate it in the manner required
by law by affixing her full signature,

The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or alterations
in a holographic Will, which affect only the efficacy of the altered words themselves but not the essence and
validity of the Will itself. As it is, with the erasures, cancellations and alterations made by the testatrix herein,
her real intention cannot be determined with certitude. As Manresa had stated in his commentary on Article
688 of the Spanish Civil Code, whence Article 814 of the new Civil Code was derived:
... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no declara la nulidad de un
testamento olografo que contenga palabras tachadas, enmendadas o entre renglones no salvadas por el
testador bajo su firnia segun previene el parrafo tercero del mismo, porque, en realidad, tal omision solo
puede afectar a la validez o eficacia de tales palabras, y nunca al testamento mismo, ya por estar esa
disposicion en parrafo aparte de aquel que determine las condiciones necesarias para la validez del
testamento olografo, ya porque, de admitir lo contrario, se Ilegaria al absurdo de que pequefias enmiendas
no salvadas, que en nada afectasen a la parte esencial y respectiva del testamento, vinieran a anular este, y
ya porque el precepto contenido en dicho parrafo ha de entenderse en perfecta armonia y congruencia con
el art. 26 de la ley del Notariado que declara nulas las adiciones apostillas entrerrenglonados, raspaduras y
tachados en las escrituras matrices, siempre que no se salven en la forma prevenida, paro no el documento
que las contenga, y con mayor motivo cuando las palabras enmendadas, tachadas, o entrerrenglonadas no
tengan importancia ni susciten duda alguna acerca del pensamiento del testador, o constituyan meros
accidentes de ortografia o de purez escrituraria, sin trascendencia alguna(l).

Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo fallo, es preciso que las
tachaduras, enmiendas o entrerrenglonados sin salvar saan de pala bras que no afecter4 alteren ni uarien
de modo substancial la express voluntad del testador manifiesta en el documento. Asi lo advierte la
sentencia de 29 de Noviembre de 1916, que declara nulo un testamento olografo por no estar salvada por el
testador la enmienda del guarismo ultimo del año en que fue extendido3(Emphasis ours).

WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated September 3,
1973, is hereby affirmed in toto. No costs.

SO ORDERED.

Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.

Relova, J., took no part.

Separate Opinions

TEEHANKEE, J., concurring:

I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the trial court's factual
finding that the peculiar alterations in the holographic will crossing out Rosa's name and instead inserting her
brother Gregorio's name as sole heir and "sole executrix" were made by the testatrix in her own handwriting.
(I find it peculiar that the testatrix who was obviously an educated person would unthinkingly make such
crude alterations instead of consulting her lawyer and writing an entirely new holographic wig in order to
avoid any doubts as to her change of heir. It should be noted that the first alteration crossing out "sister Rosa
K. Kalaw" and inserting "brother Gregorio Kalaw" as sole heir is not even initialed by the testatrix. Only the
second alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as "sole
executrix" is initialed.) Probate of the radically altered will replacing Gregorio for Rosa as sole heir is properly
denied, since the same was not duly authenticated by the full signature of the executrix as mandatorily
required by Article 814 of the Civil Code. The original unaltered will naming Rosa as sole heir cannot,
however, be given effect in view of the trial court's factual finding that the testatrix had by her own
handwriting substituted Gregorio for Rosa, so that there is no longer any will naming Rosa as sole heir. The
net result is that the testatrix left no valid will and both Rosa and Gregorio as her next of kill succeed to her
intestate estate.

Separate Opinions

TEEHANKEE, J., concurring:

I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the trial court's factual
finding that the peculiar alterations in the holographic will crossing out Rosa's name and instead inserting her
brother Gregorio's name as sole heir and "sole executrix" were made by the testatrix in her own handwriting.
(I find it peculiar that the testatrix who was obviously an educated person would unthinkingly make such
crude alterations instead of consulting her lawyer and writing an entirely new holographic wig in order to
avoid any doubts as to her change of heir. It should be noted that the first alteration crossing out "sister Rosa
K. Kalaw" and inserting "brother Gregorio Kalaw" as sole heir is not even initialed by the testatrix. Only the
second alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as "sole
executrix" is initialed.) Probate of the radically altered will replacing Gregorio for Rosa as sole heir is properly
denied, since the same was not duly authenticated by the full signature of the executrix as mandatorily
required by Article 814 of the Civil Code. The original unaltered will naming Rosa as sole heir cannot,
however, be given effect in view of the trial court's factual finding that the testatrix had by her own
handwriting substituted Gregorio for Rosa, so that there is no longer any will naming Rosa as sole heir. The
net result is that the testatrix left no valid will and both Rosa and Gregorio as her next of kill succeed to her
intestate estate.

MOLO vs MOLO

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
836-839 CASES

GUEVARRA vs. GUEVARRA

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.

We cannot sanction the procedure adopted by the respondent Rosario Guevara, it being in our opinion in
violation of procedural law and an attempt to circumvent and disregard the last will and testament of the
decedent. The Code of Civil Procedure, which was in force up to the time this case was decided by the trial
court, contains the following pertinent provisions:

Sec. 625. Allowance Necessary, and Conclusive as to Execution. — No will shall pass either the real or
personal estate, unless it is proved and allowed in the Court of First Instance, or by appeal to the Supreme
Court; and the allowance by the court of a will of real and personal estate shall be conclusive as to its due
execution.

Sec. 626. Custodian of Will to Deliver. — The person who has the custody of a will shall, within thirty days
after he knows of the death of the testator, deliver the will into the court which has jurisdiction, or to the
executor named in the will.

Sec. 627. Executor to Present Will and Accept or Refuse Trust. — A person named as executor in a will, shall
within thirty days after he knows of the death of the testor, or within thirty days after he knows that he is
named executor, if he obtained such knowledge after knowing of the death of the testor, present such will to
the court which has jurisdiction, unless the will has been otherwise returned to said court, and shall, within
such period, signify to the court his acceptance of the trust, or make known in writing his refusal to accept it.

Sec. 628. Penalty. — A person who neglects any of the duties required in the two proceeding sections,
unless he gives a satisfactory excuse to the court, shall be subject to a fine not exceeding one thousand
dollars.
Sec. 629. Person Retaining Will may be Committed. — If a person having custody of a will after the death of
the testator neglects without reasonable cause to deliver the same to the court having jurisdiction, after
notice by the court so to do, he may be committed to the prison of the province by a warrant issued by the
court, and there kept in close confinement until he delivers the will.

