succession revocation to allowance

8/20/2019 Succession Revocation to Allowance

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Estate of Miguel Mamuyac, deceased.FRANCISCO GAGO, petitioner-appellant,

vs.CORNELIO MAMUYAC, AMROSIO LARIOSA,

FELICIANA AU!ON, a"d CA#ALINA MAMUYAC, opponents-appellees.

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 goo of the !rovince of "a #nion. $t appears fromthe record that on or about the 2%th day of July, 191&, the said MiguelMamuyac e'ecuted a last will and testament ()'hibit *. $n the month of January, 1922, the said +rancisco ago presented a petition in the ourtof +irst $nstance of the !rovince of "a #nion for the probation of that will.The probation of the same was opposed by ornelio Mamuyac, mbrosio"ariosa, +eliciana au/on, and atalina Mamuyac (civil cause 0o. 11,!rovince of "a #nion*. fter hearing all of the parties the petition for theprobation of said will was denied by the onorable . M. 3illareal on the2d day of 0ovember, 1924, upon the ground that the deceased had on

the 15th day of pril, 1919, e'ecuted a new will and testament.

6n the 21st day of +ebruary, 1927, the present action was commenced.$ts purpose was to secure the probation of the said will of the 15th day of

pril, 1919 ()'hibit 1*. To said petition ornelio Mamuyac, mbrosio"ariosa, +eliciana au/on, and atalina Mamuyac presented their oppositions, alleging (a* that the said will is a copy of the second will andtestament e'ecuted by the said Miguel Mamuyac8 (b* that the same hadbeen cancelled and revoed during the lifetime of Miguel Mamuyac and(c * that the said will was not the last will and testament of the deceasedMiguel Mamuyac.

#pon the issue thus presented, the onorable nastacio :. Teodoro, ;udge, after hearing the respective parties, denied the probation of saidwill of pril 15, 1919, upon the ground that the same had been cancelledand revoed in the year 192<. Judge Teodoro, after e'amining theevidence adduced, found that the following facts had been satisfactorilyproved=

That )'hibit is a mere carbon of its original which remained inthe possession of the deceased testator Miguel Mamuyac, whorevoed it before his death as per testimony of witness Jose+enoy, who typed the will of the testator on pril 15, 1919, and

arlos e;ar, who saw on >ecember 4<, 192<, the original )'hibit (will of 1919* actually cancelled by the testator Miguel

Mamuyac, who assured arlos e;ar that inasmuch as he hadsold him a house and the land where the house was built, he hadto cancel it (the will of 1919*, e'ecuting thereby a new testament.0arcisa ago in a way corroborates the testimony of Jose +enoy,admitting that the will e'ecuted by the deceased (MiguelMamuyac* in 1919 was found in the possession of father MiguelMamuyac. The opponents have successfully established the factthat father Miguel Mamuyac had e'ecuted in 192< another will.

The same 0arcisa ago, the sister of the deceased, who wasliving in the house with him, when cross-e'amined by attorney for the opponents, testified that the original )'hibit could not befound. +or the foregoing consideration and for the reason that theoriginal of )'hibit has been cancelled by the deceased father Miguel Mamuyac, the court disallows the probate of )'hibit for the applicant.? +rom that order the petitioner appealed.

The appellant contends that the lower court committed an error in notfinding from the evidence that the will in @uestion had been e'ecuted withall the formalities re@uired by the law8 that the same had been revoed

and cancelled in 192< before his death8 that the said will was a merecarbon copy and that the oppositors were not estopped from alleging thatfact.

Aith reference to the said cancellation, it may be stated that there ispositive proof, not denied, which was accepted by the lower court, thatwill in @uestion had been cancelled in 192<. The law does not re@uire anyevidence of the revocation or cancellation of a will to be preserved. $ttherefore becomes difficult at times to prove the revocation or cancellation of wills. The fact that such cancellation or revocation hastaen place must either remain unproved of be inferred from evidenceshowing that after due search the original will cannot be found. Ahere awill 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. Thesame presumption arises where it is shown that the testator had readyaccess to the will and it cannot be found after his death. $t will not bepresumed that such will has been destroyed by any other person withoutthe nowledge or authority of the testator. The force of the presumption of cancellation or revocation by the testator, while varying greatly, beingwea or strong according to the circumstances, is never conclusive, butmay be overcome by proof that the will was not destroyed by the testator with intent to revoe it.



$n view of the fat that the original will of 1919 could not be found after thedeath of the testator Miguel Mamuyac and in view of the positive proof that the same had been cancelled, we are forced to the conclusion thatthe conclusions of the lower court are in accordance with the weight of the evidence. $n a proceeding to probate a will the burden of proofs isupon the proponent clearly to establish not only its e'ecution but itse'istence. aving proved its e'ecution by the proponents, the burden ison the contestant to show that it has been revoed. $n a great ma;ority of

instances in which wills are destroyed for the purpose of revoing themthere is no witness to the act of cancellation or destruction and allevidence of its cancellation perishes with the testator. opies of willsshould be admitted by the courts with great caution. Ahen it is proven,however, by proper testimony that a will was e'ecuted in duplicate andeach copy was e'ecuted with all the formalities and re@uirements of thelaw, then the duplicate may be admitted in evidence when it is made toappear that the original has been lost and was not cancelled or destroyedby the testator. (orromeo vs. as@ui;o, .:. 0o. "-25<54.*$

fter a careful e'amination of the entire record, we are fully persuaded

that the will presented for probate had been cancelled by the testator in192<. Therefore the ;udgment appealed from is hereby affirmed. ndwithout any finding as to costs, it is so ordered.



#ES#A#E ES#A#E OF #%E LA#E A&RIANA MALO#O, AL&INAMALO#O CASIANO, CONS#ANCIO MALO#O, 'URIFICACION

MIRAFLOR, ROMAN CA#%OLIC C%URC% OF MOLO, AN& ASILO &EMOLO, petitioners,

vs.COUR# OF A''EALS, 'ANFILO MALO#O AN& FELINO

MALO#O, respondents.

This is not the first time that the parties to this case come to us. $n fact,two other cases directly related to the present one and involving thesame parties had already been decided by us in the past. $n .:. 0o. "-4<%9, $which was a petition for certiorari and mandamus instituted bythe petitioners herein, we dismissed the petition ruling that the moreappropriate remedy of the petitioners is a separate proceeding for theprobate of the will in @uestion. !ursuant to the said ruling, the petitionerscommenced in the then ourt of +irst $nstance of $loilo, Bpecial!roceeding 0o. 21%5, for the probate of the disputed will, which wasopposed by the private respondents presently, !anfilo and +elino bothsurnamed Maloto. The trial court dismissed the petition on pril 4<, 19%<.

omplaining against the dismissal, again, the petitioners came to thisourt on a petition for review by certiorari. ( cting on the said petition,we set aside the trial courtCs order and directed it to proceed to hear thecase on the merits. The trial court, after hearing, found the will to havealready been revoed by the testatri'. driana Maloto, and thus, deniedthe petition. The petitioners appealed the trial courtCs decision to the$ntermediate ppellate ourt which, on June %, 19&7, affirmed the order.The petitionersC motion for reconsideration of the adverse decision provedto be of no avail, hence, this petition.

+or a better understanding of the controversy, a factual account would bea great help.

6n 6ctober 2<, 1954, driana Maloto died leaving as heirs her niece andnephews, the petitioners ldina Maloto-asiano and onstancio, Maloto,and the private respondents !anfilo Maloto and +elino Maloto. elievingthat the deceased did not leave behind a last will and testament, thesefour heirs commenced on 0ovember , 1954 an intestate proceeding for the settlement of their auntCs estate. The case was instituted in the thenourt of +irst $nstance of $loilo and was doceted as Bpecial !roceeding0o. 1%45. owever, while the case was still in progress, or to be e'act on+ebruary 1, 195, the parties D ldina, onstancio, !anfilo, and +elinoD e'ecuted an agreement of e'tra;udicial settlement of drianaCs estate.

The agreement provided for the division of the estate into four e@ual partsamong the parties. The Malotos then presented the e'tra;udicial

settlement agreement to the trial court for approval which the court did onMarch 21, 195. That should have signalled the end of the controversy,but, unfortunately, it had not.

Three years later, or sometime in March 195%, tty. Bulpicio !alma, aformer associate of drianaCs counsel, the late tty. )liseo ervas,discovered a document entitled ?ET!#B0 0 !##"T-0(Testamento*,? dated January 4,19<, and purporting to be the last will

and testament of driana. tty. !alma claimed to have found thetestament, the original copy, while he was going through some materialsinside the cabinet drawer formerly used by tty. ervas. The documentwas submitted to the office of the cler of the ourt of +irst $nstance of $loilo on pril 1, 195%. $ncidentally, while !anfilo and +elino are stillnamed as heirs in the said will, ldina and onstancio are be@ueathedmuch bigger and more valuable shares in the estate of driana than whatthey received by virtue of the agreement of e'tra;udicial settlement theyhad earlier signed. The will liewise gives devises and legacies to other parties, among them being the petitioners silo de Molo, the :omanatholic hurch of Molo, and !urificacion Miraflor.

Thus, on May 2, 195%, ldina and onstancio, ;oined by the other devisees and legatees named in the will, filed in Bpecial !roceeding 0o.1%45 a motion for reconsideration and annulment of the proceedingstherein and for the allowance of the will Ahen the trial court denied their motion, the petitioner came to us by way of a petition for certiorari andmandamus assailing the orders of the trial court . ) s we stated earlier,we dismissed that petition and advised that a separate proceeding for theprobate of the alleged will would be the appropriate vehicle to thresh outthe matters raised by the petitioners.

Bignificantly, the appellate court while finding as inconclusive the matter on whether or not the document or papers allegedly burned by thehousehelp of driana, uadalupe Maloto 3da. de oral, uponinstructions of the testatri', was indeed the will, contradicted itself andfound that the will had been revoed. The respondent court stated thatthe presence of animus revocandi

in the destruction of the will had,nevertheless, been sufficiently proven. The appellate court based itsfinding on the facts that the document was not in the two safes in

drianaCs residence, by the testatri' going to the residence of tty.ervas to retrieve a copy of the will left in the latterCs possession, and,her seeing the services of tty. !alma in order to have a new will drawnup. +or reasons shortly to be e'plained, we do not view such facts, even

considered collectively, as sufficient bases for the conclusion that drianaMalotoCs will had been effectively revoed.



There is no doubt as to the testamentary capacity of the testatri' and thedue e'ecution of the will. The heart of the case lies on the issue as towhether or not the will was revoed by driana.

The provisions of the new ivil ode pertinent to the issue can be foundin rticle &4<.

rt. &4<. 0o will shall be revoed e'cept in the following

cases=

(1* y implication of law8 or

(2* y some will, codicil, or other writing e'ecuted asprovided in case of wills= or

(4* 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 expressdirection. 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 dueexecution, and the fact of its unauthorized destruction,cancellation, or obliteration are established according tothe Rules of Court

. ()mphasis Bupplied.*

$t is clear that the physical act of destruction of a will, lie burning in thiscase, does not per se constitute an effective revocation, unless thedestruction is coupled with animus revocandi

on the part of the testator. $tis not imperative that the physical destruction be done by the testator

himself. $t may be performed by another person but under the expressdirection and in the presence of the testator. 6f course, it goes withoutsaying that the document destroyed must be the will itself.

$n this case, while animus revocandi

or the intention to revoe, may beconceded, for that is a state of mind, yet that re@uisite alone would notsuffice. ? nimus revocandi

is only one of the necessary elements for theeffective revocation of a last will and testament. The intention to revoemust 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 e'press direction. There is paucity

of evidence to show compliance with these re@uirements. +or one, thedocument or papers burned by drianaCs maid, uadalupe, was not

satisfactorily established to be a will at all, much less the will of drianaMaloto. +or another, the burning was not proven to have been doneunder the e'press direction of driana. nd then, the burning was not inher presence. oth witnesses, uadalupe and )ladio, were one in statingthat they were the only ones present at the place where the stove(presumably in the itchen* was located in which the papers proffered asa will were burned.

The respondent appellate court in assessing the evidence presented bythe private respondents as oppositors in the trial court, concluded that thetestimony of the two witnesses who testified in favor of the willCsrevocation appear ?inconclusive.? Ae share the same view. 0owhere inthe records before us does it appear that the two witnesses, uadalupe3da. de orral and )ladio $tchon, both illiterates, were une@uivocablypositive that the document burned was indeed drianaCs will. uadalupe,we thin, believed that the papers she destroyed was the will onlybecause, according to her, driana told her so. )ladio, on the other hand,obtained his information that the burned document was the will becauseuadalupe told him so, thus, his testimony on this point is double

hearsay.

t this ;uncture, we reiterate that ?(it* is an important matter of publicinterest that a purported win is not denied legali/ation on dubiousgrounds. 6therwise, the very institution of testamentary succession willbe shaen to its very foundations ....? *

The private respondents in their bid for the dismissal of the present actionfor probate instituted by the petitioners argue that the same is alreadybarred by res ad!udicata. They claim that this bar was brought about bythe petitionersC failure to appeal timely from the order dated 0ovember 15, 195& of the trial court in the intestate proceeding (Bpecial !roceeding0o. 1%45* denying their (petitionersC* motion to reopen the case, and their prayer to annul the previous proceedings therein and to allow the last willand testament of the late driana Maloto. This is untenable.

The doctrine of res ad!udicata finds no application in the presentcontroversy. +or a ;udgment to be a bar to a subse@uent case, thefollowing re@uisites must concur= (1* the presence of a final former

;udgment8 (2* the former ;udgment was rendered by a court having ;urisdiction over the sub;ect matter and the parties8 (4* the former ;udgment is a ;udgment on the merits8 and (* there is, between the firstand the second action, $dentity of parties, of sub;ect matter, and of cause

of action. + Ae do not find here the presence of all the enumeratedre@uisites.



+or one, there is yet, strictly speaing, no final ;udgment rendered insofar as the probate of driana MalotoCs will is concerned. The decision of thetrial court in Bpecial !roceeding 0o. 1%45, although final, involved onlythe intestate settlement of the estate of driana. s such, that ;udgmentcould not in any manner be construed to be final with respect to theprobate of the subse@uently discovered will of the decedent. 0either is ita ;udgment on the merits of the action for probate. This is understandablyso because the trial court, in the intestate proceeding, was without

;urisdiction to rule on the probate of the contested will . fter all, anaction for probate, as it implies, is founded on the presence of a will andwith the ob;ective of proving its due e'ecution and validity, somethingwhich can not be properly done in an intestate settlement of estateproceeding which is predicated on the assumption that the decedent leftno will. Thus, there is liewise no $dentity between the cause of action inintestate proceeding and that in an action for probate. e that as it may, itwould be remembered that it was precisely because of our ruling in .:.0o. "-4<%9 that the petitioners instituted this separate action for theprobate of the late driana MalotoCs will. ence, on these grounds alone,the position of the private respondents on this score can not besustained.

6ne last note. The private respondents point out that revocation could beinferred from the fact that ?(a* ma;or and substantial bul of the propertiesmentioned in the will had been disposed of= while an insignificant portionof the properties remained at the time of death (of the testatri'*8 and,furthermore, more valuable properties have been ac@uired after thee'ecution of the will on January 4,19<.? - Buffice it to state here that asthese additional matters raised by the private respondents aree'traneous to this special proceeding, they could only be appropriatelytaen up after the will has been duly probated and a certificate of itsallowance issued.

A):)+6:), ;udgment is hereby rendered :)3):B$0 and B)TT$0 B$>) the >ecision dated June %, 19&7 and the :esolution dated6ctober 22, 19&5, of the respondent ourt of ppeals, and a new one)0T):)> for the allowance of driana MalotoCs last will and testament.osts against the private respondents.

This >ecision is $MM)>$T)"F )G)#T6:F.



#estate Estate of te &eceased MARIANO MOLO Y LEGAS'I. /UANA/UAN 0&A. &E MOLO, petitioner-appellee,

vs.LU!, GLICERIA a"d CORNELIO MOLO, oppositors-appellants.

This is an appeal from an order of the ourt of +irst $nstance of :i/aladmitting to probate the last will and testament of the deceased MarianoMolo y "egaspi e'ecuted on ugust 1%, 191&. The oppositors-appellants

brought the case on appeal to this ourt for the reason that the value of the properties involved e'ceeds !7<,<<<.

Mariano Molo y "egaspi died on January 2, 191, in the municipality of !asay, province of :i/al, without leaving any forced heir either in thedescending or ascending line. e was survived, however, by his wife, theherein petitioner Juana Juan 3da. de Molo, and by his nieces andnephew, the oppositors-appellants, "u/ liceria and ornelio, allsurnamed Molo, who were the legitimate children of andido Molo y"egaspi, deceased brother of the testator. Mariano Molo y "egaspi lefttwo wills, one e'ecuted on ugust 1%, 191&, ()'hibit * and another

e'ecuted on June 2<, 1949. ()'hibit $*. The later will e'ecuted in 191&.

6n +ebruary %, 191, Juana Juan 3da. de Molo, filed in the ourt of +irst$nstance of :i/al a petition, which was doceted as special proceeding0o. &<22 seeing the probate of the will e'ecuted by the deceased onJune 2<, 1949. There being no opposition, the will was probated.owever, upon petition filed by the herein oppositors, the order of thecourt admitting the will to probate was set aside and the case wasreopened. fter hearing, at which both parties presented their evidence,the court rendered decision denying the probate of said will on theground that the petitioner failed to prove that the same was e'ecuted inaccordance with law.

$n view of the disallowance of the will e'ecuted on June 2<, 1949, thewidow on +ebruary 2, 19, filed another petition for the probate of thewill e'ecuted by the deceased on ugust 1%, 191&, which was docetedas special proceeding 0o. 75, in the same court. gain, the sameoppositors filed an opposition to the petition based on three grounds= (1*that petitioner is now estopped from seeing the probate of the will of 191&8 (2* that said will has not been e'ecuted in the manner re@uired bylaw and (4* that the will has been subse@uently revoed. ut before thesecond petition could be heard, the battle for liberation came and therecords of the case were destroyed. onse@uently, a petition for

reconstitution was filed, but the same was found to be impossiblebecause neither petitioner nor oppositors could produce the copies

re@uired for its reconstitution. s a result, petitioner filed a new petition onBeptember 1, 195, similar to the one destroyed, to which theoppositors filed an opposition based on the same grounds as thosecontained in their former opposition. Then, the case was set for trial, andon May 2&, 19&, the court issued an order admitting the will to probatealready stated in the early part of this decision. +rom this order theoppositors appealed assigning si' errors, to wit.

$. The probate court erred in not holding that the presentpetitioner voluntarily and deliberately frustrated the probate of thewill dated June 2<, 1949, in special proceeding 0o. &<22, in order to enable her to obtain the probate of another alleged will of Molodated 191.

$$. The court a "uo erred in not holding that the petitioner is nowestopped from seeing the probate of MoloCs alleged will of 191&.

$$$. The lower court erred in not holding that petitioner herein hascome to court with ?unclean hands? and as such is not entitled to

relief.

$3. The probate court erred in not holding that MoloCs alleged willof ugust 1%, 191& was not e'ecuted in the manner re@uired bylaw.

3. The probate court erred in not holding that the alleged will of 191& was deliberately revoed by Molo himself.

3$. The lower court erred in not holding that MoloCs will of 191&was subse@uently revoed by the decedentCs will of 1949.

$n their first assignment of error, counsel for oppositors contend that theprobate court erred in not holding that the petitioner voluntarily anddeliberately frustrated the probate of the will dated June 2<, 1949, inorder to enable her to obtain the probate of the will e'ecuted by thedeceased on ugust 1%, 191&, pointing out certain facts andcircumstances with their opinion indicate that petitioner connived with thewitness anuto !ere/ in an effort to defeat and frustrate the probate of the 1949 will because of her nowledge that said will intrinsicallydefective 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 taen by petitioner witha view to insuring the reali/ation of her plan of securing the probate of the



191& will which she believed would better safeguard her right to inheritfrom the decease.

These imputations of fraud and bad faith allegedly committed inconnection with special proceedings 0o. &<22, now closed andterminated, are vigorously met by counsel for petitioner who contendsthat to raise them in these proceedings which are entirely new anddistinct and completely independent from the other is improper and unfair

as they find no support whatsoever in any evidence submitted by theparties in this case. They are merely based on the presumptions andcon;ectures not supported by any proof. +or this reason, counsel,contends, the lower court was ;ustified in disregarding them and inpassing them sub silentio in its decision.

careful e'amination of the evidence available in this case seems to ;ustify this contention. There is indeed no evidence which may ;ustify theinsinuation that petitioner had deliberately intended to frustrate theprobate of the 1949 will of the deceased to enable her to see theprobate of another will other than a mere con;ecture drawn from the

apparently une'pected testimony of anuto !ere/ that he went out of theroom to answer an urgent call of nature when rtemio :eyes was signingthe will and the failure of petitioner later to impeach the character of saidwitness in spite of the opportunity given her by the court to do so. partfrom this insufficiency of evidence, the record discloses that this failurehas been e'plained by petitioner when she informed the court that shewas unable to impeach the character of her witness anuto !ere/because of her inability to find witnesses who may impeach him, and thise'planation stands uncontradicted. Ahether this e'planation issatisfactory or not, it is not now, for us to determine. $t is an incident thatcomes within the province of the former case. The failure of petitioner topresent the testimony of rtemio :eyes at the hearing has also been

e'plained, and it appears that petitioner has filed because hiswhereabouts could not be found. Ahether this is true or not is also for this ourt to determine. $t is liewise within the province and function of the court in the former case. nd the unfairness of this imputationbecomes more glaring when we stoc of the developments that hadtaen place in these proceedings which show in bold relief the true natureof the conduct, behavior and character of the petitioner so bitterlyassailed and held in disrepute by the oppositors.

$t should be recalled that the first petition for the probate of the wille'ecuted on June 2<, 1949, was filed on +ebruary %, 191, by the

petitioner. There being no opposition, the will was probated.Bubse@uently, however, upon petition of the herein oppositors, the order

of the court admitting said will to probate was set aside, over the vigorousopposition of the herein petitioner, and the case was reopened. Thereopening was ordered because of the strong opposition of theoppositors who contended that he will had not been e'ecuted as re@uiredby law. fter the evidence of both parties had been presented, theoppositors filed an e'tensive memorandum wherein they reiterated their view that the will should be denied probate. nd on the strenght of thisopposition, the court disallowed the will.

$f petitioner then new that the 1949 will was inherently defective andwould mae the testamentary disposition in her favor invalid andineffective, because it is a ?disposicion captatoria?, which nowledge shemay easily ac@uire through consultation with a lawyer, there was no needher to go through the order of filing the petition for the probate of the will.Bhe could accomplish her desire by merely suppressing the will or tearing or destroying it, and then tae steps leading to the probate of thewill e'ecuted in 191&. ut for her conscience was clear and bade her totae the only proper step possible under the circumstances, which is toinstitute the necessary proceedings for the probate of the 1949 will. This

she did and the will was admitted to probate. ut then the une'pectedhappened. 6ver her vigorous opposition, the herein appellants filed apetition for reopening, and over her vigorous ob;ection, the same wasgranted and the case was reopened. er motion for reconsideration wasdenied. $s it her fault that the case was reopenedH $s it her fault that theorder admitting the will to probate was set asideH That was a contingencywhich petitioner never e'pected. ad appellants not filed their oppositionto the probate of the will and had they limited their ob;ection to theintrinsic validity of said will, their plan to defeat the will and secure theintestacy of the deceased would have perhaps been accomplished. utthey failed in their strategy. $f said will was denied probate it is due to their own effort. $t is now unfair to impute bad faith petitioner simply because

she e'erted every effort to protect her own interest and prevent theintestacy of the deceased to happen.

aving reached the foregoing conclusions, it is obvious that the court didnot commit the second and third errors imputed to it by the counsel for appellants. $ndeed, petitioner cannot be considered guilty or estoppelwhich would prevent her from seeing the probate of the 191& will simplybecause of her effort to obtain the allowance of the 1949 will has failedconsidering that in both the 191& and 1949 wills she was in by her husband as his universal heir. 0or can she be charged with bad faith far having done so because of her desire to prevent the intestacy of her

husband. Bhe cannot be blamed being /ealous in protecting her interest.



The ne't contention of appellants refers to the revocatory clausecontained in 1949 will of the deceased which was denied probate. Theycontend that, notwithstanding the disallowance of said will, the revocatoryclause is valid and still has the effect of nullifying the prior of 191&.

ounsel for petitioner meets this argument by invoing the doctrine laiddown in the case of #amson vs. $aval , (1 !hil., &4&*. e contends thatthe facts involved in that case are on all fours with the facts of this case.

ence, the doctrine is that case is here controlling.

There is merit in this contention. Ae have carefully read the factsinvolved in the Bamson case we are indeed impressed by their striingsimilarity with the facts of this case. Ae do not need to recite here whatthose facts are8 it is enough to point out that they contain many pointsand circumstances in common. 0o reason, therefore, is seen by thedoctrine laid down in that case (which we @uote hereunder* should notapply and control the present case.

subse@uent will, containing a clause revoing a previous will,

having been disallowed, for the reason that it was not e'ecuted inconformity with the provisions of section 51& of the ode of ivil!rocedure as to the maing of wills, cannot produce the effect of annulling the previous will, inasmuch as said revocatory clause isvoid. (1 !hil., &4&.*

propos of this @uestion, counsel for oppositors mae the remar that,while they do not disagree with the soundness of the ruling laid down inthe Bamson case, there is reason to abandon said ruling because it isarchaic or anti@uated and runs counter to the modern trend prevailing in

merican ;urisprudence. They maintain that said ruling is no longer

controlling but merely represents the point of view of the minority andshould, therefore, be abandoned, more so if we consider the fact thatsection 524 of our ode of ivil !rocedure, which governs the revocationof wills, is of merican origin and as such should follow the prevailingtrend of the ma;ority view in the #nited Btates. long line of authorities iscited in support of this contention. nd these authorities hold the view,that ?an e'press revocation is immediately effective upon the e'ecution of the subse@uent will, and does not re@uire that it first undergo the formalityof a probate proceeding?. (p. 54, appellantsC brief .

Ahile they are many cases which uphold the view entertained by counselfor 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 #nited Btates.$n the search we have made of merican authorities on the sub;ect, wefound ourselves in a pool of conflicting opinions perhaps because of thepeculiar provisions contained in the statutes adopted by each Btate in thesub;ect of revocation of wills. ut the impression we gathered from areview and the study of the pertinent authorities is that the doctrine laiddown in the Bamson case is still a good law. 6n page 42& of the

merican Jurisprudence 3ol. 7%, which is a revision !ublished in 19&,

we found the following passages which in our opinion truly reflect thepresent trend of merican ;urisprudence on this matter affecting therevocation of wills=

B). %1. %bservance of &ormalities in 'xecution of Instrument .D 6rdinarily, statutes which permit the revocation of a will byanother writing provide that to be effective as a revocation, thewriting must be e'ecuted with the same formalities which arere@uired to be observed in the e'ecution of a will. ccordingly,where, under the statutes, attestation is necessary to the maingof a valid will, an unattested non testamentary writing is not

effective to revoe a prior will. $t has been held that a writing failsas a revoing instrument where it is not e'ecuted with theformalities re@uisite for the e'ecution of a will, even though it isinscribed on the will itself, although it may effect a revocation bycancellation or obliteration of the words of the will. testator cannot reserve to himself the power to modify a will by a writteninstrument subse@uently prepared but not e'ecuted in themanner re@uired for a will.

B), %2. #ubse"uent (nexecuted, Invalid, or Ineffective )ill or Codicil . D will which is invalid because of the incapacity of thetestator, or of undue influence can have no effect whatever as a

revoing will. Moreover, a will is not revoed by the une'ecuteddraft of a later one. 0or is a will revoed by a defectively e'ecutedwill or codicil, even though the latter contains a clause e'presslyrevoing the former will, in a ;urisdiction where it is provided by acontrolling statute that no writing other than a testamentaryinstrument is sufficient to revoe a will, for the simple reason thatthere is no revoing will. Bimilarly where the statute provides thata will may be revoed by a subse@uent will or other writinge'ecuted with the same formalities as are re@uired in thee'ecution of wills, a defectively e'ecuted will does not revoe aprior will, since it cannot be said that there is a writing which

complies with the statute. Moreover, a will or codicil which, onaccount of the manner in which it is e'ecuted, is sufficient to pass



only personally does not affect dispositions of real estate madeby a former will, even though it may e'pressly purport to do so.The intent of the testator to revoe is immaterial, if he has notcomplied with the statute. (7% m. Jur., 42&, 429.*

Ae find the same opinion in the merican "aw :eports, nnotated,edited in 1949. 6n page 1<<, 3olume 124, there appear manyauthorities on the ?application of rules where second will is invalid?,

among which a typical one is the following=

$t is universally agreed that where the second will is invalid onaccount of not being e'ecuted in accordance with the provisionsof the statute, or where the testator who has not sufficient mentalcapacity to mae a will or the will is procured through undueinfluence, or the such, in other words, where the second will isreally no will, it does not revoe the first will or affect it in anymanner. Mort vs. aer #niversity (194-7* 229 Mo. pp., 542, %&B.A. (2d*, 9&.

These treaties cannot be mistaen. They uphold the view on which theruling in the Bamson case is predicated. They reflect the opinion that thisruling is sound and good and for this reason, we see no ;ustification for abondoning it as now suggested by counsel for the oppositors.

$t is true that our law on the matter (sec. 524, ode ivil !rocedure*provides that a will may be some will, codicil, or other writing e'ecuted asproved in case of wills? but it cannot be said that the 1949 will should beregarded, not as a will within the meaning of said word, but as ?other writing e'ecuted as provided in the case of wills?, simply because it wasdenied probate. nd even if it be regarded as any other writing within the

meaning of said clause, there is authority for holding that unless saidwriting is admitted to probate, it cannot have the effect of revocation.(Bee 7% m. Jur. pp. 429-44<*.

ut counsel for oppositors contemned that, regardless of said revocatoryclause, said will of 191& cannot still be given effect because of thepresumption that it was deliberately revoed by the testator himself. Theoppositors contend that the testator, after e'ecuting the 1949 will, andwith full nowledge of the recovatory clause contained said will, himself deliberately destroyed the original of the 191& will, and for that reason thewill submitted by petitioner for probate in these proceedings is only aduplicate of said original.

There is no evidence which may directly indicate that the testator deliberately destroyed the original of the 191& will because of hisnowledge of the revocatory clause contained in the will he e'ecuted in1949. The only evidence we have is that when the first will was e'ecutedin 191&, Juan Balcedo, who prepared it, gave the original and copies tothe testator himself and apparently they remained in his possession untilhe e'ecuted his second will in 1949. nd when the 1949 will was deniedprobate on 0ovember 29, 194, and petitioner was ased by her attorney

to loo for another will, she found the duplicate copy ()'hibit * amongthe papers or files of the testator. Bhe did not find the original.

$f it can be inferred that the testator deliberately destroyed the 191& willbecause of his nowledge of the revocatory clause of the 1949 will, and itis true that he gave a duplicate copy thereof to his wife, the hereinpetitioner, the most logical step for the testator to tae is to recall saidduplicate copy in order that it may liewise be destroyed. ut this was notdone as shown by the fact that said duplicate copy remained in thepossession of petitioner. $t is possible that because of the long lapse of twenty-one (21* years since the first will was e'ecuted, the original of the

will had been misplaced or lost, and forgetting that there was a copy, thetestator deemed it wise to e'ecute another will containing e'actly thesame testamentary dispositions. Ahatever may be the conclusion wemay draw from this chain of circumstances, the stubborn fact is that thereis no direct evidence of voluntary or deliberate destruction of the first willby the testator. This matter cannot be inference or con;ectur.

ranting for the sae of argument that the earlier will was voluntarilydestroyed by the testator after the e'ecution of the second will, whichrevoed the first, could there be any doubt, under this theory, that saidearlier will was destroyed by the testator in the honest belief that it wasno longer necessary because he had e'pressly revoed it in his will of

1949H $n other words, can we not say that the destruction of the earlier will was but the necessary conse@uence of the testatorCs belief that therevocatory clause contained in the subse@uent will was valid and thelatter would be given effectH $f such is the case, then it is our opinion thatthe earlier will can still be admitted to probate under the principle of ?dependent relative revocation?.

This doctrine is nown as that of dependent relative revocation,and is usually applied where the testator cancels or destroys awill or e'ecutes an instrument intended to revoe a will with apresent intention to mae 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 e'istence of some other document, however, and has beenapplied where a will was destroyed as a conse@uence of amistae of law. . . . (5& .J.!. %99*.

The rule is established that where the act of destruction isconnected with the maing of another will so as fairly to raise theinference that the testator meant the revocation of the old todepend upon the efficacy of a new disposition intended to be

substituted, the revocation will be conditional and dependentupon the efficacy of the new disposition8 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.(ardner, pp. 242, 244.*

This is the doctrine of dependent relative revocation. The failureof a new testamentary disposition upon whose validity therevocation depends, is e@uivalent to the non-fulfillment of asuspensive conditions, and hence prevents the revocation of theoriginal will. ut a mere intent to mae at some time a will in the

place of that destroyed will not render the destruction conditional.$t must appear that the revocation is dependent upon the valide'ecution of a new will. (1 le'ander, p. %718 ardner, p. 274.*

Ae hold therefore, that even in the supposition that the destruction of theoriginal will by the testator could be presumed from the failure of thepetitioner to produce it in court, such destruction cannot have the effect of defeating the prior will of 191& because of the fact that it is founded onthe mistaen belief that the will of 1949 has been validly e'ecuted andwould be given due effect. The theory on which this principle ispredicated is that the testator did not intend to die intestate. nd thisintention is clearly manifest when he e'ecuted two wills on two differentoccasion and instituted his wife as his universal heir. There can thereforebe no mistae as to his intention of dying testate.