The foregoing provisions are now embodied in Rule 76 of the new Rules of Court, which took effect on July
1, 1940.

The proceeding for the probate of a will is one in rem, with notice by publication to the whole world and with
personal notice to each of the known heirs, legatees, and devisees of the testator (section 630, C. c. P., and
sections 3 and 4, Rule 77). Altho not contested (section 5, Rule 77), the due execution of the will and the fact
that the testator at the time of its execution was of sound and disposing mind and not acting under duress,
menace, and undue influence or fraud, must be proved to the satisfaction of the court, and only then may the
will be legalized and given effect by means of a certificate of its allowance, signed by the judge and attested
by the seal of the court; and when the will devises real property, attested copies thereof and of the certificate
of allowance must be recorded in the register of deeds of the province in which the land lies. (Section 12,
Rule 77, and section 624, C. C. P.)

It will readily be seen from the above provisions of the law that the presentation of a will to the court for
probate is mandatory and its allowance by the court is essential and indispensable to its efficacy. To assure
and compel the probate of will, the law punishes a person who neglects his duty to present it to the court with
a fine not exceeding P2,000, and if he should persist in not presenting it, he may be committed to prision and
kept there until he delivers the will.

The Court of Appeals took express notice of these requirements of the law and held that a will, unless
probated, is ineffective. Nevertheless it sanctioned the procedure adopted by the respondent for the following
reasons:

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

Let us look into the validity of these considerations. Section 1 of Rule 74 provides as follows:

Section 1. Extrajudicial settlement by agreement between heirs. — If the decedent left no debts and the heirs
and legatees are all of age, or the minors are represented by their judicial guardians, the parties may, without
securing letters of administration, divide the estate among themselves as they see fit by means of a public
instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary
action of partition. If there is only one heir or one legatee, he may adjudicate to himself the entire estate by
means of an affidavit filed in the office of the register of deeds. It shall be presumed that the decedent left no
debts if no creditor files a petition for letters of administration within two years after the death of the
decedent.

That is a modification of section 596 of the Code of Civil Procedure, which reads as follows:

Sec. 596. Settlement of Certain Intestates Without Legal Proceedings. — Whenever all the heirs of a person
who died intestate are of lawful age and legal capacity and there are no debts due from the estate, or all the
debts have been paid the heirs may, by agreement duly executed in writing by all of them, and not otherwise,
apportion and divide the estate among themselves, as they may see fit, without proceedings in court.

The implication is that by the omission of the word "intestate" and the use of the word "legatees" in section 1
of Rule 74, a summary extrajudicial settlement of a deceased person's estate, whether he died testate or
intestate, may be made under the conditions specified. Even if we give retroactive effect to section 1 of Rule
74 and apply it here, as the Court of Appeals did, we do not believe it sanctions the nonpresentation of a will
for probate and much less the nullification of such will thru the failure of its custodian to present it to the court
for probate; for such a result is precisely what Rule 76 sedulously provides against. Section 1 of Rule 74
merely authorizes the extrajudicial or judicial partition of the estate of a decedent "without securing letter of
administration." It does not say that in case the decedent left a will the heirs and legatees may divide the
estate among themselves without the necessity of presenting the will to the court for probate. The petition to
probate a will and the petition to issue letters of administration are two different things, altho both may be
made in the same case. the allowance of a will precedes the issuance of letters testamentary or of
administration (section 4, Rule 78). One can have a will probated without necessarily securing letters
testamentary or of administration. We hold that under section 1 of Rule 74, in relation to Rule 76, if the
decedent left a will and no debts and the heirs and legatees desire to make an extrajudicial partition of the
estate, they must first present that will to the court for probate and divide the estate in accordance with the
will. They may not disregard the provisions of the will unless those provisions are contrary to law. Neither
may they so away with the presentation of the will to the court for probate, because such suppression of the
will is contrary to law and public policy. The law enjoins the probate of the will and public policy requires it,
because unless the will is probated and notice thereof given to the whole world, the right of a person to
dispose of his property by will may be rendered nugatory, as is attempted to be done in the instant case.
Absent legatees and devisees, or such of them as may have no knowledge of the will, could be cheated of
their inheritance thru the collusion of some of the heirs who might agree to the partition of the estate among
themselves to the exclusion of others.

In the instant case there is no showing that the various legatees other than the present litigants had received
their respective legacies or that they had knowledge of the existence and of the provisions of the will. Their
right under the will cannot be disregarded, nor may those rights be obliterated on account of the failure or
refusal of the custodian of the will to present it to the court for probate.

Even if the decedent left no debts and nobdy raises any question as to the authenticity and due execution of
the will, none of the heirs may sue for the partition of the estate in accordance with that will without first
securing its allowance or probate by the court, first, because the law expressly provides that "no will shall
pass either real or personal estate unless it is proved and allowed in the proper court"; and, second, because
the probate of a will, which is a proceeding in rem, cannot be dispensed with the substituted by any other
proceeding, judicial or extrajudicial, without offending against public policy designed to effectuate the
testator's right to dispose of his property by will in accordance with law and to protect the rights of the heirs
and legatees under the will thru the means provided by law, among which are the publication and the
personal notices to each and all of said heirs and legatees. Nor may the court approve and allow the will
presented in evidence in such an action for partition, which is one in personam, any more than it could
decree the registration under the Torrens system of the land involved in an ordinary action
for reinvindicacion or partition.

We therefore believe and so hold that section 1 of Rule 74, relied upon by the Court of Appeals, does not
sanction the procedure adopted by the respondent.

The case of Leaño vs. Leaño (25 Phil., 180), cited by the Court of Appeals, like section 1 of Rule 74,
sanctions the extrajudicial partition by the heirs of the properties left by a decedent, but not the
nonpresentation of a will for probate. In that case one Paulina Ver executed a will on October 11, 1902, and
died on November 1, 1902. Her will was presented for probate on November 10, 1902, and was approved
and allowed by the Court on August 16, 1904. In the meantime, and on November 10, 1902, the heirs went
ahead and divided the properties among themselves and some of them subsequently sold and disposed of
their shares to third persons. It does not affirmatively appear in the decision in that case that the partition
made by the heirs was not in accordance with the will or that they in any way disregarded the will. In closing
the case by its order dated September 1, 1911, the trial court validated the partition, and one of the heirs,
Cunegunda Leaño, appealed. In deciding the appeal this Court said:

The principal assignment of error is that the lower court committed an error in deciding that the heirs and
legatees of the estate of Dña. Paulina Ver had voluntarily divided the estate among themselves.