The remaining @uestion to be determined refers to the sufficiency of theevidence to prove the due e'ecution of the will.

The will in @uestion was attested, as re@uired by law, by three witnesses,"oren/o Morales, :ufino )nri@ue/, and ngel uenca. The first twowitnesses died before the commencement of the present proceedings.Bo the only instrumental witness available was ngel uenca and under our law and precedents, his testimony is sufficient to prove the due

e'ecution of the will. owever, petitioner presented not only the

testimony of uenca but placed on the witness stand Juan Balcedo, thenotary public who prepared and notari/ed the will upon the e'pressdesire and instruction of the testator, The testimony of these witnessesshows that the will had been e'ecuted in the manner re@uired by law. Aehave read their testimony and we were impressed by their readiness andsincerity. Ae are convinced that they told the truth.

Aherefore, the order appealed from is hereby affirmed, with costs against

the appellants.



I" te mate1 of te estate of /esus de Leo".IGNACIA &IA!, petitioner-appellant,

vs.ANA &E LEON, opponent-appellee.

The only @uestion raised in this case is whether or to the will e'ecuted byJesus de "eon, now, was revoed by him.

The petitioner denies such revocation, while the contestant affirms thesame by alleging that the testator revoed his will by destroying it, and bye'ecuting another will e'pressly revoing the former.

Ae find that the second will )'hibit 1 e'ecuted by the deceased is notcloth with all the necessary re@uisites to constitute a sufficient revocation.

ut according to the statute governing the sub;ect in this ;urisdiction, thedestruction of a will animo revocandi constitutes, in itself, a sufficientrevocation. (Bec. 524, ode of ivil !rocedure.*l*vvph+-n/

+rom the evidence submitted in this case, it appears that the testator,shortly after the e'ecution of the first will in @uestion, ased that the samebe returned to him. The instrument was returned to the testator whoordered his servant to tear the document. This was done in his presenceand before a nurse who testified to this effect. fter some time, thetestator, being ased by >r. ornelio Mapa about the will, said that it hadbeen destroyed.

The intention of revoing the will is manifest from the established fact thatthe testator was an'ious to withdraw or change the provisions he hadmade in his first will. This fact is disclosed by the testatorCs own

statements to the witnesses anto and the Mother Buperior of theospital where he was confined.

The original will herein presented for probate having been destroyedwith animo revocandi , cannot now be probated as the will and lasttestament of Jesus de "eon.

Judgement is affirmed with costs against the petitioner. Bo ordered.



I" te matte1 of te 2ill of &o"ata Ma"aa". #IURCIA

MANA%AN, petitioner-appellee,

vs.

ENGRACIA MANA%AN, opponent-appellant.

This is an appeal taen by the appellant herein, )ngracia Manahan, from

the order of the ourt of the +irst $nstance of ulacan dated July 1, 1942,

in the matter of the will of the deceased >onata Manahan, special

proceedings 0o. 152, denying her motion for reconsideration and new

trial filed on May 11, 1942.

The fact in the case are as follows=

6n ugust 29, 194<, Tiburcia Manahan instituted special proceedings

0o. 152, for the probate of the will of the deceased >onata Manahan,

who died in ulacan, !rovince of ulacan, on ugust 4, 194<. The

petitioner herein, niece of the testatri', was named the e'ecutri' in said

will. The court set the date for the hearing and the necessary notice

re@uired by law was accordingly published. 6n the day of the hearing of

the petition, no opposition thereto was filed and, after the evidence waspresented, the court entered the decree admitting the will to probate as

prayed for. The will was probated on Beptember 22, 194<. The trial court

appointed the herein petitioner e'ecutri' with a bond of !1,<<<, and

liewise appointed the committed on claims and appraisal, whereupon

the testamentary proceedings followed the usual course. 6ne year and

seven months later, that is, on My 11, 1942, to be e'act, the appellant

herein filed a motion for reconsideration and a new trial, praying that the

order admitting the will to probate be vacated and the authenticated will

declared null and void ab initio. The appellee herein, naturally filed her

opposition to the petition and, after the corresponding hearing thereof,

the trial court erred its over of denial on July 1, 1942. )ngracia Manahan,

under the prete't of appealing from this last order, liewise appealed from

the ;udgment admitting the will to probate.

$n this instance, the appellant assigns seven (%* alleged errors as

committed by the trial court. $nstead of discussing them one by one, we

believe that, essentially, her claim narrows down to the following= (1* That

she was an interested party in the testamentary proceedings and, as

such, was entitled to and should have been notified of the probate of the

will8 (2* that the court, in its order of Beptember 22, 194<, did not really

probate the will but limited itself to decreeing its authentication8 and (4*

that the will is null and void ab initio on the ground that the e'ternal

formalities prescribed by the ode of ivil !rocedure have not been

complied with in the e'ecution thereof.

The appellantCs first contention is obviously unfounded and untenable.

Bhe was not entitled to notification of the probate of the will and neither

had she the right to e'pect it, inasmuch as she was not an interested

party, not having filed an opposition to the petition for the probate thereof.

er allegation that she had the status of an heir, being the deceasedCs

sister, did not confer on her the right to be notified on the ground that the

testatri' died leaving a will in which the appellant has not been instituted

heir. +urthermore, not being a forced heir, she did not ac@uire any

successional right.

The second contention is puerile. The court really decreed the

authentication and probate of the will in @uestion, which is the only

http://philippinelaw.info/statutes/act190.html





pronouncement re@uired of the trial court by the law in order that the will

may be considered valid and duly e'ecuted in accordance with the law. $n

the phraseology of the procedural law, there is no essential difference

between the authentication of a will and the probate thereof. The words

authentication and probate are synonymous in this case. ll the law

re@uires is that the competent court declared that in the e'ecution of the

will the essential e'ternal formalities have been complied with and that, in

view thereof, the document, as a will, is valid and effective in the eyes of

the law.

The last contention of the appellant may be refuted merely by stating

that, once a will has been authenticated and admitted to probate,

@uestions relative to the validity thereof can no more be raised on appeal.

The decree of probate is conclusive with respect to the due e'ecution

thereof and it cannot impugned on any of the grounds authori/ed by law,

e'cept that of fraud, in any separate or independent action or

proceedings. ut there is another reason which prevents the appellant

herein from successfully maintaining the present action and it is that

inasmuch as the proceedings followed in a testamentary case are in rem,

the trial courtCs decree admitting the will to probate was effective and

conclusive against her, in accordance with the provisions of section 4<5

of the said ode of ivil !rocedure which reads as follows=

B). 4<5. )++)T 6+ J#>M)0T. D . . . .

1. $n case of a ;udgment or order against a specific thing, or in respect to

the probate of a will, or the administration of the estate of a deceased

person, or in respect to the personal, political, or legal condition or

relation of a particular person the ;udgment or order is conclusive upon

the title of the thing, the will or administration, or the condition or relation

of the person= 0rovided , That the probate of a will or granting of letters of

administration shall only be prima facieevidence of the death of the

testator or intestate8 . . . .

6n the other hand, we are at a loss to understand how it was possible for

the herein appellant to appeal from the order of the trial court denying her

motion for reconsideration and a new trial, which is interlocutory in

character. $n view of this erroneous interpretation, she succeeded in

appealing indirectly from the order admitting the will to probate which was

entered one year and seven months ago.

efore closing, we wish to state that it is not timely to discuss herein the

validity and sufficiency of the e'ecution of the will in @uestion. s we have

already said, this @uestion can no more be raised in this case on appeal.

fter due hearing, the court found that the will in @uestion was valid and

effective and the order admitting it to probate, thus promulgated, should

be accepted and respected by all. The probate of the will in @uestion now

constitutes res !udicata.

Aherefore, the appeal taen herein is hereby dismissed, with costs

against the appellant. Bo ordered.







GALLANOSA 0S. ARCANGEL

$n this special civil action of certiorari, filed on July 29, 195&, thepetitioners see to annul the orders of respondent Judge dated May 4trial June 1%, 195&, wherein he reconsidered his order of January 1<,195&, dismissing, on the ground of prescription, the complaint in ivilase 0o. 2244 of the ourt of +irst $nstance of Borsogon.

The case involves the si'ty-one parcels of land in Borsogon left by+lorentino itosis, with an estimated value of !7<,<<<, trial claims for damages e'ceeding one million pesos. The undisputed facts are asfollows=

1. +lorentino itosis e'ecuted a will in the icol dialect on June 19, 194&when he was eighty years old. e died on May 25, 1949 at $rosin,Borsogon. childless widower, he as survived by his brother, "eonitosis. is other brothers, named Juan, Tito (Juancito*, "eoncio(loncio* trial polonio and only sister, Teodora, were all dead.

2. 6n June 2, 1949 a petition for the probate of his will was filed in theourt of +irst $nstance of Borsogon (Bpecial !roceeding 0o. 41%1*. 1henotice of hearing was duly published. $n that will, +lorentino be@ueathedhis one-half share in the con;ugal estate to his second wife, Tecla>ollentas, and, should Tecla predecease him, as was the case, his one-half share would be assigned to the spouses !edro allanosa andora/on recia, the reason being that !edro, TeclaCs son by her firstmarriage, grew up under the care of +lorentino8 he had treated !edro ashis foster child, and !edro has rendered services to +lorentino and Tecla.+lorentino liewise be@ueathed his separate properties consisting of three parcels of abaca land and parcel of riceland to his protege(sasacuyang ataman*, dolfo +orta;ada, a minor.

4. 6pposition to the probate of the will was registered by the testatorCslegal heirs, namely, his surviving brother, "eon, trial his nephews trialnieces. fter a hearing, wherein the oppositors did not present anyevidence in support of their opposition, Judge !ablo B. :ivera, in hisdecision of 6ctober 2%, 1949, admitted the will to probate and appointedallanosa as e'ecutor. Judge :ivera specifically found that the testator e'ecuted his last will ?go/ando de buena salud y facultades mentales yno obrando en virtud de amena/a, fraude o influencia indebida.?

. 6n 6ctober 2, 191, the testamentary heirs, the allanosa spouses

trial dolfo +orta;ada, submitted a pro;ect of partition covering si'ty-one

parcels of land located in various parts of Borsogon, large cattle trialseveral pieces of personal property which were distributed in accordancewith +lorentinoCs will. The heirs assumed the obligations of the estateamounting to !%,129.2% in the portion of !2,4%5.2 for dolfo +orta;adaand !,%72.&7 for the allanosa spouses. The pro;ect of partition wasapproved by Judge >oroteo mador in his order of March 14, 194, thusconfirming the heirsC possession of their respective shares. The testatorCslegal heirs did not appeal from the decree of probate trial from the order

of partition trial distribution.

7. 6n +ebruary 2<, 1972, "eon itosis trial the heirs of +lorentinoCsdeceased brothers trial sisters instituted an action in the ourt of +irst$nstance of Borsogon against !edro allanosa for the recovery of thesaid si'ty-one parcels of land. They alleged that they, by themselves or through their predecessors-in-interest, had been in continuouspossession of those lands en concepto de due2o trial that allanosaentered those lands in 1971 trial asserted ownership over the lands. Theyprayed that they be declared the owners of the lands trial that they berestored to the possession thereof. They also claimed damages (ivilase 0o. 595*.

5. allanosa moved to dismiss the above complaint for lac of cause of action trial on the ground of bar by the prior ;udgment in the probateproceeding. Judge natolio . MaIalac dismiss the complaint on theground of res !udicata in his order of ugust 1, 1972 wherein he said=

$t also appears that the plaintiffs andor their predecessors-in-interest had intervened in the testateproceedings in ivil ase 0o. 41%1 of this ourt for- thepurpose of contesting the probate of the will of (the* late+lorentino itosis8 trial had their opposition prospered trialthe will denied of probate, the proceedings would havebeen converted into one of intestacy (rt. 95< ivil ode*and the settlement of the estate of the said deceasedwould have been made in accordance with the provisionsof law governing legal or intestate succession ... , in whichcase the said plaintiffs, as the nearest of in or legal heirsof said +lorentino Mitosis, would have succeeded to theownership and possession of the 51 parcels of land in@uestion forming part of his estate (art. 1<<4, ivil ode*.

owever, the derision of the ourt was adverse to them,

when it their opposition trial ordered the probate of hiswill. +rom this decision (nne' E* legali/ing the said will,



the oppositors did not file any appeal within the periodfi'ed by law, despite the fact that they were duly notifiedthereof, so that the said decision had become final trial itnow constitutes a bar to any action that the plaintiffs mayinstitute for the purpose of a redetermination of their rightsto inherit the properties of the late +lorentino itosis.

$n other words, the said decision of this ourt in ivil

ase special * 0o. 41%1, in which the herein plaintiffs or their predecessors-in-interest had intervened as partiesoppositors, constitutes a final ;udicial determination of theissue that the said plaintiffs, as ordinary heirs, have nolegal rights to succeed to any of the properties of the late+lorentino itosis8 conse@uently, their present claim to theownership trial possession of the 51 parcels of land in@uestion is without any legal merit or basis.

%. The plaintiffs did not appeal from that order of dismissal which shouldhave set the matter at rest. ut the same plaintiffs or oppositors to the

probate of the will, trial their heirs, with a persistence befitting a moremeritorious case, filed on Beptember 21, 195%, or fifteen years after thedismissal of ivil ase 0o. 595 trial twenty-eight years after the probateof the will another action in the same court against the allanosaspouses trial dolfo +orta;ada for the ?annulment? of the will of +lorentinoitosis trial and for the recovery of the same si'ty-one parcels of land.They prayed for the appointment of a receiver.

&. s basis of their complaint, they alleged that the allanosa spouses,through fraud trial deceit, caused the e'ecution trial simulation of thedocument purporting to be the last will trial testament of +lorentinoitosis. Ahile in their 1972 complaint the game plaintiffs alleged that theywere in possession of the lands in @uestion, in their 195% complaint theyadmitted that since 1949, or from the death of +lorentino itosis, thedefendants (now the petitioners* have been in possession of the disputedlands (!ar. G$3 of the complaint, p. %<, :ollo in ivil ase 0o. 777, ubatranch, which was transferred to ranch $ in Borsogon town whereBpecial !roceeding 0o. 41%1 trial ivil ase 0o. 595 were decided trialwhich was re-doceted as ivil ase 0o. 2244*.

9. s already stated, that 195% complaint, upon motion of the defendants,now the petitioners, was dismissed by respondent Judge. The plaintiffsfiled a motion for reconsideration :espondent Judge. granted it trial set

aside the order of dismissal. e denied defendantsC motion for thereconsideration of his order setting aside that dismissal order.

The petitioners or the defendants below contend in this certiorari casethat the lower court has no ;urisdiction to set aside the 1949 decree of probate trial the 1972 order of dismissal in ivil ase 0o. 595 trial that itacted with grave abuse of discretion in not dismissing privaterespondentsC 195% complaint.

The issue is whether, under the facts set forth above, the privaterespondents have a cause of action the ?annulment? of the will of

+lorentino itosis trial for the recovery of the si'ty-one parcels of landad;udicated under that will to the petitioners.

Ae hold that the lower court committed a grave abuse of discretion inreconsideration its order of dismissal trial in ignoring the 1949testamentary case trial the 1972 ivil ase 0o. 595 which is the same asthe instant 195% case.

rudimentary nowledge of substantive law trial procedure is sufficientfor an ordinary lawyer to conclude upon a causal perusal of the 195%complaint that it is baseless trial unwarranted.

Ahat the plaintiffs see is the ?annulment? of a last will trial testamentduly probated in 1949 by the lower court itself. The proceeding is coupledwith an action to recover the lands ad;udicated to the defendants by thesame court in 194 by virtue of the probated will, which action is aresuscitation of The complaint of the same parties that the same courtdismissed in 1972.

$t is evident from the allegations of the complaint trial from defendantsCmotion to dismiss that plaintiffsC 195% action is barred by res !udicata, adouble-barrelled defense, trial by prescription, ac@uisitive trial e'tinctive,

or by what are nown in the !us civile trial the !usgentium as usucapio, longi temporis possesio and praescriptio (Bee:amos vs. :amos, "-19&%2, >ecember 4, 19%, 51 B: 2&*.

6ur procedural law does not sanction an action for the ?annulment? of awill. $n order that a will may tae effect, it has to be probated, legali/ed or allowed in the proper testamentary proceeding. The probate of the will ismandatory (rt. &4&, ivil ode8 sec. 1, :ule %7, formerly sec. 1, :ule%5, :ules of ourt8 uevara vs. uevara, % !hil. %98 uevara vs.uevara, 9& !hil. 29*.

The testamentary proceeding is a special proceeding for the settlementof the testatorCs estate. special proceeding is distinct trial different from



an ordinary action (Becs. 1 trial 2, :ule 2 trial sec. 1, :ule %2, :ules of ourt*.

Ae say that the defense of res !udicata, as a ground for the dismissal of plaintiffsC 195% complaint, is a two-pronged defense because (1* the 1949trial 194 decrees of probate trial distribution in Bpecial !roceeding 0o.41%1 trial (2* the 1972 order of dismissal in ivil ase 0o. 595 of thelower court constitute bars by former ;udgment, :ule 49 of the :ules of

ourt provides=

B). 9. 'ffect of !udgments. D The effect of a ;udgmentor final order rendered by a court or ;udge of the!hilippines, having ;urisdiction to pronounce the ;udgmentor order, may be as follows=

(a* $n case of a ;udgment or order against a specific thing,or in respect to the probate of a will or the administrationof the estate of a deceased person, or in respect to thepersonal, political, or legal condition or status of a

particular person or his relationship to another, the ;udgment or order is conclusive upon the title to the thingthe will or administration, or the condition, status or relationship of the person8 however, the probate of a willor granting of letters of administration shall only be primafacie evidence of the death of the testator or intestate8

(b* $n other cases the ;udgment or order is, with respect tothe matter directly ad;udged or as to any other matter thatcould have been raised in relation thereto, conclusivebetween the parties trial their successors in interest bytitle subse@uent to the commencement of the action or special proceeding, litigating of the same thing trial under the same title trial in the same capacity8

(c* $n any other litigation between the same parties or their successors in interest, that only is deemed to havebeen ad;udged in a former ;udgment which appears uponits face to have been so ad;udged, or which was actuallytrial necessarily included therein or necessary thereto.

The 1949 decree of probate is conclusive as to the due e'ecution or formal validity of the will (Bec. 527, ct 19<, sec. 1, :ule %5, now sec. 1,

:ule %7, :ules of ourt8 "ast par. of art. &4&, ivil ode*.

That means that the testator was of sound trial disposing mind at the timewhen he e'ecuted the will and was not acting under duress, menace,fraud, or undue influence8 that the will was signed by him in the presenceof the re@uired number of witnesses, and that the will is genuine trial isnot a forgery. ccordingly, these facts cannot again be @uestioned in asubse@uent proceeding, not even in a criminal action for the forgery of the will. (4 MoranCs omments on the :ules of ourt, 19%< )dition, p.4978 Manahan vs. Manahan, 7& !hil. &*.

fter the finality of the allowance of a will, the issue as to thevoluntariness of its e'ecution cannot be raised anymore (Bantos vs. >euenaventura, "-22%9%, Beptember 22, 1955, 1& B: %*.

$n ustria vs. 3entenilla, 21 !hil. 1&<, a ?petition for annulment of a will?was not entertained after the decree of probate had become final. Thatcase is summari/ed as follows=

)ills4 0robate4 lledged &raudulent )ill4 ppeal .D 3.died. is will was admitted to probate without ob;ection.

0o appeal was taen from said order. $t was admitted thatdue trial legal notice had been given to all parties. +ifteenmonths after the date of said order, a motion waspresented in the lower court to have said will declared nulland void, for the reason that fraud had been practisedupon the deceased in the maing of his will.

eld= That under section 527 of ct 0o. 19<, the only timegiven parties who are displeased with the order admittingto probate a will, for an appeal is the time given for appeals in ordinary actions8 but without deciding whether or not an order admitting a will to probate will be openedfor fraud, after the time allowed for an appeal has e'pired,when no appeal is taen from an order probating a will,the heirs can not, in subse@uent litigation in the sameproceedings, raise @uestions relating to its due e'ecution.The probate of a will is conclusive as to its due e'ecutiontrial as to the testamentary capacity of The testator. (Bee

ustria vs. eirs of 3entenilla. 99 !hil. 1<59*.

6n the other hand, the 194 decree of ad;udication rendered by the trialcourt in the testate proceeding for the settlement of the estate of +lorentino itosis, having been rendered in a proceeding in rem, is under

the above@uoted section 9(a*, binding upon the whole world (Manalo vs.



!aredes, % !hil. 94&8 In re )state of Johnson, 49 !hil. 1758 >e la ernavs. !otot, 12< !hil. 1451, 1458 McMaster vs. entry :eissmann K o.,5& !hil. 12*.

$t is not only the 1949 probate proceeding that can be interposed as res !udicata with respect to private respondentsC complaint, The 1972 order of dismissal rendered by Judge MaIalac in ivil ase 0o. 595, a ;udgmentin personam was an ad;udication on the merits (Bec. , :ule 4<, old

:ules of ourt*. $t constitutes a bar by former ;udgment under theafore@uoted section 9(b* (nticamara vs. 6ng, "-295&9. pril 1, 19%&*.

The plaintiffs or private respondents did not even bother to as for theannulment of the testamentary proceeding trial the proceeding in ivilase 0o. 595. 6bviously, they reali/ed that the final ad;udications inthose cases have the binding force of res !udicata and that there is noground, nor is it timely, to as for the nullification of the final orders trial

;udgments in those two cases.

$t is a fundamental concept in the organi/ation of every ;ural system, a

principle of public policy, that, at the ris of occasional errors, ;udgmentsof courts should become final at some definite date fi'ed by law. Interest rei publicae ut finis sit litum . ?The very ob;ect for which the courts wereconstituted was to put an end to controversies.? (>y ay vs. rossfieldand 6Crien, 4& !hil. 721= !eIalosa vs. Tuason, 22 !hil, 4<48 >e laerna vs. !otot, supra*.

fter the period for seeing relief from a final order or ;udgment under :ule 4& of the :ules of ourt has e'pired, a final ;udgment or order canbe set aside only on the grounds of (a* lac of ;urisdiction or lac of dueprocess of law or (b* that the ;udgment was obtained by means of e'trinsic or collateral fraud. $n the latter case, the period for annulling the

;udgment is four years from the discovery of the fraud (2 MoranCsomments on the :ules of ourt, 19%< )dition, pp. 27-258 Mauricio vs.3illanueva, 1<5 !hil. 1179*.

To hurdle over the obstacle of prescription, the trial court, naivelyadopting the theory of plaintiffsC counsel, held that the action for therecovery of the lands had not prescribed because the rule in article 11<of the ivil ode, that ?the action or defense for the declaration of theine'istence of a contract does not prescribe?, applies to wills.

That ruling is a glaring error. rticle 11< cannot possibly apply to last

wills trial testaments. The trial court trial plaintiffsC counsel relied upon the

case of >ingle vs. uillermo, & <. . 1<, allegedly decided by thisourt, which cited the ruling in Tipton vs. 3elasco, 5 !hil. 5%, that merelapse of time cannot give efficacy to voidcontracts, a ruling elevated tothe category of a codal provision in article 11<. The 5ingle case wasdecided by the ourt of ppeals. )ven the trial court did not tae pains toverify the misrepresentation of plaintiffsC counsel that the 5ingle case wasdecided by this ourt. n elementary nowledge of civil law could havealerted the trial court to the egregious error of plaintiffsC counsel in

arguing that article 11< applies to wills.

A):)+6:), the lower courtCs orders of May 4 trial June 1%, 195& arereversed trial set aside trial its order of dismissal dated January 1<, 195&is affirmed. osts against the private respondents.



'AULA &E LA CERNA, E# AL., petitioners,vs.

MANUELA REACA 'O#O#, E# AL., a"d #%E %ONORALE COUR#OF A''EALS, respondents.

ppeal by !aula de la erna and others from a decision of the ourt of ppeals, Bi'th >ivision (..-.:. 0o. 24%54-:* reversing that of theourt of +irst $nstance of ebu (iv. ase 0o. :-4&19* and ordering the

dismissal of an action for partition.

The factual bacground appears in the following portion of the decision of the ourt of ppeals (!etition, nne' , pp. 2-*=

$t appears that on May 9, 1949, the spouses, ernabe de laBerna and ervasia :ebaca, e'ecuted a ;oint last will andtestament in the local dialect whereby they willed that ?our twoparcels of land ac@uired during our marriage together with allimprovements thereon shall be given to Manuela :ebaca, our niece, whom we have nurtured since childhood, because od did

not give us any child in our union, Manuela :ebaca being marriedto 0icolas !otot?, and that ?while each of the testators is yetliving, he or she will continue to en;oy the fruits of the two landsaforementioned?, the said two parcels of land being covered byTa' 0o. 5%5 and Ta' 0o. 55%%, both situated in sitio ucao,barrio "ugo, municipality of orbon, province of ebu. ernabedela Berna died on ugust 4<, 1949, and the aforesaid will wassubmitted to probate by said ervasia and Manuela before theourt of +irst $nstance of ebu which, after due publication asre@uired by law and there being no opposition, heard theevidence, and, by 6rder of 6ctober 41, 19498 in Bpecial!roceedings 0o. 99, ?declara legali/ado el documento )'hibit

como el testamento y ultima voluntad del finado ernabe de laBerna con derecho por parte du su viuda superstite ervasia:ebaca y otra testadora al propio tiempo segun el )'hibit dego/ar de los frutos de los terranos descritos en dicho documents8y habido consideracion de la cuantia de dichos bienes, sedecreta la distribucion sumaria de los mismos en favor de lalogataria universal Manuela :ebaca de !otot previa prestacionpor parte de la misma de una fian/a en la sum de !7<<.<< pararesponder de cuales@uiera reclamaciones @ue se presentarecontra los bienes del finado ernabe de la Berna de los aIosdesde esta fecha? (ct )sp. 99, Testamentaria +inado ernabe

de la Berna* #pon the death of ervasia :ebaca on 6ctober 1,1972, another petition for the probate of the same will insofar as

ervasia was concerned was filed on 0ovember 5, 1972, beingBpecial !roceedings 0o. 1<15-: of the same ourt of +irst$nstance of ebu, but for failure of the petitioner, Manuela :.!otot and her attorney, Manuel !otot to appear, for the hearing of said petition, the case was dismissed on March 4<, 197 Bpec.!roc. 0o. 1<15-:, $n the matter of the !robate of the Aill of ervasia :ebaca*.

The ourt of +irst $nstance ordered the petition heard and declared thetestament null and void, for being e'ecuted contrary to the prohibition of

;oint wills in the ivil ode (rt. 559, ivil ode of 1&&9 and rt. &1&, ivilode of the !hilippines*8 but on appeal by the testamentary heir, theourt of ppeals reversed, on the ground that the decree of probate in1949 was issued by a court of probate ;urisdiction and conclusive on thedue e'ecution of the testament. +urther, the ourt of ppeals declaredthat=

... . $t is true the law (rt. 559, old ivil ode8 rt. &1&, new ivilode*. prohibits the maing of a will ;ointly by two or more

persons either for their reciprocal benefit or for the benefit of athird person. owever, this form of will has long been sanctionedby use, and the same has continued to be used8 and when, as inthe present case, one such ;oint last will and testament has beenadmitted to probate by final order of a ourt of competent

;urisdiction, there seems to be no alternative e'cept to give effectto the provisions thereof that are not contrary to law, as was donein the case of 6acrohon vs. #aavedra, 71 !hil. 25%, wherein our Bupreme ourt gave effect to the provisions of the ;oint willtherein mentioned, saying, ?assuming that the ;oint will in@uestion is valid.?

Ahence this appeal by the heirs intestate of the deceased husband,ernabe de la erna.

The appealed decision correctly held that the final decree of probate,entered in 1949 by the ourt of +irst $nstance of ebu (when the testator,ernabe de la erna, died*, has conclusive effect as to his last will andtestament despite the fact that even then the ivil ode already decreedthe invalidity of ;oint wills, whether in favor of the ;oint testators,reciprocally, or in favor of a third party (rt. 559, old ivil ode*. The error thus committed by the probate court was an error of law, that should havebeen corrected by appeal, but which did not affect the ;urisdiction of the

probate court, nor the conclusive effect of its final decision, however erroneous. final ;udgment rendered on a petition for the probate of a will



is binding upon the whole world (Manalo vs. !aredes, % !hil. 94&8 $n re)states of Johnson, 49 !hil. 175*8 and public policy and sound practicedemand that at the ris of occasional errors ;udgment of courts shouldbecome final at some definite date fi'ed by law. Interest rei publicae ut finis set litium (>y ay vs. rossfield, 4& !hil, 721, and other cases citedin 2 Moran, omments on the :ules of ourt (1954 )d., p. 422*.

!etitioners, as heirs and successors of the late ernabe de la erna, are

concluded by the 1949 decree admitting his will to probate. Thecontention that being void the will cannot be validated, overloos that theultimate decision on Ahether an act is valid or void rests with the courts,and here they have spoen with finality when the will was probated in1949. 6n this court, the dismissal of their action for partition was correct.

ut the ourt of ppeals should have taen into account also, to avoidfuture misunderstanding, that the probate decree in 19&9 could onlyaffect the share of the deceased husband, ernabe de la erna. $t couldnot include the disposition of the share of the wife, ervasia :ebaca,who was then still alive, and over whose interest in the con;ugal

properties the probate court ac@uired no ;urisdiction, precisely becauseher estate could not then be in issue. e it remembered that prior to thenew ivil ode, a will could not be probated during the testatorCs lifetime.

$t follows that the validity of the ;oint will, in so far as the estate of the wifewas concerned, must be, on her death, ree'amined and ad;udicated denovo, since a ;oint will is considered a separate will of each testator. Thusregarded, the holding of the court of +irst $nstance of ebu that the ;ointwill is one prohibited by law was correct as to the participation of thedeceased ervasia :ebaca in the properties in @uestion, for the reasonse'tensively discussed in our decision in Bilbao vs. Bilbao, &% !hil. 1,that e'plained the previous holding in 6acrohon vs. #aavedra, 71 !hil.

25%.

Therefore, the undivided interest of ervasia :ebaca should pass uponher death to her heirs intestate, and not e'clusively to the testamentaryheir, unless some other valid will in her favor is shown to e'ist, or unlessshe be the only heir intestate of said ervasia.

$t is unnecessary to emphasi/e that the fact that ;oint wills should be incommon usage could not mae them valid when our ivil odesconsistently invalidated them, because laws are only repealed by other subse@uent laws, and no usage to the contrary may prevail against their

observance (rt. 7, iv. ode of 1&&98 rt. %, ivil ode of the !hilippinesof 197<*.

A$T T) +6:)6$0 M6>$+$T$60, the ;udgment of the ourt of ppeals in -.:. 0o. 24%54-: is affirmed. 0o osts.



SOFIA /. NE'OMUCENO, petitioner,vs.

#%E %ONORALE COUR# OF A''EALS, RUFINA GOME!, OSCAR/UGO ANG, CARMELI#A /UGO,respondents.

This is a petition for certiorari to set aside that portion of the decision of the respondent ourt of ppeals (now intermediate ppellate ourt*dated June 4, 19&2, as amended by the resolution dated ugust 1<,

19&2, declaring as null and void the devise in favor of the petitioner andthe resolution dated >ecember 2&, 19&2 denying petitionerCs motion for reconsideration.

Martin Jugo died on July 15, 19% in Malabon, :i/al. e left a last Ailland Testament duly signed by him at the end of the Aill on page threeand on the left margin of pages 1, 2 and thereof in the presence of elestina le;andro, Myrna . orte/, and "eandro "eano, who in turn,affi'ed their signatures below the attestation clause and on the leftmargin of pages 1, 2 and of the Aill in the presence of the testator andof each other and the 0otary !ublic. The Aill was acnowledged before

the 0otary !ublic :omeo )scareal by the testator and his three attestingwitnesses.