In resolving that question this Court said:

In view of the positive finding of the judge of the lower court that there had been a voluntary partition of the
estate among the heirs and legatees, and in the absence of positive proof to the contrary, we must conclude
that the lower court had some evidence to support its conclusion.

Thus it will be seen that as a matter of fact no question of law was raised and decided in that case. That
decision cannot be relied upon as an authority for the unprecedented and unheard of procedure adopted by
the respondent whereby she seeks to prove her status as an acknowledged natural child of the decedent by
his will and attempts to nullify and circumvent the testamentary dispositions made by him by not presenting
the will to the court for probate and by claiming her legitime as an acknowledged natural child on the basis of
intestacy; and that in the face of express mandatory provisions of the law requiring her to present the will to
the court for probate.

In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this Court departed from the procedure
sanctioned by the trial court and impliedly approved by this Court in the Leaño case, by holding that an
extrajudicial partition is not proper in testate succession. In the Riosa case the Court, speaking thru Chief
Justice Avanceña, held:

1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION. — Section 596 of the Code of
Civil Procedure, authorizing the heirs of a person who dies intestate to make extrajudicial partition of the
property of the deceased, without going into any court of justice, makes express reference to intestate
succession, and therefore excludes testate succession.

2. ID.; EFFECTS OF; TESTATE SUCCESSION. — In the instant case, which is a testate succession, the
heirs made an extrajudicial partition of the estate and at the same time instituted proceeding for the probate
of the will and the administration of the estate. When the time came for making the partition, they submitted
to the court the extrajudicial partition previously made by them, which the court approved. Held: That for the
purposes of the reservation and the rights and obligations created thereby, in connection with the relatives
benefited, the property must not be deemed transmitted to the heirs from the time the extrajudicial partition
was made, but from the time said partition was approved by the court. (Syllabus.)

The Court of Appeals also cites section 6 of Rule 124, which provides that if the procedure which the court
ought to follow in the exercise of its jurisdiction is not specifically pointed out by the Rules of Court, any
suitable process for mode of proceeding may be adopted which appears most conformable to the spirit of the
said Rules. That provision is not applicable here for the simple reason that the procedure which the court
ought to follow in the exercise of its jurisdiction is specifically pointed out and prescribed in detail by Rules
74, 76, and 77 of the Rules of Court.

The Court of Appeals also said "that if this case is dismissed, ordering the filing of testate proceedings, it
would cause injustice, inconvenience, delay, and much expense to the parties." We see no injustice in
requiring the plaintiff not to violate but to comply with the law. On the contrary, an injustice might be
committed against the other heirs and legatees mentioned in the will if the attempt of the plaintiff to nullify
said will by not presenting it to the court for probate should be sanctioned. As to the inconvenience, delay,
and expense, the plaintiff herself is to blame because she was the custodian of the will and she violated the
duty imposed upon her by sections 2, 4, and 5 of Rule 76, which command her to deliver said will to the
court on pain of a fine not exceeding P2,000 and of imprisonment for contempt of court. As for the defendant,
he is not complaining of inconvenience, delay, and expense, but on the contrary he is insisting that the
procedure prescribed by law be followed by the plaintiff.

Our conclusion is that the Court of Appeals erred in declaring the action instituted by the plaintiff to be in
accordance with law. It also erred in awarding relief to the plaintiff in this action on the basis of intestacy of
the decedent notwithstanding the proven existence of a will left by him and solely because said will has not
been probated due to the failure of the plaintiff as custodian thereof to comply with the duty imposed upon
her by the law.

It is apparent that the defendant Ernesto M. Guevara, who was named executor in said will, did not take any
step to have it presented to the court for probate and did not signify his acceptance of the trust or refusal to
accept it as required by section 3 of Rule 76 (formerly section 627 of the Code of Civil Procedure), because
his contention is that said will, insofar as the large parcel of land in litigation is concerned, has been
superseded by the deed of sale exhibit 2 and by the subsequent issuance of the Torrens certificate of title in
his favor.

II

This brings us to the consideration of the second question, referring to the efficacy of the deed of sale exhibit
2 and the effect of the certificate of titled issued to the defendant Ernesto M. Guevara. So that the parties
may not have litigated here in vain insofar as that question is concerned, we deem it proper to decide it now
and obviate the necessity of a new action.

The deed of sale exhibit 2 executed by and between Victorino L. Guevara and Ernesto M. Guevara before a
notary public on July 12, 1933, may be divided into two parts: (a) insofar as it disposes of and conveys to
Ernesto M. Guevara the southern half of Victorino L. Guevara's hacienda of 259-odd hectares in
consideration of P1 and other valuable considerations therein mentioned; and (b) insofar as it declares that
Ernesto M. Guevara became the owner of the northern half of the same hacienda by repurchasing it with his
own money from Rafael T. Puzon.

A. As to the conveyance of the southern half of the hacienda to Ernesto M. Guevara in consideration of the
latter's assumption of the obligation to pay all the debts of the deceased, the Court of Appeals found it to be
valid and efficacious because: "(a) it has not been proven that the charges imposed as a condition is [are]
less than the value of the property; and (b) neither has it been proven that the defendant did not comply with
the conditions imposed upon him in the deed of transfer." As a matter of fact the Court of Appeals found" "It
appears that the defendant has been paying the debts left by his father. To accomplish this, he had to
alienate considerable portions of the above-mentioned land. And we cannot brand such alienation as
anomalous unless it is proven that they have exceeded the value of what he has acquired by virtue of the
deed of July 12, 1933, and that of his corresponding share in the inheritance." The finding of the Court of
Appeals on this aspect of the case is final and conclusive upon the respondent, who did not appeal
therefrom.

B. With regard to the northern half of the hacienda, the findings of fact and of law made by the Court of
Appeals are as follows:

The defendant has tried to prove that with his own money, he bought from Rafael Puzon one-half of the land
in question, but the Court a quo, after considering the evidence, found it not proven; we hold that such
conclusion is well founded. The acknowledgment by the deceased, Victorino L. Guevara, of the said
transactions, which was inserted incidentally in the document of July 12, 1933, is clearly belied by the fact
that the money paid to Rafael Puzon came from Silvestre P. Coquia, to whom Victorino L. Guevara had sold
a parcel of land with the right of repurchase. The defendant, acting for his father, received the money and
delivered it to Rafael Puzon to redeem the land in question, and instead of executing a deed of redemption in
favor of Victorino L. Guevara, the latter executed a deed of sale in favor of the defendant.

The plaintiff avers that she withdrew her opposition to the registration of the land in the name of the
defendant, because of the latter's promise that after paying all the debt of their father, he would deliver to her
and to the widow their corresponding shares. As their father then was still alive, there was no reason to
require the delivery of her share and that was why she did not insist on her opposition, trusting on the
reliability and sincerity of her brother's promise. The evidence shows that such promise was really made. The
registration of land under the Torrens system does not have the effect of altering the laws of succession, or
the rights of partition between coparceners, joint tenants, and other cotenants nor does it change or affect in
any other way any other rights and liabilities created by law and applicable to unregistered land (sec. 70,
Land Registration Law). The plaintiff is not, then, in estoppel, nor can the doctrine of res judicata be invoked
against her claim. Under these circumstances, she has the right to compel the defendant to deliver her
corresponding share in the estate left by the deceased, Victorino L. Guevara.

In his tenth to fourteenth assignments of error the petitioner assails the foregoing findings of the Court of
Appeals. But the findings of fact made by said court are final and not reviewable by us on certiorari. The
Court of Appeals found that the money with which the petitioner repurchased the northern half of the land in
question from Rafael Puzon was not his own but his father's, it being the proceeds of the sale of a parcel of
land made by the latter to Silvestre P. Coquia. Said court also found that the respondent withdrew her
opposition to the registration of the land in the name of the petitioner upon the latter's promise that after
paying all the debts of their father he would deliver to her and to the widow their corresponding shares. From
these facts, it results that the interested parties consented to the registration of the land in question in the
name of Ernesto M. Guevara alone subject to the implied trust on account of which he is under obligation to
deliver and convey to them their corresponding shares after all the debts of the original owner of said land
had been paid. Such finding does not constitute a reversal of the decision and decree of registration, which
merely confirmed the petitioner's title; and in the absence of any intervening innocent third party, the
petitioner may be compelled to fulfill the promise by virtue of which he acquired his title. That is authorized by
section 70 of the Land Registration Act, cited by the Court of Appeals, and by the decision of this Court
in Severino vs. Severino, 44 Phil., 343, and the cases therein cited.

Upon this phase of the litigation, we affirm the finding of the Court of Appeals that the northern half of the
land described in the will exhibit A and in original certificate of title No. 51691 still belongs to the estate of the
deceased Victorino L. Guevara. In the event the petitioner Ernesto M. Guevara has alienated any portion
thereof, he is under obligation to compensate the estate with an equivalent portion from the southern half of
said land that has not yet been sold. In other words, to the estate of Victorino L. Guevara still belongs one
half of the total area of the land described in said original certificate of title, to be taken from such portions as
have not yet been sold by the petitioner, the other half having been lawfully acquired by the latter in
consideration of his assuming the obligation to pay all the debts of the deceased.
Wherefore, that part of the decision of the Court of Appeals which declares in effect that notwithstanding
exhibit 2 and the issuance of original certificate of title No. 51691 in the name of Ernesto M. Guevara, one
half of the land described in said certificate of title belongs to the estate of Victorino L. Guevara and the other
half to Ernesto M. Guevara in consideration of the latter's assumption of the obligation to pay all the debts of
the deceased, is hereby affirmed; but the judgment of said court insofar as it awards any relief to the
respondent Rosario Guevara in this action is hereby reversed and set aside, and the parties herein are
hereby ordered to present the document exhibit A to the proper court for probate in accordance with law,
without prejudice to such action as the provincial fiscal of Pangasinan may take against the responsible party
or parties under section 4 of Rule 76. After the said document is approved and allowed by the court as the
last will and testament of the deceased Victorino L. Guevara, the heirs and legatees therein named may take
such action, judicial or extrajudicial, as may be necessary to partition the estate of the testator, taking into
consideration the pronouncements made in part II of this opinion. No finding as to costs in any of the three
instances.

Yulo, C.J., and Hontiveros, 1 J., concur.

Separate Opinions

BOCOBO, J., concurring:

I concur in the result. Extrajudicial settlement by agreement among the heirs is authorized by section 1 of
Rule 74. only "if the decedent left no debts." In this case, according to the findings of the Court of Appeals,
Ernesto M. Guevara "has been paying the debts left by his father." It is true that said Ernesto M. Guevara, in
consideration of the conveyance to him of the southern half of the hacienda, assumed all the debts of the
deceased, but this agreement is binding only upon the parties to the contract but not upon the creditors who
did not consent thereto. (Art. 1205, Civil Code.) There being debts when the father died, section 1 of Rule 74
is not applicable.

MORAN, J., concurring in part and dissenting in part:

I would be agreeable to the majority decision but for a statement therein made which in my view repeals by
an erroneous interpretation the provisions of Rule 74, section 1, of the Rules of Court, which reads as
follows:

EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS. — If the decedent left no debts and
the heirs and legatees are all of age, or the minors are represented by their judicial guardians, the parties
may, without securing letters of administration, divide the estate among themselves as they see fit by means
of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in
an ordinary action of partition. If there is only one heir or one legatee, he may adjudicate to himself the entire
estate by means of an affidavit filed in the office of the register of deeds. It shall be presumed that the
decedent left no debts if no creditor files a petition for letters of administration within two years after the
death of the decedent.

The majority holds that under this provision, the heirs and legatees, even if all of them are of age, and there
are no debts to be paid, cannot make an extrajudicial settlement of the estate left by the decedent without
first submitting in court for probate the will left by the testator. This erroneous interpretation clearly overlooks
not only the letter and the spirit but more specially the whole background of the provision.

It is admitted that the provision has been taken from section 596 of Act No. 190 but with modification
consisting in that it is made to apply in testate succession. Said section 596 reads:

SETTLEMENT OF CERTAIN INTESTATE ESTATES WITHOUT LEGAL PROCEEDINGS. — Whenever all

the heirs of a person who died intestate are of lawful age and legal capacity, and there are no debts due from
the estate, or all the debts have been paid the heirs may, by agreement duly executed in writing by all of
them, and not otherwise, apportion and divide the estate among themselves, as they may see fit, without
proceedings in court.