$n the said Aill, the testator named and appointed herein petitioner BofiaJ. 0epomuceno as his sole and only e'ecutor of his estate. $t is clearlystated in the Aill that the testator was legally married to a certain :ufinaome/ by whom he had two legitimate children, 6scar and armelita,but since 1972, he had been estranged from his lawfully wedded wife andhad been living with petitioner as husband and wife. $n fact, on >ecember 7, 1972, the testator Martin Jugo and the petitioner herein, Bofia J.0epomuceno were married in 3ictoria, Tarlac before the Justice of the!eace. The testator devised to his forced heirs, namely, his legal wife

:ufina ome/ and his children 6scar and armelita his entire estate andthe free portion thereof to herein petitioner. The Aill reads in part=

rt. $$$. That $ have the following legal heirs, namely= myaforementioned legal wife, :ufina ome/, and our son,6scar, and daughter armelita, both surnamed Jugo,whom $ declare and admit to be legally and properlyentitled to inherit from me8 that while $ have beenestranged from my above-named wife for so many years,$ cannot deny that $ was legally married to her or that wehave been separated up to the present for reasons and

;ustifications nown fully well by them=

rt. $3. That since 1972, 1 have been living, as man and wife with one Bofia J. 0epomuceno, whom $ declare andavow to be entitled to my love and affection, for all thethings which she has done for me, now and in the past8that while Bofia J. 0epomuceno has with my fullnowledge and consent, did comport and representmyself as her own husband, in truth and in fact, as well asin the eyes of the law, $ could not bind her to me in the

holy bonds of matrimony because of my aforementionedprevious marriage8

6n ugust 21, 19%, the petitioner filed a petition for the probate of thelast Aill and Testament of the deceased Martin Jugo in the ourt of +irst$nstance of :i/al, ranch GGG$3, aloocan ity and ased for theissuance to her of letters testamentary.

6n May 14, 19%7, the legal wife of the testator, :ufina ome/ and her children filed an opposition alleging inter alia that the e'ecution of the Aillwas procured by undue and improper influence on the part of the

petitioner8 that at the time of the e'ecution of the Aill, the testator wasalready very sic and that petitioner having admitted her living inconcubinage with the testator, she is wanting in integrity and thus, letterstestamentary should not be issued to her.

6n January 5, 19%5, the lower court denied the probate of the Aill on theground that as the testator admitted in his Aill to cohabiting with thepetitioner from >ecember 1972 until his death on July 15, 19%, the AillCsadmission to probate will be an $dle e'ercise because on the face of theAill, the invalidity of its intrinsic provisions is evident.

The petitioner appealed to the respondent-appellate court.

6n June 2, 19&2, the respondent court set aside the decision of the ourtof +irst $nstance of :i/al denying the probate of the will. The respondentcourt declared the Aill to be valid e'cept that the devise in favor of thepetitioner is null and void pursuant to rticle %49 in relation with rticle1<2& of the ivil ode of the !hilippines. The dispositive portion of thedecision reads=

A):)+6:), the decision a "uo is hereby set aside,the will in @uestion declared valid e'cept the devise infavor of the appellant which is declared null and void. The

properties so devised are instead passed on in intestacy



to the appellant in e@ual shares, without pronouncementas to cost.

6n June 17, 19&2, oppositors :ufina ome/ and her children filed a?Motion for orrection of lerical )rror? praying that the word ?appellant?in the last sentence of the dispositive portion of the decision be changedto ?appellees? so as to read= ?The properties so devised are insteadpassed on intestacy to the appellees in e@ual shares, without

pronouncement as to costs.? The motion was granted by the respondentcourt on ugust 1<, 19&2.

6n ugust 24, 19&2, the petitioner filed a motion for reconsideration. Thiswas denied by the respondent court in a resolution dated >ecember 2&,19&2.

The main issue raised by the petitioner is whether or not the respondentcourt acted in e'cess of its ;urisdiction when after declaring the last Ailland Testament of the deceased Martin Jugo validly drawn, it went on topass upon the intrinsic validity of the testamentary provision in favor of

herein petitioner.

The petitioner submits that the validity of the testamentary provision inher favor cannot be passed upon and decided in the probate proceedingsbut in some other proceedings because the only purpose of the probateof a Aill is to establish conclusively as against everyone that a Aill wase'ecuted with the formalities re@uired by law and that the testator has themental capacity to e'ecute the same. The petitioner further contends thateven if the provisions of paragraph 1 of rticle %49 of the ivil ode of the !hilippines were applicable, the declaration of its nullity could only bemade by the proper court in a separate action brought by the legal wifefor the specific purpose of obtaining a declaration of the nullity of thetestamentary provision in the Aill in favor of the person with whom thetestator was allegedly guilty of adultery or concubinage.

The respondents on the other hand contend that the fact that the last Ailland Testament itself e'pressly admits indubitably on its face themeretricious relationship between the testator and the petitioner and thefact that petitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil status of the testator, which led privaterespondents to present contrary evidence, merits the application of thedoctrine enunciated in $uguid v. &elix $uguid, et al. (1% B: 9*and &elix Balanay, 7r. v. 8on. ntonio 6artinez, et al. (.:. 0o. "- 492%,

June 2%, 19%7*. :espondents also submit that the admission of the

testator of the illicit relationship between him and the petitioner put inissue the legality of the devise. Ae agree with the respondents.

The respondent court acted within its ;urisdiction when after declaring theAill to be validly drawn, it went on to pass upon the intrinsic validity of theAill and declared the devise in favor of the petitioner null and void.

The general rule is that in probate proceedings, the courtCs area of in@uiry

is limited to an e'amination and resolution of the e'trinsic validity of theAill. The rule is e'pressed thus=

''' ''' '''

... $t is elementary that a probate decree finally anddefinitively settles all @uestions concerning capacity of thetestator and the proper e'ecution and witnessing of hislast Aill and testament, irrespective of whether itsprovisions are valid and enforceable or otherwise. 9&ernandez v. 5imagiba,21 B: 2&*

The petition below being for the probate of a Aill, thecourtCs area of in@uiry is limited to the e'trinsic validitythereof. The testators testamentary capacity and thecompliance with the formal re@uisites or solemnitiesprescribed by law are the only @uestions presented for theresolution of the court. ny in@uiry into the intrinsic validityor efficacy of the provisions of the will or the legality of any devise or legacy is premature.

''' ''' '''

True or not, the alleged sale is no ground for the dismissalof the petition for probate. !robate is one thing8 thevalidity of the testamentary provisions is another. The firstdecides the e'ecution of the document and thetestamentary capacity of the testator8 the second relatesto descent and distribution (#umilang v. Ramagosa, 21B: 1459*

''' ''' '''

To establish conclusively as against everyone, and oncefor all, the facts that a will was e'ecuted with the



formalities re@uired by law and that the testator was in acondition to mae a will, is the only purpose of theproceedings under the new code for the probate of a will.(Bec. 527*. The ;udgment in such proceedings determinesand can determine nothing more. $n them the court hasno power to pass upon the validity of any provisions madein the will. $t can not decide, for e'ample, that a certainlegacy is void and another one valid. ... (Castaneda v.

lemany, 4 !hil. 25*

The rule, however, is not infle'ible and absolute. iven e'ceptionalcircumstances, the probate court is not powerless to do what the situationconstrains it to do and pass upon certain provisions of the Aill.

$n $uguid v. $uguid (1% B: 9* cited by the trial court, the testator instituted the petitioner as universal heir and completely preterited her surviving forced heirs. will of this nature, no matter how valid it mayappear e'trinsically, would be null and void. Beparate or latter proceedings to determine the intrinsic validity of the testamentary

provisions would be superfluous.

)ven before establishing the formal validity of the will, the ourtin Balanay .7r. v. 6artinez (5 B: 72* passed upon the validity of itsintrinsic provisions.

$nvoing ?practical considerations?, we stated=

The basic issue is whether the probate court erred inpassing upon the intrinsic validity of the will, before rulingon its allowance or formal validity, and in declaring it void.

Ae are of the opinion that in view of certain unusualprovisions of the will, which are of dubious legality, andbecause of the motion to withdraw the petition for probate(which the lower court assumed to have been filed withthe petitionerCs authori/ation* the trial court acted correctlyin passing upon the willCs intrinsic validity even before itsformal validity had been established. The probate of a willmight become an $dle ceremony if on its face it appears tobe intrinsically void. Ahere practical considerationsdemand that the intrinsic validity of the will be passedupon, even before it is probated, the court should meet

the issue (0uguid v. 0uguid, 5 6.. 172%, 1% B: 9.

ompare with Bumilang vs. :amagosa "-24147,>ecember 25, 195%, 21 B: 14598 acho v. #dan "-19995, pril 4<, 1957, 14 B: 594*.

There appears to be no more dispute at this time over the e'trinsicvalidity of the Aill. oth parties are agreed that the Aill of Martin Jugowas e'ecuted with all the formalities re@uired by law and that the testator had the mental capacity to e'ecute his Aill. The petitioner states that she

completely agrees with the respondent court when in resolving the@uestion of whether or not the probate court correctly denied the probateof Martin JugoCs last Aill and Testament, it ruled=

This being so, the will is declared validly drawn. (!age ,>ecision, nne' of !etition.*

6n the other hand the respondents pray for the affirmance of the ourt of ppealsC decision in toto.

The only issue, therefore, is the ;urisdiction of the respondent court to

declare the testamentary provision in favor of the petitioner as null andvoid.

Ae sustain the respondent courtCs ;urisdiction. s stated in $uguid v.$uguid, 9supra:;

Ae pause to reflect. $f the case were to be remanded for probate of the will, nothing will be gained. 6n the contrary,this litigation will be protracted. nd for aught that appearsin the record, in the record, in the event of probate or if the court re;ects the will, probability e'ists that the case

will come up once again before us on the same issue of the intrinsic validity or nullity of the will. :esult, waste of time, effort, e'pense, plus added an'iety. These are thepractical considerations that induce us to a belief that wemight as well meet head-on the issue of the validity of theprovisions of the will in @uestion. (Bection 2, :ule 1, :ulesof ourt. ase, et al. v. Jugo, et al., %% !hil. 71%, 722*.

fter all, there e'ists a ;usticiable controversy crying for solution.

Ae see no useful purpose that would be served if we remand the nullifiedprovision to the proper court in a separate action for that purpose simply



because, in the probate of a will, the court does not ordinarily loo intothe intrinsic validity of its provisions.

rticle %49 of the ivil ode provides=

The following donations shall be void=

(1* Those made between persons who were guilty of

adultery or concubinage at the time of the donation8

(2* Those made between persons found guilty of thesame criminal offense, in consideration thereof8

(4* Those made to a public officer or his wife,descendants and ascendants, by reason of his office.

$n the case referred to in 0o. 1, the action for declarationof nullity may be brought by the spouse of the donor or donee8 and the guilt of the donor and donee may be

proved by preponderance of evidence in the same action.

rticle 1<2& of the ivil ode provides=

The prohibitions mentioned in rticle %49, concerningdonations inter vivos shall apply to testamentaryprovisions.

$n rticle $$$ of the disputed Aill, e'ecuted on ugust 17, 195&, or almostsi' years before the testatorCs death on July 15, 19%, Martin Jugo statedthat respondent :ufina ome/ was his legal wife from whom he had

been estranged ?for so many years.? e also declared that respondentsarmelita Jugo and 6scar Jugo were his legitimate children. $n rticle $3,he stated that he had been living as man and wife with the petitioner since 1972. Testator Jugo declared that the petitioner was entitled to hislove and affection. e stated that 0epomuceno represented Jugo as her own husband but ?in truth and in fact, as well as in the eyes of the law, $could not bind her to me in the holy bonds of matrimony because of myaforementioned previous marriage.

There is no @uestion from the records about the fact of a prior e'istingmarriage when Martin Jugo e'ecuted his Aill. There is also no dispute

that the petitioner and Mr. Jugo lived together in an ostensible maritalrelationship for 22 years until his death.

$t is also a fact that on >ecember 2, 1972, Martin Jugo and Bofia J.0epomuceno contracted a marriage before the Justice of the !eace of 3ictoria, Tarlac. The man was then 71 years old while the woman was &.0epomuceno now contends that she acted in good faith for 22 years inthe belief that she was legally married to the testator.

The records do not sustain a finding of innocence or good faith. sargued by the private respondents=

+irst. The last will and testament itself e'pressly admitsindubitably on its face the meretricious relationshipbetween the testator and petitioner, the devisee.

Becond. !etitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil statusof the testator, which led private respondents to presentcontrary evidence.

$n short, the parties themselves dueled on the intrinsic

validity of the legacy given in the will to petitioner by thedeceased testator at the start of the proceedings.

Ahether or not petitioner new that testator Martin Jugo,the man he had lived with as man and wife, as alreadymarried, was an important and specific issue brought bythe parties before the trial court, and passed upon by theourt of ppeals.

$nstead of limiting herself to proving the e'trinsic validityof the will, it was petitioner who opted to present evidence

on her alleged good faith in marrying the testator.(Testimony of !etitioner, TB0 of ugust 1, 19&2, pp. 75-7% and pp. 52-5*.

!rivate respondents, naturally, presented evidence thatwould refute the testimony of petitioner on the point.

Bebastian Jugo, younger brother of the deceasedtestator, testified at length on the meretricious relationshipof his brother and petitioner. (TB0 of ugust 1&,19%7*.



learly, the good faith of petitioner was by option of theparties made a decisive issue right at the inception of thecase.

onfronted by the situation, the trial court had to mae aruling on the @uestion.

Ahen the court a "uo held that the testator Martin Jugo

and petitioner Cwere deemed guilty of adultery or concubinageC, it was a finding that petitioner was not theinnocent woman she pretended to be.

''' ''' '''

4. $f a review of the evidence must be made nonetheless,then private respondents respectfully offer the followinganalysis=

+$:BT= The secrecy of the marriage of petitioner with the

deceased testator in a town in Tarlac where neither shenor the testator ever resided. $f there was nothing to hidefrom, why the concealmentC H 6f course, it maybe arguedthat the marriage of the deceased with private respondent:ufina ome/ was liewise done in secrecy. ut it shouldbe remembered that :ufina ome/ was already in thefamily way at that time and it would seem that the parentsof Martin Jugo were not in favor of the marriage so muchso that an action in court was brought concerning themarriage. (Testimony of Bebastian Jugo, TB0 of ugust1&, 19%7, pp. 29-4<*

B)60>= !etitioner was a sweetheart of the deceasedtestator when they were still both single. That would be in1922 as Martin Jugo married respondent :ufina ome/on 0ovember 29, 1924 ()'h. 4*. !etitioner married thetestator only on >ecember 7, 1972. There was a space of about 4< years in between. >uring those 4< years, couldit be believed that she did not even wonder why MartinJugo did not marry her nor contact her anymore after 0ovember, 1924 - facts that should impel her to as her groom before she married him in secrecy, especially sowhen she was already about 7< years old at the time of

marriage.

T$:>= The fact that petitioner broe off from Martin Jugoin 1924 is by itself conclusive demonstration that she newthat the man she had openly lived for 22 years as manand wife was a married man with already two children.

+6#:T= aving admitted that she new the children of respondent :ufina ome/, is it possible that she wouldnot have ased Martin Jugo whether or not they were his

illegitimate or legitimate children and by whomH That isun-+ilipino.

+$+T= aving often gone to !asig to the residence of theparents of the deceased testator, is it possible that shewould not have nown that the mother of privaterespondent 6scar Jugo and armelita Jugo wasrespondent :ufina ome/, considering that the houses of the parents of Martin Jugo (where he had lived for manyyears* and that of respondent :ufina ome/ were ;ust afew meters awayH

Buch pretentions of petitioner Bofia 0epomuceno areunbelievable. They are, to say the least, inherentlyimprobable, for they are against the e'perience incommon life and the ordinary instincts and promptings of human nature that a woman would not bother at all to asthe man she was going to marry whether or not he wasalready married to another, nowing that her groom hadchildren. $t would be a story that would strain humancredulity to the limit if petitioner did not now that MartinJugo was already a married man in view of the irrefutablefact that it was precisely his marriage to respondent

:ufina ome/ that led petitioner to brea off with thedeceased during their younger years.

Moreover, the prohibition in rticle %49 of the ivil ode is against themaing of a donation between persons who are living in adultery or concubinage. $t is the donation which becomes void. The giver cannotgive even assuming that the recipient may receive. The very wordings of the Aill invalidate the legacy because the testator admitted he wasdisposing the properties to a person with whom he had been living inconcubinage.



ERNES#O M. GUE0ARA, petitioner-appellant,vs.

ROSARIO GUE0ARA a"d e1 us3a"d 'E&RO UISON, respondent-appellees.

)rnesto M. uevarra and :osario uevara, ligitimate son and naturaldaughter, respectively, of the deceased 3ictorino ". uevara, arelitigating here over their inheritance from the latter. The action was

commenced on 0ovember 12, 194%, by :osario uevara to recover from)rnesto uevara what she claims to be her strict ligitime as anacnowledged natural daughter of the deceased D to wit, a portion of 24,92 s@uare meters of a large parcel of land described in originalcertificate of title 0o. 71591 of the province of !angasinan, issued in thename of )rnesto M. uervara D and to order the latter to pay her !5,<<<plus !2,<<< 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.

$t appears that on ugust 25, 1941, 3ictorino ". uevara e'ecuted a will(e'hibit *, apparently with all the formalities of the law, wherein he madethe following be@uests= To his stepdaughter andida uevara, a pair of earrings worth !17< and a gold chain worth !<8 to his son )rnesto M.uevara, a gold ring worth !1&< and all the furniture, pictures, statues,and other religious ob;ects found in the residence of the testator in!oblacion Bur, ayambang, !angasinan8 ?a mi hi;a :osario uevara,? apair of earrings worth !12<8 to his stepson !iuo uevara, a ring worth!12<8 and to his wife by second marriage, ngustia !osadas, variouspieces of ;ewelry worth !1,<2<.

e also made the following devises= ? mis hi;os :osario uevara y

)rnesto M. uevara y a mis hi;astros, 3ivencio, )duviges, >ionisia,andida y !io, apellidados uevara,? a residential lot with itsimprovements situate in the town of ayambang, !angasinan, having anarea of 95< s@uare meters and assessed at !7<8 to his wife ngustia!osadas he confirmed the donation propter nuptias theretofore made byhim to her of a portion of 27 hectares of the large parcel of land of 279-odd hectares described in plan !su-5551&. e also devised to her aportion of 7 hectares of the same parcel of land by way of completesettlement of her usufructurary right.awphil.net

e set aside 1<< hectares of the same parcel of land to be disposed of

either by him during his lifetime or by his attorney-in-fact )rnesto M.

uevara in order to pay all his pending debts and to degray his e'pensesand those of his family us to the time of his death.

The remainder of said parcel of land his disposed of in the followingmanner=

(d*. D Toda la porcion restante de mi terreno arriba descrito, dela e'tension superficial apro'imada de ciento veintinueve (129*

hectareas setenta (%<* areas, y veiticinco (27* centiares, contodas sus me;oras e'istentes en la misma, de;o y distribuyo, pro-indiviso, a mis siguientes herederos como sigue=

mi hi;o legitimo, )rnesto M. uevara, ciento ocho (1<&*hectareas, ocho (&* areas y cincuenta y cuatro (7* centiareas,hacia la parte @ue colinda al 6este de las cien (1<<* hectareasreferidas en el inciso (a* de este parrafo del testamento, como supropiedad absoluta y e'clusiva, en la cual e'tension superficialestan incluidas cuarenta y tres (4* hectareas, veintitres (24*areas y cuarenta y dos (2* centiareas @ue le doy en concepto de

me;ora.

mi hi;a natural reconocida, :osario uevara, veintiun (21*hectareas, sesenta y un (51* areas y setenta y un (%1*centiareas, @ue es la parte restante.

>uodecimo. D 0ombro por la presente como lbaceaTestamentario a mi hi;o )rnesto M. uevara, con relevacion defian/a. F una ve/ legali/ado este testamento, y en cuanto seaposible, es mi deseo, @ue los herederos y legatarios a@uinombrados se repartan e'tra;udicialmente mis bienes deconformidad con mis disposiciones arriba consignadas.

Bubse@uently, and on July 12, 1944, 3ictorino ". uevarra e'ecutedwhereby he conveyed to him the southern half of the large parcel of landof which he had theretofore disposed by the will above mentioned,inconsideration of the sum of !1 and other valuable considerations,among which were the payment of all his debts and obligationsamounting to not less than !15,7<<, his maintenance up to his death,and the e'penses of his last illness and funeral e'penses. s to thenorthern half of the same parcel of land, he declared= ?ago constar tambien @ue recono/co a mi referido hi;o )rnesto M. guevara comodueIo de la mitad norte de la totalidad y con;unto de los referidos



terrenos por haberlos comprado de su propio peculio del Br. :afael T.!u/on a @uien habia vendido con anterioridad.?

6n Beptember 2%, 1944, final decree of registration was issued in landregistration case 0o. 171% of the ourt of +irst $nstance of !angasinan,and pursuant thereto original certificate of title 0o. 71591 of the sameprovince was issued on 6ctober 12 of the same year in favor of )rnestoM. uevara over the whole parcel of land described in the deed of sale

above referred to. The registration proceeding had been commenced on0ovember 1, 1942, by 3ictorino ". uevara and )rnesto M. uevara asapplicants, with :osario, among others, as oppositor8 but before the trialof the case 3ictorino ". uevara withdrew as applicant and :osariouevara and her co-oppositors also withdrew their opposition, therebyfacilitating the issuance of the title in the name of )rnesto M. uevaraalone.

6n Beptember 2%, 1944, 3ictorino ". uevarra died. is last will andtestament, however, was never presented to the court for probate, nor has any administration proceeding ever been instituted for the settlementof his estate. Ahether the various legatees mentioned in the will havereceived their respective legacies or have even been given due notice of the e'ecution of said will and of the dispositions therein made in their favor, does not affirmatively appear from the record of this case. )ver since the death of 3ictorino ". uevara, his only legitimate son )rnestoM. uevara appears to have possessed the land ad;udicated to him inthe registration proceeding and to have disposed of various portionsthereof for the purpose of paying the debts left by his father.

$n the meantime :osario uevara, who appears to have had her fatherCslast will and testament in her custody, did nothing ;udicially to invoe thetestamentary dispositions made therein in her favor, whereby the testator

acnowledged her as his natural daughter and, aside from certainlegacies and be@uests, devised to her a portion of 21.51%1 hectares of the large parcel of land described in the will. ut a little over four yearsafter the testorCs demise, she (assisted by her husband* commenced thepresent action against )rnesto M. uevara alone for the purposehereinbefore indicated8 and it was only during the trial of this case thatshe presented the will to the court, not for the purpose of having itprobated but only to prove that the deceased 3ictirino ". uevara hadacnowledged her as his natural daughter. #pon that proof of acnowledgment she claimed her share of the inheritance from him, buton the theory or assumption that he died intestate, because the will had

not been probated, for which reason, she asserted, the bettermenttherein made by the testator in favor of his legitimate son )rnesto M.

uevara should be disregarded. oth the trial court and the ourt of appeals sustained that theory.

Two principal @uestions are before us for determination= (1* the legality of the procedure adopted by the plaintiff (respondent herein* :osariouevara8 and (2* the efficacy of the deed of sale e'hibit 2 and the effectof the certificate of title issued to the defendant (petitioner herein* )rnestoM. uevara.

$

Ae cannot sanction the procedure adopted by the respondent :osariouevara, it being in our opinion in violation of procedural law and anattempt to circumvent and disregard the last will and testament of thedecedent. The ode of ivil !rocedure, which was in force up to the timethis case was decided by the trial court, contains the following pertinentprovisions=

Bec. 527. llowance $ecessary, and Conclusive as to 'xecution.

D 0o will shall pass either the real or personal estate, unless it isproved and allowed in the ourt of +irst $nstance, or by appeal tothe Bupreme ourt8 and the allowance by the court of a will of real and personal estate shall be conclusive as to its duee'ecution.

Bec. 525. Custodian of )ill to 5eliver . D The person who has thecustody of a will shall, within thirty days after he nows of thedeath of the testator, deliver the will into the court which has

;urisdiction, or to the e'ecutor named in the will.

Bec. 52%. 'xecutor to 0resent )ill and ccept or Refuse 1rust . D person named as e'ecutor in a will, shall within thirty days after he nows of the death of the testor, or within thirty days after henows that he is named e'ecutor, if he obtained such nowledgeafter nowing of the death of the testor, present such will to thecourt which has ;urisdiction, unless the will has been otherwisereturned to said court, and shall, within such period, signify to thecourt his acceptance of the trust, or mae nown in writing hisrefusal to accept it.

Bec. 52&. 0enalty . D person who neglects any of the dutiesre@uired in the two proceeding sections, unless he gives a



satisfactory e'cuse to the court, shall be sub;ect to a fine note'ceeding one thousand dollars.

Bec. 529. 0erson Retaining )ill may be Committed . D $ f aperson having custody of a will after the death of the testator neglects without reasonable cause to deliver the same to thecourt having ;urisdiction, after notice by the court so to do, he maybe committed to the prison of the province by a warrant issued by

the court, and there ept in close confinement until he delivers thewill.

The foregoing provisions are now embodied in :ule %5 of the new :ulesof ourt, which too effect on July 1, 19<.

The proceeding for the probate of a will is one in rem, with notice bypublication to the whole world and with personal notice to each of thenown heirs, legatees, and devisees of the testator (section 54<, . c. !.,and sections 4 and , :ule %%*. ltho not contested (section 7, :ule %%*,the due e'ecution of the will and the fact that the testator at the time of its

e'ecution was of sound and disposing mind and not acting under duress,menace, and undue influence or fraud, must be proved to the satisfactionof the court, and only then may the will be legali/ed and given effect bymeans of a certificate of its allowance, signed by the ;udge and attestedby the seal of the court8 and when the will devises real property, attestedcopies thereof and of the certificate of allowance must be recorded in theregister of deeds of the province in which the land lies. (Bection 12, :ule%%, and section 52, . . !.*

$t will readily be seen from the above provisions of the law that thepresentation of a will to the court for probate is mandatory and itsallowance by the court is essential and indispensable to its efficacy. To

assure and compel the probate of will, the law punishes a person whoneglects his duty to present it to the court with a fine not e'ceeding!2,<<<, and if he should persist in not presenting it, he may becommitted to prision and ept there until he delivers the will.

The ourt of ppeals too e'press notice of these re@uirements of thelaw and held that a will, unless probated, is ineffective. 0evertheless itsanctioned the procedure adopted by the respondent for the followingreasons=

The ma;ority of the ourt is of the opinion that if this case is

dismissed ordering the filing of testate proceedings, it would

cause in;ustice, incovenience, delay, and much e'pense to theparties, and that therefore, it is preferable to leave them in thevery status which they themselves have chosen, and to decidetheir controversy once and for all, since, in a similar case, theBupreme ourt applied that same criterion("eaIo vs. "eaIo, supra*, which is now sanctioned by section 1of :ule % of the :ules of ourt. esides, section 5 of :ule 12provides that, if the procedure which the court ought to follow in

the e'ercise of its ;urisdiction is not specifically pointed out by the:ules of ourt, any suitable process or mode of procedure maybe adopted which appears most consistent to the spirit of the said:ules. ence, we declare the action instituted by the plaintiff tobe in accordance with law.

"et us loo into the validity of these considerations. Bection 1 of :ule %provides as follows=

Bection 1. 'xtra!udicial settlement by agreement between heirs.D $f the decedent left no debts and the heirs and legatees are allof age, or the minors are represented by their ;udicial guardians,the parties may, without securing letters of administration, dividethe estate among themselves as they see fit by means of a publicinstrument filed in the office of the register of deeds, and shouldthey disagree, they may do so in an ordinary action of partition. $f there is only one heir or one legatee, he may ad;udicate tohimself the entire estate by means of an affidavit filed in the officeof the register of deeds. $t shall be presumed that the decedentleft 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 795 of the ode of ivil !rocedure,

which reads as follows=

Bec. 795. #ettlement of Certain Intestates )ithout <egal 0roceedings. D Ahenever all the heirs of a person who diedintestate are of lawful age and legal capacity and there are nodebts due from the estate, or all the debts have been paid theheirs may, by agreement duly e'ecuted in writing by all of them,and not otherwise, apportion and divide the estate amongthemselves, 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 :ule %, a summary e'tra;udicial



settlement of a deceased personCs estate, whether he died testate or intestate, may be made under the conditions specified. )ven if we giveretroactive effect to section 1 of :ule % and apply it here, as the ourt of

ppeals did, we do not believe it sanctions the nonpresentation of a willfor probate and much less the nullification of such will thru the failure of its custodian to present it to the court for probate8 for such a result isprecisely what :ule %5 sedulously provides against. Bection 1 of :ule %merely authori/es the e'tra;udicial or ;udicial partition of the estate of a

decedent ?without securing letter of administration.? $t does not say that incase the decedent left a will the heirs and legatees may divide the estateamong themselves without the necessity of presenting the will to thecourt for probate. The petition to probate a will and the petition to issueletters of administration are two different things, altho both may be madein the same case. the allowance of a will precedes the issuance of letterstestamentary or of administration (section , :ule %&*. 6ne can have awill probated without necessarily securing letters testamentary or of administration. Ae hold that under section 1 of :ule %, in relation to:ule %5, if the decedent left a will and no debts and the heirs andlegatees desire to mae an e'tra;udicial partition of the estate, they mustfirst 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 willunless those provisions are contrary to law. 0either may they so awaywith the presentation of the will to the court for probate, because suchsuppression of the will is contrary to law and public policy. The lawen;oins the probate of the will and public policy re@uires it, becauseunless 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 renderednugatory, as is attempted to be done in the instant case. bsent legateesand devisees, or such of them as may have no nowledge of the will,could be cheated of their inheritance thru the collusion of some of theheirs who might agree to the partition of the estate among themselves to

the e'clusion of others.

$n the instant case there is no showing that the various legatees other than the present litigants had received their respective legacies or thatthey had nowledge of the e'istence and of the provisions of the will.Their right under the will cannot be disregarded, nor may those rights beobliterated on account of the failure or refusal of the custodian of the willto present it to the court for probate.

)ven if the decedent left no debts and nobdy raises any @uestion as tothe authenticity and due e'ecution of the will, none of the heirs may suefor the partition of the estate in accordance with that will without firstsecuring its allowance or probate by the court, first, because the law

e'pressly provides that ?no will shall pass either real or personal estateunless it is proved and allowed in the proper court?8 and, second,because the probate of a will, which is a proceeding in rem, cannot bedispensed with the substituted by any other proceeding, ;udicial or e'tra;udicial, without offending against public policy designed toeffectuate the testatorCs right to dispose of his property by will inaccordance with law and to protect the rights of the heirs and legateesunder the will thru the means provided by law, among which are the

publication and the personal notices to each and all of said heirs andlegatees. 0or may the court approve and allow the will presented inevidence in such an action for partition, which is one in personam, anymore than it could decree the registration under the Torrens system of theland involved in an ordinary action for reinvindicacion or partition.

Ae therefore believe and so hold that section 1 of :ule %, relied upon bythe ourt of ppeals, does not sanction the procedure adopted by therespondent.

The case of <ea2o vs. <ea2o (27 !hil., 1&<*, cited by the ourt of ppeals, lie section 1 of :ule %, sanctions the e'tra;udicial partition bythe heirs of the properties left by a decedent, but not the nonpresentationof a will for probate. $n that case one !aulina 3er e'ecuted a will on6ctober 11, 19<2, and died on 0ovember 1, 19<2. er will was presentedfor probate on 0ovember 1<, 19<2, and was approved and allowed bythe ourt on ugust 15, 19<. $n the meantime, and on 0ovember 1<,19<2, the heirs went ahead and divided the properties among themselvesand some of them subse@uently sold and disposed of their shares to thirdpersons. $t does not affirmatively appear in the decision in that case thatthe partition made by the heirs was not in accordance with the will or thatthey in any way disregarded the will. $n closing the case by its order dated Beptember 1, 1911, the trial court validated the partition, and one

of the heirs, unegunda "eaIo, appealed. $n deciding the appeal thisourt said=

The principal assignment of error is that the lower courtcommitted an error in deciding that the heirs and legatees of theestate of >Ia. !aulina 3er had voluntarily divided the estateamong themselves.

$n resolving that @uestion this ourt said=

$n view of the positive finding of the ;udge 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 tosupport its conclusion.

Thus it will be seen that as a matter of fact no @uestion of law was raisedand decided in that case. That decision cannot be relied upon as anauthority for the unprecedented and unheard of procedure adopted bythe respondent whereby she sees to prove her status as an

acnowledged natural child of the decedent by his will and attempts tonullify and circumvent the testamentary dispositions made by him by notpresenting the will to the court for probate and by claiming her legitime asan acnowledged natural child on the basis of intestacy8 and that in theface of e'press mandatory provisions of the law re@uiring her to presentthe will to the court for probate.

$n the subse@uent case of Riosa vs. Rocha (1925*, & !hil. %4%, thisourt departed from the procedure sanctioned by the trial court andimpliedly approved by this ourt in the "eaIo case, by holding that ane'tra;udicial partition is not proper in testate succession. $n the :iosacase the ourt, speaing thru hief Justice vanceIa, held=

1. )GT:J#>$$" !:T$T$608 06T !:6!): $0 T)BTT)B#)BB$60. D Bection 795 of the ode of ivil !rocedure,authori/ing the heirs of a person who dies intestate to maee'tra;udicial partition of the property of the deceased, withoutgoing into any court of ;ustice, maes e'press reference tointestate succession, and therefore e'cludes testate succession.