It must be observed that the procedure contemplated in this legal provision is completely extrajudicial and
the same procedure intended in section 1 of Rule 74 above quoted which is captioned "Extrajudicial
Settlement by Agreement . . .". Justice Laurel, who was one of the members of this Court when the new
Rules were promulgated, in commenting upon Rule 74, said:

RULE 74. SUMMARY SETTLEMENT OF ESTATES. — The corresponding provisions in the Code of Civil
Procedures are sections 596-598. There is substantial analogy between the provisions of the Code of Civil
Procedure and those of Rule 74, save that: (1) Under section 1 of Rule 74, there may be extrajudicial
settlement whether a person died testate or intestate, while under section 596 of the Code of Civil Procedure
extrajudicial settlement can be had only when a person dies intestate. (2) Under Rule 74, section 1,
extrajudicial settlement may take place 'if the decedent left no debts,' while under section 596 of the Code of
Civil Procedure it may take place 'when there are no debts due from the estate, or all the debts have been
paid.' (3) Under section 596 of the Code of Civil Procedure, extrajudicial settlement may take place when 'the
heirs and legatees are of lawful age and legal capacity, while under section 1 of Rule 74 it may take place
when the 'the heirs and legatees are all of legal age, or the minors are represented by their judicial
guardians' (4) Unlike the Code of Civil Procedure, section 596, section 1 of Rule 74 requires the extrajudicial
agreement to be filed in the office of the register of deeds; provides that should the heirs disagree, 'they may
do so in an ordinary action of partition', and that 'if there is only one heir or one legatee, he may adjudicate to
himself the entire estate by means of an affidavit filed in the office of the register of deeds', and that 'it shall
be presumed that the decedent left no debts if no creditor files a petition for letter of administration within two
years after the death of the decedent.' [(Emphasis mine); Laurel, Procedural Reform in the Philippines, pp.
137-138].

The phrase "extrajudicial settlement" unquestionably means liquidation and distribution of the estate without
judicial proceeding. In other words, even in cases of testate succession, the heirs and legatees, when they
are all of age or are represented by their judicial guardians, and there are no debts to be paid, are allowed by
section 1 of Rule 74 of the Rules of Court to liquidate and distribute among themselves the estate left by the
decedent and need not go to court even for the probate of the will. Unless legal terms mean nothing, this is
clearly what it meant in said provision by the words "extrajudicial settlement" and by the clause " . . . the
parties may, without securing letters of administration, divide the estate among themselves as they see fit" . .
. . When judicial administration is made unnecessary by the provision, the inevitable implication is that the
probate of the will is also unnecessary, the probate having no other object than administration for purposes
of distribution according to the provisions of the will. That is why section 4 of rule 78 provides:

ESTATE, HOW ADMINISTERED. — When a will is thus allowed, the court shall grant letters testamentary, or
letters of administration with the will annexed, such letters testamentary or of administration shall extend to
all the estate of the testator in the Philippines. Such estate, after the payment of just debts and expenses of
administration, shall be disposed of according to such will, so far as such will may operate upon it; and the
residue, if any, shall be disposed of as is provided by law in cases of estates in the Philippines belonging to
persons who are inhabitants of another state or country.

If judicial administration and distribution is made unnecessary by section 1 of Rule 74, then, I repeat, the
probate of the will being purposeless, becomes unnecessary. If the parties have already divided the estate in
accordance with the will, the probate of the will is a useless ceremony. If they have divided the estate in a
different manner, the probate of the will is worse than useless; it is ridiculous. The following words of this
Court in a previous case may well be here reiterated:

These sections provide for the voluntary division of the whole property of the decedent without proceedings
in court. The provisions which they contain are extremely important. The wisdom which underlies them is
apparent. It is the undisputed policy of every people which maintains the principle of private ownership of
property that he who owns a thing shall not be deprived of its possession or use except for the most urgent
and imperative reasons and then only so long as is necessary to make the rights which underlie those
reasons effective. It is a principle of universal acceptance which declares that one has the instant right to
occupy and use that which he owns, and it is only in the presence of reasons of the strongest and most
urgent nature that the principle is prevented from accomplishing the purpose which underlies it. The force
which gave birth to this stern and imperious principle is the same force which destroyed the feudal despotism
and created the democracy of private owners.

These provisions should, therefore, be given the most liberal construction so that the intent of the framers
may be fully carried out. They should not be straitened or narrowed but should rather be given that wideness
and fullness of application without which they cannot produce their most beneficial effects.
. . . The purpose which underlies them, as we have already intimated, is to put into one's hands the property
which belongs to him not only at the earliest possible moment but also with the least possible expense. By
permitting the partition and division without proceedings in court no time is lost and substantially all expense
and waste are saved. This is as it should be. The State fails wretchedly in its duly to its citizens if the
machinery furnished by it for the division and distribution of the property of a decedent is so cumbersome,
unwieldy and expensive that a considerable portion of the estate is absorbed in the process of such
division. . . . (McMicking vs. Sy Conbieng, 21 Phil., 211; 219-220).

Indeed, there can be no valid reason why the probate of a will may not be dispensed with by agreement of all
the parties interested and the estate left by the decedent settled extrajudicially among all the heirs and
legatees, as is now provided in section 1 of Rule 74. It is well recognized that the allowance of a will gives
conclusiveness merely to its provisions which are governed by the substantive law regarding descent and
distribution. If so, why cannot all the parties interested agree, without going to court, that the will of the
decedent is in form valid (this being the only point to be litigated in a probate proceeding), and that they will
divide the inheritance in the manner acceptable to them? The procedure would not be against public policy
or the law placing in the hands of the courts the probate of wills, because what the courts are enjoined to do
for the benefit of the parties, the latter have already done. As long as the extrajudicial partition of the estate
does not affect the rights of third parties and is not rendered invalid by any provision of the substantive law,
no possible objection can be raised thereto. On practical considerations, it would be useless to force the
parties, at their expense, to go thru the formality of probating a will and dividing the estate in accordance
therewith, because as soon as the routine is over, they are of course free to make such transfers to one
another as will be necessary to effect a partition which they would have made if they were allowed to settle
the estate extrajudicially. It is true that there are provisions in the Rules of Court compelling the delivery of a
will to the competent court and punishing omissions to do so, but said provisions are calculated to protect the
interests of the persons entitled to share in the inheritance. The latter may waive such benefit. This waiver
cannot be said to be withdrawal or diminution of the jurisdiction of the court, since it only implies a desire of
the parties not to litigate. The fear that "absent legatees and devisees, or such of them as may have no
knowledge of the will, could be cheated of their inheritance thru the collusion of some of the heirs who might
agree to the partition of the estate among themselves to the exclusion of others", is wisely provided against
in the requirement of the Rule that all the parties interested and all the beneficiaries under the will should be
parties to the extrajudicial settlement. The participation of all the interested parties excludes the probability of
fraud or collusion and, even in that eventuality, the aggrieved beneficiaries are not without adequate remedy
for the voidance of the partition under the Civil Code.

And this is in accordance with the weight of authority in this and other jurisdictions. In Leaño vs. Leaño (25
Phil., 180), all the heirs and legatees have made an extrajudicial partition of the estate left by the decedent
and then filed the will in court which was probated. Nine years of costly probate proceedings have followed
after which the extrajudicial partition was made known to court. such extrajudicial partition was objected to by
one party upon the ground that it was not in conformity with the provisions of the will. But the trial Court held:

Naturally the partition made by the heirs voluntarily and spontaneously must produce and has produced a
legal status, which cannot be annulled merely for the caprice of one person. and it cannot be said that,
because the partition was not made in accordance with the will, if such be the case, the latter has to be
annulled, for by voluntarily and spontaneously concurring therein they implicitly renounced the effects of said
will, of which they were aware. (See p. 183).

On appeal, this Court affirmed the ruling with the following pronouncement:

In view of the positive finding of the judge of the lower court that there had been a voluntary partition of the
estate among the heirs and legatees and in the absence of positive proof to the contrary, we must conclude
that the lower court had some evidence to support his conclusion. If the heirs and legatees had voluntarily
divided the estate among themselves, then their division is conclusive, unless and until it is shown that there
were debts existing against the estate which had not been paid. No claim is made whatever by third parties
nor objections of any character are made by others than the heirs against said partition. We see no reason
why their heirs and legatees should not be bound by their voluntary acts. (Page 183–184).

This case furnishes precisely a valuable experience as to the practical wisdom underlying the procedure
established in section 1 of Rule 74. After the will was probated and after nine years of costly administration
proceedings, nothing — absolutely nothing — was accomplished by the court except to make the belated
pronouncement that the extrajudicial partition made by the parties prior to the institution of the proceedings
was proper and binding upon them. Thus, the whole proceedings for nine years have proved no more than a
futile chronicle of wasted time and money for the parties and the court. This disgraceful experience could not
and did not pass unnoticed to the members of this Court who drafted the new Rules of Court. The solemn
admonition made by this Court in a previous case (McMicking vs. Sy Conbieng, supra) when it said that "the
State fails wretchedly in its duly to its citizens if the machinery furnished by it for the division and distribution
of the property of a decedent is so cumbersome, unwieldy and expensive that a considerable portion of the
estate is absorbed in the process of such division", rang with re-echoing insistence and was heeded to when
the new Rules of Court was drafted and promulgated. The fundamental policy pervading the whole system of
procedure adopted in said Rules is speed, economy an justice. Thus, features of procedure were done away
with when, without them, the same purpose may be achieved. The result is brevity and simplicity of
procedure with such guarantees as the necessary to assure due process. And to remedy such evil as is
disclosed in the Leaño case, a completely extrajudicial settlement is allowed even in testate succession with
the probate of the will dispensed with, when the heirs and legatees who are all of age or represented by their
judicial guardians, so agree, and there are not debts to be paid. Thus, the scope of section 596 of Act No.
190 was amplified and with it the ruling of this Court in Riosa vs. Rocha (48 Phil., 737). The procedure is in
consonance with the almost unanimous weight of authority in other jurisdictions:

The complainant, to which a demurrer was sustained, shows that all the persons interested in a decedent's
estate, as widow, heirs, distributees, legatees, or devisees, including the person appointed executrix by the
will, and the husbands of femes covert, (all being adults), by agreement divided among themselves all the
property of the estate according to the direction of the will, paid off all debts against the estate, and delivered
the note described to the plaintiff, as a part of her share; and all this was done without probate of the will, or
administration of the estate. The effect of such a division was to invest the plaintiff with an equitable title to
the note. In the absence of the will, the decisions of this court, heretofore made, would meet every argument
in favor of an opposite conclusion. (Anderson vs. Anderson, 37 Ala., 683; Marshall vs. Crow, 29 Ala., 278;
Vanderveer vs. Alston, 16 Ala., 494; Miller vs. Eatman, 11 feature of this case, take it out of the principle of
those decisions? We can perceive no sufficient reason why it should. All the parties interested, or to be
affected, may as well by agreement divide property, where there is a will, without employing the agency of
courts, as in case of intestacy. Parties, competent to act, ought to do that, without the agency of courts,
which the courts would ultimately accomplish. To deny them the privilege of so doing, would manifest a
judicial abhorrence of harmony. By the probate of the will, the claims of heirs and distributees, and of the
widow, would have been subordinated to the directions of the will. this has been accomplished by the
agreement. There being no debts, the executrix would have had no other duty to perform, than to divide the
property according to the will. This, too, has been done by agreement of competent parties. All the ends and
objects of judicial proceedings have been accomplished, by agreement of the parties; and that agreement
must be effective. (Carter vs. Owens, 41 Ala., 215; 216-217).

The absence of sound objection on this ground to a contract having for its sole purpose the disposition of
property in a manner different from that proposed by a a testator, even where the contract contemplates the
rejection of the will when offered for probate or its setting aside when admitted to probate, when it is entirely
free from fraud, and is made by all the parties in interest, may be freely conceded. As has often been
substantially said, the public generally has not interest in the matter of the probate of a will; and only those
interested in the estate under the will or otherwise are affected by such a contract. If they all agree upon
some course to be followed, and their contract is otherwise free from contemplated fraud or violation of any
law, no one else has any such interest as warrants complaint. Such was the character of contract involved in
Spangenberg vs. Spangenberg (App.), 126 Pac., 379, especially relied on by plaintiff here, where the
contract purported to affect only such property of the deceased as should in fact be received by the parties
thereto. In Estate of Garcelon, 104 Cal, 570; 38 Pac., 414; 32 L. R. A.,. 595; 43 Am. St., Rep., 134, another
case much relied on by plaintiff, a contract by an heir to refrain from contesting a will was involved. It was
said that the contract was one that concerned the parties alone, and one that did not appear to be against
public policy. (Gugolz vs. Gehrkens, 130 Pac, Rep., 8, 10; 164 Cal., 596).