2. $>.8 )++)TB 6+8 T)BTT) B#)BB$60. D $n the instantcase, which is a testate succession, the heirs made ane'tra;udicial partition of the estate and at the same time instituted

proceeding for the probate of the will and the administration of theestate. Ahen the time came for maing the partition, theysubmitted to the court the e'tra;udicial partition previously madeby them, which the court approved. 8eld = That for the purposes of the reservation and the rights and obligations created thereby, inconnection with the relatives benefited, the property must not bedeemed transmitted to the heirs from the time the e'tra;udicialpartition was made, but from the time said partition was approvedby the court. (Byllabus.*

The ourt of ppeals also cites section 5 of :ule 12, which provides

that if the procedure which the court ought to follow in the e'ercise of its

;urisdiction is not specifically pointed out by the :ules of ourt, anysuitable process for mode of proceeding may be adopted which appearsmost conformable to the spirit of the said :ules. That provision is notapplicable here for the simple reason that the procedure which the courtought to follow in the e'ercise of its ;urisdiction is specifically pointed outand prescribed in detail by :ules %, %5, and %% of the :ules of ourt.

The ourt of ppeals also said ?that if this case is dismissed, ordering the

filing of testate proceedings, it would cause in;ustice, inconvenience,delay, and much e'pense to the parties.? Ae see no in;ustice in re@uiringthe plaintiff not to violate but to comply with the law. 6n the contrary, anin;ustice might be committed against the other heirs and legateesmentioned in the will if the attempt of the plaintiff to nullify said will by notpresenting it to the court for probate should be sanctioned. s to theinconvenience, delay, and e'pense, the plaintiff herself is to blamebecause she was the custodian of the will and she violated the dutyimposed upon her by sections 2, , and 7 of :ule %5, which commandher to deliver said will to the court on pain of a fine not e'ceeding !2,<<<and of imprisonment for contempt of court. s for the defendant, he is notcomplaining of inconvenience, delay, and e'pense, but on the contrary he

is insisting that the procedure prescribed by law be followed by theplaintiff.

6ur conclusion is that the ourt of ppeals erred in declaring the actioninstituted by the plaintiff to be in accordance with law. $t also erred inawarding relief to the plaintiff in this action on the basis of intestacy of thedecedent notwithstanding the proven e'istence of a will left by him andsolely because said will has not been probated due to the failure of theplaintiff as custodian thereof to comply with the duty imposed upon her bythe law.

$t is apparent that the defendant )rnesto M. uevara, who was namede'ecutor in said will, did not tae any step to have it presented to thecourt for probate and did not signify his acceptance of the trust or refusalto accept it as re@uired by section 4 of :ule %5 (formerly section 52% of the ode of ivil !rocedure*, because his contention is that said will,insofar as the large parcel of land in litigation is concerned, has beensuperseded by the deed of sale e'hibit 2 and by the subse@uentissuance of the Torrens certificate of title in his favor.



$$

This brings us to the consideration of the second @uestion, referring tothe efficacy of the deed of sale e'hibit 2 and the effect of the certificate of titled issued to the defendant )rnesto M. uevara. Bo that the partiesmay not have litigated here in vain insofar as that @uestion is concerned,we deem it proper to decide it now and obviate the necessity of a newaction.

The deed of sale e'hibit 2 e'ecuted by and between 3ictorino ". uevaraand )rnesto M. uevara before a notary public on July 12, 1944, may bedivided into two parts= (a* insofar as it disposes of and conveys to)rnesto M. uevara the southern half of 3ictorino ". uevaraCs haciendaof 279-odd hectares in consideration of !1 and other valuableconsiderations therein mentioned8 and (b* insofar as it declares that)rnesto M. uevara became the owner of the northern half of the samehacienda by repurchasing it with his own money from :afael T. !u/on.

. s to the conveyance of the southern half of the hacienda to )rnesto

M. uevara in consideration of the latterCs assumption of the obligation topay all the debts of the deceased, the ourt of ppeals found it to bevalid and efficacious because= ?(a* it has not been proven that thecharges imposed as a condition is Lare less than the value of theproperty8 and (b* neither has it been proven that the defendant did notcomply with the conditions imposed upon him in the deed of transfer.? sa matter of fact the ourt of ppeals found? ?$t appears that the defendanthas been paying the debts left by his father. To accomplish this, he had toalienate considerable portions of the above-mentioned land. nd wecannot brand such alienation as anomalous unless it is proven that theyhave e'ceeded the value of what he has ac@uired by virtue of the deed of July 12, 1944, and that of his corresponding share in the inheritance.?

The finding of the ourt of ppeals on this aspect of the case is final andconclusive upon the respondent, who did not appeal therefrom.

B. Aith regard to the northern half of the hacienda, the findings of factand of law made by the ourt of ppeals are as follows=

The defendant has tried to prove that with his own money, hebought from :afael !u/on one-half of the land in @uestion, butthe ourt a "uo, after considering the evidence, found it notproven8 we hold that such conclusion is well founded. Theacnowledgment by the deceased, 3ictorino ". uevara, of the

said transactions, which was inserted incidentally in the document

of July 12, 1944, is clearly belied by the fact that the money paidto :afael !u/on came from Bilvestre !. o@uia, to whom3ictorino ". uevara had sold a parcel of land with the right of repurchase. The defendant, acting for his father, received themoney and delivered it to :afael !u/on to redeem the land in@uestion, and instead of e'ecuting a deed of redemption in favor of 3ictorino ". uevara, the latter e'ecuted a deed of sale in favor of the defendant.

The plaintiff avers that she withdrew her opposition to theregistration of the land in the name of the defendant, because of the latterCs promise that after paying all the debt of their father, hewould deliver to her and to the widow their corresponding shares.

s their father then was still alive, there was no reason to re@uirethe delivery of her share and that was why she did not insist onher opposition, trusting on the reliability and sincerity of her brotherCs promise. The evidence shows that such promise wasreally made. The registration of land under the Torrens systemdoes not have the effect of altering the laws of succession, or therights of partition between coparceners, ;oint 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 unregisteredland (sec. %<, "and :egistration "aw*. The plaintiff is not, then, inestoppel, nor can the doctrine of res !udicata be invoed againsther claim. #nder these circumstances, she has the right tocompel the defendant to deliver her corresponding share in theestate left by the deceased, 3ictorino ". uevara.

$n his tenth to fourteenth assignments of error the petitioner assails theforegoing findings of the ourt of ppeals. ut the findings of fact madeby said court are final and not reviewable by us on certiorari. The ourt of

ppeals found that the money with which the petitioner repurchased thenorthern half of the land in @uestion from :afael !u/on was not his ownbut his fatherCs, it being the proceeds of the sale of a parcel of land madeby the latter to Bilvestre !. o@uia. Baid court also found that therespondent withdrew her opposition to the registration of the land in thename of the petitioner upon the latterCs promise that after paying all thedebts of their father he would deliver to her and to the widow their corresponding shares. +rom these facts, it results that the interestedparties consented to the registration of the land in @uestion in the nameof )rnesto M. uevara alone sub;ect 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 landhad been paid. Buch finding does not constitute a reversal of the decision



and decree of registration, which merely confirmed the petitionerCs title8and in the absence of any intervening innocent third party, the petitioner may be compelled to fulfill the promise by virtue of which he ac@uired histitle. That is authori/ed by section %< of the "and :egistration ct, citedby the ourt of ppeals, and by the decision of this ourt in #everino vs.#everino, !hil., 44, and the cases therein cited.

#pon this phase of the litigation, we affirm the finding of the ourt of

ppeals that the northern half of the land described in the will e'hibit and in original certificate of title 0o. 71591 still belongs to the estate of the deceased 3ictorino ". uevara. $n the event the petitioner )rnesto M.uevara has alienated any portion thereof, he is under obligation tocompensate the estate with an e@uivalent portion from the southern half of said land that has not yet been sold. $n other words, to the estate of 3ictorino ". uevara still belongs one half of the total area of the landdescribed in said original certificate of title, to be taen from such portionsas have not yet been sold by the petitioner, the other half having beenlawfully ac@uired by the latter in consideration of his assuming theobligation to pay all the debts of the deceased.

Aherefore, that part of the decision of the ourt of ppeals whichdeclares in effect that notwithstanding e'hibit 2 and the issuance of original certificate of title 0o. 71591 in the name of )rnesto M. uevara,one half of the land described in said certificate of title belongs to theestate of 3ictorino ". uevara and the other half to )rnesto M. uevarain consideration of the latterCs assumption of the obligation to pay all thedebts of the deceased, is hereby affirmed8 but the ;udgment of said courtinsofar as it awards any relief to the respondent :osario uevara in thisaction is hereby reversed and set aside, and the parties herein arehereby ordered to present the document e'hibit to the proper court for probate in accordance with law, without pre;udice to such action as the

provincial fiscal of !angasinan may tae against the responsible party or parties under section of :ule %5. fter the said document is approvedand allowed by the court as the last will and testament of the deceased3ictorino ". uevara, the heirs and legatees therein named may taesuch action, ;udicial or e'tra;udicial, as may be necessary to partition theestate of the testator, taing into consideration the pronouncementsmade in part $$ of this opinion. 0o finding as to costs in any of the threeinstances.



%EIRS OF ROSEN&O LASAM, Re41ese"ted 3y Rogelio Lasam a"dAtty. Ed2a1d '. Llo"illo, petitioners,

vs.0ICEN#A UMENGAN, respondent.

efore the ourt is the petition for review on certiorari filed by the eirs of :osendo "asam, represented by :ogelio M. "asam and tty. )dward !."lonillo, seeing the reversal of the >ecision1 dated +ebruary 15, 2<<7 of

the ourt of ppeals (* in -.:. B! 0o. &<<42. The assaileddecision reversed and set aside the decision of the :egional Trial ourt(:T* of Tuguegarao ity, agayan and dismissed, for lac of merit, thecomplaint for unlawful detainer file by the said heirs against respondent3icenta #mengan.

The :T decision affirmed that of the Municipal Trial ourt in ities(MT* of the same city, ranch $$$, which had rendered ;udgment infavor of the heirs of :osendo "asam and directed the e;ectment of respondent 3icenta #mengan from the lot sub;ect of litigation.

The present petition liewise sees the reversal of the :esolutiondated May 1%, 2<<7 denying the motion for reconsideration filed by theheirs of :osendo "asam.

s culled from the records, the bacdrop of the present case is as follows N

The lot sub;ect of the unlawful detainer case is situated in Tuguegaraoity, agayan. $t is the eastern half portion of "ot 0o. 72% and "ot 0o.99<. The first lot, "ot 0o. 72% containing an area of 1,<4% s@uaremeters, is covered by 6riginal ertificate of Title (6T* 0o. 195. Thesecond lot, "ot 0o. 99< containing an area of 11& s@ m, is covered by6T 0o. 1<42. These lots are registered in the names of the originalowners, spouses !edro untapay and "eona unagan.

$n an instrument denominated as >eed of onfirmation andacnowledged before a notary public on June 1, 19%9, the heirs of thesaid spouses conveyed the ownership of "ots 0os. 99< and 72% in favor of their two children, $rene untapay and $sabel untapay. $n another instrument entitled !artition greement and acnowledged before anotary public on >ecember 2&, 19%9, it was agreed that the eastern half portion (sub;ect lot* of "ots 0os. 99< and 72% shall belong to the heirs of $sabel untapay. 6n the other hand, the remaining portion thereof (the

west portion* shall belong to the heirs of $rene untapay. The sub;ect lot(eastern half portion* has an area of 77 s@ m.

$sabel untapay had four children by her first husband, >omingoTuringan, namely= bdon, Bado (deceased*, :ufo and Maria. Ahen>omingo Turingan passed away, $sabel untapay remarried Mariano"asam. Bhe had two other children by him, namely= Trinidad and:osendo.

Bometime in January 2<<1, the heirs of :osendo "asam (son of $sabeluntapay by her second husband* filed with the MT a complaint for unlawful detainer against 3icenta #mengan, who was then occupying thesub;ect lot. 3icenta #mengan is the daughter of bdon Turingan (son of $sabel untapay by her first husband*.

$n their complaint, the heirs of :osendo "asam alleged that they are theowners of the sub;ect lot, having inherited it from their father. :osendo"asam was allegedly the sole heir of the deceased !edro untapaythrough $sabel untapay. >uring his lifetime, :osendo "asam allegedly

temporarily allowed 3icenta #mengan to occupy the sub;ect lot sometimein 1977. The latter and her husband allegedly promised that they wouldvacate the sub;ect lot upon demand. owever, despite written notice anddemand by the heirs of :osendo "asam, 3icenta #mengan allegedlyunlawfully refused to vacate the sub;ect lot and continued to possess thesame. ccordingly, the heirs of :osendo "asam were constrained toinstitute the action for e;ectment.

$n her nswer with ounterclaim, 3icenta #mengan specifically deniedthe material allegations in the complaint. Bhe countered that when $sabeluntapay passed away, the sub;ect lot was inherited by her si' childrenby her first and second marriages through intestate succession. )ach of

the si' children allegedly had a pro indivisoshare of 15 of the sub;ect lot.

$t was further alleged by 3icenta #mengan that her father, bdonTuringan, purchased the respective 15 shares in the sub;ect lot of hissiblings Maria and Bado. These conveyances were allegedly evidencedby the >eed of Bale dated March 4, 19%7, appearing as >oc. 0o. &&,!age 0o. 45, oo 0o. G$3, series of 19%7 of the notarial boo of tty.!edro "agui.

!rior thereto, :ufo already sold his 15 share in the sub;ect lot to 3icenta#mengan and her husband as evidenced by the >eed of Bale dated

June 1, 1951, appearing as >oc. 0o. 749, !age 0o. 1, oo 0o. 3,

http://www.lawphil.net/judjuris/juri2006/dec2006/gr_168156_2006.html#fnt1




series of 1951 of the notarial boo of tty. !edro "agui. lso on June 1,1951, bdon donated his 15 share in the sub;ect lot to her daughter 3icenta #mengan as evidenced by the >eed of >onation appearing as>oc. 0o. 74&, !age 0o. 1, oo 0o. 3, series of 1951 of the notarialboo of the same notary public.

ccording to 3icenta #mengan, the children of $sabel untapay by her second husband (:osendo and Trinidad "asam* own only 25 portion of

the sub;ect lot. Bhe thus prayed that the complaint for e;ectment bedismissed and that the heirs of :osendo "asam be ordered to pay her damages.

The MT rendered ;udgment in favor of the heirs of :osendo "asamand directed the e;ectment of 3icenta #mengan. $n so ruling, the MTgave credence to the newly discovered last will and testament(entitled1estamento bierto* purportedly e'ecuted by $sabel untapaywhere she be@ueathed the sub;ect lot to her son, :osendo "asam, thus=

' ' ' my share 17 th (one-fifth* of the untapay heirs, bordered on

the 0orth by Br. )lia anapi8 to the Bouth, by alle guinaldo8 tothe )ast, by alle !. urgos and the Aest, by the late >on "uis lonso8 on the property which is my share stands a house of lightmaterials where $ presently reside8 this 17 th (one-fifth* share of my inheritance from the untapays $ leave to my son :osendo"asam and also the aforementioned house of light material ' ' '2

The MT reasoned that the heirs of :osendo "asam anchored their claim over the sub;ect lot on the last will and testament of $sabeluntapay while 3icenta #mengan hinged hers on intestate successionand legal conveyances. iting ;urisprudence4 and rticle 1<&< of theivil ode, the MT opined that testacy was favored and that intestacy

should be avoided and the wishes of the testator should prevail. $tobserved that the last will and testament of $sabel untapay was not yetprobated as re@uired by law8 nonetheless, the institution of a probateproceeding was not barred by prescription.

Aith the finding that the sub;ect lot was already be@ueathed by $sabeluntapay to :osendo "asam, the MT held that the siblings bdon,Bado, :ufo and Maria Turingan no longer had any share therein.onse@uently, they could not convey to 3icenta #mengan what they didnot own. 6n the issue then of who was entitled to possession of thesub;ect lot, the MT ruled in favor of the heirs of :osendo "asam as it

found that 3icenta #menganOs possession thereof was by meretolerance. The dispositive portion of the MT decision reads=

A):)+6:), in the light of the foregoing considerations, thisourt :esolveLd to order the )J)TM)0T of 3$)0T T.#M)00 and in her place $0BT$T#T) T) )$:B 6+:6B)0>6 "BM.

$t is further ordered the defendant shall pay the eirs of :osendo"asam the sum of !7<<.<< pesos representing the monthly rentalof the land from ugust 2<<< to the time this case shall havebeen terminated.

6rdering the defendant to pay the plaintiffs the amountof !2<,<<<.<< attorneyOs fees plus cost of this litigation.

Bo 6rdered.7

6n appeal, the :T affirmed in toto the decision of the MT. The :T

echoed the reasoning of the MT that the testamentary disposition of the property of $sabel untapay should be respected, and that the heirsof :osendo "asam have a better right to possess the sub;ect lot.

#ndaunted, 3icenta #mengan filed an appeal with the . Bhe arguedthat the MT had no ;urisdiction over the case as it involved therecovery of ownership of the sub;ect lot, not merely recoveryof possession or unlawful detainer. Bhe also assailed the :TOs and theMTOs holding that the purported 1estamento bierto of $sabeluntapay prevails over 3icenta #menganOs muniments of title and,conse@uently, the heirs of :osendo "asam have a better right to thesub;ect lot than 3icenta #mengan.