The question of public policy is introduced. The disposition of one's property after death is controlled by
statute. One of the next of kin has no vested interest in such property. In cases of intestacy, a next of kin has
such interest as the statute declares. In case there is a will, he has an interest which gives him a standing
and right to contest the will. This right is his alone; in it the public has no interest; he may refrain from
exercising it, or he may dispose of it as he wishes, by release or assignment or settlement, and the law of
public policy is not offended. (In re cook's Will, 217 N. Y. S., 176, 180-181).

Agreement. — "It has been definitely decided by the courts of this state, and of many other states, that the
beneficiaries under a will have a right to agree among themselves upon any distribution they see proper of
the property bequeathed to them. 

. . . That holding is based upon the proposition that the property is theirs. No one else is interested in its
disposition, and they may, with propriety, make any distribution of it that suits them, so long as they do not
invade the rights of other parties or infringe some rule of public policy'. (Fore vs. McFadden, 276 N. W., 327;
329).
The first assignment of error presented by appellants complains of the action of the court in sustaining
exceptions to averments asking the enforcement of the agreement that the will should not be probated, and
that the estate should be divided among the parties as they would be entitled as heirs at law of the
deceased, the proponent of the will surrendering thereby his rights as principal legatee. This assignment
must be sustained. It cannot be seen that the agreement is contrary to public policy. Parties may make any
contract with reference to their property rights that is not illegal, may adjust by compromise their differences
and disputes concerning the same and, as they bind themselves, so shall they be bound. It is difficult to
understand why this cannot be effected by an agreement not to probate a will, or how it interferes with public
policy. The power to litigate and to establish a right by appeal to the courts is as much the subject of contract
as any other right in property. Such adjustments by contract are favored by the law and the courts, and are
not deemed to be an unwarranted interference with the jurisdiction of the courts, or against public policy. On
the contrary, public policy favors them.

Appellants have cited a case in point, — the case of Phillips v. Phillips, 8 Watts, 197, in which it is held
competent for devisees and legatees to bind themselves by a written or parol agreement to destroy a will
before probate, and that a party to the agreement would be estopped from claiming any interest under the
will. The court says: "It cannot admit of doubt that before probate the parties in interest under a will would
have the right to set aside a will, and such an act would be favored, when the object was to avert a family
controversy". The agreement that the will should not be probated, and that the parties would take the
property as heirs at law of the deceased, destroyed the legal effect of the will; and it could not thereafter
have legal existence in conferring rights upon the legatees. (Stringfellow vs. Early, 40 SW., 871, 873-874; 15
Tex. Civ. App., 597).

The contention that the complaint does not state a cause of action, because the contract sued on is against
public policy, and therefore void, is made here for the first time. It is to the interest of the public generally that
the right to make contract should not be unduly restricted, and no agreement will be pronounced void, as
being against public policy, unless it clearly contravenes that which has been declared by statutory
enactment or by judicial decisions to be public policy, or unless the agreement manifestly tends in some way
to injure the public. Whether or not a contract in any given case is contrary to public policy is a question of
law, to be determined from the circumstances of each particular case. Smith vs. Du Bose, 78 Ga., 413; 3
SE., 309-316; 6 Am. St. Rep., 260; Weber vs. Shay, 56 Ohio St., 116; 46 NE., 377; 37 L.R.A., 230; 60 Am.
St. Rep., 743; Pierce vs. Randolph, 12 Tex., 290; Print Numerical Registering Co. vs. Sampson, 19 L. R. Eq.
Cas., 465.

The contract in controversy is in effect but an agreement whereby the parties thereto, "because of their love
and affection for one another" and "being desirous of avoiding litigation over the estate" of their father "in
case of his death," agreed to ignore his will in the event that he made one, and then share his estate equally
as if he had died intestate. In other words, the contract was but an agreement of heirs apparent not to
contest the will of an ancestor. There is nothing to be fond in our code or statutory law prohibiting the making
and enforcement of such a contract, and it has been held in this state that a contract, made after the death of
the deceased, not to contest his will, is purely personal to the parties making it, that it is not against public
policy, and that, when fairly made, it will be enforced, (Spangenberg vs. Spangenberg, 126 Pac. Rep., 379,
382; 19 Cal. App., 439).

Probate Dispensed With. — Probate of a will may be dispensed with by an agreement between the persons
interested; or it may be dispensed with where the testator, before his death, conveyed to the devisees all the
property which he had devised to them, or where the will makes no other disposition of the testator's property
than the law would have done had he died interstate, and the rights sought to be established are admitted by
all concerned. But where the language of the will expressly invokes the jurisdiction of the probate court the
fact that no administration is necessary does not affect the power of the court to probate the will. (68 C. J.,
pp. 877-878).

Agreement between Persons Interested: a. Requisites and Validity. (1) In General. — It has been held that,
since the nature of a probate proceeding is one in rem, the parties cannot submit a controversy arising
therein to arbitration. The law, however, favors the settlement, in good faith, of will contests, by a so-called
"family settlement", although it changes the mode of disposition of the estate; and, therefore, subject to the
limitation that a contestant cannot compromise anything beyond his own personal interest in the contest,
persons, such as devisees, legatee, heirs, or next of kin, having interest in the will or estate, sufficient to
entitle them to opposed probate or contest the will, may enter into an agreement which, in the absence of
fraud or misrepresentation, is valid and binding on all the parties thereto, whereby they waive probate of the
will and bind themselves to abide by its provisions, or whereby they agree that the will is not to be probated
or is to be superseded or destroyed; or whereby any controversy relative to the probate or contest of the will
is compromised or settled, and a contest is avoided, whether or not there were, in fact, valid grounds for the
contest. Such an agreement, in order to be valid, must not exclude anyone entitled under the will, must be
entered into by all the persons affected thereby, and all the parties thereto must be competent to make the
agreement, and either they or their representative must fully execute it, and, under some statutes, it must be
properly approved by the court." ([Emphasis supplied] 68 C. J., pp. 909-910).

As to Probate. — The operation and effect of the agreement may not to supersede the provisions of the will,
but to carry out its provisions without a probate, and under such agreement the parties are precluded from
denying the probate, or insisting on the invalidating of the will for want of probate. So, also, a person who
agrees not to contest the will is precluded from opposing probate; or the probate of a will may be dispensed
with, and the persons interested in the estate under the will given at least an equitable interest in the
property, where they, being under no disability, divide the estate, pursuant to an agreement among
themselves. Where the effect of the agreement of all interested parties is to repudiate or renounce the will, it
will not be probated, especially where the agreement expressly so provides; but it has been held that, where
the executor, defending a torn will, agrees, for a consideration, not to probate it, the court should not refuse
probate without notifying other beneficiaries and requiring testimony as to the tearing of the will by the
testator. Probate, however, is not prevented by an agreement executed by a part only of the beneficiaries,
and the parties to such agreement are not prevented thereby from taking under the will which is probated by
another interested person. ([Emphasis supplied] 68 C. J., pp. 914-915).

Thus, where the parties, being in doubt as to the instrument being construed as a will, and for the purpose of
saving a family controversy and for the purpose of dividing the estate, enter into a compromise and
settlement agreement, under the terms of which the entire estate is to be, and has in part been, divided, and
agree that the instrument shall not be offered for probate, it is sufficient to prevent a probate.
(Brown vs. Burk, 26 NW [2d ed.], 415.

Validity of Agreements of Dispense with Probate or to Modify or Set Aside Will. — Though in some
jurisdictions an agreement to dispense with the probate of a will has been declared to be against public
policy and void, in a majority of the decisions on the point it has been held that all the persons interested in
decedent's estate may by agreement divide the estate among themselves, without probating such
decedent's will or administering the estate, and the validity of a contract having for its sole purpose the
disposition of property in a manner different from that proposed by a testator, even where the contract
contemplates the rejection of the will when offered for probate or its setting aside when admitted to probate,
when it is entirely free from fraud, and is made by all the parties in interest, would seem to be freely concede.
Thus it has been held that all the parties in interest may agree to eliminate from a will a clause providing for
survivorship among them. But an agreement to resist the probate of a will and procure it to be set aside so
as to curt off the interest of one who is not a party to such agreement is against public policy. Nor does the
right of all the parties in interest to set aside or disregard a will extend to the case of an active trust, for a
definite term, created by a testator as he deems proper for the protection of his beneficiaries. A contract
between the next of kin of a decedent, that they will each have a certain portion of the estate, does not
amount to an agreement to divide the estate without probating the will. (28 R.C.L., pp. 357-358).

The minority decision pointed out in the last quotation from the Ruling Case Law (Vol. 28, pp. 357-358) is
from the Supreme Court of only one State — that of Wisconsin, in re Will of Dardis (135 Wis., 457; 115 NW.,
332). All the other States held the contrary doctrine that is now embodied in section 1 of Rule 74.
Commenting upon the Wisconsin rule, the Editor of the L.R.A. says the following:

No case has been found other than Re Dardis wherein any court passed upon the validity of a stipulation to
secure the denial to probate of a will theretofore offered for probate, on the ground that the testator was
mentally incompetent to make a will at the time of its execution. The decision of the court is based upon the
doctrine therein enunciated, that proceedings to probate a will are proceedings in rem, which public interest
demands should be pursued to a final adjudication, regardless of the wishes of the interested parties. In this
connection and with reference to this broader question, it is of interest to note that courts of other
jurisdictions, although generally recognizing that proceedings to probate a will are proceedings in rem, hold
that the proceeding is inter partes to the extent that all the parties in interest may control the probate
proceedings, even to the extent of doing away with the probate. (23 L.R.A. [N.S.], p.783).

For the sake of fixity in judicial policy, this Court in the exercise of its constitutional powers, has solemnly
given a form of a rule — section 1, Rule 74 — to what was merely the consensus of judicial opinion. We
cannot now repudiate the procedure outlined in said provision unless we amend it by another rule.

The majority, however, expresses fear that abuses may easily be committed under the Rules. Such fears
have always been the bugbear set up against all task of procedural reforms. To be sure, there has never
been any provision of law that is not liable to abuses. If by mere possibility of abuse we are to disregard clear
provisions of a procedural law, the result would not only the abrogation of all laws but also the abolition of all
courts. When a procedural law is calculated to remedy an evil under a specific situation therein
contemplated, it must be deemed good even if other situations may be simulated or falsified and placed
within its purview. And when that law is duly enacted, it is no concern of the courts to pass upon its wisdom,
their duty being to apply its provisions in a manner which shall not defeat the intention underlying it. Laws are
promulgated to be obeyed and when they are abused there are the courts to check up the abuse. Courts
must deal with the specific circumstances of each case and construe the provisions in such a manner as to
make it impregnable if possible to further abuses. This is constructive, not destructive, jurisprudence. This
explains why laws are more often worded so broadly as to lay merely general principles — a skeleton — the
flesh to be supplied with judicial decisions. Judicial statemanship requires that courts in deciding judicial
controversies should be careful not to advance opinions which are not necessary to a proper disposition of
the case. Judicial experience has shown that such advanced opinions may not infrequently place the court in
an embarrassing position when a proper case with the proper factual environment is properly presented with
all its angles before the court. Jurisprudence must be carefully progressive and not impetuously aggressive.
for instance, the majority, impressed by the awful circumstances of the present case, has found it dangerous
to hold that the probate of the will may be dispensed with. While this conclusion is constructive under the
peculiar facts of the case, to generalize it is to make destructive. If a proper case is presented to the court
wherein all the heirs and legatees who are all of age have agreed to dispense with the probate of a will and
have actually made an extrajudicial partition, and if it appears further that each of the recipients is in peaceful
enjoyment of his share in the estate, I am sure that the majority, with the practical wisdom they have shown
in other cases, would not dare disturb the peace enjoyed by such heirs and legatees and compel them to go
into court and litigate.

The majority, without the necessity of holding whether the probate of a will may or may not be dispensed with
under Rule 74, section 1, could have decided this case by stating that said provision is not applicable, its
requirements not being present. And I would be wholly agreeable to this conclusion because the
beneficiaries under the will do not appear to have made an extrajudicial settlement of the estate left by the
deceased Victorino L. Guevara, nor the action brought by the natural daughter, Rosario Guevara, is one for
partition against all such beneficiaries founded either on an extrajudicial settlement or on the provisions of
the will as accepted by all parties to be valid and binding. Upon the contrary, Rosario Guevara appears to be
wishing to take advantage of the will in so far as it is favorable to her, and repudiate it in so far as it is
favorable to others. Apparently, Rosario Guevara was in possession of the will and the other heirs and
legatees were not aware of its contents. The situation not being the one contemplated by section 1 of Rule
74, plaintiff may not invoke its provisions.

 
DELA CERNA vs. POTOT

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.
 NEPOMUCENO vs C.A.

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.