$n the assailed >ecision dated +ebruary 15, 2<<7, the reversed andset aside the decision of the :T. The appellate court preliminarilyupheld the ;urisdiction of the MT over the sub;ect matter as it foundthat the allegations in the complaint made out a case for unlawfuldetainer. The heirs of :osendo "asam in their complaint, according to the, only sought for 3icenta #mengan to vacate and surrender possession of the sub;ect lot. The also re;ected the contention of theheirs of :osendo "asam that the issue of ownership of the sub;ect lot hadalready been settled in another case, ivil ase 0o. 91%, before :T(ranch 4* of Tuguegarao ity. The stated that the trial courtOs order











dismissing the said case was not a ?;udgment on the merits? as toconstitute res !udicata.

owever, the declared that the :T, as well as the MT, erred inruling that, by virtue of the purported last will and testament of $sabeluntapay, the heirs of :osendo "asam have a better right to the sub;ectlot over 3icenta #mengan. The e'plained that the said last will andtestament did not comply with the formal re@uirements of the law on

wills.5

Bpecifically, the found that the pages of the purported last will andtestament were not numbered in accordance with the law. 0either did itcontain the re@uisite attestation clause. $sabel untapay as testator andthe witnesses to the will did not affi' their respective signatures on thesecond page thereof. The said instrument was liewise notacnowledged before a notary public by the testator and the witnesses.The even raised doubts as to its authenticity, noting that while $sabeluntapay died in 19% and the heirs of :osendo "asam claimed thatthey discovered the same only in 199%, a date N May 19, 1975 N appearson the last page of the purported will. The opined that if this was thedate of e'ecution, then the will was obviously spurious. 6n the other hand, if this was the date of its discovery, then the e'pressedbafflement as to why the heirs of :osendo "asam, through their mother,declared in the !artition greement dated >ecember 2&, 19%9 that $sabeluntapay died intestate.

$t was observed by the that as against these infirmities in the claim of the heirs of :osendo "asam, 3icenta #mengan presented a >eed of Bale and a >eed of >onation to ;ustify her possession of the sub;ect lot.The noted that she has also possessed the sub;ect property since1977. Buch prior possession, the held, gave 3icente #mengan the

right to remain in the sub;ect lot until a person with a better right lawfullye;ects her. The heirs of :osendo "asam do not have such a better right.The stressed that the ruling on the issue of physical possession doesnot affect the title to the sub;ect lot nor constitute a binding andconclusive ad;udication on the merits on the issue of ownership. Theparties are not precluded from filing the appropriate action to directlycontest the ownership of or the title to the sub;ect lot.

The decretal portion of the assailed decision of the reads=

A):)+6:), premises considered, the appeal is :0T)>.

The ugust 29, 2<<4 decision of the :T, ranch 1, Tuguegarao

ity, agayan in ivil ase 0o. 792 is hereby :)3):B)> andB)T B$>). !rivate respondentsO complaint for unlawful detainer against petitioner is dismissed for lac of merit.

B6 6:>):)>.%

The heirs of :osendo "asam sought the reconsideration thereof but their motion was denied by the in its :esolution dated May 1%, 2<<7.

The heirs of :osendo "asam (petitioners* now come to the ourt allegingthat the committed reversible error in setting aside the decision of the:T, which had affirmed that of the MT, and dismissing their complaint for unlawful detainer against respondent 3icenta #mengan.

!etitioners argue that the erred when it held, on one hand, that theMT had ;urisdiction over the sub;ect matter of the complaint as theallegations therein mae out a case for unlawful detainer but, on theother hand, proceeded to discuss the validity of the last will andtestament of $sabel untapay.

!etitioners insist that respondent is holding the sub;ect lot by meretolerance and that they, as the heirs of :osendo "asam who was therightful owner of the sub;ect lot, have a better right thereto. $t wasallegedly error for the to declare the last will and testament of $sabeluntapay as null and void for its non-compliance with the formalre@uisites of the law on wills. The said matter cannot be resolved in anunlawful detainer case, which only involves the issue of material or physical possession of the disputed property. $n any case, they maintainthat the said will complied with the formal re@uirements of the law.

$t was allegedly also erroneous for the to consider in respondentOsfavor the deed of sale and deed of donation covering portions of thesub;ect lot, when these documents had already been passed upon by the:T (ranch 4* of Tuguegarao ity in ivil ase 0o. 91% when itdismissed the respondentOs complaint for partition of the sub;ect lot. Thesaid order allegedly constituted res !udicata and may no longer bereviewed by the .

!etitioners emphasi/e that in an unlawful detainer case, the only issue tobe resolved is who among the parties is entitled to the physical or material possession of the property in dispute. 6n this point, the MTheld (and the same was affirmed by the :T* that petitioners have a

better right since the ?merely tolerated? possession of the respondent had








already e'pired upon the petitionersO formal demand on her to vacate. $nsupport of this claim, they point to the affidavit of eliodoro Turingan, fullbrother of the respondent, attesting that the latterOs possession of thesub;ect lot was by mere tolerance of :osendo "asam who inherited thesame from $sabel untapay.

ccording to petitioners, respondentOs predecessors-in-interest fromwhom she derived her claim over the sub;ect lot by donation and sale

could not have conveyed portions thereof to her, as she had claimed,because until the present, it is still covered by 6T 0os. 195 and 1<42under the names of !edro and "eona untapay. Their respective estateshave not been settled up to now.

$t is also the contention of petitioners that the should have dismissedoutright respondentOs petition filed therewith for failure to comply with thetechnical re@uirements of the :ules of ourt. Bpecifically, the petition wasnot allegedly properly verified, laced statement of material dates andwritten e'planation on why personal service was not made.

This last contention of petitioners deserves scant consideration. Thetechnical re@uirements for filing an appeal are not sacrosanct. $t has beenheld that while the re@uirements for perfecting an appeal must be strictlyfollowed as they are considered indispensable interdictions againstneedless delays and for orderly discharge of ;udicial business, the lawdoes admit of e'ceptions when warranted by circumstances.& $n thepresent case, the cannot be faulted in choosing to overloo thetechnical defects of respondentOs appeal. fter all, technicality should notbe allowed to stand in the way of e@uitably and completely resolving therights and obligations of the parties.9

The ourt shall now resolve the substantive issues raised by petitioners.

$t is well settled that in e;ectment suits, the only issue for resolution is thephysical or material possession of the property involved, independent of any claim of ownership by any of the party litigants. owever, the issue of ownership may be provisionally ruled upon for the sole purpose of determining who is entitled to possession de facto.1<

$n the present case, petitioners base their claim of right to possession onthe theory that their father, :osendo "asam, was the sole owner of thesub;ect lot by virtue of the newly discovered last will and testament of $sabel untapay be@ueathing the same to him. :espondent is allegedly

holding the sub;ect lot by mere tolerance of :osendo "asam and, upon

the petitionersO formal demand on her to vacate the same, respondentOsright to possess it has e'pired.

6n the other hand, respondent hinges her claim of possession on thelegal conveyances made to her by the children of $sabel untapay by her first husband, namely, Maria, :ufo, Bado and bdon. These conveyanceswere made through the sale and donation by the said siblings of their respective portions in the sub;ect lot to respondent as evidenced by the

pertinent deeds.

The correctly held that, as between the respective claims of petitioners and respondent, the latter has a better right to possess thesub;ect lot.

s earlier stated, petitioners rely on the last will and testament of $sabeluntapay that they had allegedly newly discovered. 6n the basis of thisinstrument, the MT and :T ruled that petitioners have a better rightto the possession of the sub;ect lot because, following the law onsuccession, it should be respected and should prevail over intestatesuccession.

owever, contrary to the ruling of the MT and :T, the purported lastwill and testament of $sabel untapay could not properly be relied uponto establish petitionersO right to possess the sub;ect lot because, withouthaving been probated, the said last will and testament could not be thesource of any right.

rticle &4& of the ivil ode is instructive=

rt. &4&. 0o will shall pass either real or personal property unlessit is proved and allowed in accordance with the :ules of ourt.

The testator himself may, during his lifetime, petition the courthaving ;urisdiction for the allowance of his will. $n such case, thepertinent provisions of the :ules of ourt for the allowance of wills after the testatorOs death shall govern.

The Bupreme ourt shall formulate such additional :ules of ourt as may be necessary for the allowance of wills on petitionof the testator.










Bub;ect to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall beconclusive as to its due e'ecution.

$n Ca2iza v. Court of ppeals ,11 the ourt ruled that= ?La will is essentiallyambulatory8 at any time prior to the testatorOs death, it may be changed or revoed8 and until admitted to probate, it has no effect whatever and noright can be claimed thereunder, the law being @uite e'plicit= P0o will shall

pass either real or personal property unless it is proved and allowed inaccordance with the :ules of ourt.O?12

>r. Tolentino, an eminent authority on civil law, also e'plained that?Lbefore any will can have force or validity it must be probated. Toprobate a will means to prove before some officer or tribunal, vested bylaw with authority for that purpose, that the instrument offered to beproved is the last will and testament of the deceased person whosetestamentary act it is alleged to be, and that it has been e'ecuted,attested and published as re@uired by law, and that the testator was of sound and disposing mind. $t is a proceeding to establish the validity of the will.?14Moreover, the presentation of the will for probate is mandatoryand is a matter of public policy.1

+ollowing the above truisms, the MT and :T, therefore, erroneouslyruled that petitioners have a better right to possess the sub;ect lot on thebasis of the purported last will and testament of $sabel untapay, which,to date, has not been probated. Btated in another manner, $sabeluntapayOs last will and testament, which has not been probated, has noeffect whatever and petitioners cannot claim any right thereunder.

ence, the correctly held that, as against petitionersO claim,respondent has shown a better right of possession over the sub;ect lot as

evidenced by the deeds of conveyances e'ecuted in her favor by thechildren of $sabel untapay by her first marriage.

ontrary to the claim of petitioners, the dismissal of respondentOs actionfor partition in ivil ase 0o. 91% before the :T (ranch 4* of Tuguegarao ity does not constitute res ;udicata on the matter of thevalidity of the said conveyances or even as to the issue of the ownershipof the sub;ect lot. The order dismissing respondentOs action for partition inivil ase 0o. 91% stated thus=

+or resolution is a motion to dismiss based on defendantsO

Lreferring to the petitioners herein affirmative defenses consisting

inter alia in the discovery of a last will and testament of $sabeluntapay, the original owner of the land in dispute.

' ' '

$t appears, however, that the last will and testament of the late$sabel untapay has not yet been allowed in probate, hence,there is an imperative need to petition the court for the allowance

of said will to determine once and for all the proper legitimes of legatees and devisees before any partition of the property may be

;udicially ad;udicated.

$t is an elementary rule in law that testate proceedings taeprecedence over any other action especially where the willevinces the intent of the testator to dispose of his whole estate.

Aith the discovery of the will of the late $sabel untapay in favor of the defendants, the ourt can order the filing of a petition for the probate of the same by the interested party.

A):)+6:), in light of the foregoing considerations, let theabove-entitled case be as it is hereby >$BM$BB)>.

B6 6:>):)>.17

+or there to be res !udicata, the following elements must be present= (1*finality of the former ;udgment8 (2* the court which rendered it had

;urisdiction over the sub;ect matter and the parties8 (4* it must be a ;udgment on the merits8 and (* there must be, between the first andsecond actions, identity of parties, sub;ect matter and causes of

action.

15

The third re@uisite, i.e., that the former ;udgment must be a ;udgment on the merits, is not present between the action for partitionand the complaint a @uo for unlawful detainer. s aptly observed by the=

6ur reading of the 6rders (dated June 15, 199% and 6ctober 14,199%* in ivil ase 0o. 91% reveals that the :T, ranch 4,Tuguegarao, agayan, dismissed the complaint for partitionbecause of the discovery of the alleged last will and testament of $sabel untapay. The court did not declare respondents Lreferringto the petitioners herein the owners of the disputed property. $tsimply ordered them to petition the court for the allowance of the

will to determine the proper legitimes of the heirs prior to any


















partition. $nstead of filing the appropriate petition for the probateof $sabel untapayOs will, the respondents filed the presentcomplaint for unlawful detainer. 3iewed from this perspective, wehave no doubt that the courtOs 6rders cited by the respondentsare not ?;udgments on the merits? that would result in theapplication of the principle of res !udicata. )here the trial court merely refrained from proceeding with the case and granted themotion to dismiss with some clarification without conducting atrial on the merits, there is no res !udicata.1%

+urther, it is not @uite correct for petitioners to contend that the children of $sabel untapay by her first marriage could not have conveyed portionsof the sub;ect lot to respondent, as she had claimed, because until thepresent, it is still covered by 6T 0os. 195 and 1<42 under the names of !edro and "eona untapay. To recall, it was already agreed by the heirsof the said spouses in a !artition greement dated >ecember 2&, 19%9that the sub;ect lot would belong to $sabel untapay. The latter diedleaving her si' children by both marriages as heirs. onsidering that her purported last will and testament has, as yet, no force and effect for nothaving been probated, her si' children are deemed to be co-owners of

the sub;ect lot having their respective pro indivisoshares. Theconveyances made by the children of $sabel untapay by her firstmarriage of their respective pro indiviso shares in the sub;ect lot torespondent are valid because the law recogni/es the substantive right of heirs to dispose of their ideal share in the co-heirship andco-ownershipamong the heirs. The ourt had e'pounded the principle in this wise=

This ourt had the occasion to rule that there is no doubt that anheir can sell whatever right, interest, or participation he may havein the property under administration. This is a matter whichcomes under the ;urisdiction of the probate court.

The right of an heir to dispose of the decedentOs property, even if the same is under administration, is based on the ivil odeprovision stating that the possession of hereditary property isdeemed transmitted to the heir without interruption and from themoment of the death of the decedent, in case the inheritance isaccepted. Ahere there are however, two or more heirs, the wholeestate of the decedent is, before its partition, owned in commonby such heirs.

The ivil ode, under the provisions of co-ownership, further

@ualifies this right. lthough it is mandated that each co-owner shall have the full ownership of his part and of the fruits and

benefits pertaining thereto, and thus may alienate, assign or mortgage it, and even substitute another person in its en;oyment,the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted tohim in the division upon the termination of the co-ownership. $nother words, the law does not prohibit a co-owner from selling,alienating or mortgaging his ideal share in the property held incommon.

s early as 192, this ourt has recogni/ed said right of an heir to dispose of property under administration. $n the case of 1evesde 7akosalem vs. Rafols, et al ., it was said that the sale made byan heir of his share in an inheritance, sub;ect to the result of thepending administration, in no wise, stands in the way of suchadministration. The ourt then relied on the provision of the oldivil ode, rticle < and rticle 499 which are still in force as

rticle 744 and rticle 94, respectively, in the new ivil ode.The ourt also cited the words of a noted civilist, Manresa= ?#ponthe death of a person, each of his heirs Pbecomes the undividedowner of the whole estate left with respect to the part or portion

which might be ad;udicated to him, a community of ownershipbeing thus formed among the co-owners of the estate whichremains undivided.O?1&

ontrary to the assertion of petitioners, therefore, the conveyances madeby the children of $sabel untapay by her first marriage to respondent arevalid insofar as their pro indiviso shares are concerned. Moreover, the

;ustifiably held that these conveyances, as evidenced by the deed of donation and deed of sale presented by respondent, coupled with the factthat she has been in possession of the sub;ect lot since 1977, establishthat respondent has a better right to possess the same as against

petitioners whose claim is largely based on $sabel untapayOs last willand testament which, to date, has not been probated8 hence, has noforce and effect and under which no right can be claimed by petitioners.Bignificantly, the probative value of the other evidence relied upon bypetitioners to support their claim, which was the affidavit of eliodoroTuringan, was not passed upon by the MT and the :T. Their respective decisions did not even mention the same.

$n conclusion, it is well to stress the Os admonition that N

' ' ' our ruling on the issue of physical possession does not

affect title to the property nor constitute a binding and conclusivead;udication on the merits on the issue of ownership. The parties







are not precluded from filing the appropriate action directlycontesting the ownership of or the title to the property. 19

"iewise, it is therefore in this conte't that the Os finding on the validityof $sabel untapayOs last will and testament must be considered. Buch ismerely a provisional ruling thereon for the sole purpose of determiningwho is entitled to possession de facto.

5%EREFORE, premises considered, the petition is &ENIE&. Theassailed >ecision dated +ebruary 15, 2<<7 and the :esolution datedMay 1%, 2<<7 of the ourt of ppeals in -.:. B! 0o. &<<42are AFFIRME&.

SO OR&ERE&.



succession revocation to allowance

